WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2012/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2012/15 BEFORE: M.C. Smith: Vice-Chair HEARING: September 24, 2015 at Toronto Oral DATE OF DECISION: October 2, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2195 DECISION(S) UNDER APPEAL: WSIB ARO decision dated August 31, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Mr. O. Iacopini, Paralegal Not Participating Not Applicable 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. 2012/15 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer (ARO) A. Danos, dated August 31, The worker was represented by Mr. Ottavio Iacopini, a Paralegal. The employer did not participate in the hearing. Oral evidence was heard from the worker. Submissions were made by Mr. Iacopini. (ii) The issues [2] The Hearing Ready Letter of August 14, 2014 indicated that the worker was seeking entitlement to a 2011 recurrence of a 2008 compensable low back injury, as well as entitlement to ongoing benefits and a permanent impairment (PI) for the low back. However, at the hearing Mr. Iacopini clarified that the worker was not seeking entitlement to a recurrence of his compensable low back injury. Hence, the only issue in this appeal is the worker s entitlement to ongoing benefits and a PI for the low back. (iii) Background [3] This now 40-year-old carpentry shop labourer began working for the accident employer in January On April 10, 2008 he injured his low back when prying a piece of plywood from the floor with a crowbar, and was diagnosed with an acute lumbar strain. The worker returned to modified work on April 14, He resumed regular duties and hours on May 5, 2008, when his physiotherapist reported that he had fully recovered. [4] On April 12, 2011 the worker s representative contacted the Eligibility Adjudicator (EA) and requested ongoing entitlement and recognition of a permanent impairment for the low back as causally related to the compensable low back injury on April 10, [5] In a decision dated July 21, 2011 the EA denied entitlement to any further benefits related to the workplace accident in April 2008, on the grounds that the worker had fully recovered by May 5, This decision was confirmed by the ARO on August 31, The worker now brings his appeal to the Tribunal. (iv) Relevant law and policy [6] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect and applies in this appeal. Pursuant to section 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and I have considered them as necessary. (v) The worker s testimony [7] At the hearing the worker provided the following testimony: He had not had any back problems prior to the accident in April The worker testified that he had pulled a back muscle at work in 2004, for which he submitted a claim. The injury had been minor, he did not take any time off work, and recovered fully. [In reviewing the file, I note that Dr. M. Hsin completed a Health Professional s Report (Form 8) dated January 14, 2004 which provided a diagnosis of back strain, with

3 Page: 2 Decision No. 2012/15 tenderness in the left lumbar and mid-back. The doctor provided back restrictions for 7 days. He prescribed medication, and referred the worker to a chiropractor.] On the day of the accident in April 2008 he heard a pop and felt severe back pain when using a crowbar to raise the floorboards. He fell to the floor and a co-worker helped him up. He reported the accident to his supervisor and attempted to return to work. However, it was too painful and he went home. He attended a doctor on April 14, The doctor prescribed an anti-inflammatory and a muscle relaxant. On April 14, 2008 he returned to modified work as a machine operator, working 4 hours a day. He was on modified work for three weeks, and then returned to his regular work. At that time his back was much better, but not 100%. He left the accident employer in July 2008 because the work was hurting his back. He then found employment operating a crane. He was laid off three months later due to a shortage of work. He is now working for a manufacturing company using Robotics. In December 2009 he slipped and fell on his driveway when taking out the garbage, landing on a piece of ice. He lay on the ground for about 5 minutes. He began to experience pain two days later. In December 2010 he was in a motor vehicle accident (MVA), when his car slid into a ditch, and he was thrown onto the center console. There was no car damage, and he did not submit a claim. Later in the day he felt discomfort. He had surgery in February 2012 to repair a herniated disc at L5-S1. His back is now much better, with no more shooting pain into the leg and greater mobility. However, his low back is still tight, and he continues to have pain in his left foot the left side of his toe is numb, and he has spasms in his left calf muscle daily. He is taking pain medication, prescribed for him by Dr. Kessel, his family doctor. The worker testified that he had never fully recovered from the April 2008 workplace accident. (vi) The medical evidence [8] On April 14, 2008 the worker attended a walk-in clinic. A Health Professional s Report (Form 8), completed by Dr. W. Taylor, a family doctor, stated that the worker was experiencing pain in his back and down his right leg, and that he was very stiff and tender at the L3 level. Flexion and extension were limited. The doctor made the diagnosis of acute lumbar sprain, prescribed an anti-inflammatory and a muscle relaxant, and ordered an x-ray. [The x-ray results are not available.] The worker was referred for physiotherapy. Dr. Taylor also completed a Functional Abilities Form (FAF), indicating that the worker would have some limitations for about 3 weeks. A complete recovery was expected. [9] On April 18, 2008 the worker attended Mr. C. Glover, a physiotherapist. The assessment form indicated that the worker was experiencing right-sided low back pain, radiating to the right buttock. There were two further physiotherapy reports in April 2008:

4 Page: 3 Decision No. 2012/15 April 21: worker improving; could return to working full hours, but should remain on modified work with low back precautions. April 23: gradual improvement. [10] The final physiotherapy visit in 2008 was on May 5, The Care and outcomes summary indicated that the worker had no low back pain, had returned to his pre-injury level of functioning, and could return to regular work at full hours. It stated that the worker had left a message at the clinic stating that he was fully recovered. [11] There is no further medical reporting in the Case Record until January 2009, when the worker reported pain in the hamstring, calf, and the bottom of his foot. Dr. R. Shaul, his family doctor, referred him to a physiotherapist. [12] On March 26, 2009, the physiotherapist wrote a letter to Dr. Shaul reporting that he had been treating the worker for an acute flare-up of low back pain and associated left leg paresthesia since January 15, He stated that the worker was receiving lumbar traction once a week and that his symptoms were improving, with paresthesia now localized in the mid-thigh. The physiotherapist recommended that the worker have further medical imaging. [13] On April 17, 2009, a CT scan was carried out for pain radiating to the left leg. The scan of the lumbar spine revealed lower lumbar spine disc disease that was most pronounced at L4/5 and L5/S1. [14] On May 14, 2009, x-rays of the low back were negative for boney injury or abnormality. [15] On July 13, 2009, an MRI of the lumbar spine revealed a left posterolateral disc herniation at the L5/S1 level. There was also secondary lateral recess stenosis and presumably some irritation of the origin of the left S1 nerve root in the left lateral recess. [16] In May 2010 the worker attended Dr. N. Barber for four chiropractic treatments for severe left-sided low back and posterior leg pain. The worker told the doctor that he had been experiencing some degree of discomfort since having had a workplace injury two years earlier. However his current acute pain was apparently due to a fall onto his left hip in December Dr. Barber made the diagnosis of chronic disc injury with mechanical low back pain. The information about these visits was conveyed to the Eligibility Adjudicator in correspondence from Dr. Barber on June 27, [17] On February 12, 2011, the worker had a second MRI for Longstanding back pain, worsening in the past month. The MRI findings were similar to those of July 2009: DDD at L4/5 and L5/S1, including a left paracentral-foraminal disc protrusion superimposed on disc bulging resulting in left-sided lateral recess and central canal stenosis. This may be unchanged from that described on prior exam. [18] On May 17, 2011, Dr. I.B. Schacter, a neurosurgeon, reported that he had seen the worker on May 11, 2011 for severe pain in the left lower back radiating down the left leg. The worker also had cramping in the left leg, with pain and numbness in the left foot, especially the big toe. The doctor arranged for a nerve conduction study to better localize his symptoms. [19] On June 21, 2011 a nerve conduction study found evidence of chronic denervation/reinnervation changes, primarily in the left L5/S1 myotomal distribution. Dr. D. Dodig, a neurologist, opined that these findings correlated with the findings on the MRI.

5 Page: 4 Decision No. 2012/15 [20] In correspondence to the EA dated June 27, 2011, Ms. B. Zaccai, a physiotherapist, reported that the worker had attended the clinic from January 28, 2011 to April 21, 2011 for acute chronic left sciatica, as a result of a re-aggravation of low back pain and associated left sciatica following a motor vehicle accident in December The worker had 18 visits for physiotherapy, followed by four chiropractic treatments. [21] In correspondence to the EA dated June 27, 2011, Dr. Schacter reported that the worker s clinical situation correlates with the radiologic findings of the disc herniation at L5-S1 on the appropriate side. The doctor recommended that the worker consult a spine specialist to consider surgery. [22] On February 7, 2012 the worker attended Dr. K.M. Grant, an orthopaedic surgeon specializing in spine disorders, for intractable left leg pain and a left foot drop. The doctor noted that an MRI had revealed a large disc herniation at L5/S1, and recommended surgery. [23] Dr. Grant arranged for the worker to have an updated MRI on February 1, The MRI showed a moderate bulge at L4-5 and a large left paracentral disc protrusion at L5/S1 affecting the left S1 nerve roots. [24] The worker underwent surgery with Dr. Grant on February 23, The doctor s surgical notes indicate that there were disc protrusions on the left-hand side at L4/5 and L5/S1, impinging on the L5 and S1 nerve roots. The doctor performed posterolateral decompressions at the two levels indicated. [25] On November 14, 2012 the worker attended Dr. K.A. Powell-Francis, a specialist in pain management. The doctor reported that the worker s leg pains had settled following the surgery, but that the worker was still experiencing low back pain. Dr. Powell-Francis suggested epidural steroid injections. [26] An MRI on November 16, 2012 revealed no evidence of recurrent disc protrusion. [27] The worker s present family doctor is Dr. B. Kessel. Dr. Kessel s clinical notes for 2014 and 2015 indicate that the worker is continuing to experience low back pain and left leg cramping. (vii) Submissions of the worker s representative [28] In written submissions dated August 27, 2015, Mr. Iacopini opined that the worker s disc herniation at L5/S1 most likely arose from the workplace accident of April 10, In support of this opinion he noted that the worker had not experienced similar symptoms prior to the accident, and that the first medical reports by the doctor on April 14, 2008 and the physiotherapist on April 15, 2008 had noted radicular symptoms. The worker s representative argued that the fall at home in December 2009 and the motor vehicle accident in December 2010 had only aggravated the worker s accident-related disc herniation at L5/S1. Mr. Iacopini requested ongoing entitlement and recognition of a PI for the worker s low back. (viii) Analysis [29] The issue in this appeal is whether the worker s ongoing back problems, ultimately requiring surgery in 2012, were causally related to the workplace accident on April 10, 2008.

6 Page: 5 Decision No. 2012/15 [30] In reviewing the medical evidence, I note that the medical reporting immediately following the workplace injury in April 2008 provided evidence of right sided radicular symptoms. Dr. Taylor s report on April 14, 2008 indicated that the worker was very stiff and tender at the L3 level and that he was experiencing pain down his right leg. Similarly, the physiotherapy report on April 18, 2008 indicated that the worker was experiencing right-sided low back pain, radiating to the right buttock. [31] The physiotherapist s report of May 5, 2008 stated that the worker had returned to his pre-injury level of functioning, and that the worker had left a message at the clinic stating that he was fully recovered. [32] In January 2009 the worker reported left leg symptoms and attended physiotherapy from January to March, All subsequent medical reports refer only to left-sided symptoms: A CT scan was done in April 2009 to investigate pain radiating to the left leg. An MRI in July 2009 revealed a left disc herniation at the L5/S1 level, with stenosis and irritation of the left S1 nerve root. In May 2010 the worker attended a chiropractor for severe left-sided low back and posterior leg pain. The findings of a second MRI in February 2011 were similar to those of July There was evidence of a left paracentral-foraminal disc protrusion superimposed on disc bulging, resulting in left-sided lateral recess and central canal stenosis. From January to April 2011 the worker attended physiotherapy for acute chronic left sciatica. In May 2011 the worker attended a neurosurgeon for severe pain in the left lower back radiating down the left leg, with pain and numbness in the left foot, especially the big toe. A nerve conduction study in June 2011 correlated with the MRI findings. In June 2011 Dr. Schacter reported that the worker s clinical situation correlates with the radiologic findings of the disc herniation at L5-S1 on the appropriate side. In February 2012 the worker attended Dr. Grant for left leg pain and a left foot drop. An MRI in February 2012 showed a moderate bulge at L4-5 and a large left paracentral disc protrusion at L5-S1 affecting the left S1 nerve roots. On February 23, 2012 the worker underwent posterolateral decompressions at L4/5 and L5/S1. Dr. Grant s surgical notes indicated that there were disc protrusions on the lefthand side at L4-5 and L5-S1, impinging on the L5 and S1 nerve roots. Although an MRI in November 2012 revealed no evidence of recurrent disc protrusion, the worker continued to experience low back pain. He attended a pain management clinic in November 2012 for epidural steroid injections, and continued to see his family doctor for low back pain and left leg cramping. [33] In conclusion, subsequent to the accident in April 2008 the worker experienced low back pain with some radiation to the right leg and right buttock. The physiotherapist reported on May 5, 2008 that the worker had fully recovered. All further medical reporting, beginning in January 2009, related solely to left-sided symptoms, which correlated with the surgical finding of

7 Page: 6 Decision No. 2012/15 left sided disc herniations at L4-5 and L5-S1 affecting the left L5 and S1 nerve roots. Based on this evidence, I find on a balance of probabilities that the worker s ongoing left-sided back problems, first reported in January 2009, are not causally related to the workplace accident in April 2008, when he experienced right-sided back pain. Consequently, entitlement for ongoing benefits and a permanent impairment for the low back are denied.

8 Page: 7 Decision No. 2012/15 DISPOSITION [34] The appeal is denied. DATED: October 2, 2015 SIGNED: M.C. Smith