FD: ACN=235 ACC=R FD: DT:D DN: 1290/87 STY: PANEL: Bradbury; Beattie; Apsey DDATE: ACT: 40(2) KEYW: Temporary total disability; Temporary

Transcription

1 FD: ACN=235 ACC=R FD: DT:D DN: 1290/87 STY: PANEL: Bradbury; Beattie; Apsey DDATE: ACT: 40(2) KEYW: Temporary total disability; Temporary partial disability. SUM: - Tribunal found that worker was temporarily totally disabled by back injury suffered at work for period from September 1984 to March While back pain suffered by worker after June 1985 was related to 1984 compensable accident, worker only partially disabled between June 1985 and December Worker's appeal allowed in part. PDCON: TYPE:A DIST: IDATE: HDATE: TCO:D. Munro KEYPER:E. Hautala XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 1290/87 This appeal was heard in Thunder Bay on December 17, 1987, by: L. Bradbury : Panel Chairman, R.H. Apsey : Tribunal Member representative of employers, D.B. Beattie: Tribunal Member representative of workers. THE APPEAL PROCEEDINGS The Worker appeals the decision of the Workers' Compensation Board Hearings Officer, F.H. Kaliciak, dated May 30, The decision denied the worker entitlement to ongoing disability benefits after March 11, The worker appeared and was represented by E. Hautala from the Office of the Worker Adviser. The employer was contacted but advised Tribunal counsel that he did not intend to appear at the hearing. D. Munro was present on behalf of the Tribunal Counsel Office. THE EVIDENCE The Panel had the Case Description materials which were marked as Exhibit #1. A report from Dr. Stinson dated October 28, 1985, was marked as Exhibit #2. The worker gave oral evidence under oath. Submissions were made by Mr. Hautala. THE NATURE OF THE CASE The worker suffered a back disability at work on September 28, He received temporary total disability compensation until March 11, The worker did not return to work until May 6, He is claiming ongoing temporary total compensation for two periods: 1) from March 11, 1985, and May 6, 1985, and 2) from May 31, 1985, until December 2, The Hearings Officer found that the worker had recovered from the effects of the occupational accident by March 11, 1985, and denied the claim. THE PANEL S REASON (i) Factual background The worker was employed as a labourer by a township initially on a seasonal basis in 1978, and on a full-time basis from about April As a seasonal employee, he suffered one back injury in November 1978, and received

3 2 one week of entitlement from WCB. On September 28, 1984, the worker suffered a second back injury at work. He was in a pit with his feet mired in clay, shovelling clay for a water standpipe relocation. The worker twisted his back while shovelling. He was diagnosed as having a lumbar sprain. The worker was treated by his chiropractor, Dr. Stinson, who saw him twice a week. When the worker did not recover from the back pain, he was admitted to the Downsview Rehabilitation Centre on February 18, Dr. Garland's discharge report on February 27, 1985, stated that the worker was fit for his regular work without restrictions. His compensation benefits were terminated on March 11, 1985, based on this report. The worker disagreed with this finding and saw Dr. Stinson who referred him to Dr. J. Remus, an orthopaedic specialist. Dr. Remus and Dr. Stinson felt that the worker was not able to return to work until May The worker did return to his regular job on May 6, He continued working until May 31, At that point, he reported to the Board that he felt back pain following overtime work on May 31. He did not return to work and again sought treatment from Dr. Stinson and Dr. Remus. He was eventually admitted to a rehabilitation hospital in October 1985, where he remained for one month. Following his discharge, the worker returned to his regular job with the employer on December 2, It was the worker's position that he remained temporarily totally disabled in these further periods. (ii) The Medical Evidence The discharge report from the Downsview Rehabilitation Centre noted that the worker was "bent forward and would not stand up straight". In addition, the x-rays showed slight narrowing at the L4-5 disc. The doctor, however, apparently felt that the worker ought to have recovered. Dr. Garland noted: It will be five months tomorrow since he strained his back. He is young and muscular. His symptoms are wide spread and dramatically described. Physical findings are not impressive. Slight narrowing of the L4-5 disc was reported by the radiologist, but I doubt that this finding is of clinical significance. I told [the worker] that it was time he went back to work, and that while he might experience some discomfort for a time, if he worked through it he would soon feel better. The worker disagreed with this assessment. When he saw Dr. Remus on March 1, Dr. Remus noted: When I saw the patient on March 1, 1985, in Fort Francis he walked with a rather stooped gait and I felt that this was certainly characteristic of ankylosing spondylitis. The patient stood with a postural accentuation of his thoracic kyphosis and lumbar lordosis. His range of movement of the cervical and thoracic spine are reasonably full. However, he had a limited chest expansion and there is chronic flattening of his lumbar spine with tenderness over the lumbar spine and both sacroiliac joints. His range of motion of his lumbar spine is restricted to half the normal range.

4 3 Dr. Remus recommended that the worker undergo tests to determine whether in fact he had ankylosing spondylitis, a rhematoid inflammation of the spine. Meanwhile, the worker continued to see Dr. Stinson for chiropractic treatment on a weekly basis. Dr. Stinson reported ongoing pain in the lumbar and mid-thoracic spine. Dr. Remus saw the worker again on April 29, 1985, and noted a "dramatic improvement in his symptoms". Dr. Remus went on: His range of motion of his cervical, thoracic and lumbar spine is now full and there appears to be a full range of movement to the joints...his bone scan and blood test were normal. The only discomfort appears to be in the thoraco-lumbar region with some local tenderness which will respond to ice and untrasound. This patient should be able to return to work in approximately two weeks time...it appears that he does not have an inflammatory spondylitis of his spine but appears to be recovering satisfactorily. The worker did in fact return to work on May 6, as noted above. Dr. Remus had concluded that he did not have ankylosing spondylitis. On the basis of the reports of Dr. Remus and Dr. Stinson, the Panel is unable to agree with the report from the Downsview Rehabilitation Centre that the worker was capable of returning to work in February Dr. Remus noted the stooped gait and limited range of movement which did not improve until the end of April On the basis of Dr. Remus's report, the Panel is not satisfied that these symptoms can be related only to an over-dramatic presentation by the worker as the doctor at the Downsview Rehabilitation Centre found. We therefore accept Dr. Remus' opinion that the worker was not capable of returning to work until May 6, He is entitled to temporary total compensation for the period from March 11, 1985, until May 6, It appears to the Panel from the evidence that the worker was able to work between May 6 and May 31, 1985, without serious problems. He had some ongoing pain but did not see Dr. Stinson or Dr. Remus in this period. However, on May 31, the worker worked some overtime and reported an onset of serious back pain following this. He laid off work and saw Dr. Stinson about June 5. Apparently, Dr. Stinson recommended that he not return to work and on June 10, Dr. Stinson noted "patient has had a breakthrough of old injury". Dr. Stinson treated the worker once a week after June. On July 22, 1985, Dr. Stinson reported to the Board as follows: [The worker] has pain in the mid-thoracic area to chest in front, pain upon breathing, bending, standing and squatting. There has been some improvement noted. After treatment the patient feels better for a short period of time. The worker was referred again to Dr. Remus who saw him on July 25, Dr. Remus noted:

5 He has local tenderness on palpitation over the spinous process of T9 and this appears to be where most of his discomfort is. Otherwise, his range of motion of his cervical, thoracic and lumbar spine is reasonably full as is the range of motion of the upper and lower extremities. 4 Dr. Remus decided to do repeat x-rays and to inject the worker with Cortisone. By September 5, Dr. Remus saw the worker and reported that his range of motion was still "mildly restricted" but there was no evidence of nerve root irritation or obvious neurological deficit. Because of the ongoing back pain, the worker was admitted to a rehabilitation hospital, the Hogarth Westmount Hospital, on October 28, 1985, where he remained until November 22, Dr. Remus' discharge report noted that the worker had undergone physiotherapy to mobilize and strengthen his thoracic and lumbar spine. He was discharged as ready to return to work and it was noted that he had made "good objective improvements while in hospital". It was recommended that he continue the flexibility exercises and ice for pain control. Dr. Stinson also found that the worker had less pain and decided that he would see him only on an "as needed" basis. The worker therefore returned to work and has remained at work since December 2, although he has lost some days because of back pain. The medical reports indicate that the worker's back pain after June 1, 1985, was in the same area as the back pain following his work accident in September He was treated by the same doctors who also related the pain to the original accident. We therefore accept that the worker's back condition after June 1, 1985, resulted from his work accident. The medical reports do not support a finding that the worker was totally disabled in the period between June and December We note Dr. Remus' finding that there was mild restriction of motion and no discomfort in the lumbar spine but some discomfort in the thoracic spine. We conclude that the worker was partially and not totally, disabled during this period. The Panel has insufficient evidence to determine whether the worker was entitled to full compensation under section 40(2) (of the Act), during the period. The Panel leaves to the Board the determination of this issue and the amount of compensation the worker should receive during the period from June 1 to December 2, THE DECISION The worker's appeal is allowed in part. The Panel finds that the worker was totally disabled in the period from March 11, 1985, to May 6, 1985, and partially disabled in the period from June 1, 1985, to December 2, The Board is to determine the amount of compensation to be paid during the second period of partial disability and is also to determine whether the worker is entitled to full compensation in accordance with section 40(2) of the Act. DATED at Toronto, this 18th day of January, SIGNED: L. Bradbury, R.H. Apsey, D.B. Beattie.