Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Christopher Pike Review Commissioner The Review Proceedings 1. The hearing into the review application was held at the Review Division office in Mount Pearl, NL on October 20, The worker attended the hearing and was represented by Vina Gould of NAPE. 2. The employer was represented by Diana Strickland its Operations Manager. 3. The Commission did not attend or participate in the hearing process. Introduction 4. On March 3, 2008 the worker injured her low back and left hip while employed as a home care worker. The diagnosis was soft tissue injury to her low back and left hip. Her time loss from work commenced on the day of injury. The claim was accepted for wage loss benefits. 5. Medical investigations and treatments included physiotherapy, neurosurgical consultation, CT scan, and an occupational therapy body mechanics assessment. 6. An early and safe return to work program commenced on April 28, 2008 at reduced hours. Her usual work day was six hours. An August 26, 2008 targeted functional assessment found the worker capable of an eight hour workday at a light degree of strenuousness. 7. The worker s family doctor filed a Form 8/10 Physician s Report on September 24, 2008, noting the worker reported reduced use of painkillers and anti-inflammatory drugs, as well as a general sense that she felt herself ready to return to work. The claim was closed in September A CT scan done on June 4, 2008 was summarized as follows: Slight disc protrusions posteriorly and on right side at L4-L5 and L5-S1 level and while there is slight associated stenosis of the right intervertebral foramen at the L4-L5 level, there is no evidence of any significant compression on the thecal sac or on the nerve root sleeves at either of these levels. 1

2 No other disc protrusion is seen throughout the remainder of the lumbar spine. 9. On June 16, 2014, the worker s family doctor completed a Form 8/10 Physician s Report noting a flare up of the worker s previous injury, accompanied by a report of moderate lumbar pain. No cause for the flare-up is identified. 10. On June 25, 2014 the worker submitted a claim for recurrence of her 2008 injuries. Medical reports covering the period after the 2008 injuries were requested by the Commission. Only two emergency room reports were produced. An April 25, 2010 report mentions back pain without specifically relating the same to the 2008 injury. A September 28, 2012 report documents back and knee pain secondary to a fall in the worker s home. 11. Medical reports produced since the 2014 recurrence claim included an emergency room visit in relation to low back and hip pain, and possible fibromyalgia; a report from the worker s treating physician relating current flare-ups to the 2008 injury; and a chiropractor s report noting fibromyalgia. 12. The Commission s medical consultant reviewed the file, but could not medically relate the worker s current symptoms with the initial compensable injury. 13. The October 7 and October 17, 2014 intake adjudicator s decisions denied the request for recurrence. The worker appealed with a submission from her chiropractor. 14. The December 16, 2014 internal review decision upheld the denial of the recurrence. This is the first decision the worker wishes to have reviewed. 15. On March 29, 2015 the worker s treating chiropractor submitted correspondence relating the worker s current symptoms with her 2008 injury. 16. Two sick notes from March 2015 from the worker s treating physician were also submitted for review. 17. The May 25, 2015 intake adjudicator s decision found the new information did not change the October 2014 decisions denying the worker s claim for recurrence. The worker appealed. 18. On May 21, 2015 the Commission s medical consultant reviewed the new information. 19. The July 21, 2015 internal review decision upheld the decision finding the new information did not change the decisions to deny the worker s claim for recurrence of her 2008 injuries. This is the second decision the worker wishes to have reviewed. Issues 20. The worker has requested a review of decisions of the Commission dated December 16, 2014 and July 21, The worker requests that I find: a. the Commission erred in denying the worker s claim for recurrence of her March 3, 2008 work injury to her back and left hip, and 2

3 b. The Commission erred in finding a review of the additional information submitted by the Office of the Worker s Advisor on April 2, 2015 did not change the initial decision to deny the worker s claim for recurrence. Outcome Issue 1 Denial of Recurrence 21. The Commission properly weighed the compatibility and continuity of the worker s 2008 and 2014 symptoms and made no error in reaching the conclusion that the worker does not have a claim for a recurrence of her 2008 injury. Issue 2: Reopening 22. The March 29, 2015 report offered as new evidence contains no new information and amounts to the adoption of the first chiropractor s conclusion by the second. It does not contain evidence of a nature and quality to reopen the December 16, 2014 decision to deny the worker s claim for a recurrence of her 2008 injury. Legislation and Policy 23. The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and Also relevant and considered in this case are Sections 2(1)(o), 60 and 64 and Policy EN-03: Recurrences and Policy EN-20: Weighing Evidence. Relevant Submissions and Positions 25. Ms. Gould reviewed the evidence and pointed out that it appeared that the Commission had considered only their medical consultant s evidence in making the decision under review. 26. The worker was cleared to return to work on September 28, 2008 for her regular six hour daily shifts. Ms. Gould highlighted that while the worker had been cleared to return to work for her full work day (an eight hour tolerance was established), restrictions were imposed and the worker required several assistive devices. Activity was limited to respite care, dispensing medication and light meal preparation. The assistive devices included a longhandled dust pan, a long-handled scrubber, a reaching device and an SI support belt. The worker testified that she still uses these devices in the workplace now. 27. Ms. Gould noted that the CT scans from 2008 show evidence of the disc injury, but the consulting neurologist characterized the worker s injury as soft tissue only. She also noted the worker suffered numbness and other lower extremity issues both in 2008 and now. 28. Ms. Gould suggested the Commission s decision gave minimal weight to the worker s present chiropractor because he did not treat her in Ms. Gould questioned why the Commission would give their medical consultant, who has also not participated in the worker s treatment, any greater weight. 3

4 29. Ms. Gould noted as well that the employer s representative in 2008 pressed quite hard for the worker to return to work. She said this should be balanced against the medical consultant s criticism of the worker for returning to work early. 30. A neurology consultation on April 23, 2008 noted the worker reported pain around her hip and left side which the neurologist did not think was sciatica, but rather more of a referred pattern pain. He accepted the diagnosis of the worker s general practitioner that she was suffering from a soft tissue injury and noted the pain in the worker s left hip was either tendinitis or bursitis. He also suggested it was reasonable to have a CT scan done and recommended the worker carry on with physiotherapy. 31. A CT scan completed on June 4, 2008 was summarized as follows: 1. Slight disc protrusions posteriorly and on the right side at L4-L5 and L5 S1 levels and while there is slight associated stenosis of the right intervertebral foramen at the L4 and L5 level, there is no evidence of any significant compression on the thecal sac or on L4-L5 level, there is no evidence of any significant compression on the thecal sac or on the nerve root sleeves; at either of these levels. No other disc protrusion is seen throughout the remainder of the lumbar spine. 2. Early degenerative changes in both SI joints. 32. The worker continued with physiotherapy through the spring and summer of At various times her treating physicians recommended referral to the EMPOWER program, but it does not appear that one was ever made. 33. Ms. Gould also referred me to the targeted functional assessment report prepared August 26, 2008, which noted the diagnostic findings of the CT scan of June 4, 2008 and provided a current medical diagnosis of Mechanical low back pain with trochanteric bursitis (as per [the worker s] general practitioner, June 4, 2008 and July 10, 2008). She noted the worker s overall predicted workday tolerances to be eight hours and highlighted the following: Recommended Frequency for Postural Tolerances: Occasional sitting for 20 minute durations, that is, it is anticipated that [the worker] would require a postural break 2 3 times per hour when sitting. Occasional standing for 20 minute durations, that is, [the worker] would require a postural break 2-3 times per hour when standing. Frequent walking for short to moderate distances at a time, self paced, and Minor walking of long distances Upper extremity tolerances were within normal limits bilaterally, and are not related to presenting injury 4

5 Stair climbing, stooping and squatting were not demonstrated an more than an Occasional basis. As such, it is anticipated that [the worker] would only be able to complete the same for up to 33% of the work day (i.e. less than 2 hours out of a 6 hour work day), or at a frequency of once every 30 minutes. Strenuousness Outcome: Light, up to 19 lbs, occasionally (as per CCDO): Match to Strenuousness of Job: Yes Comparison of Worker Capability to Job Demands: Discrepancy anticipated for low level postures (bending/stooping, crouching or kneeling), involved in cleaning bathrooms and floors, as well as accessing lower cupboards and the dryer); note that poor body mechanics were exhibited during testing (i.e. forward bending at the waist and twisting of her trunk during functional tasks) Possible Worksite/Job Demand Modifications for ESRTW: Applied body mechanic s education, consider single-point kneeling for some work tasks such as removing clothing from the dryer, accessing lower cupboards; in light of the presenting medical information, these postures and movements will be better tolerated than stooping postures. In addition, long-handled dust pan (for use during sweeping), longhandled scrub brush (for use during bathroom cleaning tasks), and long handled reacher (to assist with removal of items from the dryer or floor level); these devices will reduce the bending/stooping demands associated with various job tasks. 34. The report included the following summary: 1. [The worker] exhibits tolerances for Light work (as per CCDO), with restrictions for low level postures and stair climbing; these restrictions are consistent with the expected difficulties she would have in light of the diagnosis. 2. To facilitate a successful progression of work hours and a sustainable return to work, several recommendations have been made above. Those included: 2 3 sessions of applied body mechanics and pacing education and practice, the provision of a long-handled dust pan, long-handled scrub brush and long-handled reacher, to assist her in the completion of various household tasks that currently involve stooping postures. 3. With the completion of the education, and the provision of these assistive devices, an increase to the full workday (6 hours, split shift) is certainly not contraindicated. 5

6 35. The worker testified she is always in misery since she returned to work in 2008, but noted she is still working. 36. Ms. Gould referred me to two medical reports from the period starting with the worker s return to work in 2008 and ending with the submission of her new claim in The first of these reports, an ambulatory care record from the emergency room, shows the worker was assessed as suffering from an upper respiratory tract infection, but also included reference to mid back pain and a burning sensation. This report was dated April 25, The second of these records was also from the emergency room and noted back pain and right knee pain for the previous two days. This report includes a statement from the worker that she had suffered a slip and fall on September 26, Digestive tract complaints were also noted. 37. The worker was off work during this time in The worker submitted a new claim on June 16, 2014 claiming a flare-up of the 2008 injury. This claim was apparently supported by an emergency room record from a visit on June 6, The presenting complaint in this instance was back, hip and leg pain with numbness. The report records low-back pain radiating down the workers left leg with numbness and tingling. This report also noted the worker was being followed by her general practitioner for fibromyalgia. The recorded impression was, LBP exacerbation. 39. Ms. Gould also referred me to a report prepared by the worker s chiropractor on November 25, 2014, stating that the fibromyalgia diagnosis offered by her general practitioner seemed unlikely, following his assessment of her diagnostic signs. He offered the following clinical impression, [the worker s] current left sided lower back pain is likely a result of her back injury on March 3, I have suggested to her that she should review her medical file because if her original injury was to her left sacroiliac joint and lower lumbar spine it would be consistent with the symptoms she is now experiencing. The same case could be made for her left hip bursitis. 40. In this report, the chiropractor goes on to state: In regards to a file review [the worker] provided me with a copy of her initial physiotherapy report dated 02/04/2008. This report notes a tender bruise on the left hip and provides a diagnosis of trochanteric bursitis which is consistent with her current left lateral hip pain. I understand that she has received several injections for this injury and continues to have left lateral hip pain which I feel is consistent with bursitis. In addition the report notes that the patient had a reduction in reflexes and sensation over the left leg as well as tenderness across her lower back and over her SI joints. This is consistent with my current findings of nerve root irritation associated with a lumbar disc lesion. In a subsequent physiotherapy report dated 19/07/2008 it was noted that sensations and reflexes in the left leg remained diminished. It also notes a broad based disc protrusion at L5-S1 with no noted nerve root compression on the left. In my opinion [the worker s] current pain pattern in many ways matches the symptoms described in the physiotherapy reports dated 02/04/2008 and 19/07/

7 41. In summary, Ms. Gould submits the 2008 and 2014 symptoms are consistent with each other and demonstrate continuity. 42. The employer otherwise provided evidence on the worker s employment history and time off work. Ms. Strickland noted the employer had no information on file to confirm the reasons for the worker s 2012 absence from work. 43. The employer took no position on the substance of the worker s claim. 44. The Commission s position can be summarized by passages from the decisions under review. With respect to the first decision: The evidence in favor of your claim is that the same parts of body are affected and you are reporting similar symptoms. As well both your treating chiropractor and family physician provide an opinion that your current symptoms are related to your work injury in However, your family physician has not provided any documentation of symptomology between your return to work in 2008 and his subsequent report of June 16, 2014 documenting a flare-up of the previous injury. It is also unclear whether he was aware of the intervening fall at home in September Therefore, I have given his opinion limited weight. With regard to the opinion from [the chiropractor], again, it is unclear whether he is aware of the subsequent fall at home in September 2012 and as well he was not one of your health care providers at the time of the initial injury in For these reasons I have also given less weight to his opinion. The evidence not in support of your claim is a diagnosis of soft tissue injury in relation to the initial work injury with limited time off work, a return to pre-injury employment with minimal restrictions/accommodations, evidence of degenerative changes, an intervening event (fall of September 2012), a lack of evidence of continuity of care between 2008 and 2014 (a period of 5+ years) and the opinion of the Commission s Medical Consultant. In considering this information, I concur with the decision of the Intake Adjudicator that this weighs more heavily against your claim for recurrence. 45. And with respect to the second decision: In considering the additional evidence, I note in particular that the issue of diagnosis of fibromyalgia was considered in the Internal Review Decision of December 16, At that time it was noted that no definitive diagnosis had been provided or confirmed and this information was considered in the weighing of evidence at that time. The opinion of your Family Physician,, that your current symptomology was related to the original work injury, was also documented on your file and considered at the time. It is acknowledged that the same body parts are affected and similar symptoms are reported. However, as noted in Policy EN-03, other important factors must be reviewed before a recurrence is verified. In particular, the nature and significance of the original injury must be consistent with the current disability and 7

8 recurrences are more readily accepted following major injuries which cause objective verifiable physical damage and a long period of disability. In your particular case, you have reported the same body parts affected and similar symptoms are reported and this is confirmed in reports from your treating physician. However, when again weighing the evidence, I find that, even when removing any consideration of a possible diagnosis of fibromyalgia, the evidence of degenerative changes, lack of continuing medical care since the work injury, evidence of a new injury at home in 2012, the initial diagnosis of soft tissue injury and the opinion of the Commission s Medical Consultant, still weigh more heavily against your claim for recurrence. As such, I find that the weight of evidence, on the balance of probabilities, weighs more against your claim than for it. I concur with the decision of the Intake Adjudicator to deny your claim for recurrence. Analysis 46. In determining if the Commission erred, it is not open to me to suggest the Commission should use different criteria than those found in the legislation and applicable policies, or that some alternate set of criteria should be used in the process. It is not my role to review the legislation and policies themselves, I can only review whether the Commission followed them, and did so in a manner consistent with the Act Issue 1: Denial of Recurrence 47. The review of the first issue turns on weighing the evidence on the medical compatibility of the worker s current symptoms with her 2008 injury, and the continuity of symptoms between the time that the worker s 2008 injury stabilized and the onset of her new symptoms. 48. Policy EN-03: Recurrences, states in part: A recurrence is a return of disabling symptoms directly related to an original work injury which results in loss of earning capacity more than 12 months after the worker was last considered capable of earning. Recurrence symptoms must result from and be medically compatible with the original injury. The nature and significance of the original injury and the length of time since the original injury are important factors to be weighed. An onset of symptoms will not be considered a recurrence where other injuries, accidents or processes have intervened to cause the current condition. Decisions to accept or deny recurrence claims will consider medical and all other relevant evidence, and be based on the balance of probabilities.. 8

9 GENERAL A number of factors must be considered before a recurrence claim is accepted: The current symptoms must result from and are medically compatible with the original work injury. To properly decide the matter of medical compatibility, a worker s complete medical history -- particularly since the original work injury -- must be compared with his or her current condition. A medical opinion from the Commission s health care consultant may be necessary to assist in determining medical compatibility.. Continuity of symptoms during the period between stabilization or recovery from the original injury and the onset of the current impairment is a reliable indicator of a direct causal relationship. Lack of continuing symptoms, however, does not entirely rule out the possibility that the current impairment is a recurrence 49. Policy EN-20: Weighing Evidence provides the following general guidance to decision-makers as an aid under Section 60: Decision makers must assess and weigh all relevant evidence. This necessarily involves making judgments about the credibility, nature and quality of that evidence as they determine the weight of evidence on either side of an issue. Decision makers must weigh conflicting evidence to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue. 50. It also adds the following; 1. A statement by a lay witness on a medical question may be considered as evidence if it relates to matters recognizable by a lay person; but not if it relates to matters that can only be determined by a person with expertise in medical science. 2. When addressing conflicting medical evidence, decision makers will not automatically prefer the medical evidence of one category of physicians or practitioners over that of another. Decision makers shall consider the following criteria in deciding what weight to give to such evidence: a. the expertise of the individual providing the opinion, b. the correctness of the facts relied upon by the provider of the opinion, c. any issues of bias or objectivity with the opinion, d. subjective versus objective medical evidence, 9

10 and e. the findings of any relevant scientific studies referenced by a qualified medical practitioner. 51. Bearing this in mind, Policy EN-03: Recurrences requires assessing the medical compatibility of the worker s 2008 injury with her 2014 back symptoms and the continuity of her back symptoms between September 2008 and There are other factors set out in the Policy as well. However, the objective is to determine if the worker s current injury is indeed the original compensable injury which has reemerged over time. If the present injury is not medically consistent with the original compensable injury, the current injury is not a recurrence of the compensable injury. It has to be established that the worker s present symptoms are the result of the injury which arose out of and in the course of employment. It is not enough to show that symptoms have recurred in the same area: it has been shown that the compensable injury recurred. Symptoms may recur in the area for a multitude of reasons, but it has to be demonstrated by the claimant that the compensable injury is the cause of the symptoms. This is why the Policy directs the Commission to inquire into the nature of the symptoms. 52. The 2008 injury was accepted as a soft tissue injury to the worker s back with trochanteric bursitis of her left hip. The 2014 injury appears to have some aspects of sacroiliac involvement, as the worker s chiropractor notes in his November 25, 2014 report: [the worker] appears to be experiencing low back pain associated with a lower lumbar disc injury and a strain/sprain injury to her left sacroiliac joint. Her leg pain and abnormal sensations of pins and needles and numbness appears to be consistent with nerve root impingement from a disc injury. My clinical impression is that [the worker s] current left sided lower back injury is likely a result of her back injury on March 3 rd, I have suggested to her that she should review her medical file because if her original injury was to her left sacroiliac joint and lower lumbar spine it would be consistent with the symptoms she is now experiencing. The same case could be made for her left hip bursitis, In my opinion [the worker s] current pain pattern in many ways matches the symptoms described in the physiotherapy reports dated 02/04/2008 and 19/07/ This statement suggests some degree of medical compatibility exists between the worker s injury in 2008 and 2014, but concluding so would require revising the diagnosis of the 2008 injury, which was accepted as a soft tissue injury to the worker s low back and left hip. The chiropractor is proceeding on the assumption that the worker s bursitis has been accepted as part of the worker s compensable injury. This affects the weight to be placed on the opinion, because the correctness of the facts underlying the opinion is a factor which influences weight. 10

11 54. I also note the contrast between the assessment the worker s attending physicians made in 2008 and In his April 23, 2008 report, the worker s neurologist stated, [the worker] describes a sense of pain and numbness in her leg, but I don t think she is describing sciatica I think it is more a referred pattern pain. On November 25, 2014, her chiropractor reported Orthopedic assessment of the lumbar spine was positive for a disc injury producing left leg radicular symptoms. It there appears that between 2008 and 2014, the worker s pain evolved from referred to radicular. 55. As well, the worker s chiropractor made a clear diagnosis of a disc injury in 2014, whereas the neurologist and general practitioner treating her in 2008 diagnosed a soft tissue injury. 56. Where the conclusions are reviewed more fully in the context of the findings on file, there is some evidence of compatibility in comparing the 2008 and 2014 symptoms, but it is less persuasive than it first appears. 57. The totality of the evidence on continuity of symptoms is found in reports covering two emergency room visits; one on April 25, 2010 and one on September 12, 2012, as documented by the records obtained by the Commission. The 2010 report mentions back pain without clearly relating the same to the worker s 2008 injury. The 2012 report relates to a fall in the worker s home and does not exclude that incident as the cause of the back symptoms reported in it. We are left with two reports which ambiguously document back symptoms between 2008 and 2014 to establish continuity of symptoms. 58. While I am mindful of the worker s evidence that she was always in misery after she returned to work in 2008, I have weighed the evidence of continuity of symptoms and find there is little recorded evidence of this over a considerable time, which is significant if the condition is suggested to be highly symptomatic over that time. The Commission was not in error to determine that a generalized assertion of working through pain and two discrete episodes of documented back pain over a six year period did not establish medical consistency. Even if I could accept these two episodes as enough to establish continuity, in this instance, a clearer connection between those episodes and the 2008 injury is needed. 59. I say this because, while the fact of reporting is normally enough to establish continuity, the difficulty here is that the reporting is infrequent and it points to another possible cause. Neither report ties the flare-ups to the 2008 compensable injury, which usually is not fatal, but one of them does relate the symptoms to a falling incident not connected to the compensable injury. This makes the absence of a connection to the compensable injury stand out more than otherwise would be the case. 60. Section 60(1) of the Act requires the decision makers to weigh evidence on the balance of probabilities. I am satisfied the evidence presented establishes neither continuity nor compatibility of symptoms between 2008 and I agree with the Commission that less weight attaches to the opinions of the treating physician and the chiropractor because one is affected by a mistaken assumption, and the other does not engage the worker s medical history including the presence of other medical conditions to the same degree the medical consultant does. The medical consultant s report is more comprehensive. 11

12 62. The Commission is not obligated under the Act, or Policy EN-20: Weighing Evidence, to positively establish some alternative basis for the worker s symptoms before it can conclude that the recurrence symptoms are not medically consistent with the compensable injury. If the symptoms are not medically consistent with the compensable injury, the Commission does not need to adjudicate every alternate explanation. However, in this case, I note that there are other medical conditions present, including a degenerative back condition, bursitis, and a disputed diagnosis of fibromyalgia. Whatever about the fibromyalgia diagnosis which is far from firm the other conditions have been identified as capable of explaining the worker s back symptoms. Neither of them are compensable. This adds further credence to the Commission s findings on compatibility and consistency with compensable soft tissue injury accepted in I am satisfied the Commission properly considered the compatibility and continuity of the worker s 2008 and 2014 symptoms and made no error in reaching the conclusion that, on the balance of probabilities, the worker does not have a claim for a recurrence of her 2008 injury. 64. I wish to note that the significance of the worker s fall in her home in 2012, in which she suffered a musculoskeletal injury was not fully explained in the evidence before me. I have, therefore, not given it significant weight for or against in my consideration of the worker s claim for recurrence. The Commission s decision is compliant even without further exploration of this incident. For the purposes of this review, it is significant that the 2012 flare-up was associated with this incident, and not the compensable injury, so I need not comment further on it. 65. Therefore, I must deny the review on Issue #1. Issue 2: Reopening 66. The review of the second issue turns on the quality of the new evidence offered, as viewed against the strengths and weaknesses of that already in the Commission s hands. 67. Section 64 of the Act permits the Commission to review a claim. The Commission is not expected to reopen a claim simply on demand of a worker. The Commission has discretion to reopen an existing final decision. 68. The reopening application has to be accompanied by evidence that falls within one of the categories listed in the Section 64. Even if it does this, the Commission still has the ability to determine whether the submitted evidence is persuasive enough to at least consider the merits of the issue again. 69. The standard on a reopening is not considered to be a very high one, but the Commission is also permitted to look at it in the context of the existing evidence. The question is not whether the new evidence would call for a contrary conclusion on the merits, only that the new evidence may affect the basis of the Commission s existing decision, and the Commission would be persuaded that it is proper to re-examine the evidence with the new information as part of the record. 70. The Court of Appeal provided the following direction for applying Section 64 in Workers Compensation Commission (Newfoundland) v. Breen, in 1997: 12

13 Under s. 64, there must be some preliminary examination and screening of suggested new entitlement evidence to determine whether its quality, viewed against the strengths and weaknesses of existing information, justifies a re-examination of the whole case 71. The worker s chiropractor submitted a report dated March 29, In this report he states that he took over the worker s care on November 28, He stated that consistent with her previous chiropractor s assessment, his diagnosis had focused on symptomology associated with lower lumbar disc and left sacroiliac joint dysfunction. He went on to state he had reviewed the worker s physiotherapy reports, Commission reports and the previous chiropractor s file, chart notes and documentation, and then expressed the opinion, [the worker s] current health issues with respect to her low back pain are entirely consistent with and directly related to the work injury suffered on March 3, This report offers no new information and amounts to the adoption of the first chiropractor s conclusion by the second. Again, the worker s compensable injury a soft tissue injury to the lower back that resolved, if not completely, to the point the worker ease back into the workplace. Disc herniation or symptomology was not accepted as part of this injury. 73. The chiropractor s report is temporally new in the sense it post-dated the Commission s internal review decision. It is a direct opinion in favour of the worker, as the first chiropractic report was. Does it provide any new insight to the Commission which addresses the basis of the existing decision such that the issue should be at least re-examined on the merits? New evidence must give new insight into the information already in the Commission s hands. I find that the chiropractor s report of March 29, 2015 does not contain evidence of a nature and quality to reopen the decision on the merits, given the nature of the findings and the analysis in the existing decision and the body of evidence on file. I cannot conclude that the Commission erred in declining to exercise its discretion to reopen the matter based on this report. 74. It would appear that the Commission s decisions follow the Act, regulations, and policies, and in order for the worker to have this recent episode accepted as a recurrence, it would be more productive to seek a reopening of the original decision which accepted the worker s injury as a soft tissue injury. The current basis of her symptoms does not appear to be a soft tissue injury, and the correctness of the original decision is not directly under review in either of these decisions. If the worker could establish that the conditions she suffers from now were caused by the employment injury, by way of reopening, this would presumably require some revision of the medical compatibility and consistency analysis for recurrence purposes. 75. However, the nature of the 2008 compensable injury was not before me on this review: the medical consistency of the worker s symptoms with the accepted 2008 injury was. The Commission made no error on the questions before it, given the evidence on the record at the time. 13

14 Decision Issue 1 Denial of Recurrence 76. The Commission properly weighed the compatibility and continuity of the worker s 2008 and 2014 symptoms and made no error in reaching the conclusion that the worker does not have a claim for a recurrence of her 2008 injury. Issue 2: Reopening 77. The March 29, 2015 report offered as new evidence contains no new information and amounts to the adoption of the first chiropractor s conclusion by the second. It does not contain evidence of a nature and quality to reopen the December 16, 2014 decision to deny the worker s claim for a recurrence of her 2008 injury. Issue 1: Review Denied Issue 2: Review Denied Christopher Pike Review Commissioner Date December 29,