Continuity of symptoms and specialists’ opinions overrule WSIB medical consultants
A tribunal has overturned the denial of workers’ compensation benefits to an Ontario worker who had neck surgery and claimed it was the result of the recurrence of an earlier workplace injury suffered several years prior to the surgery.
The worker was a welder for 32 years in a heavy metal industry. His job often required him to lift parts anywhere from two to 80 pounds and he wore a heavy welder’s helmet, which was usually flipped down over the face by moving his neck rather than his hands, which were often busy. He filed a claim for workers’ compensation benefits on Jan. 30, 2007, for a gradual onset neck injury that was the result of the nature of his work. The claim was initially denied but an appeal led to a 15 per cent non-economic loss award, with the injury date pegged at Sept. 20, 2005. The worker had suffered some symptoms in 1996 but had no significant problems until 2005.
The date of Sept. 20, 2005, was determined because that was the date an x-ray report found a narrowing of vertebral disc space in the worker’s neck following a lifting incident at work. A year later, the worker had an MRI that found more disc narrowing, along with minor sac compression between the discs. A doctor’s report in December 2006 noted that “being a welder and wearing a welder’s helmet results in foraminal narrowing. I suspect it is work related.”
The worker’s condition improved over the next little while, but in late 2009 he began feeling neck pain again, particularly when he had to do pushing and pulling activities at work. As the pain continued to increase, surgical intervention was considered by his doctor and specialists.
A functional abilities evaluation (FAE) of the worker’s job duties and his abilities was conducted on Jan. 14, 2010. The FAE indicated the worker felt pinching in his neck during extension and tightness during bending. He also experienced pain during rotation, increased facial numbness and light-headedness. The FAE concluded that the worker in the course of his duties should “avoid sustained or repetitive cervical extension (look up) as this exacerbates his right facial numbness.”
Condition degenerative, not recurrence of injury: WSIB
The worker finally underwent neck surgery on Nov. 23, 2012, after which he had no issues with his neck. He filed another workers’ compensation claim for the recovery period, claiming it was a recurrence of his previous compensable neck injury.
The Ontario Workplace Safety and Insurance Board (WSIB) denied the claim, as it had its doubts on whether the condition requiring surgery was caused by the worker’s job. Its medical consultant had reviewed the worker’s condition in March 2009 and determined the worker’s condition had roots in non-occupational causes, noting he had “permanent impairment for aggravation of pre-existing cervical degenerative disc disease and osteoarthritis.”
In addition, another WSIB medical consultant reviewed the worker’s file on the day of his surgery and also found the worker had “significant pre-existing neck pathology that would likely require surgical intervention as his first documented radicular symptoms occurred in 1996. There is no evidence that the work related sprain/strain (suffered in 2005) resulted in a significant trauma that would have sped up the degenerative process requiring a surgical intervention sooner than would have occurred otherwise.”
The WSIB’s policy on injury recurrences stipulated that there had to be a “clinical compatibility between the original injury and the current condition as well as continuity between the original condition and the most recent problems.
The worker disagreed with the WSIB’s finding and appealed to the Ontario Workplace Safety and Insurance Appeals tribunal. He was examined by an orthopaedic surgeon on May 27, 2013, which stated he had suffered symptoms since his accident in 2005 which were resolved by his surgery. The surgeon also stated that while the worker had been told the surgery was from “age-related degenerative changes,” it was his opinion that the symptoms were the result of the lifting incident at work, without which the symptoms might not have manifested.
The tribunal found there was no new accident of significance, so the issue was whether the new injury was a recurrence or had continuity with the original compensable injury.
Symptoms showed continuity from original injury
Looking at the medical reports, the tribunal found the worker saw his doctor frequently from 2005 through 2007 regarding complaints of neck pain, and the x-ray and MRI were also done during this period. This was evidence of continuity from the original injury, as there were no mentions of a neck injury in medical records before 2005 going back to 1997, said the tribunal.
The tribunal also noted the part of the spine scanned in the 2006 MRI was the same part which was operated on in 2012.
The tribunal found both the specialist the worker saw regularly and the orthopaedic surgeon agreed that the worker’s neck surgery was the result of a flare up of his initial problem, not a degenerative condition. The only dissenting medical opinion was the WSIB’s medical consultant, who didn’t treat the worker over a period of time and wasn’t a specialist.
The tribunal overturned the WSIB’s decision, finding the worker “suffered a recurrence of his compensable injury leading to surgery.” As a result, the worker was entitled to health care benefits related to his neck surgery and loss-of-earnings benefits covering the period until his return to work following his recovery.
For more information see:
• Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 2044/15, 2015 CarswellOnt 19664 (Ont. W.S.I.A.T.). A tribunal has overturned the denial of workers’ compensation benefits to an Ontario worker who had neck surgery and claimed it was the result of the recurrence of an earlier workplace injury suffered several years prior to the surgery.
The worker was a welder for 32 years in a heavy metal industry. His job often required him to lift parts anywhere from two to 80 pounds and he wore a heavy welder’s helmet, which was usually flipped down over the face by moving his neck rather than his hands, which were often busy. He filed a claim for workers’ compensation benefits on Jan. 30, 2007, for a gradual onset neck injury that was the result of the nature of his work. The claim was initially denied but an appeal led to a 15 per cent non-economic loss award, with the injury date pegged at Sept. 20, 2005. The worker had suffered some symptoms in 1996 but had no significant problems until 2005.
The date of Sept. 20, 2005, was determined because that was the date an x-ray report found a narrowing of vertebral disc space in the worker’s neck following a lifting incident at work. A year later, the worker had an MRI that found more disc narrowing, along with minor sac compression between the discs. A doctor’s report in December 2006 noted that “being a welder and wearing a welder’s helmet results in foraminal narrowing. I suspect it is work related.”
The worker’s condition improved over the next little while, but in late 2009 he began feeling neck pain again, particularly when he had to do pushing and pulling activities at work. As the pain continued to increase, surgical intervention was considered by his doctor and specialists.
A functional abilities evaluation (FAE) of the worker’s job duties and his abilities was conducted on Jan. 14, 2010. The FAE indicated the worker felt pinching in his neck during extension and tightness during bending. He also experienced pain during rotation, increased facial numbness and light-headedness. The FAE concluded that the worker in the course of his duties should “avoid sustained or repetitive cervical extension (look up) as this exacerbates his right facial numbness.”
Condition degenerative, not recurrence of injury: WSIB
The worker finally underwent neck surgery on Nov. 23, 2012, after which he had no issues with his neck. He filed another workers’ compensation claim for the recovery period, claiming it was a recurrence of his previous compensable neck injury.
The Ontario Workplace Safety and Insurance Board (WSIB) denied the claim, as it had its doubts on whether the condition requiring surgery was caused by the worker’s job. Its medical consultant had reviewed the worker’s condition in March 2009 and determined the worker’s condition had roots in non-occupational causes, noting he had “permanent impairment for aggravation of pre-existing cervical degenerative disc disease and osteoarthritis.”
In addition, another WSIB medical consultant reviewed the worker’s file on the day of his surgery and also found the worker had “significant pre-existing neck pathology that would likely require surgical intervention as his first documented radicular symptoms occurred in 1996. There is no evidence that the work related sprain/strain (suffered in 2005) resulted in a significant trauma that would have sped up the degenerative process requiring a surgical intervention sooner than would have occurred otherwise.”
The WSIB’s policy on injury recurrences stipulated that there had to be a “clinical compatibility between the original injury and the current condition as well as continuity between the original condition and the most recent problems.
The worker disagreed with the WSIB’s finding and appealed to the Ontario Workplace Safety and Insurance Appeals tribunal. He was examined by an orthopaedic surgeon on May 27, 2013, which stated he had suffered symptoms since his accident in 2005 which were resolved by his surgery. The surgeon also stated that while the worker had been told the surgery was from “age-related degenerative changes,” it was his opinion that the symptoms were the result of the lifting incident at work, without which the symptoms might not have manifested.
The tribunal found there was no new accident of significance, so the issue was whether the new injury was a recurrence or had continuity with the original compensable injury.
Symptoms showed continuity from original injury
Looking at the medical reports, the tribunal found the worker saw his doctor frequently from 2005 through 2007 regarding complaints of neck pain, and the x-ray and MRI were also done during this period. This was evidence of continuity from the original injury, as there were no mentions of a neck injury in medical records before 2005 going back to 1997, said the tribunal.
The tribunal also noted the part of the spine scanned in the 2006 MRI was the same part which was operated on in 2012.
The tribunal found both the specialist the worker saw regularly and the orthopaedic surgeon agreed that the worker’s neck surgery was the result of a flare up of his initial problem, not a degenerative condition. The only dissenting medical opinion was the WSIB’s medical consultant, who didn’t treat the worker over a period of time and wasn’t a specialist.
The tribunal overturned the WSIB’s decision, finding the worker “suffered a recurrence of his compensable injury leading to surgery.” As a result, the worker was entitled to health care benefits related to his neck surgery and loss-of-earnings benefits covering the period until his return to work following his recovery.
For more information see:
• Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 2044/15, 2015 CarswellOnt 19664 (Ont. W.S.I.A.T.).
