SUMMARY. Decision No May-2001 M. Faubert View Full Decision 6 Page(s) Keywords: Permanent impairment {NEL} References: Act Citation WCA

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1 SUMMARY Decision No May-2001 M. Faubert View Full Decision 6 Page(s) Keywords: Permanent impairment {NEL} References: Act Citation WCA Other Case Reference [w3201] Style of Cause:

2 2001 ONWSIAT 1724 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1442/01 [1] This appeal was heard in St. Catharines on May 18, 2001, by Tribunal Vice-Chair M.J. Faubert. THE APPEAL PROCEEDINGS [2] The worker appeals the June 25, 1999, decision of WSIB Appeals Resolution Officer D.G. Buckman, which denied the worker entitlement to ongoing benefits for a neck and right shoulder injury which the worker relates to his June 30, 1983 compensable accident. [3] The worker attended the hearing and was represented by T. Prue, Injured Workers Coalition of Niagara. The accident employer was notified of the time and place of hearing, but did not attend. THE RECORD [4] The Case Record, two Addenda to the Case Record, and the January 9, 2001 letter from the Vice-Chair Registrar s Office to the parties were entered as exhibits. [5] The worker testified under oath. Mr. Prue made submissions. THE ISSUES [6] In this appeal, I must decide whether the worker suffered a permanent impairment to his neck and right shoulder as a result of his June 30, 1983 compensable accident. THE REASONS [7] This 63 year old worker began his employment with the accident employer, a railway company, in April At the time of his accident in 1983, the worker was employed as a foreman. [8] The majority of medical information in the worker s file is concerned with a low back injury, which the worker sustained in an accident at work on April 27, As a result of this accident, the worker underwent an L4-5 discectomy on April 24, 1975, and on March 25, 1987, the worker underwent further low back surgery for decompression of the L5 nerve root. The Board has paid the worker temporary disability benefits under this claim for various periods. In addition, the worker currently receives under this claim a 30% permanent partial disability award, as well as supplementary benefits under section 147(4) of the pre-1997 Act. [9] On June 30, 1983, the worker was injured when he jumped from the cab of a switchbroom which had caught fire and exploded. According to the accident employer s report, the incident resulted in some burning of the hair on the worker s head and arms, as well

3 Page: 2 Decision No. 1442/01 as an aggravation of the worker s pre-existing low back condition, and an injury to the worker s neck. [10] The worker was taken to the emergency department of the hospital on the same day. An x-ray of his chest and cervical spine was taken at that time, but showed no fractures or other abnormalities. According to the emergency record, the worker was complaining of pain in his neck and upper back area. On examination the worker had a limited range of motion of his cervical spine, with an inability to turn his head to the right. The emergency physician diagnosed a neck injury, and provided the worker with a cervical collar and medication. [11] The worker testified that he was advised that he had suffered a whiplash injury in the accident. He stated that he wore the cervical collar for approximately three weeks after the incident. According to the accident employer s records, the worker lost no time from work at the time of this incident. [12] The worker s evidence at the hearing, which was consistent with the medical records in the file, was that two to three years after this incident, his neck started to become more painful. The worker received substantial medical treatment for his low back condition after 1983, and I have reviewed these records for evidence of ongoing neck complaints. The worker was under the care of an orthopaedic surgeon, Dr. E.J. Blair, until June 1985, and of another orthopaedic surgeon, Dr. J.M. Aubin, from October On September 19, 1983, Dr. Blair examined the worker for the first time after his June 1983 accident. Dr. Blair reported that the worker had another acute episode of back pain at work and came in to my office listed to the left. Dr. Blair made no reference to complaints of neck pain, or to a June 1983 accident, in this report. He recommended that the worker remain off work until October 3, 1983, and the worker claimed further compensation benefits under his low back claim. [13] The accident employer submitted a continuity report to the Board on October 24, 1983, in which the worker s supervisor corroborated that the worker had had a sore back since he began working for the supervisor in May The worker s own continuity report dated March 19, 1984 referred to occasional flare-ups that recur depending on the weather conditions and the strain of work or position of back going out of place. [14] In March and November 1984, Dr. Blair documented that the worker had a further recurrence of low back pain which required him to remain off work. [15] The medical records in both claims show that the worker was not treated for neck complaints after the date of his accident until April This treatment was provided by his chiropractor, Dr. J.E. Simunic, who began to treat the worker on April 30, At that time, the worker complained mainly of his lower back and right leg sciatic pain, but also complained about neck and upper back and shoulder pain at that time. Dr. Simunic provided treatment dates for the worker over the years, which he wrote, were mainly for his lower back and sciatic condition. [16] The worker s and his other physicians reports in 1985 are concerned entirely with the worker s low back complaints. The worker stopped work on October 5, 1985, due to a recurrence of his low back disability. In a continuity report of that date, the worker wrote that his low back condition was aggravated by the incident on June 30, 1983, when he jumped off a

4 Page: 3 Decision No. 1442/01 machine. The accident employer provided similar information to the Board in a continuity report dated October 10, Neither of these reports refer to neck or shoulder complaints. [17] Dr. Aubin saw the worker for the first time on October 9, In his report of that date, Dr. Aubin described the worker s low back complaints and low back surgeries. However, he did not make any reference to complaints of neck or shoulder pain. On November 20, 1985, Dr. Aubin reported that the worker had undergone a CT scan on November 14, 1985, confirming the presence of a bulging L5-S1 disc. [18] The worker s family physician, Dr. C.A. Fung, has written that he became the worker s physician on March 14, There are no records from the worker s previous family physician for review. Dr. Fung wrote that the main reason for the worker s visit at that time was for medication to relieve his neck discomfort and headaches treated earlier by his chiropractor and aggravated by a myelogram done four days previously. The worker complained of headaches again on March 7, Dr. Fung did not document further neck or right shoulder complaints until 1992 and [19] A WCB investigator interviewed the worker on August 1, 1986, in connection with the worker s request for benefits for lost time in the fall of 1985 and again in March In this interview, the worker advised the investigator that the accident of June of 1983 aggravated his low back condition, which was originally injured in The worker did not refer to neck or shoulder complaints in this interview. [20] Dr. Aubin did not document the presence of neck pain until October 24, 1986, when he wrote that the worker was having a lot of back pain and headaches and neck pain. In his report, he did not describe any examination of the worker s neck. [21] Dr. Aubin s reports of his treatment of the worker throughout 1987 describe only the worker s complaints of chronic low back pain. The worker was admitted to the Board s Downsview Rehabilitation Centre on February 17, The physician who admitted the worker, Dr. R. Johnston, described the worker s ongoing low back claim, and also reported the worker s accident in 1983, which he understood again involves his low back, and resulted in his being off work for a short period of time. Dr. Johnston did not understand that the worker had experienced a neck injury at the time of that incident. He did examine the worker s head and neck, and noted that the worker had a full range of motion of the cervical spine in all planes. [22] Dr. Aubin continued to see the worker regularly from 1988 to It was not until Dr. Aubin s October 28, 1992 report that he noted that the worker was complaining of neck pain and discomfort. In an another report dated June 24, 1993, Dr. Aubin wrote that the worker was having a lot of pain in his neck, right shoulder and arm. This is due to an injury which occurred in March (It is unclear what injury Dr. Aubin has referred to, since he noted later that the worker had been off work on total disability since March 23, There is no indication that the worker had another accident in March 1987.) Dr. Aubin wrote that he obtained x-rays of the worker s cervical spine, which showed a moderate degree of degenerative disc disease of C4-5 and C5-6. Subsequent cervical spine x-rays taken on May 6, 1994 showed a congenital fusion of C2 to C3, with moderate degenerative changes at the C3-4 level. There was also moderate disc space narrowing, endplate sclerosis and anterior and posterior osteophytes.

5 Page: 4 Decision No. 1442/01 [23] The worker requests benefits for a permanent neck and right shoulder impairment. In a November 2, 1998 report, Dr. Aubin wrote that the worker had severe degenerative disc disease at C2-3 from an old injury in Another physician, Dr. T. Haines, has examined the worker and noted the worker s concern about the work-relatedness of his right shoulder and neck condition. However, he did not offer any opinion with respect to that issue. In his February 22, 1999 report, Dr. Haines wrote that the worker advised him that in the year or two following the injury, his neck and right shoulder symptoms became troublesome. On examination by Dr. Haines, the worker had a nearly full range of cervical motion with discomfort at the extremes. The worker s right shoulder abduction was limited to 90 and there was limitation in right shoulder internal and external rotation. Dr. Haines did not offer a diagnosis of the worker s shoulder complaints. [24] The Board Claims Adjudicator requested an opinion from the Board s Medical Advisor concerning the relationship between the worker s current (i.e., in 1993) neck and right shoulder condition to the 1983 accident. The Board s Medical Advisor, Dr. L. Das, wrote: In absence of continuity or reports entitlement for neck and right shoulder does not appear in order. Although the Claims Adjudicator advised Dr. Das that there was no continuity during the period 1983 to 1993, I have indicated in these reasons that the worker did make complaints of neck pain for the first time in However, the vast majority of medical treatment between 1985 and 1993 was directed towards the worker s low back disability. [25] When considering whether a worker s subsequent complaints are related to a compensable accident, adjudicators must consider the original diagnosis, the existence of continuing complaints, and the compatibility of any subsequent diagnosis with the original injury. In this case, the primary difficulty arises from the fact that the worker s original injury did not appear to be significant, in the sense that it did not disable him from employment. X-rays taken at the time of the worker s accident were negative. Although the worker wore a cervical collar for three weeks, there is no evidence of any ongoing disability or complaint until the worker complained of neck pain some two years later. The best evidence of this are Dr. Blair s reports in October 1983, when he refers to the worker s history of an accident in June 1983, but makes no reference to a neck injury resulting from that accident. In any case, the worker does not maintain that he had neck pain until approximately [26] Although the worker did complain of neck pain in 1985, the worker s chiropractor did not offer any diagnosis of the worker s condition at that time. It was not until 1993 that evidence of degenerative changes in the worker s spine was documented on x-ray. [27] Furthermore, the medical opinions on file do not generally support a relationship between the worker s accident and his later neck condition. The only physician to comment on the issue, Dr. Aubin, appears to be reiterating the worker s own history of the onset of his injury rather than offering an independent opinion of its cause. [28] I appreciate that the worker believes that in the absence of any other injury to his neck, his current complaints must be related to his 1983 accident. However, the evidence does not support this perception. The worker does suffer from a degenerative condition in his cervical spine. In the absence of any complaint until 1985, and in the further absence of any significant complaint until 1992 or 1993, I am unable to conclude that the worker suffered a permanent impairment as a result of his June 30, 1983 compensable accident.

6 Page: 5 Decision No. 1442/01 THE DECISION [29] The worker s appeal is denied. DATED: May 30, 2001 SIGNED: M.J. Faubert