SUMMARY DECISION NO. 950/97 Continuity (of symptoms). The worker suffered a low back strain and whiplash in a compensable motor vehicle accident in November 1993. The worker appealed a decision of the Appeals Officer denying entitlement for a recurrence in January 1995. There was continuity of symptoms. The worker's condition in 1995 was compatible with the compensable accident. The appeal was allowed. [6 pages] DECIDED BY: McGrath; Anderson; Nipshagen DATE: 09/06/98 ACT: WCA
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 950/97 [1] This appeal was heard in London on September 3, 1997, by a Tribunal Panel consisting of: J. McGrath : Vice-Chair, G.M. Nipshagen : Member representative of employers, J. Anderson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Officer dated February 14, 1996. This decision denied the worker entitlement to a recurrence of her low back and neck problems on January 2, 1995, on the basis that these problems were unrelated to her compensable accident of November 1, 1993, and also determined that her condition on January 2, 1995, was not caused by the nature of her post-accident work. [3] The worker appeared and was represented by S. Clement, from the Office of the Worker Adviser. The worker s husband attended as an observer. The employer did not participate although duly notified. [4] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries which occurred before January 1, 1998. All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. [5] An important change relevant to this appeal is that the Appeals Tribunal is now required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. In addition, the jurisdiction of the Appeals Tribunal is now described by section 123 of the WSI Act, with the necessary modifications. THE EVIDENCE [6] The Panel marked the Case Record materials prepared by the Tribunal Counsel Office as Exhibit #1. The worker s hand drawing of the bus seating plan was marked as Exhibit #2. [7] The Panel also heard oral evidence from the worker. Submissions were made by the worker s representative. THE ISSUE [8] The Panel must decide whether the worker suffered a recurrence of her neck and low back condition on January 2, 1995, or whether the nature of her work subsequent to her work accident on November 1, 1993, was a significant contributing factor to her symptom increase as of January 2, 1995.
Page: 2 THE PANEL S REASONS (i) Factual background [9] This 47 year old worker was employed as a bus aide, on a bus transporting severely handicapped children. [10] The worker s job involved assisting wheelchair access on to the bus and strapping in the wheelchair children each of whom required six safety straps one for the shoulder, one for the lap, and four ground straps per chair. The worker and the bus driver shared the duty of belting up these wheelchair children before the bus moved. The worker sat in a chair sideways on the bus so that she could observe all the children during the trips. [11] On November 1, 1993, the bus was involved in a front end collision accident. The worker sustained injuries to her low back and neck. She was diagnosed with a lumbar strain and whiplash. She did not initially lose any time from work as a result of this accident. She felt she was able to continue working on modified duties, until she finally laid off work on January 2, 1995. [12] The worker testified that as a result of the accident she experienced pain in her low back which radiated to her right hip and down her right leg through to a burning sensation at the bottom of her foot. She also felt pain in her shoulders and had a stiff neck. [13] After the accident, the worker was unable to do any of the ground straps for the wheelchair children and the bus driver had to do all of these. The worker did do some of the shoulder straps after the accident for a period of time then found that she could not even do these, and the bus driver had to do all seat belting-in. [14] The bus driver confirmed the worker s ongoing complaints after the accident and confirmed that he had taken over the duties of attaching seat belts following her accident. [15] The worker testified that the jarring motion of the bus bothered her and it was particularly awkward having to sit sideways on the bus because she did not have the back support while moving. [16] The worker testified that her pain got progressively worse after the accident despite the medical and chiropractic treatment in which she was involved, to the extent that on January 2, 1995, her family physician told her to stay off work and stay at home. [17] The records indicate that the worker was off work during 20 days between November 3, 1993, and December 9, 1994. The worker testified that these absences were because of the difficulty she was experiencing with her symptoms from the accident. These missed times from work were spread over each month during that one year period. The worker testified that she did not know that she could have claimed workers compensation benefits for this lost time, or she would have done so. [18] The worker testified that at home she was very fatigued, had difficulty getting dressed and doing any housework. She stated that her daughter has been doing this for her since the date of the accident. [19] The Board denied the recurrence on January 2, 1995, in large measure because it felt there was a lack of medical continuity based on the fact that the worker did not see her family doctor after November 13, 1993, until March 22, 1994. It was therefore assumed that the worker s condition had resolved during this four month gap in treatment.
Page: 3 (ii) Medical evidence [20] In the Physician s First Report to the Board dated November 1, 1993, the accident date, the worker was diagnosed with a lumbar strain (whiplash) and cervical strain (whiplash). The treatment was conservative and included home treatment of ice and analgesics. [21] The worker s family physician, Dr. R. Adler, filed a report to the Board of a reopened claim in January 1995 in which he stated that the worker could not do any work including any modified work and that she would be disabled for a considerable period of time. In this report Dr. Adler further stated that the worker s pain had never really truly improved. She stated that the worker attempted to continue to work but the nature of the work caused increasing pain. She further stated that she had given the worker prescriptions for muscle relaxants on November 23, 1993, and March 22, 1994, and referred her to her chiropractor for treatment. [22] The worker testified before the Panel that between the end of November 1993 and March 22, 1994, she did not visit her doctor because the doctor had given her a four month supply of muscle relaxants and she made do with these until they ran out. The worker also testified that during this four month period she received three treatments of reflexology and massage from her sister who is a licensed professional in this field. She further testified that because of the increasing pain in her low back and neck, she commenced chiropractic treatment again in May 1994 and that treatment was virtually ongoing from that date. The chiropractic treatment was prescribed by her physician who was of the opinion this should be the primary treatment for her condition. [23] The worker s chiropractor forwarded a report to the Board stating that he had treated the worker four times in November 1993, for lower back and neck injuries that she had received as a result of the motor vehicle accident on the bus. He did not treat her again until May 26, 1994, at which time he related that her symptoms had continued in the interim and she had ongoing neck, headache and shoulder pains which made her life very uncomfortable. He then treated her on eight occasions between May 26, 1994, and September 15, 1994, and again on November 3, 1994, the frequency of treatments was increased because her lower back pain was becoming more severe and her shoulder and neck pains were continuing. In summary, the chiropractor said that while the worker did try to tough it out it got to the point where she was unable to continue her employment. There was no doubt in his mind that her pain symptoms had been continuous from the date of the accident. [24] The Board s doctor stated, on March 10, 1995, that he could not see a causal relationship between the current low back condition and the job performed. He made no comment about continuity from the accident. (iii) Board s policy [25] The Board has a policy with respect to adjudicating a recurrence vs. a new claim and this is found in the Operational Policy Manual Document #02-04-02. This policy states as follows: A decision-maker will recognize a recurrence when there is obvious medical compatibility or an appropriate combination of medical compatibility and continuity, and an absence of a new accident.
Page: 4 (iv) Conclusions [26] The Panel found the worker to be a credible witness. She gave her answers in a straightforward and unhesitating manner. [27] The Panel is of the view, that on a balance of probabilities, the worker suffered a recurrence brought on by the nature of her work for several reasons. [28] First, her treating physician and treating chiropractor both confirmed the compatibility of medical symptoms without question. [29] Second, the worker lost considerable time from work between the date of the accident and the end of December 1994 as a result of her symptomatology. [30] Third, the worker s co-worker, the bus driver, confirmed the continuity of complaints. He also confirmed that she was only able to do modified work. He did all the seat belt work after the accident. [31] Fourth, there is no particular gap in the medical treatment between the end of November 1993, and March 22, 1994, because the worker was taking muscle relaxants and pain medication during that period which had been prescribed by her family physician in order to allow her to continue with her modified work. [32] Noting all of the above, the Panel is of the opinion that there was no substantial recovery in the worker s low back and shoulder/neck disability arising from her compensable accident on November 1, 1993, and, in fact, there was actually a deterioration because of her attempting to continue working, albeit modified, through that period. By January 2, 1995, the worker was unable to do any work as indicated by her family physician.
Page: 5 THE DECISION [33] The appeal is allowed. [34] The worker experienced a recurrence of her compensable disability in her low back and neck, on January 2, 1995, such that she was totally disabled. This recurrence was brought about in part because of the nature of the worker s modified work from the date of the accident until January 2, 1995. [35] This matter is referred back to the Board to establish the benefits to flow from this decision. DATED: June 9, 1998 SIGNED: J. McGrath, G.M. Nipshagen, J. Anderson