SUMMARY DECISION NO. 163/93. Recurrences (compensable injury); Second accident; Intervening causes; Apportionment (pensions).

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1 SUMMARY DECISION NO. 163/93 Recurrences (compensable injury); Second accident; Intervening causes; Apportionment (pensions). The worker suffered a back injury in The employer appealed a decision of the Hearings Officer granting further benefits in The worker had a permanent disability resulting from the 1985 accident. However, she was able to return to work. The incident in 1987 occurred while the worker was working for another employer. This incident had a serious impact on her condition. The 1987 incident was an intervening event that broke the chain of causation. The cost of the benefits paid to the worker after 1987 should be transferred to the other employer. The worker was awarded a 15% pension in 1990 retroactive to The Panel apportioned the pension 5% to the 1985 accident and 10% to the 1987 accident. The appeal was allowed in part. [7 pages] PANEL: Signoroni; Crocker; Séguin DATE: 10/06/97

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 163/93 [1] This appeal was heard in Ottawa on March 19, 1993, and in the course of several telephone conferences (held on July 10, October 26 and October 30, 1995, on October 31, 1996, and on February 5, 1997) by a Tribunal Panel consisting of: A. Signoroni : Vice-Chair, J. Seguin : Member representative of employers, J.A. Crocker : Member representative of workers. THE APPEAL PROCEEDINGS [2] The employer of record appeals a decision of WCB Hearings Officer N. Ranta, dated December 19, When the hearing first convened in Ottawa, the employer of record was represented by A. Royer, a lawyer. The worker also appeared and was represented by A. Descoeurs, from the Office of the Worker Adviser. [3] In this case, the WCB granted the worker s claim at the Hearings Officer level on the basis that the low back disability reported in August 1987 was found to be the outcome of an aggravation attributable to a compensable accident sustained by the worker in October 1985, while employed with the employer of record. [4] At the outset of the Ottawa hearing, the representative of the employer of record stressed that one of the theories to be addressed in this appeal is that the worker could well have sustained a new workrelated accident when she resumed employment with a different company in July of [5] Although the stated theory had been raised by the employer of record (Employer #1) throughout the history of this claim as one of the grounds opposing the WCB decision allowing ongoing entitlement to the worker, the company called into question (Employer #2) was never given notice of this claim. [6] Under these circumstances, both parties and the Panel agreed that the lack of notice to Employer #2 posed problems in the event that an intervening accident, as alleged, would be established by the evidence. [7] This being the case, the Panel adjourned the hearing and ruled that the identified company (Employer #2) should be notified of this hearing, and invited to participate and to make any procedural and or substantive argument regarding their position as deemed necessary. Employer #2 notified the Tribunal Counsel Office soon thereafter that it did not have any intention of taking part in this appeal, and we proceeded accordingly. [8] Meanwhile, in August 1994, the worker s representative informed the Tribunal that the worker had to be hospitalized due to contacting double pneumonia while she was also suffering from other conditions, including an aggravation of her angina condition.

3 Page: 2 Decision No. 163/93 [9] Following this period of hospitalization, the worker continued to be in precarious health as documented by a medical report from Dr. S. Best, her family doctor, dated June 5, 1995, stating the following: This will confirm that [the worker]is followed in my office on a regular basis for rheumatoid arthritis, angina, coronary artery disease, hypertension, congestive heart failure and chronic obstructive pulmonary disease. She continues to have back problems due to a WCB back injury. She is not medically stable at present and is not able to attend a full day of hearing in Ottawa. [10] In the face of the worker s serious and ongoing non-compensable medical problems, the reconvened hearing had to be adjourned on several occasions, prompting a number of telephone conferences to address the resulting procedural problems. [11] Even though the Tribunal, with the co-operation of both representatives, canvassed a wide range of options for obtaining the requested testimony from the worker, we were notified by Dr. Best, in the course of a telephone conference held on October 30, 1995: 1. that the worker was still in need of hospital care under the supervision of the treating cardiologist; 2. that the worker was still battling several severe conditions that were rapidly progressing; 3. that, due to her critical condition, she could not be available to testify under any arrangements for an indefinite period of time. [12] Based on this input, the hearing was adjourned for another six-month period, at which time we undertook to revisit the circumstances faced, in order to devise a course of action acceptable to both parties and the Panel. [13] According to the follow-up input obtained by the Tribunal Counsel Office from Dr. Best in 1996, the Panel was advised that the worker s overall medical condition was not improving, and this necessitated a further telephone conference held on October 31, [14] In the course of this conference, it was agreed that, given the worker s ongoing incapacity to take any part in this appeal, the most pragmatic course of action was to tentatively proceed by way of written submissions based on the documentary evidence already available, and, only if deemed absolutely necessary, to request additional evidence in the most appropriate format following the initial determination of the pending issues by the Panel. [15] This was done. Following a further telephone conference held on February 5, 1997 when the Panel, with the benefit of the written submissions received, had an opportunity to discuss the merits of the case it was agreed, under the exceptional circumstances faced, that the case could be completed without eliciting further evidence and/or submissions. THE EVIDENCE [16] The Panel considered the Case Description, including six Addenda, as well as the relevant correspondence and the written submissions filed. 2

4 Page: 3 Decision No. 163/93 THE ISSUES [17] In its final submissions, the representative of Employer # 1 informed the Panel that he was no longer contesting the worker s basic entitlement to benefits for the low back symptoms reported in August [18] The central issue is whether the reported aggravation resulted from the original work-related accident sustained in October 1985 while employed with Employer #1, or from an intervening and separate accident sustained while employed by Employer #2. [19] To the extent that our findings of fact may cause any overpayment, we were also asked by the parties to address this resulting issue. THE PANEL S REASONS (i) Background [20] On October 5, 1985, the worker sustained an injury to her low back while working as a mess person on board a vessel. The initial diagnosis was contusion and sprain to lumbar spine and left hip. X-rays of the lumbar spine which were completed on October 13, 1985, showed severe degenerative changes at L5, S1 with sclerosis of bony margins and a vacuum phenomenon. [21] Following this examination, the worker was frequently seen by her family physician and by Dr. B. Sandler, an orthopaedic surgeon. In his report dated October 23, 1985, Dr. Sandler noted that the worker was complaining about numbness in her left leg and foot. Furthermore, Dr. Sandler felt that the worker had a soft tissue injury to the back, which had irritated one of the nerve roots. [22] On March 2, 1986, the worker was admitted to the Downsview Rehabilitation Centre for further treatment and testing, at the request of her treating family physician. According to a medical report of Dr. T. Monga dated June 6, 1986, the EMG tests were considered normal, and there was no evidence of either radiculopathy or peripheral neuropathy. [23] Furthermore, in a report dated June 9, 1986, Dr. A. Losier indicated that the numbness in the left lower leg as well as the back discomfort should improve with exercise, physiotherapy and time. [24] Dr. J. Evans, another orthopaedic surgeon, also had an opportunity to examine the worker. His report of June 13, 1986, states, in part, the following:... This lady now fifty, was involved eight months ago in a fall on board ship. Certainly from her story, she injured her lower back and suffered a lumbar sprain, with what would be termed evidence of involvement of either the S1 or L5 nerve root on the left. [They] really have recovered from the strength point of view, and she has been left with a variation in the sensory feeling, which now follows a non-anatomical description. Somebody should sit down and explain to her, that the numbness really does not mean that much, because the strength is coming back. 3

5 Page: 4 Decision No. 163/93 [25] On September 17, 1986, the worker returned to work full-time as a mess person. Irrespective of the constant and nagging low back pain to which the worker testified before the Hearings Officer, she was able to perform her regular pre-accident work from that date until she left her employment on November 10, 1986, due to a personal conflict with a co-worker. [26] The worker was not employed between November 1986 and July During this period, she did not follow any specific medical treatment for her low back, and for the most part her back condition was considered stable, and at times of a moderate intensity, by her family physician. [27] On July 13, 1987, she was hired as a cook by Employer #2, and worked until July 31, From the evidence, it appears that on July 30, 1987, the worker was down on her knees cleaning an oven and taking a tray out, when she felt a snap in her back. It was the same pain experienced when she fell in (ii) The compensation issue [28] Although the worker resumed her pre-accident work in the fall of 1986, the available evidence indicates that she could perform the assigned duties as a mess person, but only with some difficulty because of ongoing pain in her lower back. [29] Following the time when she discontinued her employment a few weeks before the end of the regular shipping season on the Great Lakes, the worker received intermittent medical treatment regarding her low back symptoms from various physicians, as documented by the evidence filed. [30] On this basis, we are satisfied that, more likely than not, the worker never fully recovered from the consequences of the work-related accident with Employer #1 sustained in October 1985, even though she managed to resume employment once again as a chef/cook with Employer #2 in the earlier part of July [31] According to the testimony which the worker gave to WCB officers, she never reported the incident experienced on July 30, 1987, because she was persuaded that the acute low back symptoms experienced at the time were essentially related to the initial compensable injury. [32] However, when we review the documentary evidence filed, the worker describes the July 1987 incident as follows: Well, I was down like on my... I don t know how to explain it. Well, one knee was on the floor. And I was taking the tray out of the oven, and I felt something snap into my back. Same as I had felt when I had the [first] accident. [Emphasis added] (Transcript of the worker s testimony to the Hearings Officer at page 27) [33] When the worker was subsequently asked whether her back pain was bearable, she answered: Oh, it bothered me, really bothered me. (Transcript of the worker s testimony to the Hearings Officer at page 28) [34] The worker confirmed that after she stopped working in July 1987, her back pain definitely got worse and worse. It actually worsened to the point that her next-door neighbour took her to the emergency department of a hospital, where she was kept overnight. 4

6 Page: 5 Decision No. 163/93 [35] On the issue of whether this incident was sufficiently significant in relation to the worker s overall condition, we note Dr. Sadler s report dated August 17, 1987, stating that the worker has had another acute attack with her lumbar spine and she would sustain a certain chronic disability with this. [36] This evidence establishes that, more likely than not, the July 1987 incident had a serious impact on the condition of her low back, which had previously allowed the worker to perform her work irrespective of the ongoing pain. [37] On this basis, we agree with the representative of Employer #1 that the July 1987 incident sustained by the worker while employed on another vessel with Employer #2 was sufficiently significant to break the chain of causation at the source of the low back problems still experienced by the worker. [38] In this case we note that, following the July 1987 onset of disabling low back problems, the WCB paid temporary benefits and, based on a medical examination for pension purposes conducted in September 1990, also allowed a 15% award with full arrears. [39] Having found that the worker sustained a new accident in 1987, the costs of all the benefits paid to the worker after this accident, and others that may have been paid since September 1990, with the exception of the costs reflecting the permanent award which are addressed below, should be removed from the account of Employer #1 and charged to the account of Employer #2. [40] Regarding the 15% permanent award allowed, we are of the view that such a quantum should reflect a combination of two awards, appropriately recalculated, in recognition of the fact that the worker never fully recovered from the low back symptoms precipitated by the first compensable accident, and in light of the fact that the residual symptoms resulting from the first accident likely achieved maximal medical rehabilitation before the occurrence of the second accident. [41] One award in the amount of 5%, with full arrears, would fairly reflect the impairment of earnings capacity resulting from the first accident and should accordingly be charged to the account of Employer #1. [42] The other award in the amount of 10%, with full arrears, would fairly reflect the impairment of earnings capacity resulting from the second accident and should accordingly be charged to the account of Employer #2. [43] Based on these findings of fact, we take notice that the worker would only be entitled to a 5% award during the period between the two accidents and, as a result, will face an overpayment, this being an issue that the parties wanted to be addressed in the event that it would required. [44] Given the financial hardship that any repayment of benefits would cause to the worker who is still in precarious health, we are satisfied that it would be unjust to recover the overpayment of any amount improperly paid to the worker up to the date of this decision. Therefore, the WCB is directed to forgive the resulting overpayment. 5

7 Page: 6 Decision No. 163/93 THE DECISION [45] The appeal is allowed in part and the WCB is directed to take the steps required to implement the determinations made on all the issues addressed in this appeal. DATED: June 10, 1997 SIGNED: A. Signoroni, J. Seguin, J.A. Crocker 6

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