WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2515/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2515/11 BEFORE: R. McClellan : Vice-Chair M. Christie : Member Representative of Employers A. Signoroni : Member Representative of Workers HEARING: December 19, 2011 at Toronto Oral Post-hearing activity completed on May 18, 2012 DATE OF DECISION: August 28, 2012 NEUTRAL CITATION: 2012 ONWSIAT 1944 DECISION UNDER APPEAL: WSIB ARO decision dated August 23, 2010 APPEARANCES: For the worker: For the employer: D. Porter, Lawyer 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. 2515/11 REASONS (i) The appeal [1] The worker appeals the decision of the Appeals Resolution Officer dated August 23, That decision concluded that, under the May 28, 2006 accident claim, the worker did not have initial entitlement for a left knee injury; the worker had initial entitlement for the left ankle limited only to medical expenses with no ongoing entitlement; and, the worker had entitlement for a back injury on an aggravation basis with entitlement limited only to medical expenses and no entitlement for a permanent aggravation of the worker s pre-existing back impairment. [2] The issues before the Panel are: whether the worker has initial entitlement for a left knee injury under the May 28, 2006 accident claim; whether the worker has ongoing entitlement for a left ankle injury; and whether the worker has ongoing entitlement for a back injury, specifically whether the worker sustained a permanent aggravation of his pre-existing non-compensable back condition as a result of the accident of May 28, (ii) Background [3] The worker, now age 57, was employed at a pool maintenance company most recently in April On May 28, 2006, the worker sustained compensable injuries as a result of a twist and fall accident. In the Form 6, Report of Injury, dated July 22, 2006, the worker reported that he had sustained a burn on his chest, a sprained ankle, and a back injury as a result of the accident. He advised that he reported the accident to his employer on July 18, Witnesses to the accident were identified as co-worker RB, and the supervisor, MM. [4] In Board Memo #1, dated July 6, 2006, MM advised that he was not aware of any accident and no accident had been reported as of that date. [5] Initial entitlement was denied on the grounds of proof of accident could not be established. Following the worker s objection to the decision, a claims investigator was assigned to the file by the ARO. [6] The claims investigator report dated January 7, 2008 recorded his interview with the supervisor, MM, who confirmed that the worker had burned his chest moving a gas-operated compressor. Subsequent to the accident the worker did not return to work and did not contact the employer for a number of months. Witness RB could not be located. [7] The worker advised the claims investigator about a prior back condition resulting from a broken back sustained in a motorcycle accident in 1975 and further, that the worker had polio in early childhood affecting his right side and leg. The worker stated he did have back spasms periodically between 1975 and May 2006 but that he had always done heavy physical work mainly at a fishing and hunting camp which he owned and operated in northern Québec. He had also worked on an annual seasonal basis for the accident employer since 1977.

3 Page: 2 Decision No. 2515/11 [8] The worker described the accident as occurring when he tripped and fell, landing on top of the compressor, and sustaining a burn to his chest from the compressor exhaust and also injuring his left ankle, left knee and low back. The investigator also obtained treatment records from family physician Dr. Pringle. [9] In Board Memo #12, dated February 7, 2008, the claims adjudicator reviewed the investigation report and allowed entitlement for the burn to the chest on a benefit of doubt basis. Entitlement for the left knee was denied on the grounds that it was not mentioned until September 2006, and was diagnosed as osteoarthritis. Entitlement for the low back was denied on the grounds that the worker s back condition was pre-existing and already symptomatic and there was no evidence of an aggravation injury. The adjudicator also contrasted the report of the accident given to the claims adjudicator that he fell onto the compressor with a different account given to the doctor that he had been carrying the compressor. The adjudicator also cited the delay in reporting an accident, the delay in seeking medical treatment and the lack of proof that the worker had been disabled from work. Entitlement for the burn injury was allowed for health benefits only. [10] In the ARO decision of August 23, 2010, the ARO did allow initial entitlement for the left ankle but limited entitlement to medical expenses only. The ARO confirmed entitlement for the burn injury as limited to health benefits only. Entitlement for the left knee was denied on the grounds that the worker s osteoarthritis was a non-work-related condition, and entitlement for the back was allowed on an aggravation basis for medical expenses only with no entitlement for permanent aggravation. (iii) The medical evidence [11] The Case Record contains medical records of the worker s treatment following a motor vehicle accident in May The physician at the St. Catharine s General Hospital advised in August 1974 that the worker had sustained multiple injuries from a motor vehicle accident including a fracture of his back and of his leg as well as a hematoma in the urethra. [12] An x-ray taken on June 4, 1974, showed a fusion in the ankle joint between the calcaneal and the metatarsal joints with no evidence of fracture. An x-ray of the thoracic and lumbar spine showed fractures at T12 and L1. [13] An x-ray of the thoracic and lumbar spine taken on December 11, 1998 showed scoliosis in the upper lumbar region with wedging at L1 and T12 and narrowing disc spaces, together with well united old fractures at T12 and L1. [14] The Physician s First Report Form 8 from Dr. Pringle is dated June 2, 2006 and reported a history the accident as follows: Lifting compressor, weight shifted and he twisted his back and ankle, small burn in right chest wall. [15] Dr. Pringle reported a prior non-compensable back injury in Symptoms were low back pain, right ankle pain with a small burn to the right chest. Restrictions were to remain off work and no heavy lifting or twisting or prolonged standing. [16] An MRI of the lumbar spine, taken on August 31, 2006, showed mild interior disc compression at T12/L1 with moderately severe degenerative disc disease and mild stenosis at L4/5 at L5/S1, otherwise unremarkable.

4 Page: 3 Decision No. 2515/11 [17] An MRI of the lumbar spine taken on September 28, 2006, showed an old wedge fracture at T12, small bulging at T10/11, T11/12, T12/L1, L1/2, L2/3, and L3/4 without significant stenosis. There was a moderate posterior disc bulge at L4/5 with hypertrophied facet joints and mild stenosis bilaterally. There was mild posterior bulging at L5/S1 without stenosis. The diagnosis was mild lumbar spondylosis worse at L4/5 and old wedge fracture at T12. [18] An MRI of the left knee taken on March 26, 2007 showed a small Baker s cyst and small joint the fusion with no other abnormalities. [19] In a report dated February 24, 2007, orthopaedic specialist Dr. Paul Robert advised that the worker had pain in the suprapatellar region of the left knee. Past history included polio in the right leg as a child causing him to favour his right knee over the years. The clinical findings were patellofemoral joint osteoarthritis. [20] In a summary report to the worker s representative dated March 20, 2008, family physician Dr. Pringle advised that he first treated the worker on June 2, 2006, for injuries suffered on May 28, He reported the worker s description of the accident as happening when he lifted a compressor which shifted and consequently twisted his back and left ankle and burned the upper chest wall. The worker had made no complaints of a knee injury at that time and the first mention of knee pain was September 19, Dr. Pringle wrote: Although his history does not specifically relate his left knee problems to this accident, it is conceivable that he could have aggravated an underlying patellofemoral joint osteoarthritis. [21] Dr. Pringle said the worker had a pre-existing back condition with mechanical back pain secondary to disc degeneration and compression fractures at T12 and L1 as a result of the 1975 motorcycle accident. At the time of the accident the worker was taking Oxycodone 10 mg twice daily. He stated that change in the thoracic spine was due to the previous motorcycle accident of The worker had restrictions against repetitive bending, lifting and twisting or prolonged kneeling, squatting, standing, sitting or walking as a result of mechanical back pain and the left knee arthritis. He wrote: In summary, in his accident of May 28, 2006, he suffered a mild strain of the left ankle from which he fully recovered and a strain of the lumbosacral spine with aggravation of his pre-existing mechanical lower back pain. His left knee symptoms were reported sometime after the accident and are consistent with patellofemoral arthritis. [22] In an x-ray report dated May 28, 2010 from the Temiskaming Health Centre, the radiologist reported osteoarthritis of the left ankle subsequent to remote trauma with no acute injury recognized, and a valgus deformity of the ankle joint subsequent to the remote trauma resulting in asymmetrical growth of the distal tibia epiphysis. [23] A CT of the lumbar spine taken on November 26, 2009, showed previous compression fractures at T12/L1 with anterior osteophyte formation and multilevel degenerative changes throughout the lumbar spine without any sign of stenosis but there was slight spondylolisthesis at L4/5, with no evidence of herniation. [24] The medical summary report from the Temiskaming Health Centre dated January 11, 2011, reported; 1. Valgus deformity of the left ankle with gross disturbance in the distal ankle tibial epipysis and osteoarthritis.

5 Page: 4 Decision No. 2515/11 2. Lumbar spine degenerative multilevel disease. 3. Left knee osteoarthritis. 4. Left ankle injury, Achilles tendon. (iv) Post-hearing medical evidence [25] Following the hearing, the Panel requested additional information from treating family physician Dr. Peter Pringle concerning the workers medical treatment for the left knee, the left ankle and the low back prior to May 28, [26] In a report dated March 1, 2012, Dr. Pringle advised that he began treating the worker for the first time on November 12, 1990, and saw him only sporadically until December 3, 1998 when he became a regular patient. Dr. Pringle advised that he had seen the worker regularly for mechanical low back pain which the worker had experienced in a motor vehicle accident in 1975 when he suffered compression fractures of the T12 and L1 vertebrae. Treatment had consisted of prescription analgesics including Percocet, OxyContin, Amitriptyline and anti-inflammatories including Arthrotec. The worker s back pain was aggravated by prolonged sitting, standing, walking and bending. The symptoms fluctuated and the worker was capable of running a fishing camp and chopping wood. [27] Respecting the left knee, Dr. Pringle advised that the worker had an x-ray done of the left knee at hospital emergency May 9, 1990, but had no details. Further, the worker was treated on October 30, 2002, for a hyperextension injury to the left knee at which time the x-ray was normal. He stated that there was no record of any left ankle condition prior to May 28, [28] Dr. Pringle provided his clinical notes covering the period from June 5, 1993 until August 23, 2006, which confirmed Dr. Pringle s ongoing treatment for chronic back pain throughout this period. The clinical notes also recorded on December 8, 1998 that the worker s right leg was 1/2 to 1 inch shorter than the left leg. There are ongoing reports of pain symptoms in the right ankle and lower leg, including June 29, 2000, July 7, 2000, and July 17, There is no record of treatment for the left ankle in the clinical notes. [29] An x-ray of the left knee and patella taken on October 30, 2002, showed no arthritic changes or other abnormality. An x-ray of the thoracic stent lumbar spine taken December 3, 1998 showed wedging at T12 and L1 with narrowed disc spaces and spur formation, indicating well united old fractures. There was scoliosis in the upper lumbar region again evidence of an old fracture at T12/L1. An x-ray of the cervical spine taken May 9, 1990 showed degenerative disc disease at C5/6. The x-ray also showed no abnormalities in the left knee. (v) The worker s testimony [30] The worker described his work history over 35 years in northern Ontario and northern Québec as follows: in the winters he was self-employed cutting wood, in the spring he opened swimming pools, and in the summer and fall he ran a fishing and hunting camp in northwestern Québec. He stated that he had basically been unable to work since the accident of May 2006 and that he had supported himself by selling property living off the proceeds. He stated that he s been in receipt of Québec Pension Plan Disability benefits since March 2010, based on his leg disabilities. He stated that since the accident he has closed his camp.

6 Page: 5 Decision No. 2515/11 [31] The worker stated that his right ankle and leg had bothered him because of childhood polio but that his good ankle had been his left ankle and that was now the main problem preventing him from working. He stated that he did have ongoing back problems since the motor vehicle accident of 1975 but it was managed with OxyContin. [32] Later in his testimony the worker stated that he had been working after the accident of May 2006 but that in 2010 he had torn the Achilles tendon in his left ankle when he backed off a step at his daughter s house. He stated that after this accident, he was no longer able to do backflips, which he had been able to do up until that time. He stated that as a result of the Achilles tendon injury he was no longer able to work a truck clutch and could not work as an AZ driver. He reiterated that it was the accident of May 2010 that finished off his left ankle. [33] The worker stated that prior to the May 2006 accident he did not have severe back problems, and was able to split four truckloads of wood and ran his hunt camp. He also stated that he had prior osteoarthritis in his left knee but after the accident of 2006 he was no longer able to spring off my left foot. However, in reply to questions, the worker testified that at some time after the 2006 accident he had dropped an 18 hp outboard motor on his left knee. He also stated that he had a further injury to his back in the course of unloading a log truck in January (vi) Submissions of the worker s representative [34] Mr. Porter reviewed the medical file in detail and submitted that Dr. Pringle had documented that the worker s left ankle strain had fully recovered, but that the record showed ongoing treatment for the left ankle in 2007 and again in 2009, indicating that the condition was chronic and that there had been no prior ankle symptoms. With respect to the back, he submitted that it was the worker s problems at L4/S1, as documented in the MRI of September 28, 2006 which were aggravated by the accident of May 2006 and not the problem identified in 1998 at T12/L1. He submitted that the worker s pain resulting from a compensable injury at L4/S1 had never resolved. There was therefore clinical compatibility between the accident of May 2006 and the worker s ongoing impairment at L5/S1 in the lumbar spine. [35] With respect to the left knee, he submitted that there had been no prior symptoms or preexisting condition prior to May 2006 and that there was no other cause for the left knee impairment other than the accident of May (vii) Law and policy [36] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect and applies to this case. [37] Provisions for Payments for Loss of Earnings are set out in section 43. [38] The provisions of section 43 as it reads after July 1, 2007, are as follows: 43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;

7 Page: 6 Decision No. 2515/11 (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. (2) Subject to subsections (3) and (4), the amount of the payments is 85 per cent of the difference between, (a) the worker s net average earnings before the injury; and (b) the net average earnings that he or she earns or is able to earn in suitable and available employment or business after the injury. However, the minimum amount of the payments for full loss of earnings is the lesser of $15, or the worker s net average earnings before the injury. [39] Compensation for Non-economic Loss is set out in section 46: 46. (1) If a worker s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss. 1997, c. 16, Sched. A, s. 46 (1). [40] Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal. [41] Board Operational Policy Manual Document No , entitled Adjudicative Process, sets out the following points for adjudicators to consider when examining proof of accident: Does an accident or disablement situation exist? Are there any witnesses? Are there discrepancies in the date of accident and the date the worker stopped working? Was there any delay in the onset of symptoms or in seeking medical attention? [42] The policy goes on to state that, if it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, an opinion is sought from the Medical Advisor. (viii) The Panel s conclusions [43] The worker in this case is seeking entitlement for three separate impairments under the May 28, 2006 accident claim: ongoing entitlement/permanent impairment for the left ankle; initial entitlement for the left knee; and ongoing entitlement/permanent impairment for permanent aggravation of a pre-existing non-compensable back condition. 1. The worker s low back [44] The worker s claim for ongoing entitlement for permanent aggravation of a low back condition cannot be accepted, based on the evidence before us. Firstly, the medical file establishes that the worker had sustained spinal fracture as the result of a motorcycle accident in The medical file from Dr. Pringle, who was the worker s treating family physician since 1990 has stated that he treated worker the worker regularly for mechanical low back pain between 1998 and the date of the accident in May 2006, and that the worker s back pain was

8 Page: 7 Decision No. 2515/11 symptomatic and aggravated by prolonged sitting, standing, walking and bending. Treatment had consisted of heavy-duty opioid medication including Percocet and OxyContin, with up to four Percocet tablets per day as well as Amitriptyline and Arthrotec. The clinical notes in the Case Record document frequent episodes of acute and obviously disabling back pain. It is also noted that the worker had experienced childhood polio and that his right leg was one inch shorter than the left leg, a fact which undoubtedly served to exacerbate his back condition which had resulted from the motorcycle accident. The worker s representative has focused his argument on the worker s degenerative disease at L4/5 in the lumbar spine based on the September 2006 MRI. However, this MRI showed extensive degenerative disease throughout the entire thoracic and lumbar spine, which had undoubtedly developed during the 20-year period since the motorcycle accident of The medical file does not support a conclusion that the worker had permanently aggravated his pre-existing and already symptomatic low back condition as a result of the accident of May In fact, in his very testimony, the worker stated that he had been able to chop wood commercially for some period of time after the May 2006 accident and that he was able to do back-flips until he sustained a torn Achilles tendon in Based on the evidence before us, the Panel concludes that the worker did not sustain a permanent aggravation to his pre-existing low back condition as a result of the accident of May 2006 and that he has no further entitlement for the low back under this claim. 2. Initial entitlement for the left knee [45] There was no reference to a left knee injury in the initial Form 6 Report of Injury dated July 22, Dr. Pringle has advised that there was no complaint of injury in the left knee until September 19, At that time, the condition was diagnosed as an underlying patellofemoral joint osteoarthritis, and it is evident that this longstanding condition could not have been caused by the accident of May Dr. Pringle advised that the worker s history had not related to left knee problems to the accident of May 2006 but that it was conceivable that the worker could have aggravated his underlying left knee osteoarthritis as a result of the accident. That statement does not meet the test of a balance of probabilities. The issue is further complicated by the worker s testimony that he had dropped an 18 hp outboard motor on his knee in 2009, which intervening event was a more significant trauma to the left knee than the slip and fall accident of May Finally, the evidence that the worker was capable of strenuous physical labour after May 2006 and that he was able to do back-flips until the ankle injury of 2010 are not compatible with a significant left knee injury. 3. Permanent impairment in the left ankle [46] In his testimony, the worker stated that his left ankle was his most significant and disabling impairment. However, again, the situation in this aspect of the worker s claim is also affected negatively by the worker s own testimony, that he had sustained a non-compensable injury to the left ankle in May 2010, when he stepped backwards off a step at his daughter s place. It was the worker s testimony that after this accident, he was no longer able to use a clutch on a truck and was incapable of working as an AZ driver, and that after this accident he was no longer able to spring forward off his left foot. Also he testified that after this accident in 2010 he was no longer able to do back-flips. It is therefore completely unclear from the worker s evidence whether he had actually sustained an ongoing impairment of the left ankle prior to the torn Achilles tendon injury in With respect to the medical evidence, it is not supportive of the worker s claim. Dr. Pringle s summary report of March 20, 2008 advised that as a result of the accident of May 28, 2006 the worker suffered a mild strain of the left ankle from which he

9 Page: 8 Decision No. 2515/11 fully recovered. The clinical notes provided to the Tribunal recorded treatment for left ankle sprain on one day only, June 2, The notes do not record ongoing treatment for the left ankle after that date. The Panel accepts the evidence from the family physician that the worker had fully recovered from his left ankle sprain, as determinative. The worker s ongoing difficulties with the left ankle are first related to a pre-existing and non-compensable osteoarthritis, and second, to non-compensable the torn Achilles tendon sustained in 2010 and which the worker himself testified was the major cause of his left ankle disability. Based on the evidence before us, the Panel finds that the worker does not have entitlement to compensation for a permanent impairment in the left ankle under the May 2006 accident claim.

10 Page: 9 Decision No. 2515/11 DISPOSITION [47] The appeal is denied. [48] The worker does not have initial entitlement for the left knee injury under the May 28, 2006 accident claim. [49] The worker does not have ongoing entitlement for impairment in the left ankle under the May 28, 2006 accident claim. [50] The worker does not have ongoing entitlement for a permanent impairment in the lumbar spine under the May 28, 2006 accident claim. DATED: August 28, 2012 SIGNED: R. McClellan, M. Christie, A. Signoroni