WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 584/08

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 584/08 BEFORE: R. McClellan : Vice-Chair HEARING: March 7, 2008 at Toronto Written No Post hearing activity DATE OF DECISION: March 12, 2008 NEUTRAL CITATION: 2008 ONWSIAT 725 DECISION(S) UNDER APPEAL: WSIB ARO decision dated June 29, 2007 APPEARANCES: For the worker: For the employer: Self-represented Not participating 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 REASONS (i) The appeal Decision No. 584/08 [1] The worker appeals the decision of the Appeals Resolution Officer, Mrs. Escobar, dated June 29, That decision concluded that the worker did not have entitlement to an increase in the quantum of his permanent disability award of 50% for a disability in the lumbar spine and did not have entitlement to an increase in the quantum of his permanent disability of 10% for a permanent disability in the cervical spine, both disabilities arising from the accident of August 16, [2] The issue before the Vice-Chair is whether the worker has entitlement to an increase in the quantum of his permanent disability award of 50% for disability in the lumbar spine and whether the worker has entitlement to an increase in the quantum of his permanent disability of 10% for a permanent disability in the cervical spine. (ii) Background [3] The worker, now age 56, was employed as a labourer/driller helper at a mine site. On August 16, 1988, he fell onto bedrock near the mine site and sustained a hyperextension injury to the low back and the neck. The 1989 diagnosis at the Downsview Rehabilitation Centre was lumbar sprain/strain and cervical strain. X-rays taken in 1988 showed a normal lumbar spine but there were signs and degenerative changes at C5/6 in the cervical spine. A CT scan taken in August 1988 showed a possible protrusion at L5/S1. [4] On December 12, 1990, the worker was awarded a 10% permanent disability award for "chronic lumbar-sacral sprain" and 5% for post-traumatic cervical osteoarthritis. [5] An MRI taken on January 21, 1992 of the lumbar spine, showed a small central disc herniation at L5/S1, not touching the dural sac or the nerve roots and diffused bulging at L4/5. [6] In a report dated March 6, 1992, Dr. Adduri, an orthopaedic specialist, listed a diagnosis of "lumbar disc prolapsed." On July 10, 1992, Dr. Adduri reported bulging discs at L4/5 and L5/S1. [7] On October 9, 1992, Dr. Cruickshank, Director of the Winnipeg General Hospital Pain Clinic, suggested there was an L5 root involvement. [8] On October 7, 1992, family physician, Dr. Doermer, reported a double disc herniation at L4/5 and L5/S1, back pain radiating to the left leg, causing the worker s left leg to "give out." The Case Record contains documentation of the number of falls sustained by the worker when his leg gave out. [9] At a pension reassessment on November 3, 1993, recorded in Board Memo #134, Dr. Cadman, a pension medical advisor recommended an increase to 15% for the low back and confirmed 5% for the cervical spine, for a total of 20%. The 20% total rating was confirmed in September [10] In Board Memo #245, dated October 30, 2002, the Nurse Case Manager referred to a report from Dr. Doermer of June 19, 2000, which referred to "several disc protrusions" and that the worker had "knife- like pain in the low back radiating down his right leg."

3 Page: 2 Decision No. 584/08 [11] In Board Memo #248, dated November 26, 2002, the Claims Adjudicator recorded the chiropractor s recent findings. Forward flexion was 40, extension 5, lateral flexion was 50, left rotation was 15, right rotation was 20 and there was restricted range of motion at L4/5 and L5/S1. [12] An x-ray taken on November 12, 2002 showed discopathy at L5 osteoarthritic changes, facet asymmetry and arthrosis. [13] An x-ray taken on October 27, 2005 showed severe degenerative changes in the cervical spine at C5/6 and C6/7 as well as changes at C3/4 and C4/5. In the lumbar spine there were degenerative changes at all five levels, most marked at L5/S1 with reduction of disc space it L3/4 and L4/5. [14] Board Memo #255, dated March 29, 2004 recorded increased low back pain with bilateral radiation based on the report of the chiropractor Dr. Mahood. [15] In Board Memo #266, dated March 9, 2006, Board Medical Consultant Dr. Maehle conducted a review of the medical file. He referred to the recent report from Dr. Remus, an orthopaedic specialist, with the following findings: in the lumbar spine, forward flexion 30, extension 25, lateral flexion left and right 20, straight leg raising 70. On the cervical spine, flexion 30, extension 25, rotation 5, lateral tilting 30. Dr. Maehle recommended an increase in the PD for the cervical spine to 10% and confirmed the 15% award for the low back, stating, "it very definitely remains appropriate for the lumbar spine." [16] In Board Memo #285, dated August 19, 2007, pension medical consultant Dr. Wentzel examined the worker and confirmed the 15% award for the lumbar spine and the 5% award for the cervical spine. There is no record of any findings from an examination. Dr. Wentzel stated, "for the lumbar spine the worker has some left leg nerve root irritation signs but a surgical lesion has not been identified to date." [17] The worker was assessed by Dr. Remus on February 2, Dr. Remus stated x-rays of the lumbar spine showed multi-level spondyltic changes, significant arthritic changes with sclerosis and ossification at L4/5 and L5/S1. He stated there were marked spondylitic changes through the lumbar, cervical and thoracic spine suggested of "disseminated idiopathic sclerosing hypertrophy" (DISH). [18] His examination report was as follows: On examining the patient, he is a pleasant, 52-year-old male moving somewhat cautiously who states that he is able to get out and walk. He is not involved in any other recreational activities or sports. The patient has largely had chiropractic treatment in the past. He was certainly advised that with the significant changes noted radiologically that chiropractor treatment is definitely contra-indicated related to his cervical, thoracic and lumbar spine. The patient stands with a postural accentuation of his thoracic kyphosis and cervical and lumbar lordosis. With respect to the cervical spine, he complains of pain on vertex compression and tenderness on palpation over the posterior aspect of his cervical spine. He has a measurable 30 of forward flexion and 25 of Extension. He can rotate his head to the right and left to 25 with lateral tilt to 30. There was pain on further active and passive motion. The patient's range of movement of the shoulders is to

4 Page: 3 Decision No. 584/08 three quarters of the normal range. He has a mild degree of adhesive capsulitis with no evidence of shoulder subluxation and rotator cuff entrapment. He has a postural accentuation of his thoracic kyphosis and lumbar lordosis and forward flexion of the thoraco-lumbar spine is markedly restricted, the patient having 30 of forward flexion at which time the fingers and the outstretched hands could be extended perhaps to the lower thigh level. From this range of forward flexion, he has 25 of extension, lateral flexion to the right and left is markedly restricted to 20. He complains of generalized pain on percussion throughout his lower thoracic as well as his lumbar spine and to a lesser degree over his sacroiliac joints. With the patient lying supine on the examination table, he could straight leg raise to 70 bilaterally. There is tightness of his hamstrings but it is not felt that there is evidence of sciatic or femoral nerve irritation. The patient s reflexes are elicited and equal and there is no obvious sensory loss. There is no obvious motor wasting or weakness. The leg lengths appear to be equal. This 52-year-old patient was last assessed on November 3, 1993, the patient being given a 20% award (15% for back, 5% for his neck). It is quite obvious that there has been further progression of his spinal condition since that time. (iii) Law and policy [19] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect. However, pursuant to section 102 of the WSIA, the Workers' Compensation Act continues to apply to pre-1998 injuries. Thus the pre-1989 Act and pre-1997 Act continue to apply, as amended by the WSIA. [20] The relevant section of the pre-1989 Act states as follows: 45(1) Where permanent disability results from the injury, the impairment of earning capacity of the worker shall be estimated from the nature and degree of the injury, and the compensation shall be a weekly or other periodic payment during the lifetime of the worker, or such other period as the Board may fix, of a sum proportionate to such impairment not exceeding in any case the like proportion of 90 per cent of the worker's net average earnings. (3) The Board may compile a rating schedule of percentages of impairment of earning capacity for specified injuries or mutilations that may be used as a guide in determining the compensation payable in permanent disability cases. (4) Where the impairment of the earning capacity of the worker does not exceed 10 per cent of the worker's earning capacity and the worker does not elect to receive compensation by a weekly or other periodic payment, the Board shall, unless the Board decides that it would not be to the advantage of the worker to do so, direct that such lump sum as may be considered to be the equivalent of the periodic payment shall be paid to the worker. [21] Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal.

5 Page: 4 Decision No. 584/08 (iv) The Vice-Chair s conclusions [22] The worker in this case is claiming entitlement to an increase in the quantum of his permanent disability awards of 15% of the lumbar spine and 10% of the cervical spine. Both compensable conditions arose from the accident of August 16, [23] With respect to the question of an appropriate quantum for disability in the lumbar spine, Tribunal adjudicators have, in the past, relied upon the advice provided to the Tribunal by Dr. Young, Senior Pension Medical Examiner with the Board, during his testimony in the leading pension case (Decision No. 915 (1987) 7WCATR 1). [24] Dr. Young described the 15% permanent disability award for disability in the lumbar spine as appropriate for someone with moderate symptoms, with restriction of mobility to approximately one half normal on all plains, and signs of mild nerve root irritation with no neurological deficit. [25] Dr. Young described a 20% award as appropriate for someone with pain and stress resulting from activities which stressed the back such as prolonged postures, lifting with conservative restrictions of the lumbar spine, probably to one-third of normal, and with signs of nerve root irritation on straight leg raising, with or without a minor neurological deficit. [26] A 30% award would require moderate to severe symptoms, with marked restriction of mobility from one third of normal to complete immobility, and positive evidence of nerve root irritation and mild neurological deficit. [27] In my view, the medical evidence as early as the 1992 MRI established the presence of disc lesions at L5/S1 and L4/5. The worker's permanent disability in the lumbar spine is evidently discogenic, not simply a soft tissue injury. There is evidence of nerve root irritation throughout the medical file, with radiation of the worker s back pain along the L5 distribution. In my view, it is also clear from the detailed assessments reported by Dr. Adduri as early as 1992, and by Dr. Remus in February 2006, that the worker meets the criteria set out above by Dr. Young for a 20% award. [28] With respect to the cervical spine, the worker has extensive compensable posttraumatic osteoarthritis in the cervical spine, with restriction to one-third the normal range of motion. Under the Ontario Rating Schedule, the maximum award for total immobility of the cervical spine is identical with the maximum award for total immobility in the lumbar spine, 30%. Having regard for Dr. Remus statement that the worker's back condition has obviously progressed since the award was established in November 1993, and given the severity of the worker s cervical spine condition, it is my view that a 20% award is warranted for a permanent disability in the cervical spine. [29] I find that the worker is entitled to an increase in the permanent disability award for the lumbar spine from 15% to 20%, and the worker is entitled to an increase in a permanent disability award for the cervical spine from 10% to 20%. The arrears shall be effective from Dr. Remus report of February 2, 2006.

6 Page: 5 Decision No. 584/08 DISPOSITION [30] The appeal is allowed. [31] The worker is entitled to an increase in the permanent disability award for the lumbar spine from 15% to 20%, and, the worker is entitled to an increase in permanent disability award for the cervical spine from 10% to 20%. The arrears shall be dated from Dr. Remus report of February 2, DATED: March 12, 2008 SIGNED: R. McClellan