WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 3005/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 3005/16 BEFORE: S. Shime: Vice-Chair HEARING: November 18, 2016 at Toronto Oral DATE OF DECISION: December 8, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3373 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated July 31, 2014 APPEARANCES: For the worker: For the employer: Interpreter: B. Napoleone, Paralegal Not participating N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 3005/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker had no entitlement for a recurrence in 2010 of his lower back injury arising out of an accident on March 5, The ARO also denied the worker a Permanent Disability reassessment as well as temporary total benefits. It is these issues under appeal at the Tribunal. (ii) Background [2] The following are the basic facts. [3] The now 66-year-old worker was employed as a mechanic with the accident employer when he felt pain in his neck and shoulder on March 5, 1984 while lifting a transmission on a hoist. Entitlement was granted and the worker eventually received a 5% Permanent Disability (PD) award in In 2005, the worker s tests revealed a disc herniation at C4-5. In 2010, the worker was diagnosed with severe foraminal stenosis and refractory radiculopathy. He underwent a laminoforaminotomy at the C5-6 and C6-7 levels on November 11, The surgery was initially allowed by the Case Manager. After a further review, benefits were disallowed and the Board denied the worker entitlement to his surgery and related temporary total benefits. The Board also denied entitlement to a PD reassessment noting that the worker was not below his 5% level for his compensable injury. (iii) Law and policy [4] Since the worker claimed a recurrence of a prior compensable injury which occurred on March 5, 1984, the pre-1985 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1985 Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA) also apply to the appeal. [5] Since the worker claimed a recurrence of a prior comensable injury which occurred on March 5, 1984, the WSIA is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [6] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [7] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [8] Board policy on recurrences (Operational Policy Manual Document No ) stipulates that workers are entitled to benefits for a recurrence of a work-related injury where there is clinical compatibility between the original injury and the current condition, or a combination of clinical compatibility and continuity. This policy goes on to provide further guidelines for evaluating the evidence of clinical compatibility and continuity:

3 Page: 2 Decision No. 3005/16 Clinical compatibility To establish clinical compatibility, a decision-maker compares the worker s current clinical condition to that following the initial accident. The decision-maker considers whether the parts of the body affected now are the same as, or related to, those affected initially whether the body functions affected now are the same as those affected initially, and the degree to which body functions are affected now (as compared to the effect of the initial condition). Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence. Continuity To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury demonstrated ongoing symptoms since the original injury required work restrictions or job modifications had ongoing treatment for the original condition, or experienced a lifestyle change since the original accident (e.g., has the worker become unable to participate in household duties, or social or recreational activities?). [9] The final question in determining entitlement for a recurrence is whether there was a significant new accident. If there was a significant new accident, then the condition is not considered a recurrence of a prior workplace injury. The policy sets out the following equations as guidelines for adjudicators: Insignificant new accident + compatibility + continuity = recurrence An insignificant accident is one involving an ordinary or routine event, such as stooping to fasten a shoe or reaching for something on a shelf. If the accident is insignificant and clinical compatibility and continuity are established, the worker is entitled to benefits for a recurrence of the original injury. Significant new work-related accident = new claim A significant accident is one of some consequence or importance, such as a fall from a ladder. If there is a significant new work-related accident, a new claim is established. A new claim is also established if the worker s latest clinical problem or problems result entirely from a new accident. (iv) Testimony [10] The worker testified that his neck bothered him since the accident. Subsequent to the accident, the worker was employed at a variety of different jobs, as a taxi driver, a supervisor at an automotive store, a gas attendant, and as a salesman. He stopped work in In 2010 after his surgery, the worker was employed for a short period as a taxi driver part-time. In 2011, the worker went on disability and he has not returned to employment since The worker had no accidents since his original injury in In 1984, the pain was in the worker s mid-neck to his

4 Page: 3 Decision No. 3005/16 right shoulder. In 2010, the pain was in the same place. After the surgery in 2010, the worker s pain started to radiate into his left shoulder. The worker used Tylenol over the years to deal with the pain. After the surgery, the worker was given hydromorphone. The worker now gets injections in his neck for the pain. (v) Submissions [11] Mr. Napoleone submitted that the evidence supports a recurrence. He also suggested that the accident had an impact on the worker s pre-existing degenerative cervical condition. He submitted that the opinion of the first Medical Consultant, Dr. Maehle, who agreed with the recurrence, should be preferred over the second Medical Consultant s opinion, Dr. Levine, who found no compatibility in [12] Mr. Napoleone also requested temporary total benefits subsequent to the worker s surgery in 2010 and ongoing based upon the worker s hours of work after (vi) Analysis [13] The appeal is denied for the reasons set out below. As outlined above, Board policy on recurrences provides that a recurrence of a compensable injury is allowed if the recurrence is clinically compatible with the original injury or if there is a combination of compatibility and continuity since the original injury. [14] In this case, I find that the worker s lower back severe stenosis and degenerative disc disease in 2010 is not compatible with the original minor back strain in In the Hospital and Rehabilitation Centre (HRC) report, dated July 25, 1984, the worker was diagnosed with a cervical strain and subjective radiculopathy. Dr. J. Horne, an orthopaedic surgeon, stated in the 1984 report that the worker had no neurological signs and no signs of spasm or tenderness in the cervical spine. The early signs suggested some form of subjective radiculopathy at C7-8. In the Discharge Report, dated August 13, 1984, Dr. Horne indicated that the worker s evaluation, which included x-rays, electrodiagnostic studies, thermography and bloodwork, showed no evidence of any abnormality in the cervical spine. On August 22, 1984, Dr. Horne stated in the discharge report that the worker s discharge diagnosis was cervical strain-resolved. Dr. O. Veidlinger, a neurologist, stated in his report, dated October 28, 1986, that the worker was suffering from muscular pain, but that there were no neurological findings. [15] The reports from that time period do indicate evidence of a pre-existing cervical spondylolysis at C4-5 as noted by Dr. E.A. Sue -A- Quan in the report, dated January 22, Dr. F. Markus, an orthopaedic surgeon, stated in his report, dated October 23, 1986, that the worker s diagnosis was cervical strain and spondylolysis at C4-5. In February 1988, the worker received a 5% Permanent Disability rating for a cervical strain with minor pre-existing cervical degenerative disc disease at C4-5 from the Board s pension doctor, Dr. J. Horne. The preponderance of the medical evidence in the 1980s reflects a minor cervical strain with no neurological findings or spasms. It appears that the worker s rating was primarily for some neck pain that was left unresolved. The final medical report in the file from that timeframe is dated June 14, 1988 and reflects a normal electrophysiological study for the cervical spine. [16] The next significant medical report in the file is a CT scan, dated August 11, 2005, showing a disc herniation at C4-5. The report also noted degenerative changes to the worker s spine at all levels. There are no further reports until October 3, 2009, when the worker was

5 Page: 4 Decision No. 3005/16 diagnosed via MRI with foraminal stenosis at C5-6 and C6-7. The worker then underwent surgery for the foraminal stenosis and resulting impingement. A follow up MRI, dated September 3, 2010, showed foraminal stenosis at C5-6 and C6-7 and fused vertebral bodies at C4-5. The worker underwent a laminoforaminotomy on November 11, [17] I do not find the minor cervical strain diagnosed in 1984 compatible with the severe stenosis and degenerative problems revealed in 2009, 25 years later via medical imaging. In 2010, the worker was 61 years old and suffering from severe cervical disc disease. I find the advanced degenerative disc disease was the primary issue in 2010 when the worker started to feel severe neck pain and not a recurrence of the original injury. Dr. H. Ginsberg, a neurosurgeon, noted in his report, dated January 17, 2011, that the worker had undergone surgery for his severe foraminal stenosis. Dr. Ginsberg did not associate this finding with the minor strain 27 years earlier. Dr. M. Hershkop stated in his report, dated January 4, 2012, that the worker s body scan reflected some activity at C5-7, consistent with diffuse degenerative changes at those levels. Dr. Hershkop did not find that the degenerative changes were associated with a mild strain from Dr. L. Valyi, the worker s family doctor, stated in his report, dated May 5, 2014, that the worker s complaints were largely subjective although there were significant radiological findings in regard to advanced degenerative disc disease of the cervical spine. The preponderance of the evidence does not point to compatibility between the strain and the subsequent degenerative findings. [18] The Board s Medical Consultant, Dr. N. Levine, concluded in Board Memorandum # 87, dated December 3, 2013, that the surgery in 2010 was to address nerve root impingement at C5-6 and C6-7 secondary to the degenerative changes. He further noted that there was no objective evidence of radiculopathy at the time of the injury in This was evident in the report from October 24, 1986, by Dr. W.J. Horsey, a neurologist, who stated at that time that there was no evidence of interference with nerve roots. The medical imaging, dated June 14, 1998, showed no evidence of entrapment neuropathy to suggest radiculopathy and the findings were normal. Accordingly, I see no compatibility between the two conditions more than 25 years apart. [19] Mr. Napoleone cited a report, dated November 22, 2005, from Dr. F. Dindar, in which the doctor stated that it was impossible to determine whether the degenerative changes in the neck had a relationship to the work injury. Mr. Napoleone also pointed to Dr. Valyi s comment in the report, dated May 5, 2014, that suggested that musculoskeletal strains contribute to the development of degenerative/osteoarthritic changes in the future especially if the injuries are repetitive. [20] In this case, I do not find that there were repetitive injuries as stated by Dr. Dindar. Nor do I accept the suggestion by either Dr. Valyi or Dr. Dindar that the worker s injury in some way contributed to accelerate or play a role in the development of the severe stenosis found 25 years later when the worker was 61 years old. I find their statements general and speculative with no medical support. Neither Dr. Dindar nor Dr. Valyi provided a medical basis upon which to support their opinion that the mild strain for which there were almost no objective medical findings in 1984 somehow contributed to the severe stenosis 25 years later. Neither doctor explained how the minor strain in 1984 would result in a subsequent stenosis and nerve impingement. I also note that there was no medical evidence or basis to support the conclusion that strains subsequently cause degenerative findings.

6 Page: 5 Decision No. 3005/16 [21] In reviewing the Tribunal s Medical Discussion Paper on Neck and Arm Pain and Related Symptoms: Cervical Disc Disease prepared by Dr. J.F.R. Fleming (December 2002) (Revised in 2012 by Dr. J. Finkelstein), the report notes that progressive degenerative changes occur in all adults in the cervical spine. However, a soft tissue neck injury will not result in degenerative changes unless there has been an injury to the facet joint or endplate. The Paper states as follows regarding degenerative changes and injuries to the cervical spine: Can a neck injury cause degenerative changes or premature aging in the cervical spine? This is certainly the case when there is a bony injury that involves the facet joint or endplate/disc junction. An injury to a disc or ligaments may be visible on MRI shortly after an injury, and will gradually heal. Localized bony overgrowth, hypertrophy and spurs at the site of injury may develop in a small percentage of individuals who have sustained a severe localized injury to the cervical spinal column; however, these degenerative localized bony changes take a long time (possibly a year or more) to develop. Thus, severe injury to ligaments and/or disc at a single vertebral level may result in delayed x-ray or scan evidence of localized degenerative changes at that level many months or years after the injury, however the acute injury is well noted at the time of insult. If such bony changes are seen soon after the injury, they must have been present before the injury and were not caused by the injury. Soft tissue injuries without any instability such as a whiplash associated disorder, (WAD) do not alter the natural aging progression of the cervical spine. [22] As noted above, soft tissue injuries do not alter the aging progression of the spine. This opinion from the Discussion Paper is consistent with the opinion of Dr. J. Hanlon who stated in his report, dated August 5, 2016, that the worker s neck pain was related to his arthritis and specifically the spondylosis. Dr. Hanlon did not suggest that the worker s arthritis in his cervical spine was related to a distant sprain which had no neurological findings. For similar reasons I do not accept the submission of Mr. Napoleone that the worker s mild neck strain somehow impacted the pre-existing condition. He cited the decision of the Board s Medical Consultant, Dr. Maehle, who recommended that the worker s surgery be covered by the Board. Dr. Maehle concluded in Board Memorandum # 63, dated June 28, 2011, that the current complaints reflected the original level of the injury at C4-5 which would argue in favour of allowing the neck surgery.... However, I find that in this case, the worker has degeneration at multiple levels of his cervical spine, tending to show that the changes are more likely related to an aging process and not related to the injury 25 years earlier. I find that the opinions of Dr. Dindar and Dr. Valyi are overbroad and fail to support a plausible link between the strain and the development of the worker s pre-existing degenerative condition which would inevitably deteriorate with age. [23] In this case I prefer the opinion of the second MC, who concluded in Board Memorandum #87, dated December 3, 2013, that the worker s stenosis was not compatible with the neck strain. Dr. N. Levine, opined that the worker s surgery in 2010 was related to the progression of age related degenerative changes rather than the workplace injury. I find this opinion is consistent with the preponderance of the doctors in the file, who relate the worker s neck pain to his severe stenosis and degenerative cervical disc disease. Dr. Maehle concluded that because the findings were both at C4-5, there was some suggestion that the injury and subsequent surgery were linked. However I find that Dr. Maehle did not read the information correctly in the Case Record as the original findings in 1984 suggest a pre-existing condition at C4-5 and not the injury. In this case, I find the assessment by Dr. Levine to be more thorough and consistent with the specialists on file. I am unable to find compatibility between the

7 Page: 6 Decision No. 3005/16 worker s current conditions, including his stenosis and nerve impingement, and the strain which was diagnosed in On a balance of probabilities, I find that the original strain injury is not compatible with the nerve impingement and degenerative changes found 25 years later. [24] There is also minimal evidence of continuity of complaint even if one were to find compatibility. The record does not reflect evidence of continuous and ongoing complaints about the worker s neck from 1984 to The file contains clinical notes from 1989 to Although the clinical notes are almost illegible, I note that the worker only saw his doctor once per year from 1990 to From 2000 to 2005, the worker did not visit the doctor. In 2005, the worker was diagnosed with multilevel disc disease. There is another gap from 2005 to 2009 with no indication that the worker was complaining to his doctor during these years about neck pain. In this case, there are significant gaps in which there is no evidence of significance that the worker was complaining to his doctor about ongoing neck pain or being treated for neck pain. I find that it was only in 2005 and 2009 when the worker s degenerative condition started to deteriorate that the worker went to see his doctor about neck pain. Prior to that time there are significant gaps in treatment and/or complaints. Given the lack of compatibility in this case as well as the lack of continuity, I deny the appeal. [25] For similar reasons, I also deny the worker entitlement to a reassessment. In this case I am not persuaded that the worker s neck injury has worsened. Mr. Napoleone cited some decrease in the worker s range of motion scores and he cited reports from Dr. Valyi, dated August 11, 2016, and from the worker s physiotherapist, dated August 11, However, I find that the decrease in the range of motion is more likely related to the worker s surgery and stenosis, which I have concluded are not compensable. I do not find that the changes in range of motion can be attributed to the minor strain from By 2011, the worker had undergone non-compensable neck surgery and was suffering from severe stenosis and degenerative changes. I am persuaded that any decrease in range of motion scores was related to those factors, and not the compensable injury. Accordingly, the worker is not entitled to a reassessment. [26] Based upon my findings, I need not reach the issue of further benefits for the worker since the recurrence and reassessment have been denied.

8 Page: 7 Decision No. 3005/16 DISPOSITION [27] The appeal is denied. DATED: December 8, 2016 SIGNED: S. Shime