WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2086/14 BEFORE: S. Peckover: Vice-Chair HEARING: November 12, 2014 at Toronto Written DATE OF DECISION: November 17, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2476 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated April 18, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Oliverio, Paralegal Not Participating (Closed) 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
Decision No. 2086/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that he was not entitled to a non-economic loss (NEL) assessment for the low back and the neck. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [2] The worker seeks entitlement to a NEL assessment for the low back and the neck. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1975, started as a long-haul truck driver with the accident employer in June 2008. On October 23, 2008, he was driving at night when a moose stepped into the path of his 18-wheeler transport truck. He swerved to avoid the animal, resulting in the truck rolling several times before stopping in a ditch. The worker was taken to hospital by passersby, and released later that day. [5] Entitlement was allowed for soft-tissue injuries to the low back and neck. The worker received psychological therapy for his nightmares and anxiety about driving a truck. He attended chiropractic and/or physiotherapy treatment for his neck and back. [6] In September 2011, the worker was referred for a NEL assessment with respect to his psychological symptoms, which had not resolved despite treatment. In 2012, he was granted a 20% NEL under the Post-Traumatic Stress Disorder (PTSD) guidelines. However, in Board Memo #42 dated August 12, 2011, while reviewing the file with respect to the worker s progress in psychotherapy, the case manager stated that the most recent information on file with respect to the worker s low back and neck strain was the Regional Evaluation Centre (REC) assessment in May 2009. An MRI in March 2009 revealed degenerative disc disease and anterolisthesis. There was no further objective medical information pertaining to his soft tissue injuries, and they were expected to have resolved by that time. As MMR had been reached for the psychological issues and there was no permanent impairment for the neck and low back strains, she was recommending a referral for Work Transition (WT) services. [7] This decision was not communicated to the worker until he called the nurse consultant on April 24, 2012 to discuss medications which the Board had not paid for. A decision letter dated April 27, 2012 then advised the worker that his entitlement was for muscular strains, and that there was no ongoing entitlement to any lumbar or cervical impairment. The degenerative changes in his spine were non-work related, and were pre-existing conditions which were not caused by the motor vehicle accident. The worker objected, stating that he had no back or cervical problems before the accident, and that they had been ongoing since the accident. [8] A reconsideration decision letter dated December 13, 2012 stated that the decisions remained unchanged. [9] At the Appeals Branch, in a decision dated April 18, 2013, the ARO reviewed the available medical information, and stated that the medical documentation supported that the worker s compensable neck and back injuries had resolved fully on February 15, 2011.
Page: 2 Decision No. 2086/14 [10] The worker appeals from this decision. (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. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [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 #230 Work Transition & Suitable Occupation from July 15, 2011 to November 30, 2012; Package #261 NEL Entitlement; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [13] I have considered these policies as necessary in deciding the issues in this appeal. Operational Policy Manual (OPM) Document No. 18-05-03, Determining the Degree of Permanent Impairment, was of particular relevance, as follows: Policy Workers who have a work-related permanent impairment are eligible for non-economic loss (NEL) benefits. To rate permanent impairments the WSIB uses a prescribed rating schedule, all relevant health care information in the claim file and, if required, the report from a NEL medical assessment. Guidelines When the worker reaches maximum medical recovery (MMR), the WSIB attempts to determine the degree of the worker s permanent impairment by considering all relevant health care information in the claim file. The worker and employer are advised of this procedure. If the existing health care information in the claim file is insufficient to determine the degree of the worker s permanent impairment, the WSIB requests additional health care information from the worker s physician or other treating health professionals. If the information is still insufficient, the WSIB requires the worker to attend a NEL medical assessment conducted by a roster physician. 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. A worker s degree of permanent impairment is expressed as a percentage of total permanent impairment of the whole person. Rating schedule The prescribed rating schedule is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition revised, (the AMA Guides). (v) Relevant medical evidence [14] The most relevant medical evidence on file is summarized as follows:
Page: 3 Decision No. 2086/14 An MRI dated March 20, 2009 gives a clinical history of MVA October 2008 with persistent lower back pain. The imaging indicates that the worker had a mild, diffuse disc bulge at the L4-5 level, with no resulting stenosis. At L5-S1, the disc space was uncovered due to the anterolisthesis, with a mild disc bulge and moderate associated bilateral facet osteoarthritis. However, there was no resulting stenosis. There was a moderate amount of epidural fat posterior to the L5 and S1 segment, reducing the caliber of the central canal. The conclusion was that the worker had bilateral pars interarticularis defects at the L5-S1 level, resulting in Grade I anterolisthesis. The worker attended a Regional Evaluation Centre (REC) assessment on April 28, 2009. In the resulting Multidisciplinary Healthcare Assessment report, Orthopaedic Surgeon Dr. Weinberg reported that the diagnosis was a low back strain and neck strain. The prognosis was for gradual recovery over three months. There was also some degree of driver anxiety which could interfere with his return to work. He recommended a further six weeks of active physical therapy, followed by assessment by the worker s family doctor. Psychological therapy was also recommended, to deal with the nightmares and driving anxiety. In terms of the worker s condition at that time, he reported as follows: [The worker] said that he saw his family doctor, who prescribed medication and sent him for therapy. He also had x-rays and an MRI. The MRI indicated grade I spondylolisthesis at L5 on S1. There were bilateral pars defects suggesting that this was a pre-existing condition other [sic] than an acute injury. He said that he has had ongoing pain in the neck and lower back. The neck has improved a great deal. The back is still quite sore. He said he sometimes gets numbness in the legs. He noted that he feels best sleeping on the floor rather than in a bed. He said he has an appointment through his family doctor to see a neurologist later this week. He told us that he was also advised to see a psychologist because he is having difficulty with nightmares and driving anxiety. Apparently this has not been arranged as yet, or was not approved. He has been attending therapy since November 6 th up until the present time. He goes 2 or 3 times a week for massage, adjustments, heat, IFC and exercises. He feels that overall, he is about 60-70% recovered. PHYSICAL EXAMINATION He was noted to be shifting position while seated during the interview, and he complained of low back pain. He was able to stand straight and walk well. He had no trouble walking on his toes and on his heels, but noted some back pain when on his heels. He had some tenderness in the lumbosacral region to the right of the midline. There was no obvious spasm in the back, but on forward bending, he did seem to be splinting to some degree. Resting lordosis was about 15 degrees. Flexion was 25 degrees. Extension was 10 degrees and painful. Lateral bending was 10 degrees to the right and 15 degrees to the left. Rotation was full. He had no difficulty doing a squat. Straight leg raising was full while seated and only slightly limited while supine. There was no sensory deficit. Reflexes were symmetrical, although we were unable to elicit either ankle reflex. He had good mobility in the hips and knees. His pain was only mildly aggravated by axial loading and simulated rotation. He demonstrated good range of motion in the neck. There was some tenderness in the C7 region.
Page: 4 Decision No. 2086/14 In a Chiropractor s Extension Request dated April 30, 2009, Dr. Levenston reported that at that time, the worker reported right lumbosacral pain, with right leg pain if he walked more than 10 minutes. Lumbar extension was 4/5. Left cervical rotation was 4/5. The worker could not sit or walk for long periods. He could not easily bend, turn, or lift; all were painful. He also had a sleep disorder. Factors delaying recovery were the severity of the accident; congenital lumbosacral malformation; and lumbar anterolisthesis. Full recovery was anticipated in 12 weeks. In an undated Consultation Request to Psychiatrist Dr. Sooniyabalai, Family Physician Dr. Mahendira stated as follows, under Reason for Referral : Please see the above person for a psychiatric assessment. [Illegible] with MVA in Oct 2008. Has chronic back pain since then. Unable to work; on WSIB benefits. In a Health Professional s Progress Report (Form 26) dated July 2, 2009, Dr. Mahendira reported that the worker was complaining of lower back pain. His condition was unchanged from previously. He was tender in the lower back. SLR was 60º bilaterally. Flexion was limited. He was taking Celebrex as needed, Amitriptyline, and one other medication, which is illegible. A psychiatric appointment was pending. Dr. Mahendira s Physician s Special Report dated July 27, 2009 states that the worker continued to complain of lower back pain. He was unable to bend or lift. He also might be psychologically affected. He suggested physiotherapy and analgesics. The psychiatric appointment was still pending. He expected the worker to continue to improve physically and psychiatrically. Dr. Levenston s progress report dated August 17, 2009 mentions low back pain and neck pain. Cervical Range of Motion was as follows: Left lateral flexion 40º; right 34º; forward flexion 70º; extension 40º. Lumbar Range of Motion (ROM) was as follows: left lateral flexion 14º; right 11º; forward flexion 68º; extension 10º. His working diagnosis was a chronic strain of the thoraco-lumbar spine, WAD III anterolisthesis of the lumbar vertebra. He was referring the worker to a physiotherapist. Factors delaying recovery were the severity of the MVA; congenital lumbosacral malformation; and anterolisthesis of the lumbar vertebrae. In a Form 8 dated August 19, 2009, Physiotherapist N. Chacko reported that the worker had reduced activity tolerance for walking, as well as for prolonged static postures, in sitting and lying supine. There was tenderness in the lumbar column, the right SI joints, and the right paraspinals. There was mild tenderness in the lower cervical spine. The working diagnosis was lower back sprain / strain (lower lumbar and right SI); Neck sprain/strain (resolving). Dr. Mahendira s progress report dated July 28, 2010 states that the worker was complaining of back pain and neck pain. His muscles were tender. He had limitation of movements. SLR was 30º with pain. He was taking Celebrex and Amitriptyline, and was attending counselling. The worker consulted Neurologist Dr. Roussev on February 15, 2011 with respect to his low back pain. The worker reported that his low back pain had continued since the 2008
Page: 5 Decision No. 2086/14 MVA, as well as pain in the right knee. The pain was reported to be mechanically aggravated; sometimes with sitting it became worse. The worker was taking Celebrex for pain. Dr. Roussev s opinion was that the worker had chronic low back pain symptoms. He had some degenerative changes in the lumbar spine, including Grade 1 spondylolisthesis. He did not have definitive radicular symptoms, and his electrodiagnostic study was negative for axonal compromise from radiculopathy. There was no indication of other peripheral nerve dysfunction. The worker was involved in psychotherapy for his PTSD symptoms from April 19, 2010 to December 22, 2010. In the Treatment Discharge Report dated March 6, 2011, Psychologist Dr. Salmon reported that the worker s desensitization sessions involving progressive exposure to being in a truck had been unsuccessful. At that time, he reported that the worker was regularly taking Celebrex for his pain symptoms, Co-paroxetine for anxiety, and Elavil as needed for sleep difficulties. In the Psycho-Vocational Assessment Report dated November 18, 2011, Clinical Psychologist Dr. Mor noted the body parts injured in the MVA of October 23, 2008 as the lower back and right knee. At that time, the worker was complaining of constant but variable lower back pain, which he rated as a 6/10. He also had constant but variable right knee pain, rated as a 7/10. Dr. Mor observed that the worker was observed to shift frequently while seated. He got up for a few stretches. There were no spontaneous reports of discomfort. By the end of the assessment, he was visibly fatigued and clearly in pain. In a report dated March 12, 2012, Dr. Mahendira reported that the worker had had persistent back and right knee pain since the accident. This pain had not improved with physiotherapy and analgesics. He had been seen by orthopaedic surgeons, a rheumatologist, and a neurologist. Dr. Mahendira s April 25, 2012 report indicates that the worker continued to have chronic back pain. The pain was acutely aggravated following an injection at the Pain Clinic. He was now taking Celebrex, Elavil, and Paxil. He had been to Emergency a few times in the past few weeks, and had undergone a repeat MRI of the spine. He stated that the worker needed ongoing physiotherapy, as he was unable to mobilize. (vi) Analysis [15] In reviewing the above reporting, I note that the worker s low back pain continued from the date of the accident to at least April 25, 2012. The symptoms are the same, the area of complaint is the same, and the pain has been ongoing. He has taken medications for it on an ongoing basis. His range of motion, where it is recorded, is impaired. He has continued to seek medical treatment for this condition since the date of the accident. I therefore find that the worker has entitlement for a permanent impairment for the low back. [16] With respect to the neck, however, I note that Physiotherapist Chacko (August 19, 2009) indicated that the worker had neck pain (resolving). Prior to that report, there are frequent references to neck pain and impaired cervical range of motion. After that date, there is only one additional mention of the neck, in the July 28, 2010 report from Dr. Mahendira. I therefore find that the worker s neck condition has resolved. He therefore has no entitlement to a NEL assessment for the neck.
Page: 6 Decision No. 2086/14 DISPOSITION [17] The appeal is allowed in part as follows: 1. The worker has entitlement to a permanent impairment assessment for the low back. 2. The worker is not entitled to a permanent impairment assessment for the neck. DATED: November 17, 2014 SIGNED: S. Peckover