WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 130/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 130/15 BEFORE: I.R. Mackenzie : Vice-Chair B.M. Young : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: January 15, 2015 at London Oral DATE OF DECISION: June 30, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1441 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated November 19, 2012 APPEARANCES: For the worker: For the employer: Interpreter: C. Iglesias, 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. 130/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker was not entitled to benefits for back surgery and for Loss of Earnings (LOE) benefits subsequent to surgery. [2] At the hearing, the worker s representative requested that the Tribunal s Medical Discussion Paper Back Pain, dated March 1997 (revised February 2003), prepared by Dr. W.R. Harris and Dr. J.F.R. Fleming be introduced as an exhibit. The Panel agreed to the introduction of the Medical Discussion Paper. The Medical Discussion Paper was subsequently revised and re-named, Low Back Pain on February 15, 2015 (prepared by Dr. Albert Yee, Dr. Safraz Mohammed and Dr. Barry Malcolm). (ii) Issues [3] The issues under appeal are entitlement to back surgery and entitlement to LOE benefits subsequent to surgery. (iii) Background [4] The now 48-year old worker started his employment with the accident employer in The employer is a car parts manufacturer. The worker had a number of different positions and at the time of the accident he was working as a loader/unloader of car wheel rims. [5] In 1986, with a different employer, the worker injured his back as a result of lifting heavy boxes. The diagnosis was a lower back strain. The claim was allowed by the WSIB. On November 19, 2001 the worker suffered a lower back strain with the present accident employer. [6] The most recent accident was on August 14, The worker reported starting to feel tenderness in his lower back a couple of hours after completing the changeovers on the coating machine. He was diagnosed with low back strain. Entitlement was accepted by the WSIB. This was a no lost time claim. [7] On November 30, 2010, the worker reported a recurrence of low back pain after starting a new position with the accident employer. The WSIB allowed a recurrence for health care benefits for the low back, as the worker did not lose any time. [8] In March of 2011, back surgery was recommended. The WSIB denied entitlement for the surgery. This decision is the subject of this appeal. [9] The worker had back surgery on June 6, He returned to work on July 26, During this period of time he received short term disability benefits through his employer. [10] The ARO concluded that the worker s ongoing symptoms were not compatible or related to the workplace injury accepted under the claim. (iv) Law and policy [11] Since the worker was injured in 2008, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal.

3 Page: 2 Decision No. 130/15 [12] 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 # 241 initial entitlement Package # 300 Decision Making/Benefit of Doubt/Merits and Justice [13] The ARO also considered WSIB Policy Document No , Adjudicative Process and Policy Document No , Lost Time Claims. (v) Summary of medical evidence [14] The worker s physician, Dr. Steven Chan, provided a Health Professional s Report (Form 8) on August 28, The worker was diagnosed with a lower back strain. There were no functional limitations. The worker was prescribed pain medication and was referred to a physiotherapist. In clinical notes of August 28, 2008, the doctor recorded that the worker did not feel that the back pain was related to work. [15] The worker had a lumbar spine x-ray on December 29, No abnormality of the lumbo-sacral spine was found. In an MRI conducted on March 24, 2009, Dr. Osama Yousef reported the following findings: At level L4-L5, there is a very minimal diffuse broad-based disc bulging with minimal encroachment on the thecal sac.. At level L5-S1, there is mild to moderate central and right paracentral focal disc herniation. There is mild to moderate encroachment on the thecal sac. There is moderate narrowing of right neural foramina and impingement on the right S1 exiting nerve root. L5-S1: there is dehydration of the disc and there is a large disc protrusion which is right paracentral and causing asymmetrical indentation of the anterior thecal sac. The disc herniation also extends into the right lateral recess and impingement of S1 is possible. [16] The worker s family doctor, Dr. Mel Cescon, reviewed the MRI results with the worker on April 9, 2009 and diagnosed disc herniation and impingement of the right S1 nerve root. He referred the worker to an orthopaedic surgeon for an assessment. [17] On May 13, 2009, Dr. Cescon provided a report to the WSIB stating that the worker continues to experience moderate back pain, sometimes during work, with pain approaching eight out of 10. He recommended physiotherapy and massage therapy. The worker had physiotherapy treatment and massage therapy. [18] The physiotherapy discharge report of September 30, 2009 noted that his recovery was maximized and he was to continue with home exercises. The discharge report noted that the worker had reported a significant improvement in pain and function. He reported that his only pain remaining was a 1.5 to 2/10 low back pain after approximately five hours of working. [19] Dr. Gemah Moammer, Orthopaedic Surgeon, examined the worker on October 5, The doctor noted that as the pain in the right leg had improved, it was decided to continue with non-operative treatment for the time being. He was scheduled for a follow-up in two months time. [20] Dr. Mel Cescon, the worker s family doctor, provided a medical note dated November 17, 2010 that stated:

4 Page: 3 Decision No. 130/15 Recently, [the worker] changed positions at work due to slow down, and his change in physical status has resulted in exacerbation of his pain requiring increased use of his pain medications with minimal effect. If possible, please consider ways in which to accommodate [the worker s] physical limitations (specifically, inability to stand in one position for prolonged periods) to decrease his pain to optimize his time at work and prevent the need to miss work due [to] this pain. [21] Dr. Moammer examined the worker on December 6, The worker was reporting severe right leg pain that increased with activity. Dr. Moammer stated that he wanted a new MRI done. [22] Dr. Cescon provided a Functional Abilities Form (FAF) on December 31, He listed the following abilities and restrictions: Walking as tolerated Standing as tolerated Sitting up to 30 minutes Lifting from floor to waist and from waist to shoulder of up to 5 kilograms Stair climbing as tolerated Restrictions on bending, twisting and repetitive movement of the lower back Avoid work at or above shoulder level Limited pushing and pulling with both arms [23] He listed these restrictions as being in place for more than 14 days. [24] Dr. Cescon provided a Health Professional s Continuity Report to the WSIB on January 12, 2011, reporting a recurrence on November 17, The working diagnosis was nerve root compression. [25] An MRI was conducted on February 3, The impression recorded was a disc protrusion at the L5-S1 level. It was observed that this impression was also noted in the MRI done in [26] Dr. Moammer assessed the worker s back again on March 1, Dr. Moammer noted that the new MRI showed a large bulging disc at L5-S1 causing severe right lateral recess stenosis and compression effect on the right S1 nerve root. He noted that the rest of the L5-S1 disc looked like it was dehydrated and had reduced disc height. He recommended L5-S1 posterolateral spinal decompression and discectomy surgery. [27] A WSIB Medical Consultant, Dr. Herrick, reviewed the file on March 23, 2011 and stated that the medical evidence did not establish compatibility between the injury and the accident history. Dr. Herrick stated that a review of the job description and any pre-injury clinical notes and imaging would be helpful. [28] On May 31, 2011, Dr. Herrick reviewed the job description and noted that it was not apparent that any of these activities (lateral bending and twisting of back, lifting and carrying)

5 Page: 4 Decision No. 130/15 were involved in accident history as described by worker and/or that any of these activities caused the injury. He concluded that compatibility was not established with the information available. [29] The worker had back surgery on June 6, In a short-term disability form filled out by his family physician, Dr. Mel Cesoon, a recovery period of six weeks was estimated. The worker did receive short-term disability through his employer for the surgery and recovery. He returned to work on July 26, (vi) Testimony and documentary evidence [30] The worker testified that he had had a number of different jobs with the accident employer from the time of his hiring in He testified that because of seniority rules, he would be bumped from a particular job when there was a plant slowdown. At the time of the initial accident in August of 2008, the worker was working as a loader/unloader and had been in that position for about two years. [31] A loader/unloader loads electroplated rims onto the coating machine to be coated. The production rate is 1,000 rims per shift. There is only one loader/unloader on each shift. The physical demands analysis of the loader/unloader position provides the following description of the work performed: Strength: Must be able to lift, grip and carry a rim from the rolling table to the coating machine and from the coating machine to another rolling table. Pushing is also required, as they need to push the rims on the rolling table to be wiped. In addition, the loader/unloader is required to pull the coating face masks off the rims after coating. Reaching is normally done at waist to shoulder height but some reaching below the waist and above the shoulder is needed the find the appropriate lid. Posture/Mobility/Flexibility: The majority of the shift, the unloader/loader is walking and occasionally stands. During the unloading and loading there is bending in the neck, wrists and sometimes torso. This is due to lifting up rims and lids from the coating machine and placing it on the rolling table. In addition, twisting of the neck and torso occurs when moving the rims without walking. [32] The worker testified that the rims on the line ranged between 20 and 50 pounds. He testified that the job involved leaning and reaching about a foot and a half to lift the rims. The worker described one of the duties of the position of cleaning the back plates and removing the posts because of paint and moisture buildup. He testified that on August 14, 2008 he was trying to remove a post that would not come off. He was leaning over, using both hands to lift the post. He then felt a pull in his lower back which was greater on the right side. He continued with his duties and did not seek medical attention that day. He testified that he just started noticing the pain in his back the following day. [33] In his report of the injury (Form 6) prepared on September 10, 2008, the worker reported that he started feeling tenderness in his lower back a couple of hours after completing the change overs on the coating machine. [34] In the Health Professional s Report (Form 8), submitted by Dr. S. Chan (the worker s physician) on August 28, 2008, the diagnosis was lower back strain. The treatment plan

6 Page: 5 Decision No. 130/15 included prescription for Tylenol 3 and Robaxacet. He was also referred to a physiotherapist. The doctor indicated that there were no work restrictions. [35] The worker testified that when he complained to his supervisor about the loading/unloading job and its impact on his back after the accident, he was moved to the position of wiping rims. He testified that there was no lifting involved. He had to stand the rims up and wipe them. He was wiping about 200 rims a day in this position. He testified that he was about three or four months in that job. [36] After the initial accident of 2008, the worker also worked as a coding machine operator, up until He testified that this was not a strenuous job. He was required to put five gallon pails of paint on a dolly, push the cart to the back of the shop, put the pails of paint on the floor and add thinners. He estimated the weight of the pails as 50 to 60 pounds. He testified that he would move four pails of paint per shift. He was in that position for about a year and a half. The worker also worked as a mask cleaner for approximately a year in total prior to the accident and for a short time after the accident as well. [37] In August of 2010, the worker was bumped into the position of pre-plate inspection. In this job, he was inspecting tubes of about six to eight feet long. If he noted any defects, he had to lift them up and give them to the worker doing the touch-ups. He estimated that half of the tubes would require touch ups. The remaining tubes he would lift into a box. He estimated the number of tubes per shift was approximately 300. He estimated the weight of the tubes at between 10 to 20 pounds. He noticed the strain on his back within the first week of this job. He testified that he mentioned it to his foreman a couple of times. The foreman suggested that the touch up worker could pick up the tubes. [38] The worker testified that he went to see the company nurse about a month into the new job to report his back problems. The nurse s report on file, dated November 9, 2010, records that the worker told the nurse that his back had been getting worse since his change in job position. It also records that the worker was taking Naproxen and Tylenol #3 during working hours. In December of 2010, the worker testified that he went to the plant manager and told him about the back issues he was having. The worker was then placed in a job loading a machine with motorcycle parts for washing. He worked in this position from January 2011 until his operation on June 6, He testified that the parts were five pounds or less. He testified that he had moderate pain in this job. [39] He testified that he was off for seven weeks after his surgery and returned to regular duties as a general polisher of motorcycle parts. He testified that this was not a heavy job. He continues to work in this position. For the seven weeks off work, the worker received short term disability benefits for five weeks. [40] The worker was asked to explain the reference in the clinical notes to his comment that he did not think the back injury was work-related. He testified that on this visit to the clinic, he did not see his family doctor but saw a fill-in physician. He testified that he did not tell the doctor that he did not believe the injury was not work-related. [41] The worker testified that he did not engage in any sports that involved his back, other than playing golf two or three times a year.

7 Page: 6 Decision No. 130/15 (vii) Submissions [42] The worker s representative submitted that the worker had no back symptoms prior to the accident of August 14, Although he had previous back injuries, he had recovered from these injuries and there is no medical evidence of any back difficulties prior to the date of accident. [43] The representative submitted that all of the jobs performed by the worker at the relevant times had a risk factor to the back of bending and lifting. The representative submitted that the worker only became symptomatic after the accident of August 14, [44] The representative submitted that the note on the clinical file that the worker does not think the injury was work-related was not reliable. In the Form 8 provided by his physician on August 28, 2008, it is noted that the worker feels it is related to work. In addition, the representative submitted that the worker was not qualified to give a medical opinion on the cause of his back injury. [45] The representative submitted that the worker continued to seek medical attention after the accident. [46] The representative referred the Panel to the WSIAT Medial Discussion paper, Back Pain, prepared by Dr. W.R. Harris and Dr. J.F.R. Fleming, prepared in March of 1997 and updated February In particular, she referred the Panel to the supplemental material prepared by Dr. S. Gertzbein, where he states that a simple activity such as bending, twisting or lifting may generate sufficient forces within the disc to cause it to protrude through a path of least resistance. [47] The representative submitted that the worker returned to work after the recovery period for his surgery and cooperated in his work reintegration. She submitted that he is therefore entitled to LOE for the time missed from work between his surgery and his return to full duties. (viii) Analysis [48] At issue in this appeal is entitlement for back surgery and LOE benefits for the time missed from work after the surgery. In order to be entitled to LOE benefits, clinical evidence on file must show that the inability to work is due to the work-related injury/disease (Policy Document No , Lost Time Claims ). In other words, the worker must establish, on a balance of probabilities, that the surgery was required as a result of a workplace injury. [49] The worker was initially diagnosed with low back strain in August of Although in clinical notes dated August 28, 2008 the doctor recorded that the worker did not feel the low back pain was related to work, in May of 2009, Dr. Cescon reported that the worker experienced moderate back pain, sometimes during work. A physiotherapy discharge report in September of 2009 also recorded that the worker reported low back pain after five hours of working. In addition, the WSIB granted initial entitlement for the lower back strain. [50] In August of 2010, the worker changed positions at the accident employer. He was lifting about 300 tubes of between six to eight feet in length and weighing up to 20 pounds, each shift. He testified that he noticed a strain on his back and reported this, first to the foreman and then to the company nurse. The reports to the nurse are confirmed in notes provided by the employer in the claim file. In November of 2010, Dr. Cescon reported that the change in work duties had resulted in an exacerbation of the worker s back pain. The WSIB granted entitlement for the

8 Page: 7 Decision No. 130/15 recurrence (for health care benefits only, as there was no lost time prior to the surgery in June 2011). [51] The case materials included the WSIAT Medical Discussion Paper, Back Pain, dated March 1997 (revised February 2003), prepared by Dr. W.R. Harris and Dr. J.F.R. Fleming. Although the Panel is not bound by any information or opinion contained in a WSIAT Medical Discussion Paper, it can consider and rely on the general medical information provided in it. In a letter to the Tribunal, dated November 21, 1989 included as supplemental information to the Discussion Paper, Dr. S.D. Gertzbein, concluded that a disc protrusion could be caused by a simple activity such as bending, twisting or lifting particularly in the face of the normal aging process. [52] The revised Medical Discussion Paper (now entitled Low Back Pain ) has removed Dr. Gertzbein s supplemental letter. In answer to the question of whether there are any particular ergonomic risk factors in work activities that would create an increased risk for back injuries, the revised paper notes that there is a lack of consistent high-level scientific evidence, but that the following associations have been reported: Prolonged static posture Frequent or repetitive stretching to the end limit of range of motion or to beyond physiologic range of motion positions. Such movements can involve lifting from the floor or lifting to overhead, or using rotational force (i.e. twisting from side to side) while handling bulky or heavy objects Lifting of heavy loads repeatedly [53] The Panel notes that the revised Medical Discussion Paper includes references to lifting and the use of rotational force (twisting) as being associated with lower back injuries, consistent with the general statement of Dr. Gertzbein in the earlier version of the Medical Discussion Paper. [54] The testimony of the worker was that his duties required repetitive bending and twisting. This description of his duties is supported by the job description. The job description describes reaching at the waist to shoulder height as well as some reaching below the waist and above the shoulder. It also describes bending in the torso during loading and unloading as well as when moving the rims. The worker has also established that the change in his job function in November of 2010 resulted in increased back pain. This is supported by the report of Dr. Cescon of November 17, [55] The Panel therefore accepts that the medical diagnosis of disc herniation is compatible with the workplace injury. In addition, the worker has established a continuity of the injury as the evidence shows he continued to report back pain after the date of the accident. In addition, the WSIB granted health care benefits for his ongoing lower back pain and the worker underwent physiotherapy and was prescribed pain medication. The evidence before us supports a causal relationship between the worker s duties and the disc herniation. The discectomy surgery performed on June 6, 2011 is therefore related to the injury and the recurrence. [56] Accordingly, the Panel has determined that the worker is entitled to benefits for the back surgery of June 6, 2011 as well as for full LOE from the date of surgery until July 26, 2011.

9 Page: 8 Decision No. 130/15 DISPOSITION [57] The appeal is allowed. The worker is to receive entitlement for back surgery of June 6, 2011 and the worker is entitled to LOE benefits from date of surgery until July 26, DATED: June 30, 2015 SIGNED: I.R. Mackenzie, B.M. Young, K. Hoskin