FD: ACN=2115 ACC=R FD: DT:D DN: 840 STY: PANEL: McIntosh-Janis; Heard; Jago DDATE: 200187 ACT: 1(1)(a) KEYW: Continuity (of symptoms); Continuity (of complaint). SUM: The worker appealed a decision of the Appeals Adjudicator denying entitlement for back pain in May 1984 which the worker claimed was related to a compensable back injury suffered in November 1981. The medical evidence and the evidence of the worker and his co-workers established that from 1981 to 1984 the worker continued to suffer back pain, although he did not have to lay off work. In May 1984 he suffered the same symptoms in the same place as in the 1981 accident. There was sufficient evidence to establish a relationship between the 1981 accident and the pain in 1984. The appeal was allowed. PDCON: TYPE:A; S DIST: BDG: Claims Adjudication Branch Procedures Manual, Document no. 33-02-31 IDATE: HDATE:261186 TCO: KEYPER:K. Lovely; Mrs. Koselek XREF: COMMENTS: TEXT:
WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 840 This appeal to the Appeals Tribunal was heard in Sudbury on November 26, 1986, by: F.W. McIntosh-Janis: Panel Chairman, D. Jago : Member representative of employers, L. Heard : Member representative of workers. THE APPEAL PROCEEDINGS This is an appeal by the worker from the decision of the Appeals Adjudicator, T.D. Allamby, dated June 24, 1985, denying the worker entitlement to benefits subsequent to May 2, 1984, for recurrence of a back condition arising from the compensable accident of November 2, 1981. The worker appeared and was represented by K. Lovely of the Office of the Worker Adviser. The employer was represented by Mrs. Koselek. THE EVIDENCE The Panel read the relevant forms, memoranda, reports and medical reports extracted from the Workers' Compensation Board ("WCB") file and collected in the Case Description materials which were filed at the hearing. Copies of these materials had been given to the parties' representatives in advance of the hearing. These materials were marked as Exhibit #1. Prior to the hearing, the Panel also received a letter from the worker's representative addressed to the Tribunal dated November 5, 1986, the contents of which were communicated to Mrs. Koselek by a member of the Tribunal Counsel Office. This letter was marked as Exhibit #2. At the hearing, the worker's representative submitted a letter dated November 19, 1986, from the Sudbury District OHIP Office with an enclosed listing of services provided to the worker from November 2, 1981, to July 2, 1986. A copy of this letter was provided to Mrs. Koselek. This letter was marked as Exhibit #3. The employer's representative also presented the Panel and the worker's representative at the hearing with shift records for various periods. These materials were marked as Exhibit #4. The worker gave oral evidence at the hearing under oath. The Panel also received oral evidence under oath from one of the worker's co-workers. THE NATURE OF THE CASE The issue before the Panel is whether the back problems reported by the worker subsequent to May 2, 1984, resulted from the compensable accident of November 1, 1981. The worker is claiming temporary total benefits from May 6, 1984 to August 12, 1984.
2 By letter dated July 17, 1984, the Claims Review Branch accepted the advice of the Board's Section Medical Advisor and concluded that it had not been established that the worker's low back problems in December 1983 and May 1984 were related to the injury sustained on November 2, 1981. Therefore, entitlement to compensation was denied. By decision dated June 24, 1985, the Appeals Adjudicator could "find nothing to support that this onset of pain arose out of and during the course of employment, and was certainly not caused by any accident as defined by section 1(1)(a)(i)(ii)(iii) of the Workers' Compensation Act." Therefore, the Appeals Adjudicator ruled that the worker was not entitled to benefits or health care benefits subsequent to May 2, 1984, for recurring back problems. THE PANEL S REASON On November 2, 1981, the worker, a grinder man, had been moving a four foot log into place with a pick when he felt pain in his back. Dr. Low, on November 3, 1981, diagnosed this as an "acute lumbar back strain". No time was lost from work initially. The worker returned to light duty but some days later found that he could not do this work and, on his doctor's instructions, laid off work from December 1 to December 8, 1981. The worker received compensation for this period of time. On May 1, 1984, the worker reported that he began to feel pain in his back starting in the morning, which increased as the day progressed. He attended the emergency ward of a hospital on May 2, 1984, complaining of low back pain. As a result of this low back pain, the worker claims that he was unable to work from May 2, 1984, until August 13, 1984. The Panel has considered the WCB Claims Adjudication Branch Procedures Manual, Document No. 33-02-31 concerning continuity enquiries and found the factors outlined there helpful and relevant to its consideration of the issue in question here. Therefore, the Panel has used the factors outlined in the Manual to summarize the evidence before it as follows. Worker's condition when he returned to work December 1981: When the worker returned to work on December 9, 1981, he stated that he still suffered from some low back pain. However, Dr. Low, in a letter dated December 8, 1981, to the WCB, stated "his lumbar back pain is completely gone now." The worker takes the position that Dr. Low was wrong. Symptoms from December 1981 to May 1984: The worker testified that he suffered low back pain while doing his regular work, from his return to work on December 9, 1981, until May 1984, sometimes feeling pain daily because of bending or stooping. The worker testified that he missed some days of work from December 1981 to May 1984 but not because of his back pain. He stated that May 1984 was the first time since the November 1981 injury that he lost time because of the back pain. The worker testified that he took no medication for his back pain from
3 December 1981 to May 1984 because he does not believe in taking pain-killers. The employer records indicate that there were several periods of time of varying lengths in 1982 and 1983 when the worker was laid off because of plant shutdowns. The records indicate that the worker was laid off work for a total of approximately 16 weeks in 1982 and 4 weeks in 1983. During these plant shutdowns, the worker testified that he did not work elsewhere, but rested at home. He stated that these periods of rest helped his back as there was no tension on his back and he did no stooping or bending. He arranged for others to do any lifting around the house. Modifications in the work: From 1981 to 1984 the worker held many positions in the plant. The worker testified that these changes in jobs were not because of his back pain, but rather because of his progression with the accident employer. In a letter dated February 12, 1985, an employer official stated: "Since 1981, [the worker] has held many positions in the plant because of the large turnover in personnel." Although the employer took the position in his letter that "the only job which would have involved a lot of heavy work would have been the utility man's job", the worker testified at the hearing that his other jobs involved mostly heavy physical work and always involved movement. Complaints to co-workers: The Panel heard testimony from one of the worker's co-workers, who has worked with the worker off and on from 1981 to the present day. The co-worker testified that he knew of the worker's sore back mostly by observing his actions while working with the worker. In addition, he testified that the worker had informed him that he had been seeking medical attention for his low back pain. The co-worker testified that on May 1, 1984, the worker complained specifically of back pain, and he noticed that the worker was having problems with his back. The co-worker testified that by the end of the 12-hour shift, the worker was almost doubled over with back pain. He testified that the worker did not do anything out of the ordinary that day. By letter dated February 27, 1985, six of the worker's co-workers stated: We, the undersigned would like at this time to acknowledge the fact that [the worker] did indeed have a sore back and an on-going problem from time to time with his back. While at work he seemed to suffer a mild discomfort from time to time from bending over to do his job, but it was nothing serious enough to keep him from doing his job. This problem with his back came off and on from time to time, right until the present time. This back problem has been with [the worker] since he originally hurt himself on the job back in November, 1981.
4 Medical treatment: The OHIP listing of services provided to the worker indicates that the worker saw Dr. Low in May, June and November of 1982, and April of 1983; Mr. Brandon, a chiropractor, twice in October, 1983; Dr. Aylett, in May and July of 1984; and Dr. Mitchell in May, June, July and August of 1984. Although these OHIP records do not indicate the type of treatment the worker received at these visits, the worker testified that he attended these doctors for his back pain. There was no evidence to contradict this. There is a gap in medical treatment from October 1983 to May 1984. The worker testified that he did not bother to see a doctor during this period of time because his back never felt bad enough to seek medical treatment. The emergency admitting report of the hospital of May 2, 1984, indicated low back pain and muscle spasm; the treatment indicated was heat and muscle relaxants. By letter dated May 8, 1984, Dr. Mitchell stated that, after his examination of the worker, he "sent him home on bed rest" and indicated that he would review the worker in a week. Dr. Mitchell stated that a CT scan of the spine and a myelogram might be necessary. In the meantime, the worker was to use analgesics for control of his pain. Dr. Mitchell's letter of May 15, 1984, indicated that a CT scan was arranged for June. In addition, Dr. Mitchell asked "St. Joseph's physiotherapy to start pelvic traction". On May 22, 1984, Dr. Mitchell stated "he is receiving physiotherapy with pelvic traction now.... he remains off work at home. If he continues to improve, he should be able to get back to work in 4 to 6 weeks." Dr. Mitchell, by letter dated June 15, 1984, reported the results of the CT scan of the spine as follows: "The CAT scan of the spine showed a suspicious soft tissue density at L4-L5 anterior to the dural sac. There is bulging at L5-S1." Dr. Mitchell reported that the worker's problem seemed to be settling down, and he expected that the problem would hopefully subside within the next 2 to 6 weeks. On July 9, 1984, Dr. Mitchell reported that although the worker had showed an improvement, "he continues to exhibit a lot of muscle spasm with secondary scoliosis after any heavy work around the house". In a letter dated July 24, 1984, Dr. Aylett reported as follows: Since his original injury in November '81, [the worker] has had repeated episodes of back pain, but most of these occurred while he was laid off and a few weeks of bed rest was needed. Even his last occurrence would not have been reported, if it had taken place 2 days later when he was due to be laid off. He did see Dr. M. Low in 1982 for back problems. Continuing medical attention was not needed most of the time because he was laid off and simply rested at home. His recent, and worse [sic], episode in May '84 was similar to and a result of his original back injury.
5 Other accidents: The worker testified that from December 1981 to May 1984 he suffered no other injuries to his back. By letter dated February 12, 1985, the employer stated: "'Rumour' on the floor was circulating at the time [May 19, 1984] that he had hurt himself at home, however, I cannot really verify this." At the hearing, the worker testified that he suffered no injury at this time at home. No evidence was brought before the Panel to contradict this. The worker testified that in early 1982 he was in a car accident and missed 2 days work. He testified that there was no injury to his back at this time, and he only hit his head and received stitches behind his left ear. Why the worker considers his disability as related to the compensable condition: When asked why the worker considered that his disability from May to August 1984 was related to his November 1981 compensable condition, the worker stated that in 1984 he suffered from exactly the same symptoms in exactly the same place as his 1981 condition and had suffered no other accidents to his back in the interim. The Panel has considered all these factors and is of the view, contrary to the conclusions of the Appeals Adjudicator, that there is evidence of medical continuity and continuity of complaint by the worker of his low back pain from December 1981 to May 1984. The Panel finds that there is sufficient evidence to support the worker's position that his onset of back pain in May 1984 resulted from his compensable accident of November 2, 1981. DECISION 1. The appeal is allowed. 2. The Panel finds that the worker's low back disability subsequent to May 2, 1984, resulted from the compensable accident of November 2, 1981.
6 3. The file is referred to the WCB for determination of the amount of compensation owing to the worker as a result of these conclusions. DATED at Toronto, this 20th day of January, 1987. SIGNED: F.W. McIntosh-Janis, D. Jago, L. Heard