WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 378/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 378/15 BEFORE: A.G. Baker: Vice-Chair HEARING: February 5, 2015, at Sault Ste. Marie Oral Post-Hearing Completed July 20, 2016 DATE OF DECISION: August 10, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2121 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated October 25, 2012 and November 21, 2013 APPEARANCES: For the worker: For the employer: Interpreter: H. Ethier, Office of the Worker Adviser 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. 378/15 REASONS (i) Introduction and issues [1] The worker appealed two ARO decisions dated October 25, 2012 and November 21, The hearing proceeded on February 5, 2015, with a number of post-hearing issues to be addressed. Further medical information was obtained and it was clarified by the worker s representative in a letter dated June 29, 2016, that the sole issue being pursued by the worker was entitlement to benefits for bilateral trochanteric bursitis. A second issue regarding a claim for benefits for certain medications was formally withdrawn. (ii) Background [2] The ARO noted the background in brief in the decision under appeal. The worker also adopted under oath her previous testimony from the 2013 ARO hearing. The relevant portions of the 2013 ARO decision are noted as follows: On January 3, 2005, this then 39 year old Resident Aide was lifting a large resident with a co worker when she injured her low back. The worker was initially diagnosed as having a muscular back injury. The worker had ongoing low back problems and the operating area determined the worker had a permanent impairment. The worker was provided a 12% organic non-economic loss (NEL) award for mechanical low back pain on June 21, This organic NEL award was increased to 24% on June 16, 2010 following a NEL re-determination. The worker was granted entitlement to chronic pain disability (CPD) in September The worker's 24% organic NEL award was then converted to a 20% NEL CPD award on January 31, The worker developed bilateral trochanteric bursitis six years post injury which she related to her low back condition. In a decision letter dated February 8, 2012 the operating area denied entitlement to bilateral trochanteric bursitis as a secondary condition.. Testimony The worker stated that she gradually developed bilateral trochanteric bursitis six to eight months, and possibly longer, prior to her first medical visit for the condition on September 28, The worker said that when she felt radiating symptoms into her hips, she initially thought it was related to her back and not a separate condition. The worker said that Dr. Healy related the bilateral trochanteric bursitis to her low back condition. The worker said that to treat the bursitis she needs to perform exercises which aggravate her low back. The worker said she is even sensitive to touch in the hip areas as a result of the bursitis. The worker said that she sits off kilter (on one side) to alleviate low back pain but doing this aggravates the bursitis.

3 Page: 2 Decision No. 378/15 The worker said that walking was helpful with regards to low back symptoms but now that aggravates the bursitis. With regards to home activities, the worker said she cannot finish dishes at one time and breaks it up as well as other duties such as laundry. The worker said her house has been remodeled by increasing counter heights to decrease bending and made the washer/dryer accessible on the same floor. The worker said she was very active prior to her low back injury and she has had to learn to be a spectator. The worker said she is depressed due to pain and limitations and the thought she would be unable to carry future grandchildren due to the risk of a back spasm. The worker said she cannot sleep for more than one hour at a time. The worker said she takes sleeping pills but has to be careful as the pills result in longer sleep and if she does not move as often, she will be unable to move the following morning. The worker said Dr. Pun had a protocol to deal with her back spasms in that she would go to emergency and receive Fentinol and a neuro blocker for relief which allowed for movement. The worker said her current physician Dr. Deveril is concerned of the effects on her stomach and kidneys and does not treat spasms the same way. The worker said she is currently on Tramadol, Imovane, an antidepressant, psycholenzoprine [sic] and gabapentin. The worker said the medications take the edge off but she is still in pain. The worker said she would like to think she could work part time but is not sure. The worker said that she attended FRP in Sudbury and found she could not return home on the weekend due to the drive. The worker said she has to stop frequently when she drives. The worker said she applied for CPP but was told they require more information. The worker said she tries to maintain as normal a life as possible by trying to walk, visiting friends or performing limited housework but this is difficult. The worker denied any other health issues, a leg discrepancy or flat feet. The worker said she developed numbness in the front of one leg and drop foot. The worker said exercises helped the drop foot but she still has numbness. The worker said she always favoured the right leg due to pain and has walked with a limp over the last two to three years. The worker added that she is now experiencing pain in the other leg as well. (iii) Decision [3] The worker has claimed that her trochanteric bursitis is a secondary injury, directly related to her compensable low back injury. The ARO concluded that was not the case in the decision under appeal. A number of medical reports were reviewed in that regard, including a report from Board physician, Dr. Tepperman, in January of The doctor reviewed the medical information and history, and noted that the bursitis arose some six years post-accident. It was concluded that the bursitis, therefore, could not be directly attributed to the worker s low back injury. [4] There were however a number of reports, as also noted in the written submissions from the worker s representative, that appear to support the worker s secondary injury claim. As the ARO also noted: A medical report from Dr. Pun dated September 28, 2011 reports worker was reassessed on July 20, 2011 and reported increasing pain, specifically trochanteric bursitis clinically as well as pain to her shoulder and hands. Dr. Pun stated the worker suffered from chronic mechanical back pain with inadequate pain control, trochanteric bursitis

4 Page: 3 Decision No. 378/15 secondary to chronic back pain, depression secondary to inadequate pain control and disability, GI upset and rectal bleeding secondary to medication side effects, and memory problems likely secondary to depression and medications. Dr. Healy, orthopaedic surgeon, provided a letter dated March 28, 2012 in which he stated he would refrain from determining any direct cause or relational effect regarding the worker's injury and onset of bursitis, as he was of the view this should be based on an assessment through a WSIB specialty clinic. In the same letter, Dr. Healy stated in part: Upon examination she has good posture with regard to her hips and sacrum area. She is exquisitely painful and tender over the gluteus maximus and gluteus minimus region. Her muscle borders of gluteus maximus and tensor fascia lata, are very exquisitely tender from the origin to the insertion into the iliotibial band. I can also reassure you that this is typically not the case for most classical iliotibial band syndrome patients, I feel that her muscle spasms, tightness and pain is quite significant and most likely the trigger for her trochanteric bursitis. [5] In my view, the reports from Dr. Pun and Dr. Healy, orthopaedics, relate the worker s bursitis to her chronic back pain. The worker s current doctor, Dr. Deveril, has also been treating the worker for several years and provided a recent report in regard to the worker s bursitis. The doctor reviewed the worker s history and stated in part the following: After review of current literature pertaining to trochanteric bursitis (which is now referred to as greater trochanteric pain syndrome) and [the worker s] past medical history it is my opinion as obviously shared by Dr. Pun and Dr. Healey that her back pain, stiffness and spasm caused her abnormal biomechanics that made a significant contribution and was more than likely directly causal to her bilateral trochanteric pain. [6] Given the above noted medical evidence, I was persuaded on a balance of probabilities that the worker s bursitis is significantly related to her low back injury and chronic pain condition. However, it is notable that the worker has entitlement for Chronic Pain Disability (CPD) as a direct result of her back injury, and has been compensated with a 20% NEL award in that regard. The issue of the granting of CPD benefits is not before me in this case, and I have no jurisdiction in that regard. [7] I also note that it is well established that there can be no stacking of a chronic pain rating and an organic rating, where the two are causally related. I note in particular a similar request in Decision No. 1706/10, where the Panel stated the following: 1. Does the worker have entitlement for a right shoulder and neck disability, as a secondary condition, to the original right hand and wrist disability? [33] As noted above, the worker was granted entitlement for CPD and a 30% NEL award for that condition. Tribunal decisions and the Board s policy on CPD recognize the need to assess a worker with CPD on a whole-person basis. The NEL rating is holistic and considers all aspects of the worker s disability. Tribunal decisions have consistently held that there is to be no stacking of a chronic pain rating and an organic rating. Because the rating is holistic, any impairment related to an identified organic source will be accounted for in the global impairment rating. To add the organic component to the CPD rating would be to recognize twice the part of the impairment due to the organic source. Therefore, there can be no stacking of the CPD-related impairment onto an organically related impairment if the two relate to the same injury. [34] For these reasons, the worker does not have entitlement for discrete injuries to her right shoulder and neck on an organic basis. This determination does not preclude the worker from seeking entitlement to health care benefits aimed at treating her right upper extremity symptoms as she has a compensable CPD which encompasses her right upper extremity.

5 Page: 4 Decision No. 378/15 [8] I agree with the reasoning in the above decision, and also find that the worker does not have entitlement in this case to a discrete organic bursitis condition, secondary to her established CPD condition. However, I also similarly note that this finding does not preclude the worker from seeking entitlement to health care benefits aimed at treating her bilateral trochanteric bursitis as she has a compensable CPD condition that encompasses her bursitis.

6 Page: 5 Decision No. 378/15 DISPOSITION [9] The appeal is denied. DATED: August 10, 2016 SIGNED: A.G. Baker