WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1708/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1708/15 BEFORE: E. Kosmidis : Vice-Chair E. Tracey : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: August 18, 2015 at Toronto Written DATE OF DECISION: October 2, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2193 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated June 27, 2014 APPEARANCES: For the worker: For the employer: C. Bennett, Paralegal Not participating 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. 1708/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker did not have a permanent impairment of the low back and was therefore not entitled to a non-economic loss (NEL) award. [2] The ARO rendered a decision based upon a written record without an oral hearing. [3] The Tribunal identified this appeal as suitable for a written hearing. [4] The Panel considered the Case Record and the four Addenda along with the written submissions from the worker s representative. [5] The employer did not participate. (ii) Issues [6] The issue under appeal is entitlement to a NEL award for the low back. (iii) Background [7] According to the Form 6 dated September 17, 2010, the worker was working as a line hand. On September 7, 2010, the worker bent forward to put a strap under a skid of metal sheets. He could not straighten up due to low back pain. He notified his supervisor of this injury. [8] The worker was 51 years old at the time of this incident and had been with the accident employer since August [9] The worker was absent from work until September 14, 2010 when he returned to modified duties. The WSIB accepted entitlement for a low back strain and the worker was paid LOE benefits for that period. [10] LOE benefits were also paid for recurrences for the periods between January 17, 2011 to January 25, 2011, July 8, 2011 to July 19, 2011 and September 12 to September 16, [11] In a letter dated September 16, 2013, the WSIB denied the worker s request for a NEL award for the low back on the basis that the medical evidence did not establish a permanent impairment. This was confirmed by the ARO in a decision dated June 27, (iv) Law and policy [12] Since the worker was injured in 2010, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [13] Pursuant to section 13 of the WSIA, a worker who sustains a personal injury by accident arising out of and in the course of his employment is entitled to benefits under the Act. A worker who has a loss of earnings as a result of the injury is entitled to benefits under section 43 of the Act. [14] Section 46 of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. Pursuant to section

3 Page: 2 Decision No. 1708/15 47, a worker who suffers a permanent impairment as a result of the injury is entitled to an award expressed as a percentage of total permanent impairment (non-economic loss (NEL) award). [15] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [16] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [17] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: 261- NEL Entitlement 300- Decision Making/Benefit of Doubt/Merits and Justice [18] We have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No , Determining the Degree of Permanent Impairment ; OPM Document No , Decision-Making. (v) Documentary and medical evidence [19] The worker saw his family doctor on the day of the accident. Dr. Lin completed a Form 8 dated September 13, 2010 noting that the worker complained of low back pain. His diagnosis was a low back strain with the notation that the worker had a history of work related low back pain with bulging disc and arthritic changes. Dr. Lin notes several restrictions for the low back relating to standing, lifting and bending. [20] The worker commenced physiotherapy treatments. According to the September 9, 2010 Form 8 completed by the physiotherapist, the worker had been previously treated for a work related low back strain in [21] As the worker continued to complain of low back pain, he was referred for an MRI by his family doctor. The MRI report dated January 31, 2011 notes the presence of mild bilateral facet osteoarthritis at L3 to S1 along with mild loss of disc height at L3-4. There is a diffuse annular bulge present along with a large focal right disc protrusion. The report also notes that this is causing significant distortion and marked compression of the adjacent thecal sac, predominantly right sided. The MRI also notes that there is likely compression of the traversing right L4 nerve root. [22] With respect to L4-S1, the MRI report notes the presence of mild degenerative disease with a small focal left posterolateral disc protrusion with probable impingement of the traversing left L4 nerve root at that level. [23] The findings were such that a neurosurgical consult was recommended. [24] The worker was referred for a REC assessment. He was seen by both an orthopedic surgeon, Dr. H. Weinberg, and a physiotherapist. In their report dated February 8, 2011, it is

4 Page: 3 Decision No. 1708/15 noted that the worker indicated that he was 70% recovered but that he had pain in his lower back with radiation into the right lower extremity. [25] The MRI report was reviewed. The REC report notes that the MRI showed bulging discs, particularly at L4-5 and L5-S1. The L4-5 indentation of the thecal sac was also noted. [26] The diagnosis was L4-5 disc herniation with the prognosis for recovery over the next 12 weeks. It was their opinion that the worker would gradually be able to increase his activity but should follow up with his family doctor. [27] The worker was also seen by a neurosurgeon, Dr. Duncan. In his report dated April 6, 2011, Dr. Duncan confirms that the worker developed lower back pain along with pain and numbness into the right leg. He states that the worker continues to have low back pain two to three times per week but that he currently has no leg pain. Dr. Duncan notes that the worker has not reported any left leg symptoms. [28] Dr. Duncan also reviewed the MRI report. It is his opinion that there is a large sequestered disc herniation likely arising from the L4-5 disc level. He notes that there is significant canal compromise. [29] He recommends conservative treatment. The worker is not a surgical candidate. No further follow up is required. [30] As evidenced by the family doctor s clinical notes which start on September 2, 2011 and end on October 1, 2013, the worker continued to complain of low back pain to May 29, [31] A complaint of low back pain is next recorded on July 16, 2013, a little over 13 months after the last low back complaint. The low back complaints continue until October 1, 2013 with no mention of pain radiating into the leg. [32] Dr. Lin completes a Form 8 noting a recurrence for March 3, [33] A second set of clinical notes from Dr. Lin run from March 4, 2014 to March 24, The entry for March 4, 2014 notes that the worker is complaining of back pain now radiating into the left leg. Dr. Lin s clinical notes continue to record complaints of low back pain radiating into the left leg up until the notes end in March of [34] A second MRI was performed and the results were compared to the earlier MRI findings. According to the MRI report dated April 27, 2014, the extruded disc at L3-4 was no longer evident. The report noted that the epidural extruded disc component identified posteriorly at L3-4 had resolved. However, focal left foraminal disc protrusion at L2-3 was impinging the exiting left L2 nerve root. Further focal central and left posterolateral disc protrusion at L4-S1 was impinging the traversing left L5 nerve root. [35] After reviewing the MRI results, Dr. Lin records in his April 30, 2014 note that the worker has multi-level disc disease and herniated discs at L2-L3, L4-S1. [36] The worker was again seen by Dr. Duncan. In his report dated July 17, 2014, he notes that the worker began experiencing left leg pain in February of He records that the worker has had no recurrence of right leg pain. [37] In his report, Dr. Duncan notes that there is evidence of mild nerve root tension on the left. He reviewed the worker s two MRI reports. He notes that the disc fragment behind L4 is no longer seen. He also comments on the fact that degenerative changes are seen at multi-levels.

5 Page: 4 Decision No. 1708/15 A non-compressive disc herniation is noted at L3. Disc bulges are also noted at L4-5. He states that, at L5-S1 there is a left disc protrusion with possible compression of the left S1 nerve root which is more prominent when compared to the imaging from June [38] His report concludes by stating that, while there is improvement with regard to the L4-5 disc herniation, there has been progression of the left L5-S1 disc protrusion. Conservative treatment was again recommended with no need for further follow-up. (vi) Submissions [39] In the submissions dated April 13, 2015, the worker s representative states that the worker suffered a lumbar strain on September 7, 2010 which required intermittent periods of absence from work and continuing treatment. The worker was not able to return to his preaccident job and has required modified duties. [40] The worker s representative submits that the clinical notes from the family doctor are evidence of the worker s continuing low back symptoms. The MRI reports show significant physical findings that support the existence of a permanent impairment. [41] The worker s representative submits that the worker s symptoms are continuing and prolonged and have prevented him from working. This therefore supports the claim that the worker has suffered a permanent impairment from his September 7, 2010 workplace injury and that the worker is entitled to a NEL assessment. (vii) Analysis [42] Workers who have a permanent impairment as a result of a work related injury are eligible for a NEL benefit. The issue in this appeal is whether the worker s continuing low back problems are related to the compensable accident of September 7, [43] The appeal is denied, for the reasons that follow. [44] Based upon a careful review of all of the evidence, we are unable to conclude that the worker s ongoing low back symptoms and continuing left leg pain are related to the compensable injury. It is important to note that there is a distinction between the case where a workplace injury is a significant contributing factor to a worker s disability, and where the disability is, in fact, a manifestation of an underlying non-compensable condition. The distinction was described as follows in Decision No. 652/87 (1988), 10 W.C.A.T.R. 75: This case raises the issue of the distinction between disabling symptoms appearing as the result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as reflecting a compensable exacerbation or acceleration of the pre-existing condition, and disabling symptoms appearing as a result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as merely evidence of the disabling nature of the pre-existing condition. [45] In Decision No. 652/87, the Panel denied the worker s appeal, finding that the worker s disabling symptoms did not arise out of employment but were evidence of the disabling nature of the worker s non-compensable pre-existing condition. The fact that a condition manifests itself at work does not necessarily mean that it is caused by the work.

6 Page: 5 Decision No. 1708/15 [46] We note that the accident history in this claim was minor. The worker was diagnosed with a back strain which occurred when bending. The worker initially lost four days from work and returned to modified duties on September 14, [47] It is also important to note that the worker had previous low back problems. In the Form 8, dated September 13, 2010, Dr. Lin states that the worker has a history of a work related lower back injury with bulging discs and arthritic changes. [48] These findings were confirmed in the MRI report dated January 31, The report notes a disc bulge at L3-4 with likely compression of the right L4 nerve root. Further mild degenerative changes are noted at L4-S1 with a small focal left posterolateral disc protrusion with probable impingement of the left L4 nerve root at that level. Mild bilateral facet osteoarthritis is present at L3 to S1. [49] In his report dated August 8, 2011, Dr. Lin states that the worker suffers from a chronic back condition with bulging lumbar discs and right sided herniated L3-L4 disc. He notes that the condition is permanent and that the worker will experience intermittent flare ups causing him to miss time from work. He states that the worker s back problem is chronic. [50] The worker s initial complaints were of low back pain radiating into the right leg. The right leg pain complaints ended after September 13, 2011 but the worker continued to complain of low back pain until May 29, 2012, as evidenced by the family doctor s clinical notes. [51] There is then a gap of over 13 months before the worker makes any complaint of low back pain again. The family doctor s clinical notes confirm that the worker saw his doctor five times between May 29, 2012 and July 16, 2013 without any mention of low back pain. The July 16, 2013 note indicates that the worker s back started acting up about five days earlier. The back pain complaints continue until the end of the clinical notes (October 1, 2013) with no mention of pain radiating into the right leg. [52] The worker experienced another flare up of low back pain and saw Dr. Lin on March 4, The clinical note indicates that the worker is now complaining of back pain radiating into the left leg. The pain radiating into the left leg is a new complaint and is first recorded almost three and one half years after the workplace accident giving rise to this claim. [53] The worker was referred for a second MRI. The findings were compared to the previous MRI findings. The 2014 report states that the previous mass identified at L3-4 was no longer evident and was seen to have resolved. However, a disc protrusion was noted at L2-3 which was impinging the exiting L2 nerve root. Additionally, a left posterolateral disc protrusion at L4-S1 impinging the traversing L5 nerve root was also noted. [54] Dr. Duncan saw the worker twice and he also reviewed and compared both MRI reports. He states that the MRI shows multilevel disc degeneration. While there was improvement with the L4-5 disc herniation, there has been progression of the left L5-S1 disc protrusion. Dr. Duncan discussed the worker s back condition and in his report dated July 17, 2014, he states: We discussed the natural history of lumbar disc degeneration with nerve root involvement. This is generally one of symptomatic improvement with conservative treatment. [55] Based on the medical information contained in the file, we find that the medical evidence does not support a conclusion that the worker s degenerative disease is related to his work. None

7 Page: 6 Decision No. 1708/15 of the doctors seen by the worker have provided an opinion that the worker s continuing problems are related to the minor workplace accident. [56] The worker s representative relies on the fact that the worker continues to require modified duties. We accept that the worker can no longer perform his regular duties but we are unable to find that the worker s restrictions are related to his workplace injury of September 7, 2010 which was diagnosed as a back strain. We find that the worker s continuing symptoms and his resulting inability to perform his regular duties are related to his chronic degeneration of the spine which is a non-compensable condition. [57] The worker s representative also argues that the worker has had ongoing symptoms since September 7, However, based on a review of Dr. Lin s notes, we find that, between May 29, 2012 and July 16, 2013, there are no back complaints recorded despite the fact that the worker saw his family doctor five times during that period. This is consistent with Dr. Lin s opinion that the worker will continue to experience intermittent flare ups. We find that these intermittent flare ups are related to the worker s chronic degeneration of the spine. [58] Furthermore, the medical evidence does not support a conclusion that the worker s ongoing left leg sciatica is related to the minor workplace injury. The worker s initial complaint was of low back pain radiating into the right leg. However, according to the medical information in the claim file, the right leg symptoms ceased effective September 13, [59] Subsequent complaints in March 2014 are of lower back pain with pain radiating into the left leg. We find that this new complaint cannot be attributed to the September 7, 2010 workplace accident. [60] In conclusion, we find that the worker has not had consistent ongoing back symptoms since the September 7, 2010 accident. Additionally, the MRIs confirm that the disc extrusion identified at L3-4 had resolved by the time that the second MRI was performed in Finally, while the worker reported right leg pain after the accident, this resolved by There is no medical evidence which draws a causal connection between the 2010 workplace accident and the worker s continuing ongoing back symptoms involving pain radiating into the left leg. As a result, we find that the worker s ongoing back condition is not related to the minor September 7, 2010 workplace accident.

8 Page: 7 Decision No. 1708/15 DISPOSITION [61] The appeal is denied. DATED: October 2, 2015 SIGNED: E. Kosmidis, E. Tracey, C. Salama

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