WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100152
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s Representative, Employer’s Representative
HEARING DATE: September 21, 2010
ISSUES
The worker is objecting to the December 18, 2009 decision which denied entitlement to loss of earnings (LOE) benefits following a permanent lay-off from work in November 2009. He is also objecting to the October 6, 2009 decision which denied entitlement to a permanent impairment for his back condition.
HOW THE ISSUES AROSE
On February 2, 2006, while employed as a machinist, the worker reported right-sided back and rib pain as a result of performing extended reaching with his right hand. The worker was 44 years old at the time of injury and had been with his employer since June 2005.
The worker’s claim for a back strain was allowed for health care benefits and LOE benefits. Treatment was conservative, consisting of therapy and medication. LOE benefits were granted from February 17, 2006 until February 20, 2006, and also from June 5, 2006 until July 26, 2006 following a recurrence of back pain. Partial LOE benefits were paid from July 26, 2006 until August 21, 2006, following which the information supports he returned to his regular work duties at full hours of work.
In August 2006, the worker requested entitlement to a bilateral shoulder condition resulting from performing his regular job duties. The operating area denied entitlement to a bilateral shoulder condition and related LOE benefits on the basis proof of injury could not be established – this decision was upheld by an Appeals Resolution Officer and now appears to be before the Workplace Safety and Insurance Appeals Tribunal.
By April 2008, it was determined the medical information supported impairment only for the bilateral shoulder condition. The operating area concluded the worker had achieved Maximum Medical Recovery (MMR) for his lower back condition under the claim effective August 11, 2006, without a permanent work-related impairment evident. As a result, any ongoing impairment for the lower back was determined to be as a result of motor vehicle accidents (MVAs) occurring on October 31, 2006, November 23, 2006, August 2, 2007, and December 23, 2007. The worker objected to this decision.
On November 19, 2009, the worker was permanently laid off from work. Since the operating area had previously concluded his back condition had resolved and since entitlement had not been granted for his bilateral shoulder condition, the operating area denied the worker’s request for further LOE benefits. The worker objected to this decision, contending an ongoing back impairment.
Upon receipt of the worker’s completed Objection Form, the decision to deny a low back permanent impairment and LOE benefits was upheld and the worker’s file was referred to the Appeals Branch for further review.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
11-01-05 Determining Maximum Medical Recovery (MMR)
18-03-02 Payment of LOE Benefits
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file, the worker’s sworn testimony, the applicable law and policy and for the arguments presented.
The worker testified he immigrated to Canada from Vietnam in 1982. From 1982 until 1995 he worked 50 per cent of the time and underwent ENG and CNC studies at Humber College the other 50 per cent of the time.
Beginning in 1995 until May 2005, the worker described having been involved in four motor vehicle accidents (MVAs). In 1995, the worker advised he was injured in an MVA and injured his back and neck when another motorist ran a red light. He estimated he had been absent from work for approximately two months. His next MVA occurred in 1998 when another motorist made an illegal left turn, striking his driver’s side – the worker once again injured his lower back and neck and missed a few months from work. In 1999 the worker was struck by a motorist who failed to yield to an ambulance – he injured his back and neck and was off work up to five months. In May 2005 the worker described yet another MVA where he was rear-ended, injuring his back.
When he began employment the following month with Indal Technologies as a CNC operator, he stated his back was approximately 80 per cent of normal. In February 2006, the worker indicated his back and ribs became sore as a result of lifting up to 40 lbs – some items were light, weighing less than one pound, however, he reported 70 per cent of the items lifted were heavy.
Prior to July 2006, the worker reported his back was 60 per cent of normal. In July 2006, the worker testified he had been performing his regular duties, though he did have occasional help with the heavier lifting. He advised the majority of the items weighed between 5-10 lbs. On August 23, 2006, the worker reported his shoulders began hurting as a result of performing his regular job duties.
On October 31, 2006, the worker related he had been involved in a fifth MVA and injured his back and neck. Prior to this MVA, the worker estimated his back was approximately 75% of normal. In November 2006, the worker indicated he was involved in yet another MVA – he was struck on the passenger side by another motorist and injured his back and neck. In August 2007, the worker related he re-injured his back and neck yet again when he was struck by a taxi. On December 23, 2007, the worker injured his back and neck again in an MVA when he was struck by another motorist.
In summary, from 1995 until 1997, the worker testified he was involved in a total of eight MVAs, which have all resulted in injury to his back and neck. In January 2008, he reported his back was 65 per cent of normal, and by October 2008, it was up to 70 per cent of normal.
Upon questioning by the employer’s representative, the worker confirmed the position of CNC Operator at Indal was computerized and involved making parts for aircraft. He verified all described MVAs had involved therapy.
Upon questioning by this Appeals Resolution Officer, the worker acknowledged having received settlements from his automobile insurer, though he indicated he could not recall the amounts paid to him and when they were paid. He also verified his insurer had paid for home care and cleaning for several months, though it was unclear if these services were provided after each MVA.
It was the worker’s representative’s view the accepted workplace injury under the claim permanently worsened a pre-existing back impairment. He indicated the worker testified that prior to his employment at Indal, his back was 80 per cent of normal, however, immediately prior to his MVA in October 2006, the worker had testified his back was approximately 70 per cent of normal. As a result, he was of the view the worker ought to be granted a NEL assessment. He stated the worker had performed work which violated his restrictions.
The employer’s representative argued one ought to look at the objective medical evidence relating to the worker’s back impairment versus the worker’s subjective testimony. With respect to the worker’s representative’s contention the worker had violated his restrictions, The employer’s representative made reference to the WSIB ergonomist’s report which found the worker’s position to be suitable. He further pointed to Dr. Langer’s report which provided a helpful chronology of the worker’s back impairment, especially insofar as his MVAs and his level of impairment. He indicated the report supported the worker’s temporary aggravation of his work duties did not result in a permanent impairment and the worker had demonstrated his ability to return to his regular job duties. The employer’s representative pointed out the medical information post August 2006 supported impairment related only to the shoulders. Overall, he believed the worker had sustained aggravations of his non-compensable back condition in February and July of 2006, following which the evidence did not support a related permanent impairment.
The worker’s representative commented the ergonomist’s report did not comment on the lifting of heavy parts on the CNC machine – he stated the worker had been using force. Furthermore, he indicated although the worker had been able to perform his regular job, he did so with complaints.
Review of the medical information submitted to file confirms the worker first sought medical attention for his back injury on July 5, 2006. Diagnosis rendered was low back sprain. X-rays supported a pre-existing osteoarthritic condition and osteophytes at various levels of the back, from L3 to S1.
The worker’s physician, Dr. Hoang, submitted an October 4, 2006 summary confirming the worker had first sought medical attention on July 5, 2006. By August 11, 2006, Dr. Hoang confirmed the worker’s condition had improved, as his gait and posture and movements were almost normal. As a result of his improved condition, medication was not prescribed nor was the worker referred for consultation.
On February 26, 2007, the worker was assessed by a rheumatologist, Dr. Lee, for multiple musculoskeletal discomforts. It was noted the worker’s symptoms began in August 2006 with bilateral shoulder pain and as a result of his bilateral shoulder and back pain, he stopped working in August 2006. Dr. Lee documented due to two MVAs, one on October 31, 2006, and another on November 23, 2006, the worker has had more pain in his back with radiation down to his knees and a new onset of pain in the neck. Dr. Lee indicated the worker had features suggestive of fibromyalgia.
Dr. Lee reassessed the worker on August 1, 2007, and on December 10, 2007. Examinations, however, pertained exclusively to the bilateral shoulders. A back impairment was not suggested.
The Health Professional’s Progress Report of February 8, 2008 indicated the worker’s back pain appeared stable, with pain reported at 8 out of 10, with bilateral shoulder pain being the worker’s main concern. Symptoms and findings pertained to the shoulders, with a noted right shoulder tear.
The worker was seen on March 26, 2008 by Dr. Lee and on April 28, 2008 by Dr. Nguyen – findings once again pertained exclusively for the bilateral shoulders.
At the request of the worker’s representative, the worker was evaluated on October 29, 2008 by Dr. Langer, orthopaedic surgeon. Dr. Langer revealed he had previously assessed the worker on June 20, 2006 related to an MVA which had occurred on May 20, 2005. At the time, Dr. Langer had recorded the worker had been involved in prior MVAs in 1998 and 1999 which had resulted in chronic low back pain, aggravated by heavy and repetitive lifting – however, according to the worker, he had been able to perform full-time unmodified work as a machinist. Dr. Langer confirmed the May 2005 MVA had resulted in headaches, neck, back, and left shoulder pain. Dr. Langer had concluded the worker, as a result of the MVA, had suffered spinal soft tissue injuries, mechanical in nature, which were superimposed on his chronic pain complaints from the period prior to the accident. It was noted the worker had been able to return to his regular work duties by February 15, 2006. Once again, Dr. Langer noted the worker had been able to return to his regular job duties on July 27, 2006 following a recurrence of back pain on July 4, 2006.
According to Dr. Langer’s report, the worker indicated he had not been able to return to his work as a result of bilateral shoulder pain. The worker emphasized to Dr. Langer his disability from August 23, 2006 to October 31, 2006 was related to his shoulder pain. The ensuing October 31, 2006, November 23, 2006, August 2, 2007 and December 23, 2007 MVAs resulted in neck, back and bilateral shoulder injuries. Dr. Langer further opined the worker’s February 15, 2006 and July 4, 2006 workplace injuries exacerbated his lumbar spine complaints. He stated although the worker appeared to have had chronic mechanical low back pain as a result of prior injuries, both MVA and compensable, ‘one would expect that the subsequent work-related injuries would exacerbate these further’.
I have carefully reviewed the medical evidence and have had regard for the worker’s testimony. The medical documentation supports the worker had suffered from back and neck pain since 1995 as a result of four MVAs prior to February 2006. These MVAs had required therapeutic intervention – the worker’s insurer also paid for home care and cleaning for several months. He also confirmed having received monetary settlements from the insurer, however, this information has not been disclosed to the WSIB or submitted to file. Interestingly, I note the worker indicated in his completed Worker’s Report of Injury he had not previously injured this area of the body before. This contradicts his testimony and the file medical information.
As observed by the employer’s representative, some of the worker’s treating practitioners did not appear to be cognizant of the worker’s past medical history. Dr. Hoang’s July 2006 report referenced the worker did not have a prior similar medical condition. Similarly, the worker’s chiropractor, from the Pain Rehab Clinic Inc., did not appear to be aware of the worker having been assessed in the past for his back condition, according to the August 29, 2006 report. Dr. Hoang’s October 4, 2006 summary indicates that prior to the worker’s workplace injury, the worker had last visited him in December 1999 – he therefore did not appear to have knowledge of the worker’s MVAs, as did Dr. Langer. However, Dr. Hoang recorded he had assessed the worker on August 11, 2006 when the worker requested therapy. At that time, he noted the worker felt much better – his gait, posture and movements were almost normal, and as a result, no medication or consultation was given to the worker.
The physician who appeared to have a more comprehensive knowledge of the worker’s medical history was Dr. Langer, though Dr. Langer does not appear to have been aware of the 1995 MVA. Dr. Langer stated the documentation supported the worker had sustained a work-related injury which had aggravated the worker’s pre-existing low back pain. He indicated the worker returned to his regular work duties on July 27, 2006. He then commented the worker had last worked in August 2006 and, according to the worker, ceased working and did not return to work as a result of bilateral shoulder pain. He also noted the following on page 3:
“To re-emphasize, at the time of the accident of October 31, 2006, he was not working. He had chronic low back pain, mechanical in nature, aggravated by standing, bending, lifting, and carrying, but he stated that the back pain was not the primary cause of his disability as he had been able to work prior to August 23, 2006. He emphasized that his disability from August 23,2006 up to the time of the accidents beginning on October 31, 2006 was due to shoulder pain.”
Dr. Langer noted in his report the worker did not have neurological deficit in the lower limbs. Although Dr. Langer commented the worker’s workplace accidents had exacerbated his pre-existing back impairment, he did not comment on a permanent exacerbation.
Overall, I find the evidence supports the worker does not have a work-related permanent back impairment under the claim. He had returned to his regular machinist job duties in July 2006, and, according to Dr. Langer, complaints from August 2006 until his MVA in October 2006 pertained exclusively to the bilateral shoulders. By August 11, 2006, Dr. Hoang had noted the worker felt much better and his gait, posture and movements were almost normal. The worker confirmed during testimony his prior MVAs had resulted in a permanent impairment, hence his back being ‘80 per cent of normal’. Dr. Hoang’s and Dr. Langer’s reports essentially confirm the worker’s back impairment under the claim had resolved. Consequently, I find the worker reached Maximum Medical Recovery effective August 11, 2006, without a permanent impairment related to his workplace injury. He is therefore not entitled to further LOE benefits.
CONCLUSION
I conclude the worker did not sustain a permanent impairment related to his workplace injury under the claim – he is therefore not entitled to further LOE benefits.
The worker’s objection is therefore denied.
DATED October 8, 2010
L. Diaz
Appeals Resolution Officer
Appeals Branch