WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 111/07 BEFORE: S. Ryan: Vice-Chair HEARING: January 15, 2007 at Toronto Written DATE OF DECISION: January 17, 2007 NEUTRAL CITATION: 2007 ONWSIAT 127 DECISION(S) UNDER APPEAL: G. Ciccocelli, Appeals Resolution Officer, April 28, 2006 APPEARANCES: For the worker: For the employer: Did not participate G. Nolis, a consultant 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. 111/07 REASONS (i) Introduction [1] On February 6, 2003, the worker reported an onset of pain in his lower back which he related to his job requirement to lift boxes weighing 40 pounds. He was initially diagnosed with acute lumbar spasm and strain. At the time of the onset, the worker was 44 years old and had been employed by the accident employer since September 1978. [2] The worker participated in conservative healthcare treatment including chiropractic treatment. He also continued to work in regular duties. In June 2003, the worker reported increased symptoms which he related to excessive hours at work. He was treated with a cortisone injection and acupuncture. In July 2003, the worker reported pain radiation down his left leg. At that time, the accident employer accommodated the worker by offering reduced hours at work. However, the worker s symptoms persisted and he laid off work on July 30, 2003. [3] On September 9, 2003, the worker underwent a CT scan of his lower back and the ensuing report indicated an L5-S1 posterolateral disc herniation with impingement on the left S1 nerve root. The worker was medically authorised to return to modified work on a graduated basis beginning on December 8, 2003. [4] The Board s Operating Branch granted the worker entitlement for his low back disability on a disablement basis. [5] In February 2004, a Claims Adjudicator (CA) denied the employer s request for Second Injury and Enhancement Fund (SIEF) relief of the costs incurred under the claim. However, in a decision dated January 5, 2005, the CA granted the accident employer 75% SIEF relief of the costs of the claim on the basis that the severity of accident on February 6, 2003 was minor and the severity of the worker s pre-accident low back condition was moderate. The accident employer objected. [6] In the decision of April 28, 2006, the Appeals Resolution Officer (ARO) upheld the CA s determination. That decision is now the subject of the employer s appeal to the Tribunal. (ii) Background [7] The essential facts of this case are not contested. The worker was hired by the accident employer, an automotive parts manufacturer, in September 1978. [8] Prior to the compensable accident at issue in this appeal, the worker suffered a number of other injuries at work for which claim files were established by the Board. In June 1981, he suffered a compensable strain to his right shoulder. In July 1984, he suffered a strain to his upper back and left trapezius. Although a claim was submitted to the Board, it is not clear from the Case Record whether the claim was accepted. In March 1996, the worker suffered an injury to his left foot which the Board allowed as a no lost time claim. On August 28, 1997, the worker suffered an injury to his left knee at work which was accepted by the Board. In September 1997, the worker reported a strain to his right abdomen and aggravation of his left
Page: 2 Decision No. 111/07 knee injury. It is not clear whether the Board accepted that claim. In February 1998, he underwent arthroscopic surgery to repair his left knee. (a) Pre-accident history of back pain [9] Clinical notes obtained by the Board from the worker s family doctor, Dr. Taliano, confirm that the worker experienced back pain prior to February 6, 2003. [10] In a Patient Encounter note dated April 1, 1999, Dr. Taliano noted that the worker presented with lumbosacral pain, mostly paralumbar muscle pain and sacroiliac joint pain. The family doctor noted that a physiotherapist would address this problem. He recommended weight loss and back stretches. [11] On January 16, 2001, Dr. Taliano advised that the worker had re-injured his lower back while bending over in bed. Dr. Taliano noted spasm in the paralumbar and parathoracic muscles. At that time, the worker complained of some radiation of pain into the left anterior thigh. Dr. Taliano recommended exercises. [12] On February 11, 2002, the worker presented with lower thoracic and upper back pain with spasm. Dr. Taliano noted reduced range of motion and an antalgic gait. The family doctor noted that there was no preceding trauma to explain the emergence of symptoms, but that the worker had lumbosacral strains in the past. At that time, there were no radicular symptoms. Again, conservative treatment was recommended including exercises. [13] On January 21, 2003, Dr. Taliano noted: [Patient] has persistence of low back pain. X-rays are normal. Pain is lumbar only. No radiation. No radiculopathy. There is paralumbar muscle tenderness and hypertonicity. I have suggested more [range of motion] exercises, modified duties at work and start Celebrex (b) History of injury and subsequent events [14] In a Worker s Report of Injury/Disease (Form 6) dated May 3, 2003, the worker advised that on February 6, 2003: I was lifting boxes and pans over the course of my shift and reaching forward this caused my back to be sore. The rubber boxes w[ei]gh app[roximately] 40 lbs. This is part of my normal job. It may have been over a period of a few weeks. [15] In a clinical note dated February 12, 2003, Dr. Taliano advised that he recommended the worker reduce his intake of Percocet because the worker was experiencing sedation with that pain medication. The family doctor noted that the worker s pain was in his upper and mid lumbar area, but that there was no radiculopathy. He opined that the worker s symptoms were consistent with a muscular/ligamentous injury. [16] In a Chiropractor s First Report dated February 19, 2003, Dr. A.M. Scales, chiropractor, advised that the worker strained his lower back lifting boxes at work. He was not aware of any previous episodes of back strains at work and diagnosed acute lumbo-sacral strain. He recommended that the worker avoid heavy lifting.
Page: 3 Decision No. 111/07 [17] On March 10, 2003, the worker spoke to a CA who documented their conversation in Memorandum #1. The worker confirmed that he had been performing the same duties for approximately four years and experienced pain on and off while doing the job. He reported that he was 98% better after seeing Dr. Scales. [18] In a clinical note written in June 2003 1, Dr. Taliano noted that the worker continued to experience lumbosacral pain mostly at the midline level. At that time, there was no radiculopathy and straight leg raising was reported to be negative. However, in a medical note dated June 4, 2003, Dr. Scales asked that the worker be excused from regular duties for the balance of that day due to acute lumbar muscle spasm. In a narrative report dated August 21, 2003, Dr. Scales advised that on June 4, 2003, the worker experienced extreme lumbar spasms at work with some pain radiation into his left foot. [19] Following a course of acupuncture, the worker s symptoms persisted. It appears, from information in the Case Record, that the worker laid off work shortly after. [20] In July 2003, while on vacation, the worker suffered an acute lower back spasm which, according to Dr. Scales August 21, 2003 report, worsened upon returning home. In a medical note dated July 30, 2003, Dr. Scales recommended that the worker stay off work until the week of August 11, 2003. However, following discussions with the accident employer s healthcare staff, the worker attempted work at reduced hours. He only managed to work for a couple of days before laying off work again. [21] According to Dr. Scales August 21, 2003 report, the worker was at that time experiencing constant lumbar muscle spasms with radiculopathy into his lower left leg and foot. The worker demonstrated straight leg raising to 30 degrees, diminished Achilles reflex and decreased sensation along the L5-S1 dermatome. The worker s lumbar range of motion was markedly reduced. Dr. Scales recommended that the worker remain off work until the results of a pending CT scan were known. [22] The worker underwent the CT scan on September 9, 2003. The ensuing report revealed a left posterolateral disc herniation which was impinging on the left S1 nerve root. Upon reviewing this report, Dr. Scales recommended that the worker remain off work until following a consultation with a surgeon. [23] In December 2003, the worker returned to work on a graduated basis performing general clean-up duties. [24] In Memorandum #42, dated January 24, 2005, Dr. Craven, Board Medical Consultant, offered an opinion with respect to the severity of the worker s pre-accident condition. He noted that Dr. Taliano s clinical notes indicated low back strains and pain in 1999, 2001 and 2002. He noted: 1 The precise date is illegible.
Page: 4 Decision No. 111/07 Symptoms of left sciatica did not develop until approx[imately] July 2003 loss of left ankle jerk and limited straight leg raising to 30 degrees were noted on August 25, 2004 clinical note from Dr. Taliano. CT scan in Sep[tember 20]03 showed L5-S1 disc herniation impinging on left S1 nerve root. Worker likely had degeneration of the lumbar disc prior to Feb[ruary 20]03, and he had episodes of low back pain during the previous 3 years. A moderate pre-existing condition could be considered for SIEF purposes. I cannot consider it major, as there is no history of definite or persistent sciatica prior to this claim. (iii) The submissions [25] On behalf of the employer, Mr. Nolis offered submissions to the Board dated December 30, 2005 and submissions to the Tribunal dated October 13, 2006. Mr. Nolis reviewed the medical reporting in the Case Record and emphasised the clinical notes of Dr. Taliano who documented the worker s complaints of back pain prior to February 2003. The employer s representative noted that the worker was treated by his family doctor as far back as April 1999 for complaints of back pain. Mr. Nolis noted that Dr. Taliano s treatment before February 2003 consisted of medications, exercise, physiotherapy and weight loss. [26] The employer s representative submitted that Dr. Craven, whose opinion was relied upon in determining the level of SIEF relief, did not indicate an awareness of the fact that the worker presented to his family doctor s office only two weeks prior to February 6, 2003, complaining of back pain. Mr. Nolis stated that the occupational onset of the worker s disablement on February 6, 2003, had already been symptomatic in January 2003. He emphasised that the clinical note from Dr. Taliano dated January 16, 2001, indicated pain radiation and discomfort into the worker s left anterior thigh. [27] Mr. Nolis requested an increase in SIEF relief from 75% to 90% on the following grounds: Firstly, since the worker was symptomatic at the time of the disablement of February 6, 2003, it must be determined to what extent the pre-existing, chronic low back condition contributed to the new onset. Reasonably, it would have to be concluded that, given the worker s symptomatic state, he was vulnerable to developing a new disablement as a result of the performance of his normal job. Secondly, Dr. Craven acknowledges in memo #42 of January 24, 2005 that the worker likely had degeneration of the lumbar disc prior to February 2003, and he had episodes of low back pain during the previous three years. The SIEF of 75% granted to the employer was based on the enhancement of costs arising from the preexisting, chronic low back condition. However, as Dr. Craven failed to note the January 21, 2003 medical note, only two weeks prior to the occupational onset, it is not unreasonable to expect that he may have given greater weight to the enhancement of costs. [28] With respect to the issue of a retroactive adjustment to the accident employer s NEER assessments, Mr. Nolis traced the employer s communications with the Operating Branch of the Board from November 2003 and Appeals Branch from December 2005. He emphasised that following the release of the ARO s April 28, 2006 decision, the accident employer was diligent in registering an appeal with the Tribunal. He asked that, should the Tribunal grant the accident
Page: 5 Decision No. 111/07 employer s request for an increase in the level of SIEF relief, that the Tribunal also direct the Board to manually adjust its NEER assessments to reflect the increase. (iv) Analysis [29] I have carefully considered all of the available evidence in the Case Record and submissions of Mr. Nolis. [30] The Board has identified Operational Policy Manual (OPM) Document #14-05-03, Accident Cost Adjustments Second Injury and Enhancement Fund (SIEF) as an applicable policy in this appeal. The policy states: Policy If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule I to the SIEF. Both physical and psychological disabilities are included.... When reviewing medical and other information present in the claim file, the decisionmaker considers whether the information suggests that a pre-existing condition is present and whether it contributed to the work-related accident, or prolonged or enhanced the work-related disability If it is likely that such circumstances exist, a recommendation to apply the SIEF is made, as well as the rate at which to do so. For cases involving permanent impairment, the policy states: SIEF - Application to Employer Costs Medical Significance of Pre-existing Condition 1 Minor Moderate Major Severity of Accident 2 Percentage of Cost Transfer 3 Minor Moderate Major Minor Moderate Major Minor Moderate Major 50 25% 0% 75% 50% 25% 90% - 100% 75% 50% Notes * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and
Page: 6 Decision No. 111/07 justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components Mechanics (life, push, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lightning, temperature, weather conditions, terrains, etc) Definition Severity of Accident Minor: expected to cause non-disabling or minor disabling injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable permanent disability. *** The percentage of the total cost of the claim transferred. [31] In this case, there is no dispute that the worker suffered from back pain prior to the disablement at work on February 6, 2003. Clinical notes from Dr. Taliano confirm that the worker was seen for complaints of back pain in April 1999, January 2001, February 2002 and January 2003. There is also no dispute that the severity of accident was minor (i.e. expected to cause non-disabling or minor disabling injury). [32] In Memorandum #41, Dr. Craven reviewed the available medical evidence in the claim file and concluded that the worker likely had degeneration of the lumbar disc prior to February 2003 and had episodes of low back pain during the previous three years. Given that history, he recommended that the CA accept that the worker had a moderate pre-existing condition. Mr. Nolis submitted that Dr. Craven did not indicate an awareness of the fact that the worker sought medical attention for his back with Dr. Taliano only two weeks prior to February 6, 2003. The employer s representative submitted that had the Board Medical Consultant been aware of that fact, the level of SIEF relief ultimately granted might have been different. [33] I find that the Board was correct in granting the employer 75% SIEF relief of the costs incurred under the claim established for the worker s back disablement on February 6, 2003. In reaching this conclusion, I am persuaded by the fact that all of the relevant clinical notes from Dr. Taliano, medical reporting and investigations were available to Dr. Craven at the time he offered his medical opinion. Although Dr. Craven did not specifically refer to the January 21, 2003 clinical note from the family doctor, he clearly understood that the worker had episodes of low back pain during the previous 3 years. Dr. Craven also advised that he did not consider the pre-existing history to be major because there was no history of definite or persistent sciatica prior to this claim. Mr. Nolis emphasised the reference in the January 16, 2001 clinical note to some radiation of pain into the left anterior thigh. I note that there is an absence of any indication of pain radiation in the subsequent clinical notes prior to February 6, 2003. Moreover, the complaints of pain radiation following the compensable disablement are reported to extend as far as the lower left extremity. My review of the available evidence confirms that Dr. Craven was correct in concluding that there was no history of definite or persistent sciatica prior to this claim.
Page: 7 Decision No. 111/07 [34] Given my conclusion that the Board was correct in awarding 75% SIEF relief of costs incurred under this claim, the issue of a retroactive adjustment to the employer s NEER assessments does not need to be addressed.
Page: 8 Decision No. 111/07 DISPOSITION [35] The appeal is dismissed. DATED: January 17, 2007 SIGNED: S. Ryan