WORKERS COMPENSATION APPEAL TRIBUNAL [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #194 Appellant Respondent Maureen Peters, Work Advisor, Representing the Worker Brian L. Waddell, Q.C., Solicitor representing the Workers Compensation Board Place and Date of Hearing May 15, 2014 Loyalist Lakeview Resort 195 Harbour Drive Summerside, Prince Edward Island Date of Decision December 19, 2014

2 1. This is an appeal by the Worker of Internal Reconsideration Decision IR # [PERSONAL INFORMATION] dated October 8, 2013, upholding the decision of the Workers Compensation Board (the Board ) to close the Worker s claim for benefits effective October 25, FACTS, EVIDENCE AND BACKGROUND 2. On April 10, 2012, the Worker, [PERSONAL INFORMATION], while at work was moving a skid when he felt a sharp pain in his right lower back. 3. The Worker sought medical attention at the Prince County Hospital Emergency Department shortly afterwards. He was given two shots and pain medication and sent home. 4. The Emergency Department report of April 10, 2012 described the Worker s symptoms as sudden onset right sided lower back pain that radiates down right leg with weight bearing. 5. The Worker returned to modified duties on April 12, 2012 but only lasted until lunch time. He also saw his family physician, Dr. J. R. Chaisson, on April 12, 2012 and was authorized off work for medical reasons. 6. The Worker had a prior history of back pain. He had suffered a previous back injury when he was hit by a car about three years earlier. This was a non-compensable injury. 7. The Worker was off work for about two years and his back condition improved enough to return to work about eight months prior to his back injury on April The Worker was assessed by Dr. E. R. Harrison, a specialist, on May 16, 2012, at the request of Dr. Chaisson. 9. Dr. Harrison s consult report states, I last reviewed him about a year and a half ago with respect to his at that time chronic low back pain which had been quite resistant to interventions by physiotherapy and chiropractors. I felt at that time that there were elements of chronic pain in addition to lumbar intervertebral joint strain with chronic myofascial pain... He tells me that he has continued at work until relatively recently. He has intermittently attended the emergency department where he has received IM injections for acute exacerbations. Apparently on April 10, 2012 he was lifting a tray from knee height to about shoulder height and had sudden onset of severe right low lumbar discomfort with his presenting to the emergency department and receiving IM analgesics and 80 ml s Valium. He took several days off, attempted four hours at work and has not been to work since then as his pain increased He localizes his pain to the L4-5, L5-S1 site on the right P a g e

3 [The Worker] is a [PERSONAL INFORMATION] old gentlemen with recent acute right lumbosacral paraspinal pain with radiation down the right leg. Previously when reviewed he was maximally tender over the left paraspinal region as opposed to the right. I think these represent separate issues although certainly the deconditioning and incoordination associated with his previous pain may well have contributed to this injury. 10. On May 23, 2012, the Board approved the Worker for physiotherapy treatment for his low back injury of April 10, On June 1, 2012, the Board accepted the Worker s claim for benefits as a result of his injury on April On August 4, 2012, the Worker presented to the Emergency Department again, complaining of low back pain on the left side. He was provided with pain medication and sent home. 13. The Emergency Department report for the August 4, 2014 attendance, states in part: Pt [patient] has had chronic back pain since April, on Workers comp. and awaiting MRI on August 23 rd. Hurt himself lifting and twisting with heavy object in April. Pain is normally on right lower back. Last night, August 3, pt [patient] was washing daughter s hair and bending over and felt a pop/crack. Pain has traveled to the left side and pain is worse now. 14. The pain became so bad that on August 9, 2012 the Worker returned to the hospital and was admitted for pain control. He was discharged from hospital on August 15, 2012, at which time he was provided prescriptions for pain medications. 15. The Board s case worker subsequently referred the Worker s file to the Board s medical advisor, Dr. Steve O Brien, asking whether the Worker s hospital stay on August 9, 2012 was related to his injury on April 10, In response, on October 2, 2012, Dr. O Brien provided his Medical Opinion in which he opined in part as follows: On an Emergency Department report of August 4, 2012, it stated, Patient known back pain on right, made a false movement yesterday and started to have pain on the left. Excruciating pain this morning - unable to move. Therefore, with the history of false movement yesterday and being unable to move, this would be a new incident unrelated to the workplace incident that initiated this claim.... The Emergency report also states, Pain is normally on right lower back. Last night, August 3, patient was washing daughter s hair and bending over and felt a pop/crack. Pain has traveled to the left side and pain is worse now. The MRI report of August 17, 2012 stated At the L4-5 level, there is a possibly relevant focal annular prolapse in the left L4-5 foramen.... I note clinical 3 P a g e

4 history is of right-sided symptoms. There is no obviously symptomatic rightsided finding noted in this exam. Therefore, the MRI findings of the left L4-5 foramen would be a new finding and with the symptoms being compatible to the left-sided foramen would have developed as per the August 4, 2012 incident at home involving washing his child s hair and involving what he described as a false movement. As noted, the right-sided symptoms do not have any corresponding MRI findings and as the report states, There is no obviously symptomatic rightsided findings noted in this exam. Therefore, the hospital admission of August 2012 and the subsequent referral to Dr. Charest, Neurosurgeon in Moncton, which was subsequent to the MRI findings of left L4-5 nerve root prolapse, would not be related to the workplace incident that initiated this claim but would be more probably due to the incident as described on August 4, 2012 which would be a consequence of the false movement on August 4, On October 12, 2012, the Board notified the Worker by written decision that his claim for benefits would close effective October 25, 2012, referring to Dr. O Brien s analysis and opinion. 18. On January 11, 2013, the Worker s Request for Internal Reconsideration of the Board s decision of October 15, 2012 was received by the Board. This request was dismissed on February 20, 2013, as the Internal Reconsideration Officer (the IRO ) determined that a letter received by the Board on January 23, 2013, from Dr. Dhany Charest, Neurosurgeon, was new evidence that needed to be considered by the Board prior to proceeding with the reconsideration. 19. Dr. Charest s consult report for his assessment of the Worker on November 21, 2012 states in part as follows: As you know [the Worker]... sustained a work related injury in the spring of He was working unloading [PERSONAL INFORMATION] and experienced a dramatic and sudden back pain after moving one particular piece of merchandise. This immediately radiated down his right lower extremity and has been causing him disabling pain since. He has undergone physiotherapy as well as massage therapy with limited benefit. He continues to have daily severe complaints and has been unable to return to work. He has a previous history of back injury having been hit by a car close to three years ago but had recovered from that after an extended time off work. Clinical Impression: I believe this gentleman suffers mostly from soft tissue and mechanical back pain. This is partially related to a work injury that aggravated his condition. Recommendation:... He has suffered a soft tissue injury which he continues to be severely disabled with. There is no question at this time that he is 4 P a g e

5 unable to work. I believe a comprehensive assessment through a Pain Clinic should be undertaken immediately in order to avoid creating a chronic pain pattern On April 4, 2013 the Board notified the Worker by a second decision that the Board s initial decision to close his claim effective October 25, 2012 would not change. 21. The Worker submitted a second Request for Internal Reconsideration which was received by the Board on July 9, On October 8, 2013, the IRO issued decision #[PERSONAL INFORMATION], denying the Worker s reconsideration request, finding that the Worker s current need to seek medical attention for persistent symptoms was not related to his compensable injury on April 10, The Worker subsequently appealed the IRO s decision to WCAT by way of Notice of Appeal dated November 7, ISSUE 24. The issue is whether the Board s decision to close the Worker s claim for benefits effective October 25, 2012 was appropriate? ANALYSIS/DECISION 25. WCAT is a creature of statute, having been created pursuant to provisions of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-71.1 as amended (the Act ). 26. In addition to being bound by the Act and the regulations made under the Act, WCAT is bound pursuant to subsection 57(17) of the Act by the policies of the Board and is bound to fully implement the Board s policies. 27. The proper standard of review by WCAT is that of correctness, ie. an incorrect decision by the Board may be corrected by WCAT. 28. Pursuant to subsection 6(1) of the Act, the Board shall pay compensation to any worker who suffers personal injury by accident arising out of and in the course of employment. 29. Subsection 6(9) of the Act provides as follows: 6(9) Where an accident caused personal injury to a worker and that injury is aggravated by some pre-existing physical condition inherent in the worker at the time of the accident, the worker shall be compensated for the full injurious result until such time as the worker, in the opinion of the Board, has reached a plateau in medical recovery. 5 P a g e

6 30. While there is no dispute that the Worker was injured by an accident on April 10, 2012, arising out of and in the course of his employment, the issue is whether the Worker s ongoing symptoms and condition beyond October 25, 2012, were caused by the injury he sustained on April 10, When adjudicating a claim, the Board (and WCAT) must assess and weigh all of the relevant evidence to determine, on the balance of probabilities, whether a worker is entitled to compensation benefits. 32. Board Policy POL-68 (Weighing of Evidence) states: 1. The decisions of the Workers Compensation Board are made in accordance with the real merits and justice of the case and the Workers Compensation Board is not bound to follow strict legal precedent. In determining the merits and justice of each case the Workers Compensation Board must give consideration to: - all relevant information relating to the case in order to establish the facts and circumstances relating to the case; - relevant provisions of the Workers Compensation Act and Regulations; and - relevant Workers Compensation Board policies. 2. In making decisions related to compensation benefits, the Workers Compensation Board will examine the evidence to determine whether it is sufficiently complete to allow a decision to be made. If the Workers Compensation Board determines more information is required to make a decision, the Workers Compensation Board will work with the worker, employer, and health care providers to obtain the necessary information. The Workers Compensation Board will gather, review, and weigh all relevant evidence as part of the decision making process. However, the Workers Compensation Board will give greater weight to evidence that is factual and objective when making a decision. 3. The Workers Compensation Board will assess and weigh all relevant evidence and make decisions based on a balance of probabilities - a degree of proof which is more probable than not. 4. Where the evidence weighs in favour of the person claiming compensation, the claim shall be allowed and compensation benefits provided. 5. Where the evidence weighs against the person claiming compensation, the claim will not be allowed. 6 P a g e

7 6. Where on any application for compensation the Workers Compensation Board concludes the evidence for or against the issue is approximately equal in weight, the issue will be resolved in favour of the person claiming compensation as outlined in Workers Compensation Board policy, POL-62, Benefit Of Doubt. 33. In this case, evidence and indicators that support the Board s decision, include: (a) (b) (c) (d) (e) the anatomical area of the April 10, 2012 back condition was the Worker s right lower back area while the Worker s back incident and hospital stay in August, 2012 was the left lower back area; the Worker s pre-existing back condition arising from his prior car accident, related to the Worker s left lower back and not the right side; the Worker never fully recovered from his pre-existing back condition arising from his prior car accident and has had episodic pain and flare -ups on the left side since then; the Worker s April 10, 2012 injury was diagnosed by Dr. Chaisson, Dr. Charest and Dr. O Brien as a soft tissue injury, which according to the Disability Duratoin Guideline & Expected Healing Times referred to by Dr. O Brien, would have a healing guideline time of three (3) months; and Dr. O Brien s medical opinion that the Worker s ongoing symptoms could not be reasonably related to the Worker s injury of April 10, Although, Dr. Charest was of the opinion that the Worker suffered from soft tissue and mechanical back pain and that it was partially related to a work injury, it is not clear that he was referring to the compensable workplace injury suffered by the Worker on April 10, 2012, nor did he provide any reason (s) for this opinion. Dr. Charest made no mention of the Worker s pre-existing back condition, his August 4, 2012 injury, his subsequent hospitalization, and related Emergency Department reports. 36. After reviewing all the evidence and considering the submissions of counsel for the Worker and the Board, this Tribunal finds, on the balance of probabilities, that the Worker s ongoing symptoms and condition beyond October 25, 2012, were not causally related to the Worker s workplace injury on April 10, Accordingly, the Worker s appeal is dismissed. 38. The Panel wishes to thank Ms. Peters and Mr. Waddell for their submissions, both written and oral. 7 P a g e

8 Dated this 19th day of December, _ John L. Ramsay, Q.C. Vice-Chair Workers Compensation Appeal Tribunal Concurred: _ Robert Gallant, Employer Representative _ A. J. Gordon Huestis, Worker Representative 8 P a g e