1 DECISION NUMBER 749 / 94 SUMMARY The worker suffered a whiplash injury in a compensable motor vehicle accident in May The worker appealed a decision of the Hearings Officer denying entitlement when the worker stopped working in October On the evidence, the worker suffered the whiplash injury and was off work for about three weeks. The Panel accepted the evidence of the worker's treating doctors, who had greater familiarity with his symptoms, rather than evidence of the insurer's doctor, who had met with the worker only once, and found that the worker continued to suffer pain related to the accident subsequent to October 1991, and that the pain was directly responsible for the worker's inability to continue to work. The appeal was allowed. [8 pages]
2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 749 / 94 This appeal was heard in Toronto on September 29, 1994, by a Tribunal Panel consisting of: E. Newman : Vice-Chair, G.K. Howes: Member representative of employers, M. Cook : Member representative of workers. THE APPEAL PROCEEDINGS The worker brings this appeal from the decision of Hearings Officer N. Holsmer, dated September 23, The worker attended and was represented by Christopher James, a lawyer with Robert C. Cronish and Associates. The employer did not attend and was not represented. On this appeal the worker seeks entitlement to workers' compensation benefits for a disability arising out of a work-related accident on May 27, The disability, he claims, caused him to lay off work as of October 15, 1991, and has continued to entitle him to benefits after that date. THE EVIDENCE The Panel heard evidence under oath from the worker and considered the following documents: Exhibit #1: Case Description; Exhibit #2: Addendum #1; Exhibit #3: Addendum #2; Exhibit #4: Addendum #3. THE NATURE OF THE CASE On May 27, 1991, the worker was employed as a property manager. His job involved the day-to-day management of 11 commercial properties. He was responsible for the collection of rent, arranging for maintenance and repairs, liaison with appropriate municipal authorities, supervising cleaning staff, attending to the satisfaction of tenants, and to some extent, the marketing and leasing of properties. On May 27, 1991, while in the course of his employment, the worker was involved in a motor vehicle accident. He was driving his own vehicle on company business when he was struck by a tractor trailer on the
3 2 passenger side of his vehicle. Although, at the time of this accident, the worker was suffering from a continuing low back disability arising out of an earlier compensable accident (and for which the worker receives a permanent partial disability award in the amount of 20%) he states that the accident of May 27, 1991, resulted in a different compensable disability. In this accident, the worker claims that he suffered a severe whiplash injury which has produced continuing neck and shoulder pain, headaches, and most recently, a loss of mobility and strength in his hands and wrists. The Workers' Compensation Board has denied the worker entitlement to benefits for disability arising out of the incident of May 27, 1991, because it was not satisfied that that accident did produce a physical disability. The Workers' Compensation Board was not satisfied that, if there was a disability resulting from that accident, it disabled the worker from continuing in employment and earning income. The Workers' Compensation Board concluded that there was no evidence which established that the worker missed any work due to his disability after the first three week period immediately following May 27, The Workers' Compensation Board concluded that the medical evidence did not support the conclusion that this accident resulted in any disability to the worker. It also concluded that the termination of employment was a result of the employer laying him off rather than for reasons pertaining to his disability. THE PANEL'S REASONS There is no question that a motor vehicle accident occurred on May 27, 1991, that the worker was involved in that accident, or that he sought medical treatment as a result. Exhibit #1 contains the police report of the motor vehicle accident. Exhibit #1 also contains the emergency room record of the Toronto Western Hospital dated May 27, The emergency room report makes reference to the motor vehicle accident, and reveals that the worker was examined by emergency room staff. The emergency room note makes reference to the worker's "minor back problem (old)", as well as to the fact that on that date he had a full range of motion, was walking well and had no disability. He did complain of pain in right leg and right shoulder. The worker explained that he was not suffering from noticeable pain immediately after the accident, and was advised by the emergency room staff to take a few days off work to rest, and to see his family doctor. The Case Description also reveals that the worker did attend at his family doctor's office on the day after the accident, May 28, The clinical record of the worker's family doctor, Dr. Rajinder Kashyap, records that the worker attended on that day and complained of right-sided neck, right leg and low back pain. Anti-inflammatory medication was prescribed. The family physician's notes clearly link these symptoms to the motor vehicle accident of
4 3 the previous day. The family doctor's clinical records also reveals that the worker attended with respect to the same complaints on June 4, 1991, and on June 13, The family physician referred the worker for physiotherapy treatment. The physiotherapy clinic reported to the Workers' Compensation Board on May 21, 1993, and confirmed that the worker was referred to the clinic for a strained neck, back and right ankle on May 28, 1991, by the family physician. From the medical reporting immediately contemporaneous with the accident of May 27, 1991, this Panel has no difficulty in concluding that the worker did suffer an injury to his neck in the motor vehicle accident of May 27, (i) What effect did this injury have upon the worker's ability to perform his usual job? As mentioned, the Hearings Officer concluded that there was no evidence which substantiated the worker's contention that the disability impaired his ability to work after a three-week recovery period following this accident. Indeed, the worker's former employer was interviewed repeatedly by the investigation staff of the Workers' Compensation Board. The employer reported to the Board that the worker did continue to work after a brief period of rest following the accident. In evidence, the worker vigorously contests the evidence provided by the employer to the Workers' Compensation Board Investigator. He maintains that he was off work for a full three weeks, and then, because he was highly motivated to return to work, returned for just two to four hours a day, only two to three days a week. The worker maintains that he continued with the part-time performance at work until his disability worsened in October 1991, requiring him to lay off. The Panel notes that in addition to the evidence provided to the Investigator by the worker's former employer, and contrary to the factual conclusion of the Hearings Officer, there is evidence which supports the worker's description of his ability to work in the five month period following the motor vehicle accident. The first of these is the clinical record of the worker's family doctor, Dr. Kashyap. His clinical record of June 13, 1991, states: Backache continues, can't sit or stand for more than three hours at a time. Working 4 hours a day for finish[ing] day to day things at job. Tender (L) parasacral area and (R) supraspinatous. Movements of back worse - forward bending - hands, neck, mid-calf area. Flexeril ten milligrams b.i.d. (30).
5 4 The second document which corroborates the worker's description of his ability to work in the period immediately following the accident is the physiotherapy clinic's report dated May 21, 1993: [The worker] was referred to the clinic for a strained neck and back and right ankle on May 28, 1991, by Dr. Kashyap. He first attended the clinic on June 3, He was assessed and treated for the above noted injuries. He did complain of both right and left neck pain with referral to the shoulder blade. After three weeks of treatment, he returned to part-time duties. Since his progress was very slow, I had explained to him in September 1991 that it was important that he take some time off work to speed up his recovery. Being a very responsible individual, [the worker] insisted on continuing his job to the best of his ability part-time while undergoing therapy. By October 1991, [the worker] realized he was not going to improve while performing his job. He stopped work.... The third piece of evidence which corroborates the worker's description of his ability to work after the accident comes in the form of an application to his automobile insurer. This document, stamped with a received note by the insurer on June 19, 1991, describes the motor vehicle accident, and informs the insurer that the worker did not return to work after the May 27, 1991, accident. In the view of this Panel, there does exist evidence which corroborates the worker's assertion that after the accident of May 27, 1991, he took more time off work than the two or three days which the employer reported to the Investigator. He did not, as the employer reported to the Workers' Compensation Board, return and perform his usual job two or three days after the accident occurred. The Panel is satisfied, that more probably than not, the worker did take three weeks off work, and then returned to work only on a part-time basis. Having concluded this much, the Panel notes that the employer did pay the worker his full salary during the months of May, June, July, August and September Although application was made for motor vehicle insurance benefits during this period, a cheque for wage loss benefits was returned to the insurer because the employer continued to cover the worker's wages. It is not until October 15, 1991, that the worker claims entitlement to temporary total disability benefits arising out of this accident. That is the date upon which, he claims, it was necessary, because of the disability, for him to leave work. The employer reported to the Workers' Compensation Board that before the motor vehicle accident of May 27, 1991, it had given the
6 worker notice of the fact that it intended to terminate his services. The employer reported that the worker's performance was inadequate, and that regardless of the accident or any disability, it intended to terminate him, and gave him notice to that effect. The worker disputes this fact, and maintains that the employer never gave him notice of any such intent. Indeed, the worker points out that the employer had increased his salary and his travel allowance in recognition of good performance. 5 (ii) What medical evidence exists which describes the worker's condition near the time of lay off? First, the Panel notes that the worker attended for regular physiotherapy sessions, five days a week, from June 3, 1991, until April 3, (Exhibit #2 page 6.) The clinical notes provided by the worker's family doctor, Dr. Kashyap, reveal regular appointments during June, July, September and October 1991, in which complaints of cervical pain are repeated. The family physician continued to prescribe anti-inflammatory medication. By December 30, 1991, the worker was examined by Dr. James Kirk Houston, on behalf of the motor vehicle insurer. Dr. Houston opined: In summary, from the history given, as the result of an alleged motor vehicle accident of on or about May 27, 1991, in all probability the worker sustained an acceleration deceleration injury which in turn, in all probability, produced a bending strain of the neck and back region, the so called whiplash type of injury as well as what may have been strain of the left shoulder girdle. Such injuries may have given rise to some acute local symptomatology which required him to seek medical attention and which may have been sufficient to interfere with some activities for some weeks thereafter. Having the results of today's physical examination to hand, no organic reason was detected to account for the alleged intensity and persistence of symptomatology despite months of treatment. The Panel takes Dr. Houston's report to identify that the worker did suffer from a whiplash injury on May 27, The Panel also takes Dr. Houston's report as revealing an impression of exaggeration of the degree of disability on the part of the worker by December 30, Dr. Houston's view is not shared by either the worker's family doctor, or by the physiatrist who saw him subsequently, Dr. A. Kachooie.
7 6 The family physician Dr. Kashyap reports a genuine and severe disability resulting from the May 27, 1991, accident. He reports, for example, on March 3, 1992: [The worker] was involved in a car accident on May 27, 1991, and was first seen by me the following day. He complained of pain in right side of the neck, lower back and right leg. Movements on that day were within normal limits but there was some tenderness over the right parasacral right supraspinatous, right stenomastoid and over right medial malcolus. He has been treated at Toronto Western Hospital following the accident and put on flexeril. He was advised to continue the same and was sent for physiotherapy. There has been some improvement in [the worker's] symptoms with the treatment. He still continues to have pain and feeling of stiffness in the left paravertebral muscles. He was unable to stay in one position for over an hour.... Dr. Kachooie, the physiatrist reported on March 31, 1992: He has experienced symptoms of pain, stiffness to the cervical spine almost on an ongoing basis, the pain in the cervical spine has a tendency to spread diffusely to the top of the shoulders, base of the neck, mid-back area. He has had an element of pain spreading to the left arm, forearm, associated with a pulling sensation to the arm. He has had symptoms of paraesthesia, consistent numbness, tingling, pins and needles which mostly bothers him at night. His symptoms however are bilateral. Dr. Kachooie also reports frequent headaches since the accident, and pain sensations in the chest wall. Dr. Kachooie opines that the worker has suffered a "quite severe degree of whiplash with a post-whiplash myofascial pain syndrome and complications of greater occipital neuralgia headaches". Neither Dr. Kashyap nor Dr. Kachooie suggest exaggeration of the degree of disability on the part of the worker. It is the Panel's view that the reports of the treating physicians who have greater familiarity with the worker and his symptoms, and greater opportunity to observe his behaviour and reaction to pain, are to be preferred to the report of the insurer's physician, Dr. Houston. The latter met with the worker on only one occasion, in the context of an assessment for insurance purposes only. It is our conclusion that the weight of the medical evidence does support the finding that after October 15, 1991, the worker did suffer continuing pain resulting from a whiplash injury sustained in
8 the May 27, 1991, accident, and that this pain was directly responsible for his inability to continue work. (iii) Conclusions The conclusions of this Panel are limited to the finding that the worker is entitled to workers' compensation benefits for a disability arising out of the May 27, 1991, motor vehicle accident. However, as discussed with the worker's representative, the question of the nature and degree of the disability, and the extent and duration of the worker's entitlement to benefits resulting therefrom, is a matter to be determined by the Workers' Compensation Board. 7 THE DECISION The worker's appeal is allowed. The nature and degree of the worker's entitlement to workers' compensation benefits after October 15, 1991, arising out of the motor vehicle accident of May 27, 1991, is referred to the Workers' Compensation Board for determination. DATED at Toronto, this 24th day of October, SIGNED: E. Newman, G.K. Howes, M. Cook.