WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL …wsiat.on.ca/decisions/2008/1528 08.pdf ·...

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelleAppeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7th Floor 505, avenue University, 7e étageToronto ON M5G 2P2 Toronto ON M5G 2P2

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

DECISION NO. 1528/08

BEFORE: M. Doyle: Vice-Chair

HEARING: June 30, 2008 at TorontoOral Appeal

DATE OF DECISION: November 19, 2008

NEUTRAL CITATION: 2008 ONWSIAT 3022

DECISION(S) UNDER APPEAL: WSIB ARO decision dated May 17, 2006

APPEARANCES:

For the worker: Y. Levinson, Lawyer

For the employer: Not participating

Interpreter: N/A

Decision No. 1528/08

REASONS

(i) Introduction

[1] The worker, an electrician, was injured when he fell from a ladder at work on September 6, 1996. The worker’s claim was allowed by the Board for injury to his low back. He also claimed injury to his right hip. There was evidence of medical care and time off work prior to the accident, for right hip osteoarthritis, and the Board denied entitlement for the right hip, including denial for entitlement for a permanent impairment. The Board found that the worker’s back injury had reached Maximum Medical Rehabilitation by November 30, 1996, and that there was no permanent impairment. The Board found no basis for entitlement to ongoing low back problems. The worker objected to these denials. The Appeals Resolution Officer (ARO) upheld the Board’s denials. The worker now appeals to the Tribunal.

(ii) Issues

[2] The issues for me to determine are:

1. Whether there is initial entitlement for the right hip and entitlement for a permanent impairment of the low back and right hip which the worker claims to be related to the compensable accident of September 6, 1996;

2. Whether there is entitlement for ongoing benefits including wage loss.

(iii) Background

[3] The worker was born in 1959 and worked at the employer as an electrician when he fell from a 6’ high ladder on September 6, 1996. His September 12, 1996 Report of Injury to the Board does not provide much more detail than that, nor does the Employer’s September 16, 1996 report.

[4] Materials before me include pre-accident reporting regarding the worker’s right hip. A hospital Emergency Department report dated October 28, 1985, states that the worker sought medical attention there regarding right hip pain.

[5] A report of an April 18, 1996 x-ray of the worker’s pelvis, right hip and femur states:

There are minor degenerative changes affecting the right sacroiliac joint. There is more severe degenerative osteoarthritis involving the right hip joint with narrowing of the joint space and reactive sclerosis.

[6] The worker’s family doctor, Dr. Rogano, referred the worker to an orthopaedic surgeon, Dr. A. Tountas, who reported on May 1, 1996 that he had seen the worker 12 years prior, but that “His problem now is pain in the right hip of about a years duration. This pain is primarily exertional and weather changes affected”. Dr. Tountas reported:

On examination pertinent findings were confined to the right hip. The mobility was limited to 70 degrees of flexion, 10 degrees of rotation and abduction, when movements were forced they were painful. There was no appreciable left leg discrepancy. Peripheral neurovascular status was normal.

The radiographs of the hips showed that on the right side there is moderate degenerative changes in the hip joints.

Page: 2 Decision No. 1528/08

OPINION:Symptoms related to osteoarthritis of the right hip. Unfortunately we are dealing with a young individual and the standard treatment for this (total hip arthroplasty) should be postponed as long as possible.

For the time being, I suggested an anti-inflammatory to be taken on an intermittent basis. Use of good shoe wear to prevent a lot of stresses of the hip and start thinking of changing careers as I do not think he will be much longer able to work in construction.

I would like to see him again periodically every 6 months.

[7] Dr. Rogano also referred the worker to Dr. J. McDonald, specialist in rheumatology and internal medicine. She reported to Dr. Rogano on June 26, 1996, stating that she had seen the worker on June 18, 1996 “regarding his right hip pain”. She reported that the worker had been experiencing right hip pain “for over a year”. She reported that he advised he had had an injury just over one year ago, when he had missed a step descending from a ladder and he pulled a muscle in his right posterior thigh. She stated that he advised pain had been intermittent since then and that he then began having pain in the right groin. She reported that “He has also noticed decreased flexion of the right hip especially difficulty putting on his shoes”. She stated that prior to that, he had played soccer and taught dancing, without ever noticing pain in the right hip or groin. She stated that the worker advised that the right hip pain had increased over the past 4-6 months, “in the groin, and over the anterior iliac crest as well as posteriorly in the buttock” and that “He still has decreased flexion of the hip”. She stated that sometimes the pain makes him limp, and that “He still has been able to continue working at his construction job, but does have increased pain at the end of the day”. She stated that he had seen Dr. Rogano regarding his pain because “he was concerned about a friend who had hip pain and later was found to have cancer”. She reported that on examination:

The right hip had stress pain with flexion limited to 100 degrees, internal and external rotation only about 5 degrees each, and abduction 20 degrees. There was no flexion deformity detected. The left hip had full and painless range of movement…The lumbo sacral spine was non-tender, and the sacroiliac joints were also non-tender. Range of movement of the lumbo sacral spine was normal, with modified schober’s test going from 15-23 cms., full extension and 0 cms of finger to fibula distance. None of the fibromyalgia points were positive.

IMPRESSION: [The worker] has moderate to severe osteoarthritis of his right hip. It is possible that this was precipitated by his previous injury as he denies any pain until that event. He’s also had a lot of soccer injuries and hits may have also been a contributing cause. I cannot find any evidence of a more generalized inflammatory arthritis including seronegative arthritis conditions. He has minor degenerative changes at the left hip as well.

...

At this time he does not require orthopaedic intervention, but certainly may require a total hip replacement in the future.

[8] Materials before me include clinical notes from Dr. Rogano from August 10, 1991 to February 3, 1997. On September 3, 1996, her clinical note states that the worker was “off work for 2 weeks due to ++hip pain”. It also noted that he had an upcoming appointment for therapy and that he had a referral letter from Dr. McDonald.


[9] The materials before me also include a report from a physiotherapist, dated September 6, 1996, indicating that the worker had been referred for assessment and treatment. It stated that he presented with the following problems: “leg length discrepancy (R short by ¼”), [reduced] ROM R hip; [reduced] muscle strength R hip”.

[10] At the appeal hearing, the worker testified that the employer had asked him on Friday to help two workers finish a job on Saturday, as they were behind in their assignment which had to be completed by Monday. He went in to help on the Saturday to assist with connecting pot lights in a drop ceiling. He testified that when he fell from the ladder, he felt a “big pain” in his lower right back and his elbow, and that he hit his head. He testified that his co-workers gathered around when he fell, but that he said he would be alright. He testified that about 20 or 30 seconds later, he could not move, and his boss took him to the emergency department of the hospital, where he had x-rays.

[11] The first physician’s report of accident in the materials is from Dr. O. Samuel, and is dated September 6, 1996. Dr. Samuel stated that the worker fell from a ladder, injuring his back and arm. He noted tenderness in the paralumbar area and in the right elbow. His diagnosis was trauma to the back and elbow. He recommended ice, Norflex and Tylenol #3.

[12] The report of the x-ray of the worker’s lumbar spine, dated September 6, 1996, stated that the worker had “minor degenerative changes” in his lumbar spine. The Emergency Department report from that day stated that he worker fell from a ladder and injured his lower back and his right elbow.

[13] The worker went to see his own family doctor, Dr. Rogano, on September 9, 1996. Her report to the Board states that the worker had fallen on his back onto a concrete floor, had hit his right elbow, and the ladder fell onto his left knee. She indicated that the worker advised he had no previous history of injury to his lumbar spine, and she stated that he “has pre-existing severe O/A of R hip”, as well as pre-existing “R elbow tendonitis”. She stated that he was complaining of “R/central low back and buttock pain” as well as elbow pain and tenderness in his left knee. She diagnosed low back strain, right elbow and left knee soft tissue injuries. She advised that he had previously arranged an appointment with orthopaedic surgeon Dr. Tile, regarding his right hip osteoarthritis.

[14] The materials before me include clinical notes from Dr. Rogano. In her note dated September 9, 1996, she stated that the worker “fell onto concrete floor on his back striking R elbow and the ladder fell against his L knee”. She noted that the pain became worse in his back and right buttock after 5-10 minutes. She stated that when straight leg raising was attempted on the right side, he had pain “into R lower back and buttock”.

[15] Dr. Rogano saw the worker again on September 14, 1996, and her clinical notes indicate that there was no change to his right buttock and back pain. She indicated that he had “central L/S pain” and could not bend to put on his socks. She also noted continuing pain in his elbow.

[16] The worker saw Dr. Tile on September 17, 1996. In his reporting letter to Dr. Rogano, Dr. Tile indicates that the worker was referred for “a problem in his right hip” and “a secondary problem in his right elbow and lower back”. He noted that the worker had reported pain in his


right groin about one year previous, and that x-rays “revealed changes in the right hip joint” and that he was referred to a rheumatologist who “confirmed this diagnosis”. He noted that the worker had been taking medication, but that it had not helped. He reported the worker’s September 6, 1996 injury, stating that the worker had “injured his right elbow and his lower back”. He reported that the worker advised that since the accident, he had been “unable to bend his lower back”. He stated:

On examining him, he seemed to be in considerable distress mainly because of his lumbar back problem. He had virtually no motion with severe spasm in his back and tended to tilt his back to the right side. He also guarded when I examine his elbow and was tender over the radial head.

Direct examination of his hip revealed a very irritable hip with a fixed flexion deformity of 10 degrees and further flexion to 90. All other motions were restricted.

I have examined his x-rays and repeated his hip x-ray today. The hip x-rays taken in April of ’96 show a moderately advanced osteoarthritis of the right hip with deformity of the femoral head and ring osteophytes around the femoral head…X-rays of his lumbar spine show some osteophytes at the L3-4 and 4-5 level but well maintained disc spaces and no other significant abnormality…

In summary, the patient has moderately advanced osteoarthritis in the right hip of one year duration...At this time I would continue him with his therapy and his Ansaids but he might require a total joint replacement at some time in the near future…

With respect to his lumbar spine, I think he has had a low back strain.

[17] The worker had a CT scan of his lumbar spine on September 18, 1996. The report of that test states “slightly narrow spinal canal. No acute abnormality detected”.

[18] In her September 23, 1996 clinical note, Dr. Rogano wrote that the worker advised that his mid lumbar spine pain had decreased in the previous two days, but that his “ ‘Hip’ seems worse – indicates R buttocks still painful”.

[19] In a Progress Report dated October 4, 1996, Dr. Rogano reported that the worker’s elbow pain persisted and that he had “R upper buttock/lumbar discomfort”. She stated a diagnosis of lumbar strain and right epicondylitis (lateral) elbow. She indicated that he was improving with therapy, though the right elbow pain was not responding to physiotherapy.

[20] On November 6, 1996, the worker underwent Electromyographic testing, the results of which were reported by Dr. Serebrin. The report stated:

Essentially the only symptoms which remains as a result of his fall off the ladder is one of pain in the vicinity of the right latent epicondyle – aggravated by using the hand – and pain in the right groin which of course is the result of pre-existing osteoarthritis of the hip which according to Dr. Tile is of ‘moderately advanced’ degree and may well ultimately come to require total hip replacement.

Other than to note some discrete tenderness over the right lateral epicondyle and restricted range of motion in the right hip. I could find no neurological deficits.

…

Clearly he has a post traumatic right tennis elbow syndrome, an osteoarthritic right hip and a low back strain which has nicely recovered.


[21] The Claims Adjudicator wrote a memorandum in the worker’s file on November 7, 1996, indicating that the worker had returned to Canada following an absence due to his mother’s death outside of Canada. The Claims Adjudicator wrote that temporary total disability benefits had been reinstated, and that a decision regarding MMR and permanent impairment was deferred. The memorandum also stated that entitlement for the right hip was not accepted as his problems were not attributed to the workplace accident and it was not reported that the worker injured his right hip that day. A memorandum dated November 8, 1996, indicates that the Claims Adjudicator advised the worker of this denial. This denial was confirmed in a February 22, 2005 memorandum in the file from the Claims Adjudicator, and in a November 8, 2005 memorandum from the Claims Adjudicator for the Appeals Referral.

[22] In reporting to the Board regarding the worker’s progress on November 8, 1996, Dr. Rogano stated that he was slowly improving with physiotherapy, but that the elbow continued to be his biggest limitation. She reported that his lumbar strain had improved by approximately 50 per cent and that she expected that he would be able to return to work on November 30, 1996.

[23] In Dr. Rogano’s November 14, 1996 clinical note, she stated that “Hip pain is causing him more of a problem lately because back pain persists”.

[24] A report from the worker’s physiotherapist on November 19, 1996, indicates that he continued to complain of “significant” pain in the right lumbar spine, as well as pain in the elbow. She stated, however, that she had been unable to assess the lumbar spine fully as the worker “was often agitated during L spine examination”. She advised that he was transferring to a different physiotherapy clinic.

[25] Also on November 19, 1996, Dr. Tile reported that he had seen the worker “for further assessment”. He reported that the worker told him that physiotherapy and exercise “has reduced his pain in his hips and in his lumbar spine”, but that he continued to have “some right sacroiliacpain, some right hip pain and…pain in his elbow”. He reported “He had a good range of back motion and a very good range of hip motion today. He has not been taking pills”.

[26] On November 21, 1996, Dr. Rogano reported to the Board. She reported:

[The worker] has a moderately advanced osteoarthritis of the right hip which has been symptomatic for 1 ½ years. The fall has apparently aggravated his chronic pain and further restricted his right hip movement and function….

…On September 9, 1996 [the worker] came to see me regarding the injuries he sustained in the fall on September 6th, 1996, where he sustained a lumbar strain and traumatic injury to the already injured right elbow…

[The worker] will be able to return to light duties November 30th, 1996, although I am not sure whether this employer can supply this.

[27] In an undated report which appears to have been faxed to the Board on November 25, 1996, the worker’s new physiotherapist reported:

Objective Findings

Lower Back


There is evidence of decreased mobility of the right sacro iliac and right hip joints as well as intervertebral mobility of the thoracolumbar area in all directions.

Tenderness to palpation is present in the above areas and over the iliopsoas, adductors, gluteus medias and piriformis musculature.

All activities causing compression of the above structures i.e. kneeling, crouching, bending and climbing stairs or ladders increase low back and right hip joint pain. [The worker’s] movement restrictions make it most difficult to assume these positions. He continues to complain of pain at end ranges of movements of the right hip and thoracolumbar area but less than at the beginning of the program.

Right Elbow

…

Summary

[The worker] continues to benefit from his present program by gaining some flexibility, greater endurance and strength.

He has further benefitted from program attendance by increasing his pain coping mechanism and complains less about pain than at the beginning of his extensive program.

Recommendation

At this time, it is unadvisable for [the worker] to perform any activity that requires him to kneel, crouch, bend and climb ladders. He is however fit to pursue light work that allows for alternate sitting, standing and walking.

[28] On December 4, 1996, Board Medical Advisor Dr. Bishop wrote an opinion, noting that the diagnosis in the claim was lumbar strain. He noted the reports of previous x-rays, the CT scan, Dr. Rogano’s November 8, 1996 report, her November 21, 1996 report and Dr. Tile’s November 19, 1996 report. He concluded that the worker “appears to have reached MMR for the low back injury, without P.I., by Nov. 30, 1996”.

[29] Dr. Rogano’s December 20, 1996 clinical note states that the worker was complaining of “painful spasms in back” and that he had “some pain lower back (mid)” for one week, in the lower lumbar area. She also notes that the worker advised he had discontinued physiotherapy and exercises as the Board stopped paying for it.

[30] Dr. Rogano had referred the worker to Dr. J. McDonald, specialist in rheumatology andinternal medicine. She reported to Dr. Rogano on January 10, 1997, stating that the worker had been seen for “his right hip with minor changes at his left”. She reported that the worker had called her office at the end of August, requesting a referral for “physiotherapy for his right hip”. She stated that she sent him a referral note and that he attended physiotherapy for his right hip, and that it had been helpful. She noted that the worker was complaining of worsening symptoms with the change in the weather. She noted that he had discontinued physiotherapy. She recounted the workplace accident, and appeared to be under the impression that it had occurred one month prior to January 10, 1997, but also stated that he had not worked since late September 1996. She examined the worker and reported as follows:

On examination his weight is 201 lbs. The right hip had stress pain, with flexion limited to 90 degrees, essentially 0 degrees of internal and external rotation, and 20 degrees of abduction. This caused groin pain. The left hip was asymptomatic as were the knees.


[The worker] has osteoarthritis of the right hip moderate in severity, with minor changes at his left hip radiographically…He indicates that he does not wish to take any medications. At this time, he does not require orthopaedic surgery for his hip, but this may be necessary in the future.

[31] On February 3, 1997, Dr. Rogano saw the worker “for review – back pain”. Her clinical note of that visit states that the worker continued to complain of back pain, worse on the left than the right, and that his “upper buttock” was “sore to touch”. She stated that he advised he was trying to work on construction “on his own” and that he was not doing heavy work or lifting. She stated that he advised “Painful at all times – seems to have been worse since started working again”.

[32] In her February 3, 1997 clinical note, Dr. Rogano stated that the worker advised that his right hip had been painful. The worker’s file was then transferred to Dr. Mihailidis, from whom there is no reporting in the materials.

[33] The worker testified that he did not return to work as his employer called and advised that as he had contacted the Board regarding an injury, he was not to return to work. He testified that he searched for work for over one year, but that as soon as employers found out that he was injured, they did not want him. He testified that due to the pain in his back and his hip, he was unable to lift weights and do the heavy work and ladder climbing that he had previously done. He testified that due to pain in his back and his hip, he could not move and lift heavy weights as he had done before and that he had difficulty climbing ladders. He testified that people noticed his difficulties and that as soon as people learned of his accident, they did not want him. He testified that this took place around 1998 to 1999.

[34] He testified that he decided to start his own business and to have people do the work for him. He testified that he believes this happened before 2000. He testified that the business lasted approximately 2 1/2 to 3 years, but that he could not continue after that time as he was in debt with his business.

[35] In January 1998, the worker was seen by a clinical fellow for Dr. Tile, Dr. J. Owen.Dr. Owen reported that the worker continued to work as an electrician, which involved “quite heavy lifting”. Dr Owen stated that the worker had fallen off a ladder 2 ½ years previously “which injured his right hip and this has progressed to osteoarthritis”. Dr. Owen stated that radiographically, there had not been much change in the past year, and that “clinically he is not having too much trouble at present”. Dr. Owen stated that the worker’s “main concern is with his back, which was injured in September ’96 when he fell 8 feet from a ladder”. Dr. Owen stated that the worker “has had some persistent facet joint pain with pain radiating to his left buttock since then, usually brought on by sitting in the car for a long period of time”. The report stated that “Clinically, he has a full range of motion of the lumbosacral spine with no neurology but he is acutely tender over the L4-5 facet joint”. It stated that the worker was being referred to a Pain Clinic for a facet joint injection. The stated diagnoses were osteoarthritis right hip, L5 S1 facet joint pain, left.

[36] The worker testified that he believes he saw Dr. Tile once or twice per year, and that he gave him medication for pain. There is no reporting regarding these visits. He testified that he did not want to take the medication, but that he took Extra Strength Tylenol. He testified that he


was concerned about the side-effects of medication. He testified that the pain was not steady, but was like someone hit you with a hammer.

[37] In January 2001, the worker began to see Dr. Papadopoulos as his family doctor. Dr. Papadopolous completed a Report of Re-opened claim for the Board on September 24, 2001. The report stated that the worker was experiencing “gradual deterioration of damaged hip joint”, but it also stated that the documentation review by this doctor made “no mention of any abnormality prior to 1996”.

[38] The worker testified that he stopped working in the winter or spring of 2003 when the pain had become so bad that he just wanted to lie down and not move anymore. He testified that he has not worked since then.

[39] Dr. Tile referred the worker to another orthopaedic surgeon, Dr. H. Kreder, regarding his right hip. On April 7, 2005, Dr. Kreder reported that the worker had been off work since November 2004 and that he refused to take any medication. He stated that the “radiographs show advanced degenerative arthritis involving the right hip” and that “despite his young age…I think he is an excellent candidate for a total hip replacement”.

[40] On August 26, 2005, Dr. Papadopoulos wrote to the Board, indicating that he had reviewed the worker’s medical records from Dr. Togano, Dr. Tile and Dr. Kreder. He stated that “His problems started after his work injury in September 1996 when he reported falling off a ladder, injuring the lumbar region, right hip, right elbow and left knee”. He stated that he had known the worker socially for a few years prior to becoming his physician. He stated that the worker used to be involved in Greek Community events, but that this was slowly reduced and eventually stopped in 2004 “because of increasing pain and stiffness in the right hip and leg”. He stated that the worker’s “mobility and range of motion has become very disabling and his only hope…is total hip surgery”. He stated that the worker “has hip problems that are caused by his industrial accident but he had no clinical complaints prior to the accident”. After the accident, he stated that the worker had “pain, limited range of movement and increasing stiffness” which made continuing to work “no longer possible”. He stated “Trauma can on many occasions accelerate underlying arthritis without any clinical symptoms and can hasten the progress of this process”. He reported that the worker was also becoming depressed, and that he had stopped volunteer work as a dance instructor.

[41] The worker testified that after the accident, he was not able to instruct dancing or coach soccer like he had done previously.

[42] Dr. Papadopoulos referred the worker to Dr. Soulios, psychiatrist. Dr. Soulios reported on September 30, 2005, that he had assessed the worker and that he was suffering from depression secondary to his 1996 workplace accident.

[43] On November 11, 2005, the worker underwent a right hip arthroplasty of the resurfacing type due to right hip osteoarthritis. The worker testified that his doctor told him that he would not be the same after the surgery, and that he would not be able to lift or to perform the same job as he had done before. He testified that the surgery had not been very helpful.


[44] The worker’s representative sent him to orthopaedic surgeon Dr. Charendoff for an assessment. Dr. Charendoff wrote on August 11, 2007, that he had reviewed documentation regarding the worker’s claim and condition and that the reporting indicates that the worker had an injury to his “lower back, right elbow and left knee”. He noted that the worker has been off work since 2003 “on account of a disability arising from his right hip joint”. He noted that the records indicate that he had “preexisting degenerative joint disease (osteoarthritis) of his right hip”, and that he had a right total hip replacement in November 2005. He reported that the worker advised he had not had a good result from surgery. He examined the worker and reported:

[The worker] was noted to enter the examining room walking fairly well. He had no difficulty in undressing and dressing. His posture revealed a suggestion of a mild scoliosis. The pelvis appeared to be slightly higher on the left side with an appearance ofslight shortening of the right lower extremity. He was able to stand on his heels and toes. Squatting was restricted to 50% of normal. He states that he frequently wears the lumbosacral support, but was not wearing it at this time due to the hot weather.

…

The range of motion of his lumbar spine was restricted to 25% of normal and was accompanied by markedly severe pain and moderately severe tenderness present diffusely.

…

The range of motion of the hips was as follows:

Left Right

Flexion 135 degrees 120 degrees (with accompanying pain)

The other movements of the right hip, although somewhat restricted were quite adequate.

…

The neurovascular status of the lower extremities was intact.

[The worker] informed me that he takes Tylenol Extra Strength on a regular basis to control his pain.

CURRENT DIAGNOSIS

According to the history given by [the worker], he has not recovered from his work-related back injury nor from his work-related right elbow injury. He continues to have chronic pain in both of these areas, which he describes as disabling.

He had preexisting degenerative joint disease (arthritis) of the right hip. The history indicates that the right hip joint was asymptomatic, that is not troubling him or interfering with his lifestyle or his work in spite of the presence of the organic disease.

Following his work-related accident his right hip joint became symptomatic.

…

He also describes a work-related accident in September 1995, which, he believes he reported to his family physician but no record was made of it.

It is not unusual in my experience for a patient to have a preexisting disease and to be asymptomatic and able to carry on the normal lifestyle. In this situation, [the worker’s] right hip was vulnerable to trauma (this is a situation with which you are aware,) which in legal terms is referred to I believe as the ‘thin skulled patient principle’.


Whether his right hip would have gone on to require surgery without the accident is not the issue. The issue is I believe that his hip became symptomatic and troublesome after the WSIB work-related accident.

As you are aware, he had a second accident in September 1996.

The causes of osteoarthritis are difficult to explain. Usually it is considered a disease of the aging population. In this instance the worker was extremely young to have advanced osteoarthritis.

While the causes of osteoarthritis are unknown the factors, which aggravate osteoarthritis are well known’ these include trauma (accident) and certain types of occupations.

In this instance there was a significant traumatic incident, which rendered his right hip symptomatic.

…Based on the above considerations in my professional opinion [the worker’s] current condition is attributable to his compensable injury in September 1996.

[45] The worker testified that his back pain has been getting worse, and he attributes this to the problems he has had with his right hip. He testified that he now has difficulty sleeping and that he wakes 3 or 4 times per night due to back pain. He testified that he cannot sit for more than 15 to 20 minutes before being bothered by his hip. He testified that he cannot walk for a long time and that he does not feel he could perform any work. He testified that since stopping working he has been under a lot of stress, and that he saw Dr. Soulios.

[46] The materials before me also include a Medical Discussion paper produced for the Tribunal by Dr. W.R. Harris and Dr. Dale McCarthy, titled “Osteoarthritis”, and another Medical Discussion paper produced for the Tribunal by Dr. W. Robert Harris and Dr. J.F.R. Fleming, titled “Back Pain”.

(iv) Submissions by the Worker’s Representative

[47] The worker’s representative submitted that while the worker had some symptoms of hip problems prior to the accident, he had been able to continue to work at a physically demanding job and to coach soccer and teach dance. He submitted that after the accident, the worker’s life changed dramatically and that his constant pain began September 6, 1996. He submitted that the reference in Dr. Charendoff’s report to the worker having been asymptomatic prior to the accident simply means that Dr. Charendoff is noting that the worker’s symptoms did not interfere with his normal lifestyle. He submitted that it is not possible to know with certainty if his condition would have deteriorated at the rate it has done, his condition did not stop him from working until the accident. He submitted that even if Dr. Tountas was correct in predicting that the worker’s days working in construction were “numbered”, Dr. Charendoff says that an intervening event, being trauma to the back and hip, had a very adverse impact on the worker’s condition. He submitted that the worker’s pre-injury condition and his post-injury condition were very different. He submitted that an intervening event can be of such significance as to speed up the disease. He submitted that we do not know how quickly the worker’s condition would have deteriorated, but the benefit of the doubt must be given to the worker.

[48] He submitted that according to Board policy regarding “Aggravation Basis”, benefits are to be paid until the worker reaches his pre-accident state. Here, he submits, the pre-accident state was a state which permitted the worker to continue working. He submitted that the worker


was able to continue working in 1995 and 1996 and that the only reference to lost time was in the doctor’s clinical notes.

[49] He submitted that according to the Tribunal’s Discussion paper on osteoarthritis, with an insult to the joint, the condition worsens. He submitted that it is hard to know if the low back and hip were separated out by the doctors initially, as the areas of pain can be very similar. He submitted that the worker was young to have this degree of osteoarthritis and that according to the Tribunal’s Discussion paper, symptoms would develop fairly soon after an injury.

[50] He submitted that the worker has pre-existing osteoarthritis, which first started about one and one half years prior to the accident. He submitted that over that period, the condition became more symptomatic, but the worker was able to continue his normal activities. He submitted that after the accident, the worker’s condition deteriorated to the point where he had to have hip surgery. He submitted that the impact on the worker’s life has been very severe.

[51] He submitted that in order not to find in the worker’s favour, I would have to conclude that the accident had no impact on his condition, and I must find that even without the accident, his condition would be the same as it is today, with the same rate of deterioration.

(v) Law and Policy

[52] The accident date was September 6, 1996 and the applicable legislation is the pre-1997 Workers’ Compensation Act.

[53] The Board has provided the following policy packages, revision #7: Package # 35, “Continuing Entitlement/NEL – DOA from January 2, 1990 to December 31, 1997”; Package # 107, “Aggravation Basis/SIEF”; Package # 300, “Decision Making/Benefit of Doubt/Merits and Justice”.

[54] Operational Policy Manual (OPM) Document # 11-01-15, “Aggravation Basis”, states in part as follows:

Policy

In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis.

Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.

Guidelines

Decision-makers should first determine entitlement in the claim (see 15-02-02, Accident in the Course of Employment). Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state.


Entitlement is not limited in cases where there is no pre-accident impairment, or theseverity of the accident/exposure on its own would have resulted in additional impairment. This is the case where the impairment is temporary or permanent despite the presence of the pre-accident impairment.

Definitions

An aggravation is the effect that a work-related injury/illness has on the pre-accident impairment requiring health care and/or leading to a loss of earning capacity.

A loss of earning capacity is the difference between the worker's net average earnings before the work-related injury/illness, and the net average earnings the WSIB determines the worker is capable of earning after the work-related injury.

A minor accident is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury or illness.

A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. (Although the period of time cannot be defined, a decision-maker may use a one to two year timeframe as a guide.)

Aggravation basis - determining entitlement

Entitlement in a claim is accepted on an aggravation basis when

-a relationship is shown between the pre-accident impairment and the degree of impairment resulting from the accident, and

-an increased degree of impairment occurs, which exceeds the usual, owing to the pre-accident impairment.

Decision-makers are required to evaluate the severity of the accident by the accident history. (For further information, see Second Injury and Enhancement Fund (SIEF), 14-05-03). When a minor accident (see "Definitions" in this policy) aggravates a pre-accident impairment, benefits are paid until the worker's condition returns to the pre-accident state.

Determining pre-accident impairment

Before the allowance on an aggravation basis is considered, decision-makers must determine if a pre-accident impairment exists. Evidence of this includes, but is not limited to, a worker having

-a previously identified and symptomatic medical condition/impairment,

-medical precautions/restrictions and performing modified work prior to the accident,

-receiving regular health care treatments prior to the accident,

-lost time from work prior to the accident.

This information can be obtained by reviewing

-prior health care documentation (e.g., x-rays, hospital records, operative reports)


-prior claim(s)

-statements from the worker, the employer, or co-workers

-employment records.

Example - Pre-accident impairment

Jim suffered a work-related injury on November 1, 2001, when he twisted slightly getting out of his chair. The doctor's diagnosis was soft tissue strain superimposed on severe Degenerative Disc Disease (DDD), and facet joint arthritis. Jim received chiropractic treatment monthly prior to the accident and had medical restrictions requiring permanent modified work. Jim's back improved to the point where he was able to return to the pre-accident employment on March 1, 2002.

Jim aggravated a pre-accident impairment on November 1, 2001. In this case, Jim is entitled to benefits for the acute phase only. Jim's pre-accident impairment returned to its pre-accident state on March 1, 2002. As a result, there is no further entitlement to benefits after March 1, 2002.

Example - No pre-accident impairment

Bob suffered a work-related back injury on March 1, 2002, when he fell 10 feet off a scaffold. He was unable to return to return to his pre-accident employment because of the fall. Bob has a history of back problems and required surgery in 1985. At the time of the accident, Bob was working as a carpenter with no medical restrictions or medical treatment and was only observing proper back care.

Bob sustained a moderately severe back injury on March 1, 2002. He did not have a pre-accident impairment and therefore is entitled to ongoing benefits and services. In this case, there is nolimitation of entitlement.

Permanent impairment

In some cases, workers never return to the pre-accident state. If there is a permanent worsening of the pre-accident impairment, the decision-maker may determine that the work-related injury/illness has permanently aggravated the pre-accident impairment. If medical evidence confirms that the work-related injury/illness permanently increased the worker's pre-accident impairment, the worker may be entitled to a non-economic loss benefit. (For more information, see 18-05-03, Determining the Degree of Permanent Impairment).

(vi) Analysis

1. Whether there is initial entitlement for the right hip and entitlement for a permanent impairment of the low back and right hip which the worker claims to be related to the compensable accident of September 6, 1996

(a) The worker’s right hip

[55] While I do find that there is initial entitlement for a temporary aggravation of the right hip, I do not find that there is entitlement for a permanent impairment of the worker’s right hip, as I do not find that any aggravation of the pre-existing right hip condition was permanent.

[56] I find that prior to the accident, the worker had a pre-accident impairment, according to OPM Document # 11-01-15. In determining that he had an impairment, I have considered the fact that he had required health care for his right hip and just prior to the accident, he had


experienced a disruption in employment when he missed two weeks from work due to increased hip pain. By the time the accident occurred, the worker had been seen by his own doctor for his hip pain and had been referred to orthopaedic surgeon Dr. Tountas, to a specialist in internal medicine and rheumatology Dr. McDonald, to physiotherapy for his right hip, and had an upcoming appointment with another orthopaedic surgeon, Dr. Tile. Each of these doctors had diagnosed osteoarthritis of the right hip. The condition of his hip had not yet reached a point where he was a candidate for surgery, but it was anticipated that he “certainly may require a total hip replacement at some point in the future”. Additionally, Dr. Tountas predicted that he would not be able to work in construction for much longer, and Dr. McDonald noted that his pain increased at the end of a day’s work. With regard to the matter of work disruption, while the worker has not been able to recall having missed two weeks, and while the worker’s representative has sought to dismiss Dr. Rogano’s September 3, 1996 reference to two weeks work missed due to hip pain, I do not find that there is any reason to doubt the reference found in the doctor’s contemporaneous clinical note. I find that just prior to the workplace accident, the worker experienced a disruption in employment due to his hip. Therefore, based on the worker’s requirement for heath care for his hip prior to the accident, as well as his work disruption due to his hip just prior to his accident, the worker’s right hip osteoarthritis was a pre-existingimpairment.

[57] If a worker has a pre-existing impairment, there may still be entitlement on an aggravation basis if the work-related injury has had an effect on the pre-accident impairment.

[58] A comparison of the condition of the worker’s right hip before and after the accident is only relevant if I am persuaded that the worker injured his hip in the workplace accident. In determining what body parts the worker injured in that accident, I begin by examining the most contemporaneous reporting of the accident. The worker and the employer completed Reports of Injury for the Board, several days after the accident, but neither has indicated what area or areas of the worker’s body were injured in the fall. The worker did, however, seek medical attention at the hospital the very day of his accident. He saw Dr. Samuel, who reported to the Board that the worker had been seen following a fall where he had injured his back and arm. He noted tenderness in the paralumbar area as well as in the right elbow. He diagnosed “Trauma back, elbow”. While the worker was at the hospital, an x-ray of the worker’s lumbar spine was done. The Emergency Department report also indicates that he injured his low back and his right elbow in a fall from a ladder. There is no mention of having hurt his hip, and no x-rays of the worker’s hip were ordered. From the reporting that day and from the fact that x-rays of only the lumbar spine were ordered, I conclude that the worker made no complaint of having hurt his hip when he sought medical attention the day of the accident.

[59] A few days later, on September 9, 1996, the worker saw his family doctor, Dr. Rogano.According to her report to the Board, he appears to have told her that he had fallen on his back onto a concrete floor and that he had hurt his right elbow, and that the ladder had fallen onto his right knee. While it does not appear that he has mentioned falling onto his hip to her either, I note that she has mentioned in her report to the Board that the worker had “pre-existing severe O/A of right hip” and advised that he had a previously arranged appointment with Dr. Tile regarding the osteoarthritis in his hip. Further, in her clinical note of the September 9, 1996 visit, she repeated that he had struck his back and elbow in the fall, but she also indicated that after 5-10 minutes, the pain in the worker’s back and right buttock worsened. She also noted that on


examination that day, on straight leg raising, he had pain into his low back and right buttock. While she has not stated that the worker complained of having hit his hip in the accident, pain in the worker’s hip area appears to have been mentioned in connection with the accident. In her reporting, she has linked this pain to the worker’s right hip osteoarthritis, however I accept that at that point it was difficult to distinguish between the worker’s pre-existing symptoms and his post-accident aggravation. I conclude therefore that the area where the worker was experiencing pain was the same area where he had previously complained of pain to Dr. Rogano when he wasseen regarding his right hip osteoarthritis. Given the fact that the worker’s complaint at his first visit with his family doctor indicates that he experienced worsening back and buttock pain 5-10 minutes after the fall, and given the fact that she mentioned the worker’s pre-existing hip problem in her report to the Board, I conclude that it is more likely than not that when the worker fell injuring his low back, and landing in such a way as to strike his right elbow, he also injured his right hip. I find that the mechanics of the accident support an injury to the right hip.

[60] Having found that the worker injured his right hip in the accident, I must determine the effect that the work-related injury had on the pre-accident impairment. Prior to the accident, the report of Dr. Tountas indicated that the worker’s pain was “primarily exertional and weather changes affected”. He stated that there was radiographic evidence of “moderate degenerative changes”. He noted a reduction in mobility to 70 degrees of flexion, 10 degrees of rotation and abduction. He said that the worker “needed to start thinking of changing careers as I do not think he will be much longer able to work in construction”.

[61] Also prior to the accident, Dr. McDonald described the worker’s hip pain as “intermittent” . She noted a reduction in mobility to 100 degrees of flexion, 5 degrees internal and external rotation and abduction 20 degrees. She noted that he had trouble putting on his shoes due to decreased right hip flexion. She noted that he was able to continue working in construction, but that he had pain at the end of the day. She characterized his osteoarthritis as “moderate to severe”. She did not say that he had discontinued teaching dancing or playing soccer, but did indicate that he was reporting that these activities did not used to be accompanied by pain. The obvious conclusion for me is that he was telling her that he now was noticing pain in performing these activities.

[62] The physiotherapist who saw the worker prior to the accident noted only that he had reduced range of motion and reduced strength in the right hip.

[63] In summary, by the time of the accident, therefore, he had intermittent right hip pain which was “exertional” and was also related to weather changes. He had decreased strength in his right hip and he had reduction in the mobility of his right hip, ranging from 70 to 100 degrees of flexion, 5 to 10 degrees of rotation and 10 to 20 degrees of abduction. He was able to continue to perform his duties in construction, though he experienced pain at the end of a day, and he needed to start thinking about changing careers. He was able to teach dancing and play soccer, but he was experiencing pain when doing these activities. He had some problems putting on his shoes. He did not need surgery yet, but it was predicted that at some point he would require hip replacement surgery. His osteoarthritis was moderate to severe. He was referred for physiotherapy.


[64] At the second visit with Dr. Rogano after the accident, she noted that there had been no change to the worker’s condition from his previous visit and that he was having difficulty bending to put on his socks.

[65] When Dr. Tile examined the worker on September 17, 1996, he noted that the worker’s hip was “very irritable”. He also noted “fixed flexion deformity of 10 degrees and further flexion of 90”. He did not provide other range of motion measurements, and said only that “all other motions were restricted”. He called the worker’s condition “moderately advanced osteoarthritis” and predicted a total joint replacement “at some point in the near future”.

[66] Reporting from Dr. Rogano on October 4, 1996 and Dr. Serebrin on November 6, 1996, indicated that the worker continued to experience hip pain. By November 14, 1996, however, Dr. Rogano stated that the worker’s hip pain was becoming more of a problem. She related it to the ongoing back pain.

[67] The November 19, 1996 report from Dr. Tile indicates that at that visit, the worker had “very good range of hip motion”. However, two days later when Dr. Rogano reported to the Board, she advised that the workplace accident had aggravated the worker’s hip pain and that it had further restricted his movements. She recommended a return to light duties at the end of the month.

[68] Dr. Rogano’s recommendation for light duties was consistent with the November 25, 1996 recommendation of the physiotherapist who observed decreased mobility in the right hip joint and stated that the worker’s back and hip joint pain was increased by kneeling, crouching, bending and climbing stairs and ladders. The physiotherapist recommended that these activities be avoided and that he perform light work which allowed for alternate sitting, standing and walking.

[69] When the worker was seen by Dr. McDonald in January, 1997, she noted that he was complaining of right hip symptoms worsening with the change in weather. She observed restriction in the range of motion as follows: 90 degrees with flexion, “essentially 0” internal and external rotation and 20 degrees abduction. She characterized the right hip condition as moderate in severity and stated that at some future point he may require surgery.

[70] The worker saw Dr. Rogano in February 1997 and she observed that the worker’s “upper buttock” was “sore to touch” and he complained that his right hip had been painful and that he had pain in his low back. She stated that the worker was not doing heavy work, but that he was trying to work in construction and his condition “seemed to be worse since he started working again”.

[71] The worker testified that since the accident, he has not been able to teach dancing or to coach soccer.

[72] There is no medical reporting between February 1997 and January 1998. In January 1998, there is reporting from Dr. Owen who states that the radiographic evidence is not much changed and that “clinically” he was “not having too much trouble at present”. I conclude


that this was a reference to the worker’s hip, as Dr. Owen then goes on to state that the worker’s “main concern is with his back”.

[73] There is no medical reporting between January 1998 and January 2001, when he began to see Dr. Papadopoulos. The Report of a Re-opened claim comments on the worker’s hip condition.

[74] Summing up, therefore, from the time of the accident in September 1996 to February 1997, the worker’s hip range of motion was fixed flexion deformity 10 degrees, flexion 90 degrees, 0 degrees internal and external rotation, and 20 degrees abduction. He experienced pain with changes in the weather. He experienced pain with kneeling, crouching, bending and climbing stairs and ladders. His physiotherapist recommended he avoid these activities. He was not teaching dance or playing or coaching soccer. He was trying to avoid heavy work and reported increased symptoms with a return to work. His condition was described as moderate in severity and hip surgery was not recommended yet, but was foreseen as a possibility in the future.

[75] In comparing the worker’s hip condition prior to the accident with his hip condition between the date of the accident and February 1997, while he appeared to have a good day the day he saw Dr. Tile in November, 1996, restrictions in right hip mobility were otherwise in evidence. There was some further reduction in range of motion in that prior to the accident he had from 5 to 10 degrees mobility with rotation and after the accident he had 0 degrees of mobility in internal and external rotation. The range of motion in flexion and abduction was largely unchanged: pre-accident his flexion had been measured between 70 and 100 degrees, and post-accident it was measured as 90 degrees; pre-accident his abduction had measured between 10 and 20 degrees, and post-accident it was measured as 20 degrees. The worker was still not considered a candidate for surgery, though it continued to be considered a future possibility. Prior to the accident, he complained of increased hip pain with weather changes, and post-accident he made the same complaint. His condition was still characterized as moderate in severity. Prior to the accident, the worker’s pain was called “exertional” and he experienced pain at the end of a day working in construction, and after the accident, Dr. Rogano observed that the worker’s pain had increased with his return to work. This latter observation would not appear to indicate any change in the worker’s hip, but the nature of the work which caused the pain appears to have changed. The physiotherapist recommended that the worker avoid certain movements and a return to “light work”. The worker advised Dr. Rogano that though he had returned to construction work, he was attempting to avoid the lifting and heavy aspects of the work. In other words, after the accident, less exertion produced pain and he faced certain restrictions on the kind of work he could perform. Additionally, he was no longer teaching dancing or playing or coaching soccer.

[76] I find, therefore, that the worker experienced an aggravation of his condition in that his right hip mobility was somewhat reduced following the accident, and he experienced pain after less exertion, and therefore faced new restrictions on what work he could perform.

[77] When the worker was seen by Dr. Tountas in May, 1996, he predicted that the worker may not be able to continue working for much longer in construction, due to the osteoarthritis in his right hip. He suggested at that time that the worker begin to think about alternative


employment. Clearly, then, at that point, he did not need to change jobs right away. Further when he was examined by Dr. McDonald in June, 1996, she noted that he was able to continue his work in construction, though he experienced pain at the end of the day. At this point, it would not seem that his condition was necessitating an immediate change of jobs. He missed some work prior to the accident, but returned to work and was in fact working overtime on a Saturday when the accident occurred. At that point, therefore, he had been able to continue working in construction, with no restrictions having been provided. After the accident, however, he had difficulty finding, performing and retaining work due to his restrictions. He testified that in 1998 to 1999 he sought work and when he did find work, he experienced such difficulty with heavy work and climbing that he was not kept on. The worker testified that in an attempt to find a solution to this problem, he began his own company, where he would be able to assign others to the heavy work.

[78] Following the February 1997 visit to Dr. Rogano, there is no evidence of the worker having received medical attention until January 1998. When he did seek medical attention in January 1998, however, it was for his back. In his report of that visit, Dr. Owen wrote that at that time, the worker was performing work which required heavy lifting, but he indicated that “clinically he is not having too much trouble at present” with his right hip. While the worker testified that in 1998 to 1999 he experienced difficulty performing certain duties at work due to pain in his hip and his back, it appears that in the period where he was actually performing heavy duties, he did not complain to the orthopaedic surgeon about his right hip, but only about his back and problems he was having with pain radiating into his left buttock when he had been sitting for a long time. I prefer the evidence which was more contemporaneous with the performance of that work. I conclude, therefore, that the aggravation of the pre-existing right hip osteoarthritis, which had led to restrictions on the kind of work the worker could perform, had ceased. I do not find that the preponderance of evidence establishes that the aggravation of the pre-existing hip condition was permanent.

[79] In making this finding, I have considered the reporting from Dr. Papadopolous and from Dr. Soulios and from Dr. Charendoff. The opinion provided by Dr. Papadopolous, which indicates that the worker’s hip problems were caused by the workplace accident has not addressed the fact that the worker had a pre-existing impairment. Instead, Dr. Papadopolous has asserted that the worker “had no clinical complaints prior to the accident”. As indicated above, I find that the medical reporting from before the accident and the fact that the worker missed work prior to the accident due to his workplace accident, are evidence that he had a pre-existing impairment and had clinical complaints prior to his accident. As Dr. Papadopolous has not addressed this fact, his conclusions regarding the cause of the worker’s ongoing hip problems are not helpful.

[80] The opinion of Dr. Soulios, psychiatrist, addresses the matter of the worker’s depression, but does not provide assistance in considering the question of causation of the worker’s ongoing hip problems given his pre-existing impairment.

[81] The report from Dr. Charendoff states that the worker had pre-existing osteoarthritis of his right hip, but he stated that this condition was “asymptomatic” prior to the workplace accident. As noted above, I have found that the worker’s condition was symptomatic prior to the workplace accident and that it was, in fact, a pre-existing impairment. Dr. Charendoff has stated


that prior to the accident, the right hip joint was “not troubling him or interfering with his lifestyle”. As noted above, while I have found that the evidence establishes on a balance of probabilities that the aggravation of the hip condition interfered with the work the worker could perform until 1998, by 1998 he was again performing heavy work without complaint regarding his hip condition. In these circumstances, therefore, I do not find that the aggravation from the workplace accident which interfered with his lifestyle, was a permanent aggravation.

[82] I find that any aggravation of the worker’s right hip condition caused by the workplace accident ceased by January 1998. Accordingly, I do not find that there is a permanent impairment of the right hip related to the compensable accident of September 6, 1996.

(b) The worker’s back

[83] I find that there is entitlement for a permanent impairment of the worker’s back.

[84] Prior to the accident, the worker had not experienced any problems with his low back. The worker immediately reported having injured his back and his low back was x-rayed at the hospital emergency department that day, and only “minor degenerative changes” were revealed. No “acute abnormality” was detected in the CT scan of September 18, 1996. The initial diagnosis by orthopaedic surgeon Dr. Tile was “low back strain”. Initial entitlement for the worker’s back injury was granted, but following an opinion from Board doctor Dr. Bishop, the Board found that the back injury had reached MMR without permanent impairment on November 30, 1996.

[85] For the worker to have reached MMR by November 30, 1996, with no permanent impairment, would mean that the worker’s back problem had resolved by that date. I find, however, that the medical reporting does not indicate that the worker’s back pain had resolved by November 30, 1996.

[86] Clinical notes from Dr. Rogano in November, 1996, indicate continuing back pain. Further, the physiotherapist described the worker’s back pain as “significant” on November 19, 1996. While Dr. Tile noted “a good range of back motion” in his November 19, 1996 report, he did not say that the back was resolved, but that the physiotherapy had reduced the hip and back pain. Two days later, Dr. Rogano recounted the injuries the worker sustained as including a lumbar strain, and recommended a return to light duties on November 30, 1996. It is not clear why she recommended light duties, but the November 25, 1996 report from the physiotherapist provided further information. The physiotherapist made a recommendation of light duties, which would allow the worker to avoid kneeling, crouching, bending and climbing ladders. She recommended that he be able to alternate sitting, standing and walking. She stated that the worker faced restrictions due to his problems in his hip joints and in his thoracolumbar area. She noted decreased mobility in his thoracolumbar area. The worker’s back problem, therefore, had not resolved by that time, nor was it expected to be resolved by the time of an anticipated return to work November 30, 1996.

[87] The worker was seen by Dr. Rogano with back spasms and low back pain on December 20, 1996, and he was seen by her for review for back pain on February 3, 1997. At the latter visit, he advised that he was doing construction work, but from the information he gave to Dr. Rogano, it was light work.


[88] As noted above, however, by January 1998, he was working performing heavier duties, which were not within the restriction of “light work”. At that point, he again sought medical attention, complaining of back pain. According to Dr. Owen, he had full range of motion of the lumbosacral spine, but he was acutely tender over the L4-5 facet joint. He was referred for a facet joint injection.

[89] According to the worker’s testimony, given the difficulties he was having with heavy construction work, at some point prior to 2000, he began his own company as a way to ensure that the work he personally would have to perform would be within his functional limitations. He testified that in this way, he sought to assign the heavier work to employees. During the period when he had his own business, there is no further medical reporting regarding back pain. As this was a period during which the worker was modifying the tasks he performed, I do not find that the lack of medical reporting indicates that the worker’s back condition had resolved, merely that he was able to accommodate his condition.

[90] The worker sought further medical attention for his hip condition from 2001, and this appears to have been the focus of medical care and reporting at that time.

[91] The next medical reporting regarding the worker’s back is from Dr. Charendoff. In his August 11, 2007 report, Dr. Charendoff noted that the worker advised that he “frequently wears the lumbosacral support, but was not wearing it at this time due to the hot weather”. Further, Dr. Charendoff stated that the worker’s range of motion in his lumbar spine was “restricted to 25% of normal and was accompanied by markedly severe pain and moderately severe tenderness present diffusely”.

[92] There has been no evidence of any further injury to the worker’s back and I conclude that he habitually wore a lumbosacral support and that he suffered restricted range of motion in his spine due to the workplace injury.

[93] For all of the above reasons, I do not find that the worker’s back injury resolved without permanent impairment on November 30, 1996. I find that the worker continued to experience symptoms and functional limitations due to his back injury, and I find that there is entitlement for a permanent impairment of the worker’s back due to the September 6, 1996 workplace accident.

2. Whether there is entitlement for ongoing benefits including wage loss

[94] I have found that the worker suffered an aggravation of his pre-existing hip impairment until January, 1998. Full benefits were paid to November 30, 1996, but there is no evidence that modified work was offered to the worker at that time. There is evidence that the worker sought out and obtained some modified work following November 30, 1996, but the evidence before me does not address what wage loss, if any, the worker experienced. Further, I have found that the worker suffered a permanent impairment of his low back, and he performed modified work for a time and that after a period of work which was beyond the restriction of “light work”, he accommodated his back impairment by performing light work. The evidence before me does not address what wage loss, if any, the worker experienced as a result of performing modified work to accommodate his permanent low back impairment. I find that the worker is entitled to


ongoing benefits including wage loss, and I remit to the Board the matter of the nature and extent of these benefits.


DISPOSITION

[95] The appeal is allowed in part. The worker has initial entitlement for a temporary aggravation of his right hip due to the September 6, 1996 workplace accident. There is no entitlement for permanent impairment to the worker’s right hip as related to his September 6, 1996 workplace accident. There is entitlement for a permanent impairment to the worker’s low back as related to his September 6, 1996 workplace accident. There is entitlement to ongoing benefits, including wage loss benefits, and I remit to the Board the matter of the nature and extent of those benefits, subject to the normal rights of appeal.

DATED: November 19, 2008

SIGNED: M. Doyle

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