WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1672/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1672/16 BEFORE: S. Darvish: Vice-Chair HEARING: June 27, 2016 at Toronto Oral DATE OF DECISION: July 21, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1990 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated April 11, 2014 APPEARANCES: For the worker: For the employer: Interpreter: L. Brown, Paralegal Not participating None 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. 1672/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker was not entitled to: benefits for a low back surgery performed on June 22, 2011; a redetermination of his 22% non-economic loss ( NEL ) award for his low back; loss of earnings benefits from November 8, 2010 and from November 1, 2012; additional work transition services; and entitlement to benefits for psychotraumatic disability. (ii) Issues [2] The issues under appeal are as follows: 1. Does the worker have entitled for his low back surgery of June 22, 2011? 2. Does the worker have entitlement for a redetermination of his 22% NEL award for his low back? 3. Is the worker entitled to benefits for psychotraumatic disability? 4. Is the worker unemployable or entitled to additional work transition ( WT ) services? 5. What is the worker s entitlement to loss of earnings ( LOE ) benefits? (iii) Law and policy [3] Since the worker was injured in 2007, 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. [4] Specifically, sections 2, 13, 43, 46, and 47 of the WSIA govern the worker s entitlement in this case. [5] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [6] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight.

3 Page: 2 Decision No. 1672/16 [7] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #9 Psychotraumatic Disability; Package #30 Adjusting Benefits for Non-Work-Related Changes; Package #31 Secondary Conditions; Package #36 LOE Benefits prior to December 1, 2010; Package #107 Aggravation Basis/SIEF; Package #216 Final LOE Review benefits as of February 15, 2013; Package #231 Work Transition & Suitable Occupation; Package #235 Work Reintegration Principles, Concepts, and Definitions; Package #264 NEL Redetermination; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. (iv) Analysis [8] The appeal is allowed in part for the reasons set out below. (a) Entitlement for low back surgery of 2011 and NEL redetermination [9] The worker injured his low back on October 15, The Board granted initial entitlement for the low back injury, diagnosed as an L4-L5 disc herniation. On December 8, 2008, the worker underwent surgery for an L4-L5 decompression/discectomy. [10] In June 2008, the Board recognized that the worker had a moderate non-compensable pre-existing low back condition, diagnosed as spondylosis. [11] In May 2009, the Board approved the worker for a WT program, with a suitable occupation ( SO ) of customer service, information and related clerks, national occupational classification ( NOC ) In December 2009, the worker was granted a 22% NEL benefit for permanent impairment of his low back. [12] The worker completed the WT program in August The worker testified that while he looked for work, he could not find work in the SO. However, the worker secured part-time work as a press machine operator. The worker s LOE benefits were therefore adjusted to partial LOE benefits based on work in the SO at $10.25 per hour for 40 hours per week. [13] On November 8, 2010, the worker informed the Board that he had stopped work due to ongoing low back pain and he required a second surgery. The Board extended entitlement for the second surgery. Full LOE benefits were reinstated effected November 8, 2010 until May 20, The worker had a second low back surgery on June 22, The Board determined that the worker was able to return to graduated work effective May 20, 2012 and full-time work effective June 11, The worker also requested entitlement to psychotraumatic disability, diagnosed as an adjustment disorder, which the Board denied on November 21, 2012.

4 Page: 3 Decision No. 1672/16 [14] Despite the initial acceptance of the second low back surgery, in February 2013, the Board reversed its position and rescinded entitlement for that low back surgery. Based on opinions of two medical consultants, the Board determined that the worker s second low back surgery was to repair the worker s non-compensable pre-existing low back condition known as spondylosis. The Board further concluded that the worker was not entitled to a NEL redetermination for his low back following the second surgery. Although the Board reversed its position regarding the second low back surgery of 2011, the Board did not seek repayment of the LOE benefits paid to the worker from November 8, 2010 to May 20, [15] Final LOE review was completed on October 17, The Board determined that the worker s LOE benefits be based on updated entry-level earnings of $10.50 per hour in the SO, effective November 1, [16] Having heard the worker s testimony and considered the medical evidence on file, I find that the worker is entitled to benefits for the second low back surgery of June 22, The worker testified that following his first low back surgery in 2008, he continued to have low back pain that radiated into his left leg. Sometime in 2010, the worker also started experiencing low back pain that radiated into his right leg. The worker testified that he reported his symptoms to his orthopaedic surgeon, Dr. D. Wilson, who then recommended a second procedure to address the ongoing pain. Medical evidence on file supported the worker s testimony that he had ongoing low back pain with radiation into his left side following the L4-L5 decompression and discectomy procedure that he had in [17] Medical evidence on file also showed that the worker had a pre-existing asymptomatic non-compensable bilateral spondylosis condition. An MRI of the worker s lumbar spine, dated May 13, 2008 revealed bilateral spondylosis involving the L5 vertebrae with Grade 2 anterolisthesis of the L5 over S1. There was also advanced degenerative disease involving the L5 S1 disc with mild neuroforaminal narrowing bilaterally especially on the right side. At the time, however, in 2008, despite the L5-S1 disc problem and the neuroforaminal narrowing on the right side, the worker did not have any right-sided symptoms. Therefore, Dr. Wilson only recommended an L4-L5 decompression/discectomy to address the worker s symptoms of left-sided pain. [18] However, by 2010, the worker not only had ongoing left sided pain, but he now also had right-sided pain. An MRI of the worker s lumbar spine dated June 7, 2010 revealed moderate to severe right and mild to moderate left neural foraminal narrowing with compromise of the L5 nerve roots. At the L4-L5 region there was also compromise of the left traversing L5 nerve root. Due to the worker s ongoing left-sided pain and new right-sided pain, Dr. Wilson recommended a second low back surgery. At a consultation of November 8, 2010, Dr. Wilson remarked that the worker had marked degeneration of the L4-L5 disc and L5-S1 foraminal compression. Dr. Wilson recommended that the worker undergo an L4-S1 decompression with instrumented fusion. [19] The second surgery was performed on June 22, The surgery was threefold: a repeat L4-S1 decompression, an L5-S1 posterior lumbar interbody fusion with concord cage and L4-L5 posterior lumbar interbody fusion with bone grafting, and osteotomies L4-L5, L5-S1 with posterior fusion and bone graft from right iliac crest. On the discharge report of June 26, 2011, Dr. Wilson wrote that despite a surgery in 2008, the worker had ongoing mechanical back pain and had to undergo repeat L4-S1 decompression and instrumented fusion.

5 Page: 4 Decision No. 1672/16 [20] I have considered the opinions of the two Board medical consultants, Drs. Choi and Grbac, who reviewed the file and opined that the 2011 surgery was not the direct result of the October 2007 workplace injury. However, I place more weight on the opinion of the worker s treating orthopaedic surgeon who had followed the worker since Dr. Wilson provided an opinion regarding the need for the 2011 surgery. In that opinion, dated May 1, 2013, Dr. Wilson explained that following the first surgery of 2008, the worker went on to experience advanced degeneration the L4-L5 disc that was the subject of the 2008 surgery. Dr. Wilson stated that the worker s L4-L5 disc problem required a fusion, but because of the worker s underlying spondylosis at L5-S1, it was not possible to fuse the L4-L5 disc on top of a damaged L5-S1 disc. As such, the only procedure was to do an L4-S1 fusion. Thus, Dr. Wilson concluded that the L4-S1 fusion was a direct result of the worker s previous failed L4-L5 surgery. Dr. Wilson further noted that the worker s L4-L5 disc herniation predisposed him to premature disc degeneration. [21] Thus, in Dr. Wilson s opinion, the second surgery was needed because of the further degeneration of the worker s L4-L5 disc, which was the direct result of the October 2007 workplace accident. I also find it instructive that the 2011 operative report indicated that the worker was undergoing a repeat L4-S1 decompression surgery. This indicates to me that this surgery was directly related to the worker s first compensable surgery of While the 2011 surgery may have also corrected the worker s non-compensable L5-S1 spondylosis, in my view, it is not possible to separate these procedures. As Dr. Wilson noted, the worker s compensable L4-L5 disc herniation caused premature degeneration of the disc and the only possible solution was to do an L4-S1 fusion. [22] As such, I find that entitlement should be extended to the June 22, 2011 low back surgery. Having made this finding, I also find that the worker is entitled to a NEL redetermination for his low back after having reached maximum medical recovery from this procedure, which would be on July 23, 2012, the date of Dr. Wilson s report indicating that there was not much else to be done for the worker. Mr. Brown did not make submissions on the maximum medical recovery date. [23] Subsections 47(9) and (10) of the WSIA provide that if a worker with a permanent impairment greater than zero suffers a significant deterioration in his or her condition, and 12 months have passed since the Board s most recent determination concerning the degree of impairment, the worker may request that the Board redetermine the degree of the worker s permanent impairment. Board Operational Policy Manual (OPM) Document No , Redeterminations defines the term significant deterioration as follows: A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measureable change in objective clinical findings. [24] On July 23, 2012, Dr. Wilson noted that there was not much else to be done for the worker s low back condition, and the worker should continue with an exercise program. Medical documents on file from Dr. Wilson in 2011 and 2012 indicated that the worker had increased pain and stiffness in his low back with marked restriction in range of motion. Thus, I am satisfied that the medical documents indicated that the worker had a significant deterioration of his low back condition since his first NEL assessment of December The worker is entitled to a NEL redetermination of the degree of permanent impairment of his low back. However, the redetermination may or may not result in a change to the degree of permanent impairment and to the NEL award.

6 Page: 5 Decision No. 1672/16 (b) Entitlement for psychotraumatic disability [25] The worker also requested entitlement for psychotraumatic disability. The worker testified that he had no prior psychological issues prior to the 2007 workplace accident. Having considered the worker s testimony and the evidence on file, I find that the evidence falls significantly short of demonstrating on the balance of probabilities that the workplace accident of 2007 or its sequelae caused the worker to develop a psychotraumatic disability. [26] I find that the majority of the evidence indicates that the worker developed psychological difficulties due to non-compensable reasons, namely marital difficulties. In this regard, I note that the worker testified he developed depression after he began having problems in his marriage. I also find instructive that in an Opioid Assessment Form completed by Dr. F. Palao, a pain specialist, on April 4, 2012, it was noted that the worker had an adjustment disorder due to a recent separation from his common-law spouse. This was the first time that the worker was noted to be having psychological difficulties. While Dr. Palao was aware of the worker s low back condition, he did not indicate the low back as the reason behind the worker s psychological difficulties. Rather, the reason given for the adjustment disorder was a non-compensable one. [27] The worker saw Fay Tang, a clinical psychologist. However, I note that the worker was not referred to Ms. Tang by his family doctor or any other physician. Rather, the worker s former representative referred to the worker to a psychologist. This was noted in a letter that Ms. Tang wrote to the Board on September 29, In this one page letter, Ms. Tang diagnosed the worker with an adjustment disorder with depression. However, the discussion of the worker s depression was done in less than three lines of that letter. Ms. Tang indicated that the worker was depressed because the Board had cut his benefit payments and he did not know what to do. In a follow-up half page letter to the Board, dated November 26, 2012, Ms. Tang reiterated the worker s diagnosis of adjustment disorder with depression and indicated that the worker was unemployable. [28] The two short letters from Ms. Tang were the only documentary evidence on file regarding the worker s psychological condition. In my view, these letters fell significantly short of showing a causal link between the workplace accident and the worker s adjustment disorder. The letters did not contain a comprehensive psychological assessment of the worker. Only a brief history was provided by the worker following which Ms. Tang indicated that the worker was depressed due to lack of payment from the Board. These two letters, in my view, do not provide a clear diagnosis of a psychiatric condition under the DSM-IV. They did not contain any information about the worker s medical history, social, and cultural background. There was no information as to whether the worker underwent any formal assessment typical of such diagnoses. There was no mental status examination of the worker performed by the psychologist, which would form the basis of such a diagnosis. [29] As such, I find Ms. Tang s report is insufficient substantial evidence supporting that the worker has a condition which would be recognized under the Board s psychotraumatic disability policy. Even if I accept the diagnosis, there was no evidence of significance before me to link the compensable workplace accident to the development of a psychological condition in the worker. As noted above, the discussion of the worker s depression in the letters of Ms. Tang and in the notation from Dr. Palao were in the context of non-compensable factors and there was no indication that the worker s compensable condition was a significant contributing factor in the

7 Page: 6 Decision No. 1672/16 development of a psychological condition. Thus, I find that the worker is not entitled to benefit for psychotraumatic disability. (c) Entitlement to LOE benefits and further WT services [30] Having found that the worker was entitled to benefits for the June 22, 2011 surgery, I find that the worker was properly given full LOE benefits from November 8, 2010 to May 21, As noted above, even though the Board rescinded the worker s entitlement to the June 22, 2011 surgery, the worker was not asked to repay the LOE benefits that he received for that period. Thus, in this section, I will only discuss the worker s entitlement to LOE benefits from May 21, 2012 onwards. Mr. Brown submitted that the worker s LOE benefits ceased as of April 27, However, that is not the case. In a Case Manager decision dated April 27, 2012, it was determined that from May 21 to June 11, 2012, the worker was entitled to partial LOE benefits based on a graduated return to work starting from two hours per day up to eight hours per day. From June 11, 2012, the worker s LOE benefits would be adjusted to full-time work based on $10.25 per hour of work in the SO. At the final LOE review, it was adjusted slightly to reflect full-time work based on $10.50 per hour of work in the SO. [31] The worker testified that he was unemployable. However, on the other hand, he also stated that he was prepared to return to a retraining program through the Board if necessary. Mr. Brown submitted that the worker would accept a new WT program. In my view, the worker would not benefit from a new WT program. Firstly, the worker maintains that he cannot work. Given the worker s view of his ability to work, a new WT program would be of no benefit to the worker. Secondly, the worker has already received and completed a WT program for the SO of a customer service representative. Thus, a new WT program would be of no benefit to the worker in getting him back to the workforce. [32] I do not accept the worker s claim that he is unemployable. I have found that the worker s psychological condition is not compensable. I acknowledge that the worker has permanent physical restrictions of alternating positions, limited trunk movement, limited lifting, bending, and carrying. However, in my view, the worker is not incapable of any work because of these restrictions. I find instructive the opinion of Dr. J. Choi, a Board medical consultant, who opined on April 16, 2012, that the worker could return to work on a gradual basis as a customer service clerk. I also rely on the opinion of D. Fearman, a physiotherapist, who opined on December 16, 2011 that the worker could likely return to work if the worker was suitable for his precautions. Furthermore, I place weight on the opinion of Dr. Wilson, the worker s treating orthopaedic surgeon, who opined on July 23, 2012 that the worker would be capable of sedentary work in the future. It is significant that subsequent reports from Dr. Wilson in 2013, 2014, and 2015 made no further comment on the worker s ability to work. Those reports simply maintained that the worker continued to have ongoing low back pain, albeit no radicular pain. [33] While there is no dispute that the worker has ongoing low back pain and permanent physical restrictions, in my view, this does not render the worker incapable of any work. Aside from Ms. Tang s letters, which I have found were insufficient substantial evidence, there was no objective medical evidence that the worker was incapable of work due to his compensable low back injury. [34] I note however, that after completing the WT program in August 2010, the worker looked for, but could not find work in the SO. The worker found work as a press machine operator and he only worked part-time due to his compensable low back condition. The worker testified that

8 Page: 7 Decision No. 1672/16 at most, he was only capable of working four hours per day. I also note that during the WT program, the worker only attended academic upgrading and retraining three to four hours per day. Thus, I find that the worker is capable of work in an SO achievable without training at minimum wage based on part-time hours of 20 hours per week. [35] The Board had already provided that from May 21 to 27, 2012, the worker was entitled to LOE benefits based on the ability to work two hours per day, five days per week; and from May 28 to June 3, 2012, four hours per day, five days per week. Thus, there is no need to adjust the worker s entitlement for this period. However, on the basis of my finding that the worker was only capable of part-time work for 20 hours per week, I find that as of June 4, 2012 and at the final LOE review of November 1, 2012, the worker s LOE benefits shall be adjusted to reflect minimum wage in an SO achievable without training based on 20 hours per week.

9 Page: 8 Decision No. 1672/16 DISPOSITION [36] The appeal is allowed in part as follows: 1. Entitlement is extended for the worker s second low back surgery of June 22, The worker is entitled to a redetermination of the 22% NEL award for his low back, with a maximum medical recovery date of July 23, The worker is not entitled to benefits for psychotraumatic disability. 4. The worker is not entitled to additional WT services. 5. The worker s full LOE benefits from November 8, 2010 to May 21, 2012 were appropriate. 6. The worker s partial LOE benefits from May 21 to 27, 2012 based on the ability to work five days per week for two hours per day were appropriate. 7. The worker s partial LOE benefits from May 28 to June 3, 2012 calculated based on the ability to work five days per week, four hours per day were appropriate. 8. The worker s LOE benefits as of June 4, 2012 and November 1, 2012 will be adjusted to partial LOE benefits based on 20 hours per week at minimum wage in an SO achievable without training. DATED: July 21, 2016 SIGNED: S. Darvish