WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1269/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1269/12 BEFORE: S. Peckover: Vice-Chair HEARING: June 18, 2012 at Toronto Written DATE OF DECISION: June 28, 2012 NEUTRAL CITATION: 2012 ONWSIAT 1497 DECISION UNDER APPEAL: WSIB ARO decision dated May 5, 2011 APPEARANCES: For the worker: For the employer: Interpreter: Not applicable Mr. M. Senicar, Paralegal Not required 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. 1269/12 REASONS (i) Introduction to the appeal proceedings [1] The employer appeals a decision of the Appeals Resolution Officer ( ARO ), which concluded that it was not entitled Second Injury and Enhancement Fund ( SIEF ) cost relief. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issue [2] The sole issue before me is entitlement to SIEF relief. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1978, had four years of experience as a glazier at the time of the workplace accident. Specifically, he installed glass on the outside of high-rise buildings. He injured his low back on March 7, 2007, four months into his employment with the accident employer, when the swing stage on which he was standing moved while he was holding a large, heavy piece of glass. The medical record gives a diagnosis of an L5-S1 disc herniation. The worker received Loss of Earnings ( LOE ) benefits from August 24, 2007 and ongoing. In June of 2009, the worker was granted a 21% Non-Economic Loss ( NEL ) award for the residual impairment in his lower back. [5] As of the ARO decision (May 5, 2011), the worker was in a Work Reintegration Program, with the goal of Construction Estimator. [6] In June of 2010, the employer requested SIEF relief. In a decision letter dated August 5, 2010, the Case Manager informed the employer that there was no evidence of an underlying condition, and therefore SIEF relief was denied. [7] At the Appeals Branch, the ARO reviewed the available medical evidence, and concluded that there was no suggestion that the worker s recovery was prolonged, or that there was an underlying condition which impacted on the treatment process or on the worker s recovery, or contributed to the work accident. Neither was there any evidence of a pre-accident disability or pre-existing condition that resulted in the worker being more likely to develop an impairment of greater severity than what was expected for this type of injury. A herniated disc was consistent with the mechanics of the accident. Lastly, there was no evidence that the worker had experienced periods of lost time requiring treatment or disrupting his employment, prior to the workplace accident, due to any back symptoms. The appeal therefore was denied. [8] The employer appeals from this decision. (iv) Law and policy [9] Since the worker was injured in 2007, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [10] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal:

3 Page: 2 Decision No. 1269/12 Package #107 Aggravation Basis/SIEF; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [11] I have considered these policies as necessary in deciding the issues in this appeal. In particular, I referred to Operational Policy Manual ( OPM ) Document # , Second Injury and Enhancement Fund (SIEF). The relevant sections read as follows: Policy If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Guidelines The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. Adjudication When reviewing medical and other information present in the claim file, the decisionmaker considers whether the information suggests that a pre-existing condition is present and whether it Contributed to the work-related accident, or Prolonged or enhanced the work-related disability. If it is likely that such circumstances exist, a recommendation to apply the SIEF is made, as well as the rate at which to do so. Pre-existing condition impact on claims The policy on aggravation of pre-existing conditions, exclusive of the SIEF policy, applies to both Schedule I and Schedule II claims in which A relationship is shown between an underlying condition and the degree of disability arising from the accident The period of treatment and recuperation is prolonged due to an underlying condition, and/or An increased degree of residual disability occurs, which exceeds the usual, owing to the underlying condition Application to employer costs

4 Page: 3 Decision No. 1269/12 In determining the amount of financial relief given to an employer, consideration is given to the medical significance of the pre-existing condition and the severity of the accident. SIEF application to employer costs Medical significance of pre-existing condition* (v) Severity of accident** Minor Minor 50% Moderate 25% Major 0% Moderate Minor 75% Moderate 50% Major 25% Percentage of cost transfer*** Major Minor 90%-100% Submissions Moderate 75% Major 50% [12] The representative, on behalf of the employer, made written submissions, dated December 19, In substance, the representative argued that the worker had three risk factors or pre-existing conditions that contributed and predisposed him to the compensable disability of lumbar disc herniation: Pre-existing degenerative disc disease; Cigarette smoking; Genetic predisposition. [13] With respect to cigarette smoking, the representative quoted a number of published medical articles which link smoking and herniated discs, some relating this to the degenerative effects of the chemicals in cigarettes, and others to diminished blood flow in the back and a decrease in the flow of vital nutrients necessary for a healthy spine. Based on those articles, it was argued that the worker s cigarette smoking of one pack a day predisposed him to lumbar disc herniation. [14] Regarding genetic predisposition to lumbar disc herniation, he quoted some medical articles which state that recent research indicates that heredity may be largely responsible for degeneration as well as herniation of intervertebral discs. [15] With respect to pre-existing degenerative disc disease, the representative noted that the NEL physician had completed the Spine Recording Form on the NEL Report by checking off the section which reads: Category C Unoperated, with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm, associated with moderate to severe degenerative changes on structural tests; includes unoperated herniated nucleus pulpous with or without radiculopathy.

5 Page: 4 Decision No. 1269/12 [16] The representative therefore argues that the worker had pre-existing moderate to severe degenerative disc disease, as the Assessor placed the worker in this category. He also cited WSIAT Decision No. 2159/11 in this regard. [17] The representative concluded his arguments by stating: It is our contention that the constellation of pre-existing conditions or risk factors, namely pre-existing degenerative disc disease, cigarette smoking, genetic predisposition would constitute a pre-existing condition for SIEF purposes. (vi) Analysis [18] From the above quotation from OPM Document No , either a pre-existing disability or a pre-existing condition is required in order for SIEF relief to flow. [19] As there is no evidence before me that the worker had a pre-existing disability with respect to his back (i.e., a condition which has produced periods of disability in the past requiring treatment and disrupting employment), the only possible ground for SIEF relief in this case would be a pre-existing condition i.e., an underlying or asymptomatic condition which only becomes manifest post-accident. [20] What does the medical evidence on file reveal? [21] The worker underwent an x-ray of the lumbosacral spine on April 10, It found no abnormalities in the lumbar spine. [22] A CT scan dated April 17, 2007 revealed the following: A large midline and left-sided L-5S-1 disc herniation is present, which causes moderate to severe narrowing of the central spinal canal and left lateral recess. Neurosurgical consultation should be considered depending on clinical circumstances. Minimal annular bulging of the L-3-4 and L-4-5 discs is noted. [23] In a report dated May 2, 2007, physiatrist Dr. Wilkins reported on the worker s accident history and progression of symptoms, his antalgic gait, and limited range of motion. Her conclusion was as follows: He has had a CT scan which does show large a [sic] disc herniation towards the left at L5-S1, which absolutely does correlate with the clinical picture. IMPRESSION This young gentlemen [sic] has a classic disc herniation with S1 radiculopathy on the left side. He has not yet started physiotherapy and I have given him a prescription in order to do so. I have cautioned him to avoid any heavy lifting, bending and twisting in the meantime, and I have given him a note to that effect to take to work. At his young age, if this does not settle down, then he would be a surgical candidate [24] An MRI dated May 13, 2007 revealed the following: A broad-based midline and left posterolateral L-5-S-1 disc herniation is present, which causes severe narrowing of the left lateral [illegible] as well as mild to moderate lift-sided central spinal canal stenosis. The other lumbar disc space levels are unremarkable. A small left sided L1-L2 disc herniation is present. No other abnormality is visualized. [25] In a report dated May 31, 2007, Dr. Wilkins reviewed the MRI results. Her opinion was as follows:

6 Page: 5 Decision No. 1269/12 The MRI again does show evidence of the left posterolateral disc herniation at L5-S1, causing severe narrowing of the left lateral recess. His symptoms are absolutely classic for this. [26] A further MRI dated January 23, 2008 revealed the following: The left-sided L5-S1 disc herniation has decreased considerably in size compared with the previous study. It now extends posteriorly 8mm versus 1 cm on the prior study, based on the proton density sagittal images. The overall volume is reduced considerably and the left S1 nerve root does not appear compressed by the herniated disc fragment. There is a small left-sided disc herniation at T11-T12. No other abnormality is seen. [T]here does not appear to be significant lateral recess stenosis. [27] The NEL assessment, dated March 4, 2009, records the worker s drawing of where his pain is located, and his description of the ongoing nature of the pain. It also documents the worker s severely restricted ranges of motion. As noted above, the NEL Assessor chose Category C with respect to the worker s intervertebral disc lesion. [28] There is no indication in any of the medical reports or completed forms that the worker had a prior history of back pain. [29] Also, there is no indication of any degenerative disc disease. While the worker s two MRIs did reveal small disc herniations at other levels of the spine, those which appeared in the first MRI were no longer present in the second, and vice versa. Further, while the May 31, 2007 MRI report does speak of severe narrowing of the left lateral recess, it specifically states that this is caused by the disc herniation at L5-S1. This is no longer the case as of the January 23, 2008 MRI, when the worker s disc herniation is seen to have decreased in size again indicating a causal relationship between the disc herniation and the degree of lateral recess stenosis. [30] The representative argued that the fact that the NEL physician placed the worker in Category C (quoted above) was evidence that the worker had moderate to severe pre-existing degenerative changes. He referenced Decision No. 2159/11 in this regard. [31] In Decision No. 2159/11, there was clear evidence of a pre-existing condition, and of a congenital abnormality in the worker s spine: The CT of November 8, 2006 describes central spinal stenosis L4-5 secondary to congenitally short pedicles and hypertrophic changes involving the facet joints. A Multidisciplinary Assessment Report dated January 16, 2007 diagnoses a congenital abnormality (as described in the CT) and a soft tissue injury of the low back. The prognosis at this date was for complete recovery. [32] In that Decision, Vice-Chair Smith referred to the available categories on the NEL assessment report with respect to the back, and then found as follows, at paragraph 25: The NEL Assessor rated the worker in category C on the Intervertebral Disc or other Soft Tissue Lesions Rating Table of the AMA Guides. That category applies to an injury that is associated with moderate to severe degenerative changes: [26] I realize that the term associated is not a direct statement about causation or about the role of the degenerative change in increasing the severity of the impairment or in

7 Page: 6 Decision No. 1269/12 enhancing or prolonging symptoms. However, the fact that the degenerative changes are associated with the back strain or disc injury that is being rated, and the fact that the worker s impairment is granted a higher rating in the case of this association, implies that, under the AMA Guides, there is an assumption that a worker s level of impairment from a strain injury will be affected when preexisting degenerative changes are present. In my view, that fact constitutes some evidence that these degenerative changes did likely increase the severity of the injury or enhance or prolong the resulting symptoms. Given that Dr. Craven did not review all the medical evidence, I consider the NEL rating the best evidence available in this appeal. [27] In this case, the worker was only 31 years old when she was injured. There is no evidence that moderate to severe degenerative changes would necessarily be expected as part the normal course of aging at age 31. [33] The representative relies on this analysis in his submissions. [34] In the case before me, in contrast to that in Decision No. 2159/11, the only evidence that the worker had any degenerative disc disease is contained in the NEL assessor s choice of Category C to assess the worker s level of impairment. The relevant categories available are as follows: Intervertebral Disc or other Soft Tissue Lesions. The categories under this heading are: A. Unoperated with no residual signs or symptoms; B. Unoperated, with medically documented injury and a minimum of six months of medically diagnosed pain and rigidity with or without muscle spasm, associated with none to minimal degenerative changes on structural tests; C. Unoperated, with medically documented injury and a minimum of six months of medically diagnosed pain and rigidity with or without muscle spasm, associated with moderate to severe degenerative changes on structural tests; [35] There are additional categories, the majority of which refer to situations in which a worker has undergone surgery. [36] There is no evidence before me that would indicate that the NEL assessor was provided with copies of the medical investigations (i.e., the CT scan and the two MRI reports). Those reports reveal no degenerative disc disease in the worker s spine, and no pre-existing condition which would have affected the worker s recovery. He may have felt that the worker s clinical presentation was consistent with this level of severity. However, this opinion is not consistent with the existing investigations. I therefore find the CT scan and MRI reports, along with Dr. Wilson s medical reports, to be the best evidence available in this appeal. [37] The CT and MRI reports do not reveal any evidence of degenerative disc disease. [38] Neither is there any evidence before me of a genetic predisposition to disc herniations in the worker s family. [39] Further, there is no indication that smoking a pack a day has had the effect, described in the medical papers which the representative provided in support of his submissions, on this particular worker. Also, as noted in a number of Tribunal Decisions (see, for example, Decision No. 668/10 and No. 464/09), smoking does not fit the definition of a pre-existing condition or disability, and therefore it does not qualify for SIEF relief.

8 Page: 7 Decision No. 1269/12 [40] Lastly, there is nothing before me which would suggest that a pre-existing condition was present or contributed to the work-related accident, and no suggestion that the worker s recovery was prolonged or enhanced. The mechanism of accident is consistent with a disc herniation. [41] Considering the representative s argument that the worker s genetic predisposition to disc herniation, smoking, and degenerative disc disease together constituted a pre-existing condition, it would seem that all three of these conditions would have to be seen to exist before entitlement to SIEF relief for all three as a bundle could be considered. Since there is no evidence of pre-existing degenerative disc disease before me, no evidence that the worker has a genetic predisposition to disc herniation, and no evidence that this particular worker s smoking has affected him in the way described in the articles put before me, this argument must fail. [42] The Tribunal has a Medical Discussion Paper entitled Back Pain, dated March 1997 and revised in February It was authored by orthopaedic surgeon Dr. W. R. Harris and neurosurgeon Dr. J. F. R. Fleming, with supplemental information by Dr. Stanley Gertzbein. Dr. Gertzbein s contribution, dated November 21, 1989, states as follows: [A] number of findings in an assessment of a patient with back pain can be elicited through the usual history, physical and diagnostic investigations which would assist in determining whether a disc protrusion was related to a previous accident. In the history, a definite history of trauma to the back producing back pain and sciatica would draw attention to the accident itself being the source of the disc protrusion. The classical symptoms of sciatica would also indicate that a disc protrusion was present at a time soon after the accident occurred, i.e., within seconds, minutes or days. The relationship of various treatment modalities to the subsidence of pain would also be important in a patient who was thought to have had an injury causing his disc protrusion. Most patients symptoms with a disc protrusion following trauma will resolve over a period of several weeks and by three months at least 90 percent of patients will be significantly better. None of these investigations [x-rays, CT scan, MRI, or myelogram] will diagnose with certainty the direct relationship of the protrusion to the previous accident only [sic] that a protrusion is present. If they are done within a recent time frame, namely a few weeks to a few months following an accident in which a patient previously had no back history they would point towards the accident causing the protrusion. If, however, a patient had multiple episodes of back and leg pain caused by several accidents or several flare-ups of pain, late investigations could not determine that one or other accident was the cause. [Emphasis added] [43] Dr. Gertzbein s opinion, as outlined above, indicates that, where there is a history of trauma to the back which produced back pain and sciatica, and where medical diagnostic testing within a few weeks to months following an accident reveals a disc protrusion (or herniation), and there was no prior history of back pain, the accident more likely than not was the cause of the protrusion or herniation. I accept that opinion, and note that this is exactly the case in the scenario before me. [44] The appeal is denied.

9 Page: 8 Decision No. 1269/12 DISPOSITION [45] The appeal is denied. DATED: June 28, 2012 SIGNED: S. Peckover