WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180038
OBJECTING PARTY: Worker
REPRESENTED by: Employer Advisor
RESPONDENT: XXXXX
HEARING: Hearing in Writing
HEARD by: Judy Cantwell, Appeals Resolution Officer
DATED: February 21, 2018
ISSUE
The worker objects to the eligibility adjudicator’s decision dated December 17, 2015 which denied initial entitlement for a gradual onset disablement injury.
BACKGROUND
On August 4, 2010, the worker, a 57 year old roofer developed low back pain after lifting a segment of roof skin with a shovel. Initial entitlement was accepted for a low back strain under claim xxxxx.
Loss of earnings (LOE) benefits were paid from August 9, 2010 to March 14, 2011, when full recovery was determined. During this time, the worker attempted to return to work for a two day period in October 2010. He has not returned to work since then.
The worker objected to the determination that he had fully recovered. Full recovery was confirmed in the Appeals Resolution Officer (ARO) Decision dated July 30, 2014.
The worker representative requested entitlement for a new claim for a gradual onset injury related to the worker’s duties as a roofer. On November 17, 2015, claim xxxxx was established for a gradual onset injury resulting from working in the roofing industry for 34 years.
On December 17, 2015, the eligibility adjudicator considered the medical reporting in the prior claim and concluded the worker’s low back problems arose out of non-compensable degenerative changes in his low back, not his roofing duties.
The worker representative completed an Intent to Object Form on February 1, 2016 and an Appeals Readiness Form (ARF) on December 5, 2017. He provided a submission which included a medical opinion by Dr. Pysklywec, a physician with the Occupational Health Clinics for Ontario Workers Inc. (OHCOW) and an ergonomic review by Mr. Fuchs, also from OHCOW. The worker representative argues that the worker’s occupation as a roofer significantly contributed to the multi-level degeneration of his lumbar spine. He referenced the medical and ergonomic opinions provided by OHCOW in support his position.
AUTHORITY
Section 1.2(1) of the Workplace Safety and Insurance Act (the Act) reads:
In this Act, “accident” includes,
a) a willful and intentional act, not being the act of the worker
b) a chance event occasioned by a physical or natural cause, and
c) disablement arising out of and in the course of employment
11-01-01 Adjudicative Process
An allowable claim must have the following five points: an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident or disablement history.
15-02-01 Definition of an Accident
The definition of disablement includes a condition that emerges gradually over time and an unexpected result of working duties.
ANALYSIS
I conclude initial entitlement is not in order for the degenerative changes in the worker’s back. I will review the medical evidence and my reasons for reaching this conclusion.
The Medical Evidence
This claim was established without a Form 6, 7 or 8. There is no medical documentation on the claim. I reviewed the medical documentation in prior claim xxxxx.
The worker had a CT scan on August 24, 2010 that showed mild degenerative changes at L2-3, L3-4, L4-5 and L5-S1. The radiologist found the overall appearance had not changed significantly since the previous MRI dated September 27, 2006 (which is on file and also identified multilevel degenerative changes). A bone scan done in 2007 showed mild to moderate degenerative changes of the lumbar spine, moderately severe changes in the left hip joint, mild changes in the right hip and moderate changes in the shoulders.
The worker attended a Regional Evaluation Centre (REC) assessment on December 3, 2010. The REC arranged for an MRI which showed degenerative changes at L3-4 and L4-5 and an x-ray which showed mild disc degeneration at L2-3, L3-4 and L4-5.
The REC assessors noted the worker was born with congenital dysplasia of the left hip which had progressed to significant arthritic changes. They diagnosed with worker with severe arthritis of the left hip with mild arthritis referable to the right hip which resulted in a chronic strain on the lumbar spine with resultant progressive degenerative lumbar disc disease at L3-4, L4-5, L5-S1 with degenerative changes in the facet joint and the possibility of lumbar spinal stenosis.
The REC assessors also diagnosed an acute on chronic lumbosacral back strain with degenerative lumbar disc disease at L4-5. They concluded the worker’s prognosis for recovery from the acute back strain was incomplete unless the arthritic left hip condition was treated with a left hip replacement. Clearly, the REC assessors attributed the persisting back strain and some of the degenerative changes in the worker’s spine to the non-compensable left hip arthritis.
In September 2010, the worker’s chiropractor recommended the worker not return to full duties as his condition was improving.
The February 1, 2011 report from the Regional Joint Assessment Centre report by Ms. Fanti, physiotherapist, indicated the worker was being seen for an orthopaedic consultation due to worsening left hip symptoms. In addition to dysplasia of the left hip, the therapist noted the worker had an elevated body mass index, that his left leg is shorter than the right leg and that he had a torn medial meniscus in the right knee. The worker had left hip pain but his primary complaint was right-sided low back pain. She diagnosed left hip/ spine syndrome. She discussed hip replacement surgery with him. She informed him that this would not necessarily address the issues he was having with his low back. She discussed weight management and core strengthening to optimize the eventual total left hip arthroscopy.
The family doctor sent a letter to the case manager on February 12, 2011. The worker entered the doctor’s practise in October 2006. He had pre-existing lumbar problems at that time. His MRI showed degenerative changes (September 2006). The doctor arranged for a nuclear bone scan in August 2007 because of left hip pain. He said the worker was doing reasonably well until his work injury in August 2010. He reported that the worker continued to suffer with low back pain with right sciatica since then.
The worker saw Dr. Payandeh, orthopaedic surgeon in May 2011 for his right knee. The doctor arranged for arthroscopic surgery.
The worker was examined by Dr. Scali, neurosurgeon on June 8, 2011. The worker had undergone right knee surgery a week earlier. He told the Dr. Scali that he had low back pain since 2006. The doctor reviewed the MRI from December 2010. He identified multiple lumbar degenerative disc changes especially in the lower three lumbar discs and a paracentral herniation at L3-4 to the right with possible nerve compression of the exiting nerve. There were small central herniations at L4-5 and L5-S1 with no effect on the thecal sac or exiting nerve roots.
Dr. Scali concluded the worker had degenerative lumbar disc disease and some disc herniations which appeared to give him only back pain. There was no significant cauda equine or exiting nerve root compression and the worker denied radicular symptoms/ claudication. He recommended conservative management including weight loss and possibly epidural or facet injections.
Assessment of the Evidence
After considering all the medical evidence, I conclude the worker has severe left hip arthritis as a result of congenital hip dysplasia that has significantly contributed to his ongoing low back pain. I find the evidence is insufficient to conclude the degenerative changes in his spine have been accelerated or aggravated by his work as a roofer.
The worker representative argued the medical and ergonomic reviews from OHCOW show the very physical work demands of a roofer contributed to a significant degree to the worker’s back degeneration. Therefore, entitlement is in order for a gradual onset injury related to the work duties. As noted by the worker representative, a significant contribution does not mean the only contribution. A significant contribution is shown if there is an obvious work link to the injury.
Dr. Pysklywec, the OHCOW physician acknowledged the worker had concurrent risk factors of advancing age as well as left hip dysplasia, but concluded it is unlikely that his lumbar spine would have been in the condition that it was had he not been employed in a heavy physical trade for decades. It was his opinion that his three plus decades work as a roofer significantly contributed to his underlying lumbar degenerative condition
Mr. Fuchs, the OHCOW ergonomist reviewed the worker’s work history and the medical documentation on the claim. He examined the worker’s job duties as a roofer (pages 7 to 9) and the associated physical demands of the work (pages 9 to 10). He provided a very detailed analysis of the stresses placed on the back when performing very physical work.
Mr. Fuchs concluded the job of roofer is heavy manual work and the associated job demands are proven risk factors for the development of lumbar pain, degenerative disc disease and disc herniation. He acknowledged there were non-occupational risk factors (increased BMI, hip dysplasia, mild leg length discrepancy) but noted the worker was only 53 when he was diagnosed with degenerative changes in his lumbar spine. He concluded the worker’s back condition is the direct result of his work duties as a roofer over 36 years (based on the history he documented). He added that three acute work related back injuries in 1995, 2000 and 2010 also greatly contributed to his current condition.
I carefully reviewed the submission by the ergonomist which referenced a number of studies. I conclude that roofers are prone to back injury and back pain, based on the studies referenced by the ergonomist. I am not persuaded that roofers are more likely to suffer accelerated degenerative changes in their lumbar spines. I specifically looked for studies that reached this conclusion. The studies referenced by the ergonomist report on back pain and back injuries but do not specifically address the issue of accelerated degenerative change.
In order to further consider the issue of accelerated degenerative change, I reviewed the discussion paper Low Back Pain that was prepared for the Workplace Safety and Insurance Appeals Tribunal, Revised February 2015. The paper was prepared by Dr. Yee, orthopedic surgeon, Dr. Mohammed, neurosurgical resident, and Dr. Malcolm, orthopedic surgeon. Dr. Tile, was a contributing editor. The paper indicates there is a lack of high-level consistent scientific evidence and natural histories on whether injury can aggravate or accelerate pre-existing aging change. It is currently not known whether injury can aggravate or accelerate pre-existing age change.
The discussion paper also indicates that current scientific evidence is evolving that supports a significant genetic component to the age related degenerative process – estimated to be as high as 80 percent. There is no convincing evidence that the structural changes that are so obvious on x-ray or scans cause pain. The association between chronic mechanical low back pain in patients with imaging evidence of age related disc degeneration is not fully understood.
After considering the evidence, I find there is insufficient evidence to conclude the worker’s job duties as a roofer significantly contributed to the degenerative changes in his back. There is a lack of scientific study that demonstrates injury can aggravate or accelerate degenerative change. The emerging evidence suggests these changes are primarily genetic.
I also note that the REC related the worker’s ongoing back pain to left hip arthritis. Ms. Fanti, physiotherapist, diagnosed left hip/ spine syndrome. I conclude the non-compensable left hip arthritis is a significant contributor to the worker’s back pain.
With the available information, I do not accept the worker has accelerated degenerative changes in his lumbar spine as a result of his duties as a roofer over 34 years. I conclude the requirements of policy are not met as compatibility of the diagnosis to the disablement history is not established.
CONCLUSION
Initial entitlement is not in order.
The worker’s objection is denied.
DATED February 21, 2018
J. Cantwell
Appeals Resolution Officer
Appeals Services Division