WORKERS COMPENSATION APPEAL TRIBUNAL

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID# [PERSONAL INFORMATION] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #289 Appellant Respondent Brian Waddell, Q.C. Worker Advisor, Representing the Worker Stephen Carpenter, Solicitor representing the Workers Compensation Board Patricia McPhail, Employer Advisor, Representing the Respondent Employer Place and Date of Hearing November 14, 2017 Rodd Royalty Charlottetown 14 Capital Drive Charlottetown, Prince Edward Island Date of Decision December 19, 2017

2 WCAT Decision #289 Page 2 of 10 Appeal Proceedings 1. This appeal was conducted on November 14, 2017 before the Workers Compensation Appeals Tribunal ( Tribunal ). 2. The worker brings this appeal from the decision of the Internal Reconsideration Officer ( IRO ) IR # [PERSONAL INFORMATION] dated April 4, 2016, which denied the Appellant s claim for recurrence of his workplace injury on March 13, [Appeal Record Tab 1] Facts 3. The Appellant was employed as an [PERSONAL INFORMATION] for [PERSONAL INFORMATION]. On March 13, 2015, while the Appellant was driving a truck [PERSONAL INFORMATION], his vehicle was rear-ended by a [PERSONAL INFORMATION]. On April 2, 2015, the Appellant filed the Worker s Report Form 6. [Appeal Record Tab 4] 4. On April 15, 2015 the Appellant sought medical attention from his family physician, Dr. Peter Hooley, who diagnosed an abdominal/chest wall contusion and whiplash. [Appeal Record Tab 8] 5. On May 4, 2015, the Appellant was approved for medical aid benefits for the aforementioned injuries which included 10 physiotherapy sessions. The Appellant was advised that his claim would close June 14, 2015 unless new information was received indicating a need for ongoing medical benefits. 6. On April 30, 2015 the Appellant elected to forego a cause of action against the driver of the [PERSONAL INFORMATION] vehicle in favour of receiving benefits from the Workers Compensation Board. [Appeal Record - Tab 12] 7. The Appellant attended 5 of the 10 sessions of physiotherapy at CBI-Linden and was discharged from physiotherapy on June 17, The physiotherapist reported that the whiplash was resolved and that the range of motion in the cervical spine was full and pain-free. [Appeal Record - Tab 14]

3 WCAT Decision #289 Page 3 of The Appellant s claim was closed. 9. On September 30, 2015, the Appellant sought medical attention from Dr. Hooley for shoulder, neck and upper back pain and was diagnosed with a muscle sprain midback. [Appeal Record - Tab 15] 10. On October 14, 2015, the Appellant filed a second Worker s Report, claiming a recurrence of the symptoms of his original injury in March, [Appeal Record - Tab 17] 11. The Board requested an opinion of its medical advisor, Dr. Steven O Brien, regarding the relationship of the Appellant s current symptoms to that of his original workplace injury. [Appeal Record - Tab 19] 12. Dr. O Brien s opinion indicated that the Appellant s current symptoms were not related to his workplace injury. [Appeal Record - Tab 20] 13. On November 9, 2015, a decision letter was sent to the Appellant concluding that the weight of evidence does not support that you have sustained a recurrence of the Grade II whiplash; abdominal and chest wall contusions which initiated this claim with a workplace accident date of March 13, Therefore unfortunately, your request for this claim to reopen to workers compensation benefits is denied. [Appeal Record - Tab 20] 14. On November 10, 2015, Dr. Hooley sent a letter to the Board strongly supporting the Appellant s position. This letter was forwarded to Dr. O Brien to provide any additional comments however after reviewing Dr. Hooley s letter; Dr. O Brien s opinion did not change. [Appeal Record Tabs 21 & 22] 15. On February 12, 2016, the Appellant s request for internal reconsideration was filed. 16. On April 4, 2016, the Appellant was advised by the Entitlement Officer that his claim for recurrence was denied because, The worker s new onset of symptoms more than three months later is not consistent with the type of injury he sustained

4 WCAT Decision #289 Page 4 of 10 on March 13, Factors such as the worker s pre-existing mechanical low back pain and degenerative changes would better explain the worker s recent onset of symptoms. [Appeal Record Tab 24] 17. The Appellant issued a Notice of Appeal on May 4, Issue 18. Was the Decision to deny the Appellant s claim for recurrence of the March 13, 2015 injury correct? Appellant s Argument [Appellant s Factum Tab 1] 19. The Appellant provided the Tribunal with Policy POL-60 Recurrence. 1. A recurrence must be medically compatible with the previous injury, and decisions to accept or deny recurrences must rely on medical evidence supporting this relationship. 2. Recurrence claims are acceptable when: -the conditions causing the current physical or functional abnormality (i.e. impairment) are medically compatible with the previous work injury; and -no other variables have intervened as a significant cause of the current impairing conditions. 20. The Appellant disagrees with the Board s position that he had recovered from his workplace injury and that his present difficulties relate to his pre-existing condition. The Appellant argues that his current symptoms are directly related to the workplace injury that initiated his original claim. 21. Paragraph 3 of POL-60 deals with medical compatibility and states: Medical Compatibility: - To assess medical compatibility, the worker s medical history is compared with the current condition to determine the probability that the current symptoms are a direct result of the injury which initiated the original claim.

5 WCAT Decision #289 Page 5 of 10 - Matters such as pre-existing conditions, the passage of time, the effects of natural physical deterioration processes or aggravating lifestyle factors, and the anatomical area which was originally accepted as part of the claim will be considered when assessing these cases. 22. The Appellant argues that his current symptoms are directly related to the workplace injury that initiated his claim. 23. The Appellant argues that Board s Entitlement Officer (EO) and its IRO relied solely on their belief that a soft tissue injury should have healed within certain timeframes and in the EO s finding that Dr. Hooley s subsequent diagnosis of muscle pain back on September 30, 2015 equated with the Appellant s prior diagnosis of chronic low back pain. 24. It is the Appellant s further position that the recurrence injury and the March 13, 2015 injury are similar in nature, are the same anatomical area and should therefore be compensable. In addition, the Appellant argues that no other aggravating lifestyle factors or variables have intervened as a significant cause of his current symptoms. 25. The Appellant submits that his condition was never resolved but progressed to his current condition. 26. The Appellant refers to the conflicting medical information from Drs. Hooley and O Brien, and argues that with regard to the Board Policy POL-68, the treating physician s evidence should receive greater weight. 27. The Appellant also refers to Section 17 of the Workers Compensation Act, wherein it requires where the evidence of the claimant and Board are of equal weight, the issue shall be resolved in favour of the claimant. 28. The Appellant also submitted a number of cases for the Tribunal s consideration.

6 WCAT Decision #289 Page 6 of 10 Respondent s Argument [Respondent s Factum Tab 1] 29. The Respondent noted that POL-60 defines a recurrence as a return of disabling conditions that is supported by objective medical evidence and reasonably related to an injury caused by a prior work-related accident. The policy requires that on a balance of probabilities, an injury will be accepted as a recurrence when the condition occurs as a predictable medical consequence of the original injury. 30. The Respondent further argued that there was a lack of objective evidence to support the connectivity between the original injury of March 13, 2015 and the Appellant s claim for recurrence on September 30, The Respondent also argued that POL-60 makes it clear that pre-existing conditions, the passage of time and the effects of natural deterioration process or aggravating lifestyle factors must all be considered when making a decision. 32. The Respondent maintained that the Appellant has a pre-existing condition and had been receiving treatment for his chronic low back pain just prior to the workplace injury on March 13, It was Dr. O Brien s opinion that the Appellant s injury would be expected to heal within a 3 month time period. Dr. O Brien concluded that the Appellant s current symptoms would be more reasonably related to his past history rather than to the workplace injury that initiated his claim and that an increase in symptoms six months post-injury would not be related to the workplace injury as healing would be expected to have occurred with improvement. [Appeal Record Tab 19] 34. The Respondent argued that the Board Policy POL-68 Weighing of Evidence required the Board to assess and weigh all relevant evidence and make a decision based on a balance of probabilities. The Board found there was no objective medical evidence to support a continuity of symptoms or medical compatibility between the Appellant s original workplace injury and his current symptoms.

7 WCAT Decision #289 Page 7 of 10 Respondent Employer Advisor s Argument [Respondent Employer s Factum Tab 1] 35. The Respondent Employer indicated they agreed with the facts as set out by the Appellant and Respondent Workers Compensation Board. 36. With regard to medical compatibility, the Respondent Employer argued that it cannot be concluded that the Appellant s injury is a recurrence when the new medical information diagnoses a strain to an anatomical area that was not part of the original claim. 37. The Respondent Employer also argued that there is no indication for a need for continuing medical care, no work restrictions or job modifications requested, and no entitlement to wage loss benefits. 38. The Respondent Employer pointed out that as the ordinary healing time for the type of injury sustained is 41 days, 3.5 months (or approximately 100 days) of no medical care should be viewed as significant. 39. The Respondent Employer concludes by stating that the weight of medical evidence supports the denial of the claim for recurrence, given the lack of evidence or explanation for increased symptoms in an anatomical area not originally covered. Decision 40. For reasons which are set out below, the worker's appeal is denied. 41. The Tribunal reviewed Board Policy POL-60 "Recurrence", and specifically Sections 2, 3 and 4 which read as follows: 2. Recurrence claims are acceptable when: - the conditions causing the current physical or functional abnormality (i.e., impairment) are medically compatible with the previous work injury; and - no other variables have intervened as a significant cause of the current impairing conditions.

8 WCAT Decision #289 Page 8 of Medical Compatibility - To assess medical compatibility, the worker's medical history is compared with the current condition to determine the probability that the current symptoms are a direct result of the injury which initiated the original claim. -Matters such as pre-existing conditions, the passage of time, the effects of natural physical deterioration processes or aggravating lifestyle factors, and the anatomical area which was originally accepted as part of the claim will be considered when assessing these cases. 4. Continuity of Symptoms - Continuity of symptoms, supported by medical reports, during the period between recovery from the original injury and the onset of the current condition is a reliable indicator of a direct causal relationship. - Specific indicators that may assist in determining continuity of symptoms include: i) evidence of continuing medical care since the original injury; ii) work restrictions or job modifications following the original injury; or iii) continuing Extended Wage Loss Benefits entitlement for the original injury. 42. Also, objective medical evidence and recurrence are defined in Board Policy POL-60 which states: 4. Objective medical evidence means evidence presented through a physical examination including diagnostic tests of a worker and reported by the treating or family physician. 6. Recurrence means a return of disabling conditions, supported by objective medical evidence that can be reasonably related to an injury caused by a previous work-related accident. Recurrence of the condition must be medically compatible with the previous injury, and decisions to accept or deny recurrences must rely on medical evidence supporting this relationship. 43. With respect to assessing medical compatibility, the Appellant s rather significant medical history provides evidence that he clearly had pre-existing conditions regarding his back and was being treated for chronic low back pain that was

9 WCAT Decision #289 Page 9 of 10 mechanical in nature just prior to the original workplace injury on March 13, The Appellant had injured his low back while working in Alberta and had an ongoing claim in that jurisdiction. 44. Additionally, two years previous to the workplace injury, Dr. Allen Profitt, an orthopaedic surgeon, noted that the Appellant showed considerable degenerative facet and disc changes as well as mild degenerative scoliosis. 45. Following 5 successful physiotherapy treatments after the workplace injury on March 13, 2015, the physiotherapist discharge report indicated that the Appellant s whiplash injury from his original workplace incident had fully resolved by June 1, This was within the expected healing time and which in fact, appears to have occurred. There was no request to extend physiotherapy treatment following discharge. 46. The Appellant did not miss any time from work, did not report or receive treatment for any further whiplash related symptoms between June 1 and September 30, This indicates to the Tribunal that your accident related injury had resolved as would be expected by this type of injury. 47. The Tribunal also finds there was no evidence of continuing medical care and there were no work restrictions or job modifications imposed during the time in question. 48. The Tribunal notes that POL-60 provides that a recurrence must be medically compatible with the previous work injury and decisions to accept or deny recurrences must rely on medical evidence supporting this relationship. Therefore, to meet this test and be accepted as a recurrence, the Appellant s current symptoms must be related to the original workplace injury as supported by medical evidence. 49. The Tribunal is unable to find objective medical evidence of compatibility and continuity to support the Appellant s claim of recurrence.

10 WCAT Decision #289 Page 10 of Given the above findings and consideration of all the circumstances and evidence, the review of the Appeal Record and POL-60, the medical evidence, the written and oral submissions and the decisions provided by the parties, the Tribunal agrees with the Board in its decision to deny the Appellant s claim for a recurrence and the Appellant s claim for recurrence is therefore denied. 51. The Tribunal would like to thank the parties for their submissions. Dated this 19 th day of December, Susan M. Robinson, Vice-Chairperson Workers Compensation Appeal Tribunal Concurred: Eugene (Stu) Lavers, Employer Representative Marlene Hunt, Worker Representative