WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2588/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2588/15 BEFORE: J. B. Lang: Vice-Chair HEARING: November 26, 2015 at Thunder Bay Oral DATE OF DECISION: February 24, 2016 NEUTRAL CITATION: 2016 ONWSIAT 496 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated October 2, 2013 APPEARANCES: For the worker: For the employer: Interpreter: R. Collie, Union Representative Did Not Participate N/A 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

2 Decision No. 2588/15 REASONS (i) Introduction [1] The worker appeals a decision of T. Guse, an Appeals Resolution Officer (ARO) with the Workplace Safety and Insurance Board (the Board ). In that decision, dated October 2, 2013, the ARO denied the worker s claim that in December 2011 she had suffered a recurrence of her workplace injury of October 25, The ARO also found the worker s disc herniation at L5-S1 was not compatible with the injury she had sustained in the October 25, 2009 workplace accident. [2] The ARO rendered her decision on the basis of the written record, without an oral hearing. (ii) Issues [3] The issue in this appeal is whether the worker is entitled to benefits including health care benefits following surgery for an L5-S1 herniated disc which occurred on January 3, 2012 and is claimed to be a recurrence of a prior compensable injury which occurred on October 25, If successful in this appeal, the worker is claiming entitlement for Loss of Earnings (LOE) benefits related to surgery performed on her low back on January 6, 2012 and January 25, 2013 as well as a finding that she has suffered a permanent impairment to her low back as a result of the workplace accident. (iii) Background [4] The worker, who was 46 years of age at the time of the hearing, is employed on a part time basis as a Registered Practical Nurse in a long term health care facility. She began working for the accident employer in December [5] On October 25, 2009, the worker injured her low back when a resident she was pushing in a wheelchair suddenly applied the brakes and stopped the chair. The worker completed her shift but reported the accident the following day when the pain did not resolve. She continued working by self-limiting and pacing her activities. The Board allowed the worker s claim for health care benefits for a soft tissue injury to her low back. No loss of earnings benefits was claimed. [6] The worker stopped work on December 19, 2011 after experiencing several bouts of low back spasms at work earlier in the month. She was treated at the Emergency Department of her local hospital on December 23, 2011 and discharged. On January 2, 2012, she was transported from her home to the hospital by ambulance. The Emergency Department physician ordered an MRI exam which revealed a large herniated disc at L5-S1 which obliterated 75% of the spinal canal. On January 6, 2012, Dr. Graeme Marchuk, a neurosurgeon, performed a discectomy on the worker s spine. [7] In a ruling dated February 29, 2012, a Case Manager with the Board denied the worker entitlement for a recurrence. She found that there was no evidence of a herniated disc at the time of the worker s October 25, 2009 accident. She also found that there was no ongoing medical treatment to link the condition which required surgery on January 6, 2012 and the workplace injury.

3 Page: 2 Decision No. 2588/15 [8] On January 25, 2013, Dr. Marchuk performed a second surgical procedure on the worker s spine. Following this surgery, the worker remained off work until December 3, [9] As noted above, the ARO Guse, in her decision dated October 2, 2013, upheld the Case Manager s ruling. The ARO found that although a CT scan, performed on April 7, 2010, had revealed a mild disc bulge, the progression from a disc bulge to a disc herniation was not related to the workplace accident, but rather occurred because of degenerative changes in the worker s spine. The ARO found that the worker s L5-S1 disc herniation was not compatible with the accident history and the worker s subsequent surgery. The ARO, therefore, denied the worker s appeal. (iv) Law and policy [10] The date of accident for this appeal is October 25, Consequently, the Workplace Safety and Insurance Act, 1997 applies to this appeal. Pursuant to section 126 of the Act, the Board has identified Policy Package #12 (Revision #9) Adjudicative Process; Policy Package #30 (Revision #9) Recurrence; Policy Package #224 (Revision #9) LOE Benefits benefits as of July 15, 2011 and Policy Package #300 (Revision #9) Decision Making/Benefit of Doubt/Merits and Justice as applying to the subject matter of this appeal. [11] I have considered these policies in the adjudication of this appeal. [12] The Case Record contains a copy of a Medical Discussion Paper prepared for the Tribunal. 1 Back Pain is a discussion paper prepared by Dr. W.R. Harris and Dr. J.F.R. Fleming (with supplemental information by Dr. Stanley D. Gertzbein) in March 1997 and revised in February [13] The Medical Liaison Office of the Tribunal also provided two articles which it felt may be of assistance to the Panel and the party. Lumbar Disc Nomenclature: Version 2.0 is authored by David F. Farden, MD and others. It appeared in SPINE, 2014; 39(24) E What researchers mean by is an article published by the Institute for Work & Health (Version 1.0, July 2008). These articles are provided with the same reservations that apply to Medical Discussion Papers prepared for the Tribunal. [14] The worker s representative submitted two articles which he wished to be considered. What does degeneration mean? The use and abuse of an ambiguous word by Richard Wigley and others which appeared in the New Zealand Medical Journal, May 27, 2011, Vol 124 No. 1335, p ACC and back injuries: the relevance of pre-existing asymptomatic conditions revisited by Peter A. Robinson and O. Ross Nicholson which appeared in the New Zealand Medical Journal,, May 27, 2011, Vol 124 No. 1335, p The Tribunal s medical discussion papers deal with medical topics which frequently arise in appeals. They are written by independent experts who are recognized in their fields of specialization. The papers are not peer-reviewed publications, but are rather intended to provide parties and representatives with a broad, general overview of medical topics. A discussion paper is included in the case materials for an appeal when it appears that the paper may provide some relevant background to an issue in dispute. Medical discussion papers are also available on the Tribunal s website and in its Library. A Vice-Chair/Panel is not bound by any information or opinion expressed in a discussion paper, but may consider and rely on the general medical information provided by the paper. Every Tribunal decision must be based upon the facts of the particular appeal. It is always open to the parties to rely upon a discussion paper, or to distinguish or challenge it with other evidence.

4 Page: 3 Decision No. 2588/15 (v) Testimony [15] In her sworn testimony the worker described the work she performed for the accident employer. As a Registered Practical Nurse (RPN) she was responsible for assessing and administering medications as well as transferring patients. Two RPNs are assigned to the 56 patients on the floor where she worked most patients were in wheelchairs, some suffered from dementia. [16] The worker testified that prior to the October 25, 2009 accident she had no difficulties with her low back. She also testified that she had not been involved in any motor vehicle accidents nor had she suffered any accidents outside of work that affected her low back. [17] The worker testified that on October 25, 2009 she was transferring a patient in a wheelchair who weighed over 200 pounds. She was moving quickly because the patient needed to be returned to his room. He stopped the chair with the brake and his feet. She felt a sharp jarring pain in her back. She completed her shift but by that time her back was so sore that she could not sit down. The worker testified that she did not lose any time from work but she was assigned light duties for about four months. After returning to her regular duties, co-workers would help her with the heavier aspects of her job. [18] In November 2009, she began to be treated by Dr. Patrick Manduca, a chiropractor and she also had physiotherapy treatments from March until June Both her chiropractor and physiotherapist treated her for a lumbar disc injury. She was prescribed a lumbar brace which she wore all the time at work. In April 2010, Dr. Maria Valenti, her family physician, ordered a CT scan which showed that she had a bulging disc. She continued working part time through this period. She would have flare ups but used her non work days to recuperate. She self-medicated with Tylenol and Advil and avoided bending forward or lifting as much as possible. She also continued with a home exercise program to manage her symptoms. [19] The worker testified that in late December 2011 she began to experience more severe pain in her low back which radiated down her left leg. She sought treatment in the Emergency Department of her local hospital and was sent home. On January 2, 2012, the pain was so severe that she had to be transported to hospital by ambulance. After receiving the results of an MRI, Dr. Marchuk put her on the list for immediate surgery. [20] The worker testified that she was off work for five months following the surgery. When she returned to work she was on modified duties for four months. She returned to her regular duties in the fall of 2012 but she continued to experience spasms and significant pain symptoms. Dr. Marchuk ordered a second MRI in October 2012 which revealed that there continued to be pressure on the nerve at L5-S1. Dr. Marchuk performed a second discectomy on January 25, The worker testified that she was off work for 11 months following the second surgery. She returned to work in December 2013 and remained on modified duties until February [21] The worker testified that she continues to experience back pain every day in varying degrees. She receives chiropractic treatment once every four to six weeks. She wears her lumbar brace at work and her co-workers continue to assist her with the heavy tasks. She takes prescription drugs for pain relief as well as Tylenol and Advil.

5 Page: 4 Decision No. 2588/15 (vi) Submissions [22] The worker s representative submitted that although the Board considered the October 25, 2009 injury as a soft tissue injury, it is evident from the medical evidence that something much more serious had occurred. Dr. Manduca diagnosed a disc injury when he provided his first chiropractic treatment on November 12, The CT scan performed on April 7, 2010 identified a lateral disc bulge at L5-S1. The MRI, performed on January 2, 2012, established that the bulge had developed into a herniated disc. The worker s representative submitted that these diagnostic reports chart the progression of the worker s October 25, 2009 injury. [23] The worker s representative submitted that the ARO accepted that the worker s disc bulge progressed to a disc herniation. But the ARO s conclusion that the disc herniation is due to degenerative changes and is not related to the workplace accident is not supported by any medical authority. The worker s representative noted that the Case Manager, when first assessing the worker s claim, indicated that a medical opinion may be required. No medical opinion from a Board Medical Consultant was obtained. [24] The worker s representative submitted that particular weight should be given to the opinion letter of Dr. Manduca, dated September 28, Dr. Manduca has had 26 years experience as a chiropractor and treated the worker from the time of her accident. Dr. Manduca was of the view that the workplace injury of October 25, 2009 was absolutely the contributing factor in the development of the L5-S1 disc herniation that appeared in the MRI of the worker s spine. [25] The worker s representative reviewed the Board s policy on Recurrences. He noted the area of injury involved the L5-S1 level of the worker s spine and that the requirements in Board policy for establishing clinical compatibility and continuity had been clearly met. He also reviewed Tribunal case law on the application of the significant contributing factor test to issues of causation. In particular, he referred to Decision No. 2400/05 in which a Vice Chair of this Tribunal found that a worker, who had a pre-existing, asymptomatic, degenerative condition, was entitled to benefits on the application of the thin skull rule and the significant contributing factor test. [26] The worker s representative submitted that the onset of the worker s low back symptoms in December 2011 is a recurrence of her October 25, 2009 injury. The worker should be entitled to benefits for the surgeries of January 6, 2012 and January 25, 2013 and to Loss of Earnings benefits related to these surgeries. The worker has also suffered a permanent impairment to her low back and is entitled to a Non-Economic Loss assessment for this impairment. (vii) Findings and conclusions [27] For the reasons that follow, I have decided to allow the worker s appeal. [28] The Board s policy on recurrences (Operational Policy Manual Document No ) stipulates that workers are entitled to benefits for a recurrence of a work-related injury where there is clinical compatibility between the original injury and the current condition, or a combination of clinical compatibility and continuity. This policy goes on to provide further guidelines for evaluating the evidence of clinical compatibility and continuity:

6 Page: 5 Decision No. 2588/15 Clinical compatibility To establish clinical compatibility, a decision-maker compares the worker s current clinical condition to that following the initial accident. The decision-maker considers whether the parts of the body affected now are the same as, or related to, those affected initially whether the body functions affected now are the same as those affected initially, and the degree to which body functions are affected now (as compared to the effect of the initial condition). Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence. Continuity To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury demonstrated ongoing symptoms since the original injury required work restrictions or job modifications had ongoing treatment for the original condition, or experienced a lifestyle change since the original accident (e.g., has the worker become unable to participate in household duties, or social or recreational activities?). [29] The final question in determining entitlement for a recurrence is whether there was a significant new accident. If there was a significant new accident, then the condition is not considered a recurrence of a prior workplace injury. The policy sets out the following equations as guidelines for adjudicators: Insignificant new accident + compatibility + continuity = recurrence An insignificant accident is one involving an ordinary or routine event, such as stooping to fasten a shoe or reaching for something on a shelf. If the accident is insignificant and clinical compatibility and continuity are established, the worker is entitled to benefits for a recurrence of the original injury. Significant new work-related accident = new claim A significant accident is one of some consequence or importance, such as a fall from a ladder. If there is a significant new work-related accident, a new claim is established. [30] A new claim is also established if the worker s latest clinical problem or problems result entirely from a new accident. [31] On the evidence that is before me I find that there is clinical compatibility between the workplace injury of October 25, 2009 and the worker s diagnosed condition at the time of her first surgery on January 6, The area of injury was restricted, in both instances, to the L5-S1 level of the worker s spine. Although the injury was initially accepted by the Board as a soft tissue, it is evident from the reports of Dr. Manduca from November 12, 2009 onward that he had diagnosed the worker as having suffered a lumbar disc injury.

7 Page: 6 Decision No. 2588/15 [32] I also find that there is continuity between the date of accident and the surgery performed on January 6, In a Memo dated November 17, 2009, the Eligibility Adjudicator with the Board noted that the worker s pain had not gone away. The Board allowed chiropractic treatment at that time and renewed authorization for this treatment on February 9, 2010 to support the worker s symptom management while returning to full duties. Dr. Valenti, the worker s family physician, reported on March 3, 2010 that there was some improvement in the worker s condition but that she was continuing to experience pain when bending or lifting. Dr. Valente prescribed physiotherapy treatment, which the Board accepted. A CT scan, performed on April 7, 2010, confirmed, in my view, that the worker had suffered more than a soft tissue injury in the workplace accident when it revealed that the worker had a broad, shallow posterior and posterolateral disc bulge at L5-S1. [33] The reports of Ms. Cathi Auld, a physiotherapist, indicate that the physiotherapy treatment that was provided in the spring and early summer of 2010 produced positive results. On June 2, 2010, Ms. Auld reported that the worker had been pain free for three weeks and that she was following a program of core strength exercises. But Ms. Auld also reported that the worker needed to be monitored because of the danger of a recurrence. The worker was also required to wear a lumbar brace while at work. Although the worker had, by this time, returned to performing her regular duties, I accept her testimony that she continued to receive assistance from her co-workers in performing the heavier aspects of her job. I also note that the worker worked part time three days a week and that she was able to use her days off to recuperate from the stress on her low back that resulted from her work duties. [34] In my view, these factors meet the requirements of Board policy to establish continuity between the workplace accident of October 25, 2009 and the recurrence in December I note that in order to establish a recurrence, Board policy recognizes that a recurrence may result from an insignificant new accident or may arise when there is no new accident. On the evidence that is before me I find there was no new accident. However, I find that the worker did suffer a recurrence which is related to the original accident and the duties which she continued to perform as a Registered Practical Nurse. [35] The ARO s decision to deny a recurrence rests on her conclusion that the disc bulge, which was identified in the CT scan of April 7, 2010, was related to the workplace injury, but its progression to a disc herniation, which required surgical repair, was related to the degenerative condition of the worker s spine. I note that there is no medical documentation in the Case Record to support this theory and I find that I am unable to accept the ARO s reasoning. In my view, a more plausible explanation is provided in the opinion provided by Dr. Manduca in his report dated September 28, 2015 which was not available to the ARO when she made her decision. In his report, Dr. Manduca provided a brief outline of the structure of the lumbar spine and the common mechanism involved in a disc injury. He then went on to provide the following analysis of the progression of the worker s injury: A disc bulge is the first step of a disc herniation. It does not typically cause pain, unless the disc bulge is harboring an annular tear within it. An annular tear is caused, most commonly, by axial compression and rotational forces. An annular tear is the second step to a disc herniation and a disc herniation is not possible without an annular tear. With continued repetitive axial and rotational loading, the tear coalesces with other small tears in the annulus fibrosis and becomes larger. The nucleus pulposis continues to exert outward pressure on the annulus until nuclear material is pushed through the annular tear

8 Page: 7 Decision No. 2588/15 and the adjacent weakened fibres over time to form a larger, localized or focal disc bulge. Which is known as a disc herniation. [The worker s] clinical presentation on November 12, 2009, and her symptoms and signs evident on my initial examination, revealed a lumbar disc injury. The timing and the mechanism of her work place accident of October 25, 2009, was consistent with this accident being the causal event of her disc injury and because her first ever acute episode of lower back occurred then, it is logical that that was when the annular tear within the disc bulge occurred. The CT scan without contrast of April 7, 2010, revealed only a disc bulge at the L5-S1 level. However, the annular tears, even significant ones within a disc bulge are usually completely hidden on CT (or MRI) without contrast medium. As the tear became larger with activities of daily living and with repeated rotational and axial loading traumas that were especially prevalent in the repetitive lifts and twists that were required in [the worker s] occupation, the nucleus pulposis continued to exert outward pressure and the nuclear material pushed through the annular tear and weakened annular fibres over time, to form the disc herniation. The MRI of January 12, 2012, revealed the end result of this progression of disc pathogenesis, the large 20 mm disc herniation at the L5-S1 level. [Emphasis in the original] [36] I find that Dr. Manduca s description of the development of disc herniation is consistent with the description of the anatomy of the lumbar spine contained in the Medical Discussion Paper Back Pain. I therefore accept Dr. Manduca s explanation for the progression of the worker s low back injury and find that it is compelling evidence for concluding that the disc herniation revealed in the MRI scan of January 2, 2013 is a progression of the injury sustained on October 25, This conclusion is also supported by the opinion of the worker s physiotherapist, dated January 13, 2014 that the worker s injury, ongoing back pain/weakness, as well as the second episode of back discogenic pain which require (sic) surgery was all definitely work related. I also note that Dr. Marchuk provided a report dated July 3, 2013 which confirmed that the second surgery on the worker s spine of January 25, 2013 was related to the surgery of January 6, [37] For all of the above reasons, I find that on or about December 19, 2011 the worker suffered a recurrence of the low back injury which she had sustained in a workplace accident on October 25, The worker is entitled to benefits for the surgery performed on January 6, 2012 and the further surgery performed on January 25, 2013 to repair this injury. [38] I also find that, pursuant to section 43 of the Act, the worker is entitled to Loss of Earnings benefits from when she stopped work on December 19, 2011 onwards. This matter is returned to the Board to determine the amount and duration of the worker s Loss of Earnings. [39] Finally, I find that the worker has suffered a permanent impairment to her low back as a result of the workplace accident. Pursuant to section 46 of the Act, the worker is entitled to a Non-Economic Loss assessment to determine the degree of her permanent impairment. This matter is also referred back to the Board for further adjudication.

9 Page: 8 Decision No. 2588/15 DISPOSITION [40] The worker s appeal is allowed. [41] On or about December 19, 2011 the worker suffered a recurrence of the low back injury which she had sustained in a workplace accident on October 25, The worker is entitled to benefits for the surgery performed on January 6, 2012 and the further surgery performed on January 25, 2013 to repair this injury. [42] Pursuant to section 43 of the Act, the worker is entitled to Loss of Earnings benefits from when she stopped work on December 19, 2011 onwards. This matter is returned to the Board to determine the amount and duration of the worker s Loss of Earnings, subject to the usual rights of appeal. [43] The worker has suffered a permanent impairment to her low back as a result of the workplace accident. Pursuant to section 46 of the Act, the worker is entitled to a Non-Economic Loss assessment to determine the degree of her permanent impairment. This matter is also referred back to the Board for further adjudication subject to the usual rights of appeal. DATED: February 24, 2016 SIGNED: J. B. Lang