WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1226/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1226/15 BEFORE: S. Peckover: Vice-Chair HEARING: June 10, 2015 at Toronto Written DATE OF DECISION: July 16, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1587 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated February 18, 2014 APPEARANCES: For the worker: For the employer: Interpreter: M. Lawrence, Paralegal Not participating 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. 1226/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that he had no permanent impairment (PI) in his low back, and therefore was not entitled to a non-economic loss (NEL) award. (ii) Issues [2] The worker seeks recognition of a PI, and entitlement to the related NEL assessment. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1964, started as a heavy equipment operator with the accident employer in On September 16, 2008, he was bending to lift an outdoor toilet when he felt the onset of pain in the lower right of his back, in the PSIS area. The injury was variously described as a low back injury and a right SI joint strain. [5] The worker underwent a course of chiropractic therapy beginning on November 7, 2008, and then had a course of physiotherapy beginning December 15, He was cleared to return to modified work as of November 26, By February 27, 2009, the worker had returned to his regular work. In May 2009, the worker contacted the Board to restart chiropractic treatment, as his back was still symptomatic, and he was back on modified duties. He had a number of recurrences in 2009 and 2010, which were allowed. [6] In April 2011, the worker requested entitlement to further chiropractic treatment. The Case Manager allowed a chiropractic assessment. However, in a decision letter dated December 19, 2011, the Case Manager noted that a July 13, 2009 report indicated that the worker had returned to his pre-injury job, and his last chiropractic treatment was on July 22, It therefore had been determined that the worker had reached maximum medical recovery (MMR) on July 22, 2009, with no resulting PI as defined in the policy. He therefore had no further ongoing entitlement for his low back condition. [7] The worker objected, and his objection was allowed in an ARO decision dated November 22, That decision reviewed the available medical evidence, and found that there was continuity of complaint as well as medical compatibility, and the employer had indicated that it was aware of the problems the worker had with his back since the workplace injury. She concluded that the worker had had ongoing back problems since September While two case managers had considered the benefits of a Regional Evaluation Centre (REC) assessment, the worker had not been referred. He had not had any assessments, despite his ongoing problems and symptoms. Therefore, she was unable to conclude whether there was a PI, as there was very little medical evidence with which to make that determination. The worker was also entitled to reimbursement for his chiropractic treatment from April 2011 to December 2011, and again from March Ongoing entitlement should be reviewed when the worker had had the benefit of a REC assessment for his low back impairment. [8] The Board implemented the decision, and referred the worker to the Back and Neck Specialty Clinic for an assessment. The resulting report, dated January 14, 2013, chronicles the

3 Page: 2 Decision No. 1226/15 worker s ongoing low back pain, described as constant, but variable in severity, which was centered around his right PSIS region. This pain was associated with intermittent aching in the right posterolateral buttock and thigh. Aggravating factors were bending, lifting, prolonged sitting, and twisting; alleviating factors included a change in position, medication, and chiropractic treatment. The worker s lumbar range of motion was as follows: Flexion, 55º; extension, 20º; and lateral flexion, 20º bilaterally. Right side flexion was associated with lower back pain. No neurological deficits were found. Orthopaedic surgeon Dr. Malcolm opined that the worker had a lumbar strain with a mechanical back dominant pain pattern, which was centered around his right PSIS. He recommended a McKenzie physiotherapy program for six to eight weeks. He noted that, notwithstanding any success of this program, the worker would continue to experience a chronic picket-fence or saw tooth pattern of back pain that would require changes in position. He might on occasion need chiropractic treatment in the short term to help ease his symptoms. In terms of a prognosis, he stated that the worker was fully recovered (functionally) with continuing symptoms. [9] Based on this report, in a decision letter dated August 9, 2013, the Case Manager advised the worker had reached MMR following the specialty clinic assessment of January 14, The physiotherapy was for instructional purposes. There was no evidence of an assessable PI for the lower back, and therefore he was not entitled to a NEL assessment. Further, requests for occasional treatment for back pain symptoms could not be considered. The worker objected. [10] At the Appeals Branch, in a decision dated February 18, 2014, the ARO reviewed the REC assessment, and found as follows: On January 14, 2013, Dr. B.W. Malcolm, Consulting Orthopaedic Surgeon, assessed the worker at the Specialty Clinic. Upon completing the examination, Dr. Malcolm diagnosed a lumbar strain with a mechanical back dominant pain pattern and concluded that the worker had made a full functional recovery. Dr. Malcolm commented that the worker would continue to complain of subjective picket-fence or saw tooth pattern back pain and recommended that he change positions as necessary to accommodate these complaints. In the absence of any objectively confirmed physical abnormality or loss in the low back and, noting Dr. Malcolm s finding that the worker had made a functional recovery, I find that the worker reached MMR on January 14, 2013, with no PI to the low back evident. Therefore, entitlement to a NEL award assessment of the low back is not in order. [11] The worker appeals from this decision. (iv) Law and policy [12] Since the worker was injured in 2008, 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. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #262 NEL Entitlement; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice.

4 Page: 3 Decision No. 1226/15 [14] I have considered these policies as necessary in deciding the issues in this appeal. Of particular relevance is Operational Policy Manual (OPM) Document No , Determining the Degree of Permanent Impairment, which states as follows: Permanent Impairment Permanent impairment means any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. (v) Analysis [15] According to the above definition, for there to be a permanent impairment, the worker must have a physical or functional abnormality of loss resulting from the injury. [16] In the case before me, the ARO in the November 22, 2012 decision concluded that the worker had had ongoing problems with his back since the September 2008 injury. Having reviewed the medical evidence on file, I agree with that analysis. [17] Further, the REC assessment documents that the worker s difficulties with low back pain have continued since the November 22, 2012 ARO decision. Dr. Malcolm s evaluation of the worker, as summarized above, clearly documents that the worker has ongoing symptoms and complaints of low back pain, although he states that the worker has recovered (functionally). In the context of the worker s history of back pain since the workplace injury, which was ongoing at the time of the REC assessment, I find that the worker has back pain which has been ongoing from the date of the workplace injury, although it varies in intensity from day to day. The worker therefore has entitlement for a PI for the low back/si strain which has been ongoing since the date of the workplace accident.

5 Page: 4 Decision No. 1226/15 DISPOSITION [18] The appeal is allowed. The worker has a PI as a result of his workplace injury, and he is entitled to a NEL assessment with respect to that impairment. [19] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: July 16, 2015 SIGNED: S. Peckover