WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2115/14 BEFORE: C. M. MacAdam : Vice-Chair S. T. Sahay : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: November 17, 2014 at Toronto Oral DATE OF DECISION: December 17, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2720 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated September 27, 2012 APPEARANCES: For the worker: For the employer: Interpreter: M. Farago, Lawyer Not participating N/A 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
Decision No. 2115/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, dated September 27, 2012, which denied ongoing entitlement for the worker s cervical spine and denied entitlement to loss-of-earnings (LOE) benefits beyond October 31, 2011. [2] The issues for determination in the appeal are whether there is ongoing entitlement for the worker s cervical spine and whether the worker is entitled to LOE benefits beyond October 31, 2011. (ii) Background [3] On March 9, 2011, the then 42-year-old worker felt the onset of neck and right shoulder pain while passing 16-foot pieces of lumber above his shoulder to a co-worker in the course of his duties as a carpenter. The diagnosis was right trapezoid strain and nerve irritation. The worker performed light duties from March 10, 2011, to March 16, 2011, when he stopped working due to pain. The claim was initially allowed as a disablement for health care benefits only as there was a dispute between the worker and the employer concerning the suitability of the modified duties. On April 18, 2011, LOE benefits were granted from March 17, 2011, on the grounds that the modified duties were not suitable as the worker was unable to drive or use his right arm. [4] The worker was assessed at a Regional Evaluation Centre (REC) by an orthopaedic surgeon, Dr. E. R. Blackman and a physiotherapist on June 13, 2011. The report of that date indicated a diagnosis of a fully recovered soft tissue cervical injury, pre-existing C6-7 foraminal encroachment right more than left and a need to rule out radicular symptoms. It was noted that there were multiple subjective complaints of symptoms that were non-anatomical in that there was no objective support for those complaints upon physical examination. An EMG testing was recommended to determine the presence of any neurological abnormality. It was recommended that the worker avoid prolonged posturing, repeated use of the upper extremities at or aboveshoulder level, heavy pushing, pulling and reaching, until the EMG results were available. [5] The EMG report of June 14, 2011, indicated mild right carpal tunnel syndrome and chronic but stable denervated changes in the C6-7, and 8 innervated muscles. On June 20, 2011, Dr. Blackman confirmed that soft tissue neck injury was fully resolved, and that the pre-existing C6-7 foraminal encroachment with radicular-like symptoms was partially resolved with an anticipated full recovery. Four weeks of further physiotherapy was recommended. The previously indicated work restrictions were recommended for a further eight weeks. [6] In a letter to the worker dated September 2, 2011, the Case Manager (CM) indicated that physiotherapy was approved up to October 31, 2011, at which time the worker would be considered fully recovered from his soft-tissue injury and that he was expected to return to regular duties by October 31, 2011. The worker objected to that decision on the grounds that he was unable to work. That decision was confirmed by the CM in a letter dated October 31, 2011. The worker continued to object.
Page: 2 Decision No. 2115/14 [7] In the decision of September 27, 2012, the Appeals Resolution Officer (ARO) determined that the pre-existing condition had prolonged the recovery from the otherwise minor workplace injury, but that full recovery had occurred by October 31, 2011. The worker now appeals that decision to the Tribunal. (iii) Law and policy [8] Since the worker was injured in March 2011, 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. [9] Section 43 of the WSIA states, in part, the following concerning entitlement to LOE benefits: 43.1 A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of: the day on which the worker s loss of earnings ceases, 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, two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or the day on which the worker is no longer impaired as a result of the injury. [10] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: #61, 107, 224, and 300. [11] Operational Policy Manual (OPM) Document No. 11-01-05, Determining Maximum Medical Recovery (MMR), states, in part, the following: Policy Workers reach maximum medical recovery (MMR) when they have reached a plateau in their recovery and it is not likely that there will be further significant improvement in their medical impairment... Guidelines Definition Significant improvement refers to a marked degree of medical improvement in the work-related impairment that is demonstrated by a measureable change in objective clinical findings. [12] OPM Document No. 11-01-15, Aggravation Basis, states, in part, the following: Policy In cases where the worker has a pre-accident impairment and suffers a minor workrelated injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.
Page: 3 Decision No. 2115/14 Guidelines Decision-makers should first determine entitlement in the claim (see 15-02-02, Accident in the Course of Employment). Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state. Entitlement is not limited in cases where there is no pre-accident impairment, or the severity of the accident/exposure on its own would have resulted in additional impairment. This is the case where the impairment is temporary or permanent despite the presence of the pre-accident impairment. Definitions An aggravation is the effect that a work-related injury/illness has on the pre-accident impairment requiring health care and/or leading to a loss of earning capacity. A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. (Although the period of time cannot be defined, a decision-maker may use a one to two year timeframe as a guide.) Ongoing benefits Decision-makers are responsible for limiting entitlement in claims allowed on an aggravation basis. The worker's clinical status is monitored to determine if the worker has reached the pre-accident state. If a worker remains off work after reaching the preaccident state, the decision-maker discontinues benefits and advises the worker. Permanent impairment In some cases, workers never return to the pre-accident state. If there is a permanent worsening of the pre-accident impairment, the decision-maker may determine that the work-related injury/illness has permanently aggravated the pre-accident impairment. If medical evidence confirms that the work-related injury/illness permanently increased the worker's pre-accident impairment, the worker may be entitled to a non-economic loss benefit. (iv) The worker s testimony [13] The worker described the workplace accident where he experienced neck and right shoulder pain while passing long pieces of lumber over his head to another co-worker. He returned to light duties that required no physical activity. He stopped working because the pain was getting worse and he had been told he had a pinched nerve. The worker denied knowledge of any pre-existing neck or right shoulder condition. [14] The worker was asked to comment on the family physician, Dr. Manning s clinical notes that indicate he was seen on September 29, 2008, for neck and right shoulder pain related to heavy lifting at work, that he had lost time from work, and that an EMG testing had been carried out. The worker testified that this was related to carrying a heavy plate and that he had had no further problems until the workplace accident in March 2011.
Page: 4 Decision No. 2115/14 [15] The worker was asked to comment on the REC report that indicated he had sat for 25 minutes without demonstrating any significant indication of pain. The worker testified that his condition at the time had been severe. [16] The worker could not recall what advice he had been given by the specialist, Dr. Ballyk whom he had seen on September 26, 2011, and October 25, 2011. He could not recall when his LOE benefits ended. [17] The worker has not worked since March 16, 2011. He has been living on his savings. His neck and right shoulder condition is now worse than it was at the time of the March 2011 accident. He thinks this is due to a pinched nerve. He gets headaches and pain in his right shoulder. He is currently in no treatment and uses no pain medication, and exercises at home. He has not seen a specialist since October 2011. [18] The worker was asked to comment on the chiropractor, Dr. Lin s October 3, 2011 notation that the worker s recovery was being influenced by his reluctance to pursue the proposed exercise therapy. The worker testified that he was willing to do the exercises but was unable to do so. He lies on a couch for most of the day. His current girlfriend does most of the housework. [19] The worker joined a gym about five months prior to the hearing, or in June 2014. He could bench-press 40 pounds. He has not returned to the gym in the last three months because he is in too much pain. He has had no injuries arising from his time at the gym. (v) Submissions [20] The worker s representative submits that the workplace accident caused a permanent aggravation of a pre-existing neck condition. He notes the absence of evidence indicating further neck or right shoulder complaint from October 2008 to March 2011. He submits that the worker is a credible witness and that Dr. Blackman did not indicate other causes for the worker s symptoms. He noted that Dr. Blackman had indicated restrictions in the worker s cervical range of motion (ROM). He argues that Dr. Blackman provided no explanation for his opinion that the soft tissue injury had resolved and yet had indicated cervical ROM restrictions and work restrictions. He noted that Dr. Ballyk agreed with the worker that his ongoing symptoms were related to the workplace accident, and that Dr. Ballyk disagreed with the REC assessors on this issue. [21] The representative took issue with the CM s reasoning in denying ongoing entitlement on February 1, 2012. He noted that the CM opined on that date that the workplace accident had not been minor and that on November 17, 2011, the CM s finding that the workplace accident had been severe. [22] The representative relies on the cervical ROM findings from the REC report arguing in support of ongoing entitlement. He argues that the worker has been unable to work since October 31, 2011. He is requesting full LOE benefits from that date, though in the alternative, he requests that the worker be sent for a Work Transition (WT) assessment to determine the worker s employability.
Page: 5 Decision No. 2115/14 (vi) Analysis [23] After considering all the evidence, the Panel finds the appeal should be denied. We find that the worker sustained a relatively minor soft tissue injury to his neck and right shoulder on March 9, 2011, which had fully resolved without a permanent impairment by October 31, 2011. There is no entitlement to LOE benefits after that date. Our analysis follows. [24] The Panel places full weight on the reporting and opinions of the REC Assessor, Dr. Blackburn, an orthopaedic surgeon, over the testimony of the worker. Dr. Blackburn had noted that no testing was carried out when the worker went to the emergency unit on the accident date. This does not indicate a serious injury arising from the workplace accident. Dr. Blackburn noted the worker reporting that he had lost no time from work for his 2008 neck injury and that he had not received treatment for that injury. This is at odds with the clinical notes from Dr. Manning which indicate the worker was authorized off work for one week for his neck and right shoulder on September 29, 2008, and that a specialist, Dr. Peter Varey had carried out EMG testing on October 29, 2008. The Panel finds it reasonable that the worker would have recalled in March 2011, that he has seen his doctor and been sent for EMG testing for work-related injuries to the same body parts - the neck and right shoulder, only 2½ years earlier. In this respect, and given further instances noted below, the Panel does not consider the worker to be a persuasive witness [25] Dr. Blackburn noted that the worker demonstrated no emotional overlay during the REC assessment and that he sat for 25 minutes without demonstrating any significant external evidence of pain. Yet Dr. Blackburn noted the worker reporting pain across the back of his neck 80 to 90% of the time at an intensity of 10/10 that was aggravated by activities including sitting. The worker described his right arm pain as constant at an average intensity of 8/10. Yet, on examination, Dr. Blackburn noted full ROM in the shoulders. [26] Dr. Blackburn based his diagnosis on his examination of the worker and an x-ray of the cervical spine dated March 16, 2004, and a cervical MRI report dated May 31, 2011. A copy of the x-ray report is not in evidence, though we note that Dr. Blackburn indicated that the x-ray report and the MRI report in evidence indicated significant foraminal encroachment on the right C6-7 disc level. The x-ray report had indicated substantial decrease of the C6-7 disc space while the MRI indicated moderate to severe right foraminal narrowing. This evidence indicates a significant pre-existing cervical condition long before the March 2011 workplace accident, despite minimal medical reporting between 2004 and 2011. [27] The Panel finds that Dr. Blackburn s diagnosis of a fully resolved soft tissue cervical injury is adequately explained in the REC reports of June 13, 2011, and June 30, 2011. Dr. Blackburn noted the worker s subjective complaint of significant ongoing symptomology in the neck and right shoulder, though in observing and examining the worker he indicated no objective findings to support that complaint. We find that Dr. Blackburn indicated temporary restrictions until EMG results became available as a precautionary measure to determine if the worker s subjective complaint was related to any neurological abnormality. The EMG report from Dr. Rose Giammarco indicated chronic but stable denervating changes in C6-7 and 8 that did not cause Dr. Blackburn to change his opinion that the soft tissue cervical spinal injury had fully resolved. By this, we understand that the EMG did not indicate evidence of neurological abnormality relating to the workplace injury. The EMG results appear to confirm the longstanding chronic but stable pre-existing condition.
Page: 6 Decision No. 2115/14 [28] There is little further evidence that supports ongoing entitlement. The reporting from Dr. Ballyk makes no reference to the reporting of cervical symptoms and testing from 2004 or to the similar complaint and treatment in 2008. In this respect, the Panel places little weight on Dr. Ballyk s opinion that the worker s ongoing symptoms were related to the workplace accident. In her report of September 26, 2011, Dr. Ballyk noted the May 2011 MRI results indicated degenerative changes at C6-7 disc level and stated this is actually exactly where his pain is in the C6 area. On examination, Dr. Ballyk indicated no clinical findings in the cervical spine and only subjective observations: that the worker was uncomfortable moving his neck and/or shoulders; she could not tell if there was wasting in the biceps. Dr. Ballyk reported that all neurophysiological finds were normal, including in the right upper trapezius. Dr. Ballyk s clinical interpretation was very mild radiculopathy. There is little indication that this opinion was based on more that the worker s subjective complaint. She believed the worker had nerve radiculopathy pain, though it is unclear what this is based on since her clinical findings were all normal. Dr. Ballyk indicated that the worker s current chiropractic therapy at the time was the route to go though the chiropractor, Dr. Lin, reported one week later on October 3, 2011, the worker s reluctance to [the] proposed exercise therapy. This evidence does not indicate significant ongoing symptoms related to the soft tissue injury six months earlier. [29] The second report from Dr. Ballyk, dated October 25, 2011, is no more persuasive. Again there is no mention of the pre-injury treatment of the neck and right shoulder. There are no clinical findings indicating the neck or right shoulder apart from a statement that the worker was having increased ROM in the neck, right biceps, deltoid and periscapular pain that Dr. Ballyk believed was a radiculopathy. No explanation was given for that opinion. Dr. Ballyk indicated her disagreement with the REC assessor s opinion that ongoing symptoms were related to a preexisting condition and that the work-related injury had fully resolved, though she indicated as well that she had not read the REC report. Again, we understand by this evidence that Dr. Ballyk was not aware of the pre-existing history of neck and right shoulder problems and treatment noted by Dr. Blackwood. We are not persuaded that Dr. Ballyk would have related the ongoing symptoms to the workplace accident if she had been aware of the earlier treatment for the same body parts. [30] In summary, we find the medical evidence does not support ongoing entitlement beyond October 31, 2011. We also find the worker s evidence to be unpersuasive on this issue. The worker s evidence is that his neck and right shoulder have progressively worsened since the accident such that he is unable to perform any type of work for the past three years and he spends most of his time lying down. Yet, there is the evidence from Dr. Lin indicating that the worker s reluctance to the proposed exercise therapy was delaying his recovery. There is also the worker s evidence that he joined a gym in 2014 and was bench-pressing up to 40 pounds with no complaint and no use of pain medication despite his evidence of ever worsening pain symptoms in his neck and right shoulder.
Page: 7 Decision No. 2115/14 DISPOSITION [31] The appeal is denied. There is no ongoing entitlement for the worker s cervical spine injury and no entitlement to LOE benefits beyond October 31, 2011. DATED: December 17, 2014 SIGNED: C. M. MacAdam, S. T. Sahay, K. Hoskin