WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNALwsiat.on.ca/decisions/2002/1417 00.pdf · WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL ... 1993 the worker underwent a left L5-S1

2002 ONWSIAT 118

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 1417/00

[1] This appeal was heard in Toronto on December 7, 2001 by a Tribunal Panel consisting of:

M. Butler : Vice-Chair, B. Wheeler : Member representative of employers, J.A. Crocker : Member representative of workers.

THE APPEAL PROCEEDINGS

[2] The worker appeals the decision of Appeals Resolution Officer (Ms.) T. Cerone (the “ARO”) dated November 18, 1997, rendered without a hearing. That decision denied the worker entitlement to health care and wage loss benefits for a February 14, 1991 accident.

[3] The worker appeared and was represented by Gary Hoag of the Office of the Worker Adviser. Also present as an observer was a friend and driver of the worker’s.

[4] The employer is no longer in business.

THE RECORD

[5] The following were marked as exhibits:

Exhibit # 1: Case Record dated June 7, 2001

Exhibit # 2: OVCR Hearing-Ready letter dated July 4, 2001

[6] The Panel heard oral evidence from the worker and Mr. Hoag made submissions.

THE ISSUES

[7] The Panel must decide whether the worker has entitlement to health care and wage loss benefits attributed to a work-related accident of February 14, 1991 and, if so, to the reinstatement of all benefits and the cancellation of the overpayment created by the reversal of an earlier decision that had allowed benefits.

THE REASONS

(i) Background

[8] The worker was born in June 1961 and worked for the accident employer (the “employer”) from May 1990 as a warehouse worker until the employer went out of business in late 1991. The following background information is, generally speaking, not in dispute and the Panel has relied upon it in reaching its decision.

Page: 2 Decision No. 1417/00

[9] The worker was employed in a record store up to about May 1990. He had an accident on January 30, 1990 when he was lifting a box of records and was off work until the end of March 1990.

[10] The worker states that while working for the employer on February 14, 1991 he was lifting a computer printer weighing approximately 50 pounds and, as he was straightening up, felt a sudden sharp pain in his lower back and down both legs. After resting for a period of time he continued to work and shortly afterwards had more pain in his low back and numbness in his legs, and he was unable to walk. He was taken to North York General Hospital where he was admitted with the diagnosis of a hyper acute infectious illness, thought to be of viral origin, and he remained there for five days.

[11] The worker returned to work with the employer in May 1991 but the employer went out of business later that year. The worker went to work as a driver of a street sweeper from April 7, 1992 to July 1992. The worker has not worked since then.

[12] The worker filed a Worker's Report of Accident/Injury on February 15, 1993. On May 12, 1993 the worker underwent a left L5-S1 microdiscectomy and sometime around March 1995 underwent a second discectomy, both performed by Dr. Charles Tator, Neurosurgeon.

[13] In a decision dated June 7, 1993, the Claims Adjudicator concluded that there was insufficient proof to establish that the worker’s low back disability requiring surgery was the result of an accident arising out of and occurring in the course of his employment with the employer on February 14, 1991.

[14] A letter from the Director, Toronto East Integrated Service Unit dated August 26, 1994 advised the worker that on July 21, 1994 the Board received the last of the information from the worker’s treating doctors and hospital records and a decision had been made to allow his claim.

[15] On October 13, 1994 the Board advised the worker that he returned or was able to return to work on February 15, 1991. The Board determined that the worker had been overpaid and advised the worker that an overpayment debt of $19,546.39 had been created. The Board advised the worker on May 3, 1995 that the overpayment debt was actually $25,801.12.

[16] The worker objected to the Claims Adjudicator’s decision of June 7, 1993 and the ARO denied the worker’s request for health care and wage loss benefits attributed to the February 14, 1991 work-related accident. The worker appeals the ARO’s decision.

(ii) Medical Evidence

[17] In making our decision, we considered the medical opinions described below:

[18] Dr. Philip J. Choptiany, Physician, North York General Hospital, was the attending physician in emergency who saw the worker when he arrived at North York General Hospital on February 14, 1991. The worker was admitted to emergency at 11:39 a.m., complaining of tingling arms and legs, pain in the central low back, fever chills and headache. Dr. Choptiany’s differential diagnosis was meningitis and he noted that lifting of legs brought on back pain. The


attending nurse noted that the worker had been complaining of tingling in fingers, feet and back since 9:00 a.m. and that the worker was anxious, tearful and hyperventilating.

[19] Dr. Roald G. Serebrin, Neurologist, North York General Hospital, prepared an Admission History & Final Note on February 19, 1991. In that report he stated:

On examination on admission the patient was mildly unwell. He was lucid and cooperative. He was easily able to flex his chin on his chest. Speech and language were normal. The cranial nerves were likewise. He was easily able to snap the fingers in both hands. Assessment of peak muscle power was normal, but complicated by "giving-way” presumably as a result of pain. Stretch reflexs [sic] were physiologic and plantar responses were flexor. He was able to feel the tuning fork, detect joint position sense in the toes and pin prick in the toes and fingertips. Stance and gait were not tested originally on account of his complaint of exceedingly severe pain. There was no evidence of lymphadenopathy, injection of the pharynx or ears. The chest was clear. The belly was soft without evidence of organomegaly and with normal bowel sounds, and the extremities were unremarkable, specifically there was no evidence of a rash nor of any clubbing or cyanosis.

White blood cell count was 7.8, with 86% polymorphs and l% bands. The remainder of the hemogram was entirely normal and an ESR was 6 mm/hr. A serum chemistry panel was negative. An electrocardiogram showed voltage criteria of left ventricular hypertrophy and was otherwise normal. Urinalysis was negative.

The patient was admitted with the diagnosis of a hyperacute infectious illness, presumably of viral origin, manifest with high fever, headache, back ache, a leftward shift in the hemogram and an inability to stand and walk.

He was observed over the weekend and given antipyretics, analgesics and parenteral fluids. His fever disappeared on the first hospital day and did not recur. A repeat blood count remained normal in all respects, but showed the presence of some "viral" lymphocytes. ESR increased to 28 mm/hr consistent with a recent viral infection. Serum chemistries remained entirely normal including liver function tests throughout his hospital stay.

On the patient's fifth day in hospital he appeared markedly improved in terms of his pain and since his neurologic examination had remained entirely normal throughout he was discharged from hospital with instructions to "lay low" for another few days at home before endeavouring to return to work. He was given a prescription for Tylenol #2.

[20] Dr. Marvin B. Goldman, Neurologist, wrote to Dr. Ying on May 16, 1991. He thought that the pain in the right leg was sciatica and noted that the worker did not have a lumbar puncture to prove or disapprove the original diagnosis of acute infectious process at North York General Hospital. He wrote that he did not know how much of the worker's diagnosis was organic and how much was functional. Dr. Goldman wrote to Dr. Ying on June 11, 1991 and advised that the CT scan showed very slight spinal stenosis at L3-4 but there was no disc herniation and no explanation on the CT scan for the worker's symptoms. He felt there was a large functional component and recommended a second opinion.

[21] Dr. Murray Asch, Diagnostic Radiologist, reported on a CT of the lumbosacral spine on May 30, 1991. His interpretation of the images was that there was mild spinal stenosis at the L3-4 level and no evidence of disc herniation.


[22] Dr. Michael T. Chapman, Orthopaedic Surgeon, wrote to Dr. Ying on September 11, 1991, noting that the neurological examination was normal and the CT scan done in May was considered normal. Dr. Chapman again wrote to Dr. Ying on October 7, 1991 that he found the worker's myelogram to be “most interesting”. He noted that the worker has a very wide spinal canal and a very narrow, short thecal sac that ends at S1. The CSF analysis was within normal limits. He recommended that the worker be treated as a “tethered cord- like patient” and he advised that there was no surgery to help the situation and the worker should return to work at the warehouse.

[23] Dr. Bryna Levitin, Diagnostic Radiologist, Scarborough General Hospital, reviewed the lumbar myelogram taken on September 20, 1991. She reported that the subarachnoid space below the L-2 level appeared a little narrower and shorter than is usually seen, with the subarachnoid space ending at the S1 level. A prominent anterior extradural space was noted at the L5-S1 level. Her impression was that the subarachnoid space below L-2 is generally smaller than usual and there is a prominent anterior extradural space at L5-S1. No focal abnormality was identified.

[24] Dr. Arthur Bookman, Rheumatologist, first saw the worker on September 3, 1992 and reported to Dr. Louli on September 22, 1992. His Opinion and Recommendations contains the following:

The history [the worker] presents with is suggestive of radiculopathy (sciatica). The cause of this is unknown. It is most likely not related to disc herniation since his lumbar myelogram is normal. We are puzzled with the history of his admission to North York General Hospital and about the diagnosis of meningitis. We would like to have the discharge summary from North York General Hospital sent to us. If he really has meningitis then what could have happened is probably involvement of the meninges in the spinal canal resulting in arachnoiditis and some adhesions around the exit of the nerves from the foramina. Since he has already minimal spinal stenosis, the presence of adhesions will give rise to some nerve compression and chronic low back pain.

We are pleased that he will be seen by a neurologist, Dr. Wherrett who will most likely repeat his EMG.

[25] In his report to Dr. Louli of December 19, 1992 Dr. Bookman advised that Dr. Wherrett reviewed x-rays with the radiologist who confirmed evidence of disc herniation at L4-5 and that Dr. Vera Bril had done a nerve conduction study that demonstrated denervation at the L5 level. (The Panel notes here that no reports from Dr. Bril were contained in the Case Record.)

[26] Dr. Bookman found the clinical picture to be “certainly confusing” and thought that the worker might have had a central disc herniation superimposed on spinal stenosis. The worker appeared to have an L5 sensory deficit with appropriate referral pattern on bowstringing, although there was no associated muscle weakness. Dr. Bookman noted that the worker's aseptic meningoencephalomye litis had not been documented at North York General Hospital with a lumbar puncture so that the veracity of the diagnosis was still unconfirmed. The spinal tap performed at the time of the myelogram was clear and sterile. The findings of entrapment were not suggestive of arachnoiditis.

[27] Dr. John Ross Wherrett, Neurologist, saw the worker for a neurological consultation on September 17, 1992. In his report of that date Dr. Wherrett wrote as follows:


This is a puzzling history. I gather the acute onset and illness was not confirmed to be an infection of meningitis and I would like to see the final summary from the North York General Hospital. In May of 1991, he had CT scanning of his lumbosacral spine and in September of 1991, a myelogram. Both of these were interpreted as normal and I will review them with the radiologists here.

His symptoms are in keeping with a polyradiculopathy involving the lumbosacral segments bilaterally, but more on the left side. There is very little defined on examination, however the wasting in his left calf is definite and there maybe [sic] some subtle reflex and sensory changes as well.

Conditions that come to mind that might start acutely and result in persisting diffuse radicular involvement would be something such as disc embolization or possibly acute extradural haemorrhage. Even though these cannot be treated definitively, it is important to attempt to establish a diagnosis here particularly for reasons of compensation. Depending on the review of his X-rays, I will arrange for MR scanning. Detailed EMG and nerve conductions seem appropriate as well.

[28] Dr. Wherrett added a handwritten note to this report: “X-rays reviewed with Dr. Montanera. There is disc protrusion at S1 but nothing else. Will arrange EMG/NCS.”

[29] Dr. Wherrett saw the worker again on December 21, 1992. He noted that after his initial visits with the worker in September 1992, he reviewed the x-rays with Dr. Montanera in neuro-radiology. Dr. Montanera thought there was evidence of disc protrusion at S1 but little else. Dr. Wherrett referred to the worker to Dr. Bril for EMG studies because of the wasting of his left calf. EMG studies showed occasional motor unit potentials with increased amplitudes, prolonged durations and polyphasic configuration in keeping with a chronic root lesion involving S1 on the left side. His consultation report goes on as follows:

Thus, the wasting of his left calf, the EMG and the CT scan interpretation are in keeping with a disc protrusion involving L5 or Sl. I note that the myelogram carried out in September of 1991 showed a reduction in the subarachnoid space below L2 with a prominent anterior extradural space at L5-S1. Thus, I think it is appropriate to have magnetic resonance scanning done to clarify a question of a root lesion.

…

I am submitting a requisition for MR scanning and will see him once this is complete. There is reason to conclude that a root lesion may be the basis for all of his symptoms from the beginning and I think it would be appropriate for him to have it reported to the Workmans [sic] Compensation Board.

[30] In his referral letter of February 12, 1993 to Dr. Tator, Dr. Wherrett noted that the worker’s herniated disc at L5-S1 had presented two years previously in a “somewhat unusual way” and that the worker remained disabled. Clinical findings had pointed to S1 involvement on the right and recent MR scanning confirmed that.

[31] Dr. Unus Omarali, Family Physician, the worker’s physician from October 5, 1989 to 1993, wrote a letter on October 1, 1992 advising that the worker, during the course of working on February 14, 1991, became virtually paralysed with no feeling in his legs and back. He opined that the worker was unfit to join the workplace until March 1992 and worked for about three months until he had a relapse of his condition with the same symptoms. Dr. Omarali felt that the worker had been unfit to work since July 21, 1992 and that he was still experiencing difficulty in standing or sitting for too long or doing any activity in any form or fashion.


[32] Dr. Omarali wrote to the Board on April 20, 1993, setting out the dates of the worker’s visits to him for the injury he sustained in February 1991, as being from February 21, 1991 to April 19, 1993. He also advised the Board that he treated the worker on a weekly basis from January 30, 1990 to March 16, 1991 for his previous 1990 industrial accident. Dr. Omarali referred to the “great controversy” as to the exact diagnosis of the worker’s disability. He noted that at one time it was felt the worker had a myopathy of both extremities but later study showed that he had a disc- lesion of the lumbar region and that it had been confirmed that the worker had left sciatica due to disc protrusion.

[33] Dr. Sam Louli, Family Physician, filed a Physician's First Report (Form 8) with the Board on January 6, 1993 in which he noted the date of his first treatment as being March 28, 1992. On that form he noted that first treatment was rendered at North York General Hospital E.R. and that the worker was “misdiagnosed with a viral illness.” Dr. Louli's diagnosis on this report was disc herniation S1. He also reported that physiotherapy had been tried but that it was too painful and that the worker was in constant pain and could not work.

[34] Dr. Louli wrote a handwritten note to the Board on August 23, 1994 that the worker had an L5-S1 discectomy for disc herniation on May 15, 1993 but that the worker had not improved with that surgery and had constant severe low back pain radiating down both legs. Dr. Louli noted that he had seen the worker one to two times per month from June 1993 until the date of the note and that the CT scan performed in June 1994 still showed an L5-S1 disc herniation. Dr. Louli reported that the worker had been in severe pain since the last surgery and that he had been totally disabled and unable to work. The worker was taking Demoral for the pain. He noted that the worker had an appointment with Dr. Tator the following month and that he most likely needed further back surgery.

[35] Dr. Louli wrote to the Board on October 10, 1994, reporting that the worker had never recovered from his May 4, 1993 surgery and that he had continued to be in constant severe low back pain. He noted that sitting for a few minutes or walking 3 to 4 steps caused the worker severe pain and he opined that the worker was, at that time, and had been, totally disabled and completely unable to do any type of work. He listed 17 office visits from the worker between August 9, 1993 and September 17, 1994.

[36] Dr. David Mikulis, Diagnostic Radiologist, concluded from an MR of the spine taken on January 20, 1993 that there was a left L5-S1 disc herniation with mass effect on the left S1 nerve root.

[37] Dr. Charles H. Tator, Neurosurgeon, The Toronto Hospital (Toronto Western Division) and Professor and Chairman of Neurology, University of Toronto, saw the worker and reported to Dr. Wherrett on April 30, 1993. His report included the following information:

His investigations today include a CT scan of the lumbar spine as well as a myelogram, both performed at Scarborough General Hospital in the Fall of 1991. The myelogram revealed very mild bulging of the L5-S1 disc and the CT scan suggested spinal stenosis at L3-L4. He was also investigated with a Magnetic Resonance Image of the lumbar spine here at the Toronto Western in January of this year and this revealed a disc herniation L5-S1.


Physical examination reveals a man in a significant amount of pain whenever he walks or has to get on to the bed. Examination of the back reveals some paraspinal spasms on the left side. He also has restriction with range of motion. Motor examination of his legs is difficult to interest [sic] because of the significant amount of back pain. This is especially true with knee extension which was the most painful activity for him. There is, however, no asymmetry in terms of strength with the exception perhaps of some mild weakness of left plantar flexion. In terms of the sensory examination, there is numbness of the sole of the foot on the left side as well as in the lateral aspect of the left foot. This numbness also extends up along the lateral aspect of the left leg to the mid -thigh. This is most likely consistent with an S1 dermatomal pattern. Reflexes in the lower extremities were symmetrical and plantar responses were downgoing.

Examination of his upper limbs. It was noted that he had some mild atrophy of his hypothenar eminence on the left side. Sensory examination revealed decreased pin-prick sensation in the left C3, C4, C6 and C8 distributions with numbness in the thumb, ring and little fingers on the left side and normal sensation in the index and middle fingers. Motor examination revealed mild weakness throughout the entire left arm with relative sparing of the biceps and deltoid on that side and most marked weakness involving wrist flexion and finger extension as well as intrinsic muscles namely finger abduction. Deep tendon reflexes revealed mild decrease in the left triceps reflex.

The only investigation we had at our disposal today was the MR scan done here in January. This shows definite narrowing of the L5-S1 interspace with desiccation of the disc. There is a disc herniation at this level with some evidence of impingement on the left S1 nerve root on the axial images. In addition, of interest, his thecal sac appears to end at L5-S1which is why a previous myelogram CT scan probably under estimated the amount of disc herniation at this level.

His symptoms and physical findings in his legs certainly are consistent with a radiculopathy with the physical examination and investigation corroborating with a left S1 radiculopathy. However, his physical examination also reveals some evidence of weakness and sensory abnormalities in the left arm and this could be due to a concomitant lesion in the cervical spine. We will book this patient for a Magnetic Resonance scan of his cervical spine and then plan to carry out an L5-S1 discotomy as soon as possible.

[38] Dr. Tator reported to Dr. Wherrett on May 7, 1993 on his and the worker's discussion of the planned discectomy. Dr. Tator noted that he had reviewed the myelogram and the CT scan from Scarborough General Hospital performed in 1991. The CT scan of May 30, 1991 showed a disc herniation at the L5-S1 level and the myelogram from September 1991 showed a congenitally small subarachnoid space and dural sac throughout the lumbar region and that the subarachnoid space ended just proximal to the L5-S1 level. He therefore wrote that it was not possible to diagnose an extra dural lesion, such as a disc at the L5-S1 level, in a patient with this congenital anomaly. He wrote, “The implication of this is that the patient’s disc herniation was present in the 1991 CT scan and it is very likely that it occurred as a result of the injury at work in February of 1991.”

[39] Dr. Tator performed a left L5-S1 microdiscectomy on May 12, 1993. Dr. Tator’s resident, Dr. M. Feldkamp, prepared the Operative Note on May 21, 1993 and noted that the physical examination was consistent with an S1 radiculopathy and that an MRI scan revealed a disc herniation at L5-S1 with impingement on the left S1 nerve root. During the surgery they found that the disc was essentially contained but that it was significantly herniated and there was definite compression on the S1 nerve root.


[40] Dr. Tator reported to Dr. Louli on June 11, 1993 and advised Dr. Louli that the worker would be engaging a lawyer to advance his claim with the Board that the February 1991 injury caused his difficulties. Dr. Tator thought that it was a reasonable claim and referred to the diagnosis at North York General Hospital that the worker had an episode of meningitis.

[41] In his report to Dr. Louli of September 23, 1993, Dr. Tator thought that the worker had continuing nerve root compression. He felt that it would be important to obtain a second opinion from another surgeon in order to determine the best course for the worker and that a decision would have to be made regarding a second operation.

[42] At the worker’s request, Dr. Tator wrote to the worker on May 2, 1994 as follows:

On May 12, 1993, you underwent the surgical treatment for a left L5-S1 disc herniation. In my opinion, it is highly likely that the disc herniation occurred as a result of the injury you sustained while at work in February of 1991.

I feel that it is extremely unlikely that you would be able to return to your former occupation as a warehouse coordinator. I would advise you not to engage in heavy lifting or repetitive bending.

[43] In his report to Dr. Louli of February 3, 1995, Dr. Tator noted that the worker was having even worse pain over the months since he saw the worker in September 1993. The MR study done in January 1995 showed a definite disc protrusion at L5-S1 on the left side with the appearance of a protrusion displacing the left S1 nerve root slightly. Dr. Tator felt that there was an anatomical basis for this pain although he was somewhat surprised at its intensity and severity. His view was that there was a reasonable chance that another operation would relieve the worker of a significant amount of pain but he could give no guarantee.

[44] Dr. Tator reported to Dr. Louli on July 21, 1995 that the worker continued to have a significant amount of pain, after four months since the repeat lumbar disc removal. (There is no report on file as to the exact date of the second discectomy.) He noted that the worker could walk about a block although he was still walking with a limp and that when he sneezed he felt pain in his right leg as well. Dr. Tator noted that the worker was unable to return to work and that he considered going back to school for job retraining. Dr. Tator recommended that the worker get a position that did not require a lot of physical activity and that he should avoid lifting more than 40 pounds.

[45] In his January 12, 1996 report to Dr. Louli, Dr. Tator noted that the worker had not been able to return to work for several years and that he had been laid off from his previous job as rotation coordinator for the employer, which required the worker to do a fair amount of activity.

[46] In his May 24, 1996 report to Dr. Louli, Dr. Tator noted that the worker had deteriorated dramatically over the previous few months and that he was using a cane and walked with a major limp. The worker advised Dr. Tator that the pain had gradually worsened and asked for Demoral tablets to make the trip home from the doctor’s office. Dr. Tator prescribed Tylenol No. 3 and indicated he was against giving the worker stronger medication. Dr. Tator wrote that he did not know the cause of the worker's pain and recommended another MR to rule out disc protrusion. Other than referring the worker to the Toronto Hospital Pain Clinic, Dr. Tator did not feel any further surgical treatment could be offered to the worker.


[47] Dr. Walter Montanera, Diagnostic Radiologist, reported on May 10, 1993 to Dr. Tator on an MR of the cervical spine taken on May 8, 1993. His impression was that no significant abnormality of the cervical spine was seen.

[48] Dr. David J. Hoff, Diagnostic Radiologist, reported to Dr. Bril on a CT scan of the lumbar spine performed on June 7, 1994 that the L5-S1 disc was filling the left lateral recess and neural foramen with impingement of the S1 nerve root.

[49] Dr. Martin Germansky, Board Unit Medical Advisor, wrote Memo # 63 to the Claims Adjudicator on November 2, 1994, giving his reasons for finding no medical evidence on file that the worker’s problems were in any way work-related. In that Memo, Dr. Germansky wrote as follows:

First of all let me point out that Claims has yet to accept any accident occurred at work Feb.14/91. It is entirely up to Claims to make this determination. Similarly worker did not claim his back condition was due to his work in general but rather due to a specific injury. Clearly if no accident is accepted by Claims it follows that his problems are not compensable.

The emergency report for Feb/91 clearly makes no mention of any lifting injury at work but attributes his fever /backache to some infectious process probably viral in origin. There is absolutely no evidence throughout 1991 that this worker's back complaints were in any way related to a work injury.

It should be noted that numerous investigations throughout 1991 were all normal except for indicating some mild spinal stenosis at lower level lumbar spine. First mention of possible disc herniation was by Dr Bookman in his Dec.19/92 report. He indicates a neurologist, Dr. [Wherrett] made the discovery. As well a Dr Bril did nerve studies that showed a lesion at L5 root level. Neither Dr [Wherrett's] or Dr [Bril’s] reports on file. Please get their initial assessment reports and results of nerve studies. As pointed out above, no Dr has ever mentioned worker's problems as having been related in any way to his work or any work injury. In fact mention had been made of functional overlay on part of worker throughout 1991 and how his presentation was unusual.

You mention there was a change in jobs in Apr./92 which was heavier work but once again you mention no accident history when he subsequently laid off again. Unless Claims can determine that an accident occurred, medically I see no basis to accept this worker's back problems, herniated disc or related surgery, as having anything to do with his work and certainly the problem he presented with in Feb/91 did not appear in any way work related. Yo u are incorrect in assuming that because he changed jobs, his back problems must be related to that change. It should be noted that disc herniations can occur without any trauma or relation to any type of activity, they can also be totally asymptomatic.

I see no evidence in the medical on file that worker's problems are in any way work related.

[50] Dr. I. Bernard Schacter, Neurosurgeon, examined the worker on January 5, 1995 in order to give a second opinion recommended by Dr. Tator. He thought that, in view of the worker’s age, the worker was a candidate for further surgical intervention but that the decision was for the worker to make.

[51] Dr. Angela Mailis, Physiatrist, and Director, Comprehensive Pain Program, The Toronto Hospital, Western Division, advised Dr. Tator on March 3, 1998 that she had increased the


worker’s dosage of MS Contin to 45 mg, instead of 30 mg, and that she had asked the worker to keep a daily diary in terms of wake time, activities and down time.

(iii) The worker’s testimony

[52] Relevant portions of the worker’s evidence are summarized under separate headings as follows:

The worker’s background

[53] The worker testified that he was born on June 10, 1961 in Trinidad and Tobago and has lived in Toronto since 1988. His first job in Toronto was making pizza and his second job was working in shipping, inventory and stock for a record store. He attended college in Trinidad and Tobago but has no degrees. He is married and has two daughters, aged 10 and 6.

[54] He stated that his life has changed dramatically since his accident on February 14, 1991. He has no leisure time and goes to church on Sunday. He spends the rest of his time watching TV. He used to play cricket, soccer, pool and basketball and he did a little fishing.

[55] The worker described his accident on January 30, 1990, which happened when he was lifting a box of records that weighed approximately 30 to 35 pounds. He felt pain and could not work. He was sent to his doctor. He said that he had pain in his lower back but there was no pain radiating into either leg at the time. As a result of that accident, he was off work for two months from January 30 to the end of March 1990. When asked if he fully recovered from that injury he replied, “No. Not really.” He returned to modified work and was told that he didn't have to lift boxes. His job was picking orders of cassette tapes. He worked for the record store for approximately two to three months after he returned to work. He said that he did not receive any treatment for his back before he left the record store.

[56] The worker denied that he ever had a back problem, that he ever had medical treatment for his back or that he had ever lost time from work prior to January 1990.

The accident on February 14, 1991

[57] The worker gave the address where he worked for the employer. His job title was Rotation Coordinator, which he described as really being a warehouse coordinator. He said that he worked by himself. He confirmed that the employer’s location was his usual place of employment, that he never worked at any other location for the employer and that he had not travelled for the employer. He described his working hours as fixed from 8:30 a.m. to 5:00 p.m., Monday to Friday. He said that sometimes he had to work overtime, which was voluntary, and overtime was required when they did inventory twice a year.

[58] The worker testified that on February 14, 1991, the day of the accident, he started work at 8:15 a.m., fifteen minutes before his usual starting time. That morning he moved two skids of computer parts, pulling them with a non-motorized “pump truck”. He removed the contents from the boxes, checked the serial numbers and put the parts on the shelves. This, he said, was his regular activity and he stated that he was not involved in any work other than what his regular duties required of him.


[59] The worker said that, at the moment he sustained his injury, he said that he was bending over and lifting a computer printer, which he described as one of the “old huge printers” that weighed approximately 50 pounds, out of its box when he felt a sharp pain in his lower back. He had to go and sit down for approximately a half hour. On a scale of 1 to 10 (10 being the highest level of pain), he rated his pain level at that time at “about 8”. He said that he tried to work again after a half hour but that he could not. He described the pain as being so severe and it radiated down both legs. He said that, compared to the first pain he had that morning, it was like “day and night”. He rated the first pain rated an “8” and the pain after he tried to work again as a “12”. He said, “I thought I was going to die.” The pain was so severe, he said, that he wasn't able to walk and he started “crying like crazy.” It scared him. He had not ever experienced such severe pain before. He rated the pain from his accident in 1990 as “around a 6 or 7”. He described the February 1991 injury as giving him more severe pain than the January 1990 injury had and pain radiated down both legs, which it had not done in 1990. The worker confirmed that the work he was performing on February 14, 1991 consisted of his usual duties in the usual workplace.

Reporting of the February 14, 1991 accident

[60] The worker said that at the time of the accident he was working by himself and that he usually worked by himself. There were no direct witnesses to the accident. After the injury he told a co-worker, F.M., whom he was able to call by rolling his chair closer to where the co-worker was, about the incident. F.M. called the worker's supervisor, M.B., to let him know of the injury the worker had. M.B. came on the scene about 10 minutes later. The worker said he told M.B. that he was bending and lifting and felt a sharp pain down his legs. The worker could not remember telling M.B. what he was lifting but he thought he “most probably” did tell him.

[61] The worker said that M.B. gave permission to F.M. to take him to North York General Hospital but that M.B. did not go to the hospital with them. He said that he arrived at the hospital sometime during the morning but he could not remember the exact time. They got a wheelchair and wheeled him inside. F.M. stayed with him for a short while and answered most of the emergency reception questions for him because he couldn't talk due to his hyperventilating, crying and “bawling” from the pain. The worker said he was “scared”. He found it difficult to describe his state of mind because he didn't know “anything really” and he was very confused. He could not remember saying anything to the emergency doctor about how he had injured his back and he did not think the emergency doctor had asked him how it happened. The worker said he did not know whether F.M. told the doctor about what he was doing at the time of the accident.

[62] The worker confirmed that he was admitted to the hospital and stayed there for five days. He was given intravenous in his hand and tablets. He saw the specialist, Dr. Serebrin, a neurologist, that night (i.e. after it was dark). When asked what he was admitted to the hospital for, the worker said, “Honestly, they didn't tell me.” He said that he later learned he had meningitis but that was not until after he came out of the hospital and was told about it by his family doctor. No one in the hospital told him he had meningitis. He confirmed that while he was in the hospital no lumbar puncture was done but Dr. Chapman, an orthopaedic surgeon, did one around September 1991. He thought that a myelogram was also done but he was not sure of the exact name of that test.


[63] The worker confirmed he continued to have pain in the low back while he was in hospital and he described the level of pain while on medication in the hospital as “5” but and on some days it was “9”. He said he was getting medication there but he was not sure just what it was. He thought he was receiving pain medication because it helped him a lot. The medication had the effect of putting him in a confused state most of the time and being light-headed. He confirmed that no diagnostic imaging tests were done and no diagnosis of lumbar strain or disc herniation was entertained while he was in the hospital. He also confirmed that, after he left the hospital, he was released into the care of Dr. Omarali, his family doctor.

[64] The worker confirmed that he did not ever say his back injury was not work-related and that he never said anything about making a WCB claim. The worker advised the Panel that the employer had short-term and long-term disability insurance. When he came out of the hospital he was put on short-term disability insurance.

Medical treatment after his hospital release

[65] The worker confirmed the following treatment and information after he was released from the hospital in February 1991:

• The treatment dates in Dr. Omarali's report to the Board of April 20, 1993, which were from February 21, 1991 to April 19, 1993.

• The treatment set out in Dr. Louli’s Physician’s First report of January 6, 1993. He confirmed that Dr. Louli first treated him on March 28, 1992.

• The treatment dates in Dr. Louli’s handwritten report to the Board of August 23, 1994 and, in particular, that he saw Dr. Louli one or two times a month from June 1993 to August 1994 (i.e. up to the date of that report).

• Treatment by Dr. Ying in 1991, although the worker could not remember the length of time Dr. Ying was his physician.

[66] The worker explained that originally Dr. Omarali was his family doctor but that, after a while, nothing was being done so he “tried Dr. Ying”. He thought he saw Dr. Ying for about half a year. The worker said that Dr. Ying had tests done and some of them came back “normal” so he went to Dr. Louli.

[67] The worker did not think there was any overlap in medical service provided by Drs. Omarali, Ying and Louli. He could not recall the exact time he stopped seeing Dr. Omarali but he did go back to him in April 1993 to get a letter for the Board. The worker explained that Dr. Louli was his wife's family doctor and when he told Dr. Louli what was going on, Dr. Louli said he would refer him to specialists telling him, “If these specialists say there's nothing wrong with you, there's nothing wrong with you.” The worker said that he thought he saw his doctors at least once or twice a month from February 1991 until 1993.

[68] The worker confirmed that the visits from August 9, 1993 to September 1, 1994, as recorded by Dr. Louli in his letter to the Board of October 10, 1994, seemed correct. He also confirmed that he has seen no other family physician since then, other than going back to Dr. Omarali in April 1993 to get a letter for the Board.


[69] When asked if he had seen plenty of specialists, the worker replied that he had. He said that Dr. Goldman ordered a CT scan at Scarborough General Hospital but told him the scan was negative for any herniated disc. The worker confirmed that he saw Dr. Goldman on two occasions and said that on the first visit Dr. Goldman ordered the CT scan and on the second visit Dr. Goldman explained the results of the CT scan to him.

[70] The worker said that he first saw Dr. Chapman, the orthopaedic surgeon, who got the same report from Scarborough General Hospital. He said that Dr. Chapman ordered the lumbar puncture and myelogram and Dr. Chapman told him there was nothing he could do for him. The results of a myelogram didn't show anything and the lumbar puncture was clear. He said they couldn't see the herniated disc. The worker explained that Dr. Wherrett was the first doctor to diagnose a herniated disc. He thought that was in September 1992.

[71] When asked by Mr. Hoag what Drs. Bookman and Tator thought caused the herniated disc, the worker replied that they thought it most likely happened at work in February 1991. The worker explained that he took the CT scan directly to Dr. Wherrett himself. Dr. Wherrett said he would go over at with a radiologist and Dr. Wherrett called the worker the next morning and told him he saw a herniated disc. He sent the worker to Dr. Bril. The worker confirmed that Dr. Wherrett examined the same CT scan that Dr. Chapman had, on which Dr. Chapman did not see a herniated disc. The worker said that Dr. Bril diagnosed a pinched nerve at the L5-S1 level.

[72] Mr. Hoag referred the worker to Dr. Wherrett's report of September 17, 1992, in which Dr. Wherrett wrote that he was going to review the CT scan and myelogram with the radiologists at The Toronto Hospital, and asked him if it was the same radiologists. The worker confirmed it was and said that Dr. Wherrett told him that he had enough evidence to file a Workers’ Compensation claim.

[73] The worker also confirmed that Dr. Tator reviewed the same CT scan that Dr. Wherrett had. The worker said that Dr. Tator viewed it in front of him and told him that he saw an S1 disc herniation. The worker denied that any of Drs. Wherrett, Bookman or Tator ever told him that the herniation was caused by anything other than the work incident on February 14, 1991. The worker stated that Dr. Louli was the only family doctor he was seeing at that time and that Dr. Louli also told him that it was the February 1991 accident that caused the disc herniation. The worker exp lained that is why Dr. Louli completed the Form 8 in January 1993.

[74] The worker explained that he delayed filing a Form 6 as late as 1993 because the doctors and told him he had meningitis and when he found out that there was evidence of a disc herniation from Drs. Bookman, Tator and Wherrett, he filed his claim.

[75] The worker confirmed that he had a microdiscectomy in May 1993 and said that it helped him in the beginning and the effects lasted about two months. After that, the pain started getting worse and, when he saw Dr. Tator, a reherniated disc showed at the same level. The worker confirmed that Dr. Tator performed an additional discectomy in 1995, although he could not remember the exact date. When asked if the second discectomy helped, the worker first said that it did not. He then restated his answer and advised that it helped a little. He explained that the pain level on the 1 to 10 scale had dropped down to “5 to 7” for the first two months following the May 1993 surgery. From July 1993 onwards it was “about 8 to 10”. After the second


surgery (around March 1995) he felt the pain was “6” for about two months and then went back to “8 to 10”. He advised again that the second surgery helped “very little”.

[76] The worker said that he last received treatment at the Pain Clinic in about 1998 and that he is not now receiving any treatment. He said that he takes 15 mg. of MS Contin 3 to 4 times a day, as prescribed by Dr. Louli, on the advice of the Pain Clinic. That is the only treatment he is receiving now.

Return to Work

[77] The worker advised the Panel that the only work he has done since working for the employer was for a period of two to three months from about April to June or July 1992. His job was to drive a sweeper truck that cleans streets. He found that his pain level when he started sweeping was “5 to 6” but when he finished it was “about 9 to 10”. Although the sweeper went slowly and it had an air-cushioned seat, he found that just sitting for a long period of time aggravated the pain. He confirmed that was a reason he stopped working in July 1992.

[78] Mr. Hoag asked the worker what his doctors are telling him now. The worker said that Dr. Louli tells him he is totally disabled. He has not seen the specialists but when he saw Drs. Tator and Wherrett in 1993 they told him he couldn't lift anything over 25 pounds for the rest of his life after the first surgery. He thought that he could only lift maybe 15 pounds after the second surgery and said, “It’s difficult bending, sitting and walking.”

[79] When asked what Dr. Mailis at the Pain Clinic told him, the worker said that she told him he wouldn't be able to withstand the medication and she called his condition Failed Back Syndrome. She explained to him that scar tissue and bone growth are pressing against the L5-S1 nerve root.

[80] The worker confirmed that he is, and has been, receiving Canada Pension Plan (“CPP”) disability benefits since approximately 1998. He later agreed with the Panel that he started receiving CPP disability benefits in 1997. He could not remember how long he had received family benefits prior to the receiving CPP disability benefits. He advised the Panel that he now receives $752 a month for the low back injury and it is not for anything else. He confirmed that, other than the accidents he described at the hearing, he has not had any other injury to his back.

[81] The worker was asked if he had anything else that he would like to tell the Panel. The worker stated that because of the accident his whole life has changed. His wife and children have suffered a lot. Because of the pain, he is unable to enjoy a full life and said that, “It has damaged me both physically and mentally. I feel like giving up. I can't take the pain anymore.” He said that he can't do anything or go anywhere anymore and he wished his life would change. He clarified that to mean that he wished this had never happened to him. He agreed that it would help him if he received compensation benefits but he said nothing would replace what he has lost. He explained that he has never even built a snowman with his children. He said that, because of his injury, the medication is damaging his body and destroying him. There are days that he can't walk or talk and he wished someday to be able to stop taking the medication. He said that he believed he had a mild heart attack in July 2001, although he admitted that he does not have a doctor's opinion on that.


[82] When asked by the Panel if he would like to carry on with his education, he said that the morphine he takes makes him forgetful but he loves computers. He said that last year he had an MRI and was told that there was nothing that could be done surgically to relieve the pain.

(iv) Submissions of the worker’s representative

Medical reporting

[83] Mr. Hoag argued that the medical reporting in this case is “astoundingly supportive” of the worker and he referred to Dr. Louli's Physician's First Report (Form 8) filed on January 6 1993. He pointed out that, after the worker saw Dr. Wherrett and Dr. Bookman, Dr. Louli decided to submit a claim on January 6, 1993. The report noted the date of his first treatment (Box 1) was March 28, 1992 and that North York General Hospital E.R. had “misdiagnosed as a viral illness” (Box 5).

[84] This, Mr. Hoag argued, is contrary to Dr. Germansky's findings in Memo # 63 dated November 2, 1994. This memo was written when all the medical reporting, which says that the worker's injury is work-related, was on file. Form 8 is indicative of Dr. Louli's support of the worker's claim, he stated.

[85] Mr. Hoag referred to Dr. Wherrett's report of September 17, 1992 and pointed out that Dr. Wherrett actually saw the CT scan that the worker brought into him and felt that it was important to establish a diagnosis for reasons of compensation. All of that completely explains why there was not a diagnosis until September 1992, Mr. Hoag argued, and submitted that it explains the delay in the worker filing a Form 6 and Dr. Louli filing the Form 8. He noted that Dr. Montanera is a neuro-radiologist.

[86] Mr. Hoag argued that the worker is an extremely good historian and the history he gave was almost identical in each case and that he has been “extremely consistent”. Mr. Hoag referred to Dr. Bookman's opinion in his September 22, 1992 report that the cause of the worker's problem is unknown but is “most likely not related to disc herniation since his lumbar myelogram is normal.” However, Mr. Hoag pointed out, Dr. Tator noted in his report of May 7, 1993 that he had reviewed the myelogram and CT scan performed in 1991 and the myelogram showed a congenitally small subarachnoid space and dural sac throughout the lumbar region. The doctor stated that it is not possible to diagnose an extradural lesion in a patient with this congenital anomaly. Mr. Hoag argued that Dr. Bookman was basically supportive of the worker but he did not see what Dr. Tator saw on the imaging.

[87] Mr. Hoag referred to Dr. Omarali's report of October 1, 1992 in which he stated the worker was virtually paralysed with no feeling in his legs and back, was unfit to join the workplace until March 1992 and the worker was still experiencing difficulty in standing and sitting for too long or doing any activity in any other fashion. This, Mr. Hoag argued, is entirely consistent with the worker being totally disabled.

[88] Mr. Hoag next referred to Dr. Bookman's report of December 19, 1992 in which he noted that the worker had seen Dr. Wherrett and Dr. Bril and that x-rays were consistent with a disc herniation at L4-5. Dr. Bookman noted that the clinical picture is “certainly confusing” and that it was quite conceivable that the worker had a central disc herniation superimposed on spinal


stenosis. Dr. Bookman further noted that the aseptic meningoencephalomyelitis had not been documented at North York General Hospital with a lumbar puncture so that the veracity of the diagnosis was unconfirmed. Therefore, Mr. Hoag argued, meningitis was completely misdiagnosed.

[89] Mr. Hoag referred to Dr.Wherrett’s report of December 21, 1992 in which he advised that he had reviewed the worker's x-rays with Dr. Montanera in neuro-radiology, who thought that there was evidence of disc protrusion at S1. He also said that EMG studies by Dr. Bril, done because of wasting of the left calf, showed occasional motor unit potentials with increased amplitudes, prolonged durations and polyphasic configuration in keeping with a chronic root lesion involving S1 on the left side. Dr. Wherrett opined that the wasting of the worker's left calf, the EMG and the CT scan interpretation were in keeping with a disc protrusion involving L5 or S1. Dr. Wherrett wrote that he had reason to conclude that the root lesion may have been the basis for all of the worker's symptoms since the beginning and he thought that it would be appropriate for the worker to have it reported to the Board. This, Mr. Hoag argued, was consistent with Dr. Louli's Form 8.

[90] Mr Hoag referred to Dr. Mikulis’ radiological report of the spine MR done on January 20, 1993, showing a left L5-S1 disc herniation with mass effect on the left S1 nerve root. Dr. Wherrett's referral letter of February 12, 1993 to Dr. Tator noted that findings pointed to S1 involvement on the right, which had been confirmed by recent MR scanning.

[91] Mr. Hoag referred to Dr. Omarali's letter to the Board of April 20, 1993, as being the report that the worker said he had to go back to Dr. Omarali to get for the Board. In that letter Dr. Omarali noted that the worker had sustained an injury on February 14, 1991 and that a later study showed that the worker had a disc-lesion of the lumbar region and that he had, at that time, a left sciatica due to disc protrusion.

[92] Mr. Hoag then referred to the following reports from Dr. Charles Tator, Neurosurgeon, and noted that the worker had given an entirely consistent history to Dr. Tator:

• April 30, 1993: the myelogram performed in the Fall of 1991 revealed very mild bulging of a L5-S1 disc; the CT scan performed in 1991 suggested spinal stenosis at L3-L4 and the MRI done in January 1993 revealed a disc herniation at L5-S1; the numbness was most likely consistent with an S1 dermatomal pattern; the thecal sac appeared to end at L5-S1, which may have explained why a previous myelogram CT scan probably underestimated the amount of disc herniation at that level.

• May 7, 1993: the CT scan performed on May 30, 1991 showed a disc herniation at the L5-S1 level and, because it was present in the 1991 CT scan, it was very likely that it occurred as a result of the injury the worker sustained at work in February 1991.

• May 21, 1993: the Operative Report noted that the physical examination was consistent with an S1 radiculopathy and in surgery they found the disc was significantly herniated and there was definite compression on the S1 nerve root.

• June 11, 1993: Dr. Tator thought the worker’s claim with the Board was reasonable and that the worker had been told at North York General Hospital that he had an episode of


meningitis. It seemed to Dr. Tator that the worker had an injury at work that caused a ruptured disc. He noted that the worker’s previous job required a lot of lifting.

[93] Mr. Hoag submitted that the physical examination, the MRI studies and the Operative Report results are compellingly consistent with the findings by Dr. Wherrett of an L5 impingement in 1992. He argued that Drs. Wherrett and Tator were very supportive of the worker’s claim.

[94] Mr. Hoag referred to the repeat CT scan performed on June 7, 1994, a little more than a year after the initial surgery. The impression was that the L5-S1 disc was impinging on the S1 nerve root.

[95] Dr. Louli confirmed on August 23, 1994 that the worker had seen him once or twice a month from June 1993 until August 1994 and stated that the worker has been totally disabled and unable to work. Mr. Hoag asked that Dr. Louli's opinion be taken at face value. There is ample evidence, he argued, that the worker has remained totally disabled, except for the period April to June 1992.

[96] Mr. Hoag pointed out that Dr. Tator wanted a second opinion and Dr. Schacter, Neurosurgeon, provided that in January 1995, more than a year and a half after the first surgery. Dr. Schacter opined that the worker was a candidate for further surgical intervention.

[97] Mr. Hoag referred to the worker's testimony that Dr. Louli's record of visits from August 9, 1993 to September 1, 1994 in his October 10, 1994 report was correct and that Dr. Louli noted in that report that the worker had never recovered from his May 4, 1993 surgery and that he was, and had been, totally disabled and completely unable to do any type of work. This opinion is consistent with other medical opinions and it is the basis for a finding of total disability, he argued.

[98] Mr. Hoag advised the Panel that the Case Record does not contain any reports to confirm the date of the worker's second discectomy and noted that Dr. Tator's report to Dr. Louli of July 21, 1995 refers to being “now about four months since his repeat lumbar disc removal”. This, Mr. Hoag suggested, places the second discectomy at around March 1995. At that point in the hearing the worker confirmed for the Panel that Dr. Tator performed both surgeries. In his report of January 12, 1996 Dr. Tator advised that the worker had been unable to return to work for several years. This, Mr. Hoag argued, is confirmation of a pattern of total disability.

[99] Dr. Tator's last report in the Case Record dated May 24, 1996 indicates that the worker had deteriorated dramatically over the previous few months. Mr. Hoag noted that this was now 14 months after the second surgery and the worker was using a cane, walked with a major limp and asked for stronger medication. This, he argued, is consistent with the worker taking a “witch’s brew” of medication. The worker is now taking MS Contin (i.e. morphine sulphate), which is the strongest medication available.


Policy

[100] Mr. Hoag cited Document # 02-01-02 of the Board’s Operational Policy Manual (“OPM”) which provides a 5-point check system. In order for a worker to have initial entitlement, the claim must have all five points. That document states:

Five Point Check System

All adjudicators use the same criteria for ruling on initial entitlement to WCB benefits. This system is known as the “five point system”.

An allowable claim must have the following five points:

• an employer (see 01-02-02),

• a worker (see 01-02-03),

• personal work related injury (see 03-01-02),

• proof of accident, and

• compatibility of diagnosis to accident or disablement and history.

Proof of Accident

Some points adjudicators consider when examining proof of accident are:

• Does an accident or disablement situation exist?

• Are there any witnesses?

• Are there any discrepancies in the date of accident and the date the worker stopped working?

• Was there any delay in the onset of symptoms or in seeking medication?

[101] Mr. Hoag argued that in this case there was both an employer and a worker and that the bending and lifting incident led to a personal work injury. He also argued that the worker's testimony is sufficient proof of accident and the specialists clearly support the compatibility of diagnosis to the accident or disablement history. Mr. Hoag further argued that there was a significant disablement arising out of the accident. He acknowledged that there were no witnesses to the accident. He argued that there was absolutely no discrepancy as to the date of the accident and the record is as “clear-cut as it could be”. Furthermore there was no delay in seeking medical attention. The worker sought and was given treatment later that morning.

[102] Mr. Hoag referred to Document # 03-01-01 for the definition of “accident”. He noted that “accident” includes a “chance event” which is defined as “an identifiable unintended event which causes an injury. An injury itself is not a chance event.” He argued that there was obviously a case here of a chance event and the worker's bending and lifting at work are ample proof of that. Furthermore the chance event is identifiable and it was unintended. The worker's evidence was that the printer weighed about 50 pounds.

[103] Mr. Hoag referred to Document # 03-01-02 in support of his argument that the accident happened in the course of employment. The policy states:


Policy

A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related. …

Application of Criteria

The importance of the three criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment.

If a worker with fixed working hours and a fixed workplace suffered a personal injury by accident at the workplace during working hours, the personal injury by accident generally will have occurred in the course of employment unless, at the time of the accident, that was not incidental to the worker's employment.

The decision-maker examines the activity of the worker at the time of the accident to determine whether the worker's activity was of such personal nature that it should not be considered work-related.

[104] Mr. Hoag argued that everything we have heard - the place, time and activity - points to work-relatedness. The worker had a fixed working place, fixed working hours and fixed working activities. Mr. Hoag argued if that is not work-related, he is not sure what is. The worker worked fixed work hours in a fixed workplace. By deduction, he argued, an accident had occurred. Mr. Hoag pointed to the worker’s testimony that he was doing nothing unrelated to his work on February 14, 1991.

[105] Mr. Hoag argued that the benefit of doubt provisions of Document # 01-01-06 ought to be applied. The document states:

In determining a claim under the Act, the decision shall be made in accordance with the real merits and justice of the case. Where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant.

[106] Mr. Hoag referred to principles set out in the WSIA, in general, as they relate to personal injury arising out of the course of employment, merits and justice, benefit of doubt, the statutory definition of accident and when it applies, and to the payment of health care benefits, temporary total disability benefits, non-economic loss (“NEL”) awards and future economic loss (“FEL”) benefits under the pre-1997 Act.

[107] Mr. Hoag argued that the worker should be entitled to a NEL award and to full FEL benefits (i.e. 100 percent FEL). He asked that the worker be examined and that a labour market re-entry (“LMR”) plan be considered if the Panel sees fit. He felt that MMR (maximum medical recovery) occurred sometime after the second surgery and suggested that there could be more than one date of MMR and stated that the Panel may wish to find that. He argued that the worker plateaued after the first surgery and then started to go downhill.

[108] In his concluding submissions, Mr. Hoag noted that it is now 10 ½ years post-accident and the worker has obviously now plateaued. There is a clear indication of total disability. He advised that the worker would welcome a finding of initial entitlement so that he can enjoy the


rest of his life. He therefore asked that the ARO decision be overturned, based on his submissions.

(v) Relevant law and policy

[109] Since the worker was injured on February 14, 1991, the pre-1997 Workers' Compensation Act is applicable to this appeal. The hearing of this appeal commenced after January 1, 1998, therefore certain provisions of the Workplace Safety and Insurance Act, 1997 ("WSIA") also apply to this appeal. All statutory references in this decision are to the pre-1997 Act, as amended, unless otherwise stated.

[110] Pursuant to s. 126 of the WSIA, the Board stated that the following policy packages are applicable to this appeal and we have considered these policies as necessary in deciding the issues in this appeal.

Package # 1 - Initial Entitlement Prior to January 1st, 1998

Package # 30 - Benefit of Doubt

Package # 107 - Aggravation Basis or SIEF

(vi) Conclusions

[111] In coming to our decision we considered the ARO’s reasons for denying initial entitlement, which are as follows:

I have reviewed all the evidence on record.

• In this particular case, the worker reported on the Worker's Report of Accident/Injury on February 15, 1993, that on February 14, 1991, he was lifting a 60-pound printer, and felt a sharp pain in his low back. The worker claimed he mentioned it to his co-worker, however, the investigation report did not confirm any lifting incident. There were no actual witnesses. The worker did not report the accident to his foreman.

• Although the worker was seen at the Emergency Department of the North York General Hospital the same day, there was no accident history reported. The treating physician attributed the worker's backache to a hyper acute infectious illness.

• The CT scan done on May 30, 1991 revealed no evidence of disc herniation. It did reveal mild spinal stenosis of the L3-4 level.

• He eventually returned to work in May, 1991. He continued to work with the accident employer until August, 1991 when the employer went out of business. He received social services assistance from August of 1991 to March, 1992.

• Treatment for his low back disability from the [sic] February of 1991 to 1992 consis ted of rest and medication. The worker's treating physicians are not relating his low back disability to the February 14, 1991 injury.

• He worked for a new employer as a street sweeper from March to June of 1992. He received unemployment insurance benefits from August, 1992 to November, 1992 and social services assistance from December, 1992 to April 1993.

• On May 12, 1993, the worker underwent surgery (left L5-S1 microdiscectomy).

• Although Dr. [Tator] indicates in his report that CT scan of May, 1991 revealed a disc herniation, the actual CT scan report on file reveals no evidence of any disc herniation.


On the basis of the information on record, I am unable to conclude that proof of accident has been established. I am not satisfied that the worker's low back disability resulting in surgery in May, 1993 was a result of an accident arising out of and occurring in the course of his employment on February 14, 1991. The claims adjudicator's decision dated June 7, 1993 is therefore confirmed.

[112] The worker testified at the hearing that he worked in the warehouse by himself and that he did call F.M., a co-worker, after he was injured and that F.M. called the supervisor, M.B. The fact that the worker was alone when the accident happened does not, in and of itself, preclude a finding that there was indeed an accident. The Panel found the worker to be sincere and forthright and we accept his version of the events as they unfolded on the morning of February 14, 1991. We accept that the worker advised his supervisor and that the supervisor gave permission to F.M. to drive the worker to North York General Hospital. We therefore do not accept the ARO’s finding that the worker did not report the incident to his foreman.

[113] The ARO considered that there was no accident history reported and that the treating physicians attributed the worker's backache to a hyper acute infectious illness. However the evidence clearly establishes that no lumbar puncture was performed during the five days the worker was in the hospital and the CSF (CerebroSpinal Fluid) analysis ordered by Dr. Chapman was within normal limits.

[114] We agree with Mr. Hoag that there appears to be strong evidence of a misdiagnosis and the worker did not have meningitis. The fact that the attending physicians did not carry out complete testing and apparently misdiagnosed the worker’s condition should not be held against the worker and his right to compensation. We find that the worker was only going by the information, or lack thereof, that he received from his attending physicians at the hospital.

[115] The ARO appears to have relied heavily on the worker's treating physicians as not relating his low back disability to the February 14, 1991 injury. She also appears to have dismissed Dr. Tator’s finding of a disc herniation when she concluded that the actual CT scan report on file revealed no evidence of any disc herniation.

[116] We agree with Mr. Hoag that Drs. Wherrett, Bookman and Tator were satisfied that the diagnostic testing in 1991 did show a herniated disc and they related it to the February 1991 workplace incident. Dr. Tator, a pre-eminent neurologist, explained that a diagnosis of an extra dural lesion with the congenital abnormality that the worker has would not have been possible. The thecal sac ended at L5-S1, which is why a previous myelogram CT scan probably underestimated the amount of disc herniation at that level. Dr. Tator wrote on May 2, 1994 that it was “highly likely” that the disc herniation occurred as a result of the injury the worker sustained while at work in February 1991. We view Dr. Tator’s opinion as indicating that the disc herniation probably happened at work on February 14, 1991. Dr. Tator expressed his surprise at the intensity and severity of the worker’s pain.

[117] In Memo # 63 Dr. Germansky relied on the emergency report not mentioning any lifting at work and that it attributed the fever and backache to some infectious process, probably viral in origin. However the worker did report pain in the spine. The worker stated that he was in a confused state and was crying and hyperventilating. The emergency report does note that he was “anxious, tearful and hyperventilating” and that he was vague and a poor historian. That


indicates to the Panel that the worker was indeed confused and that would account for his not mentioning that he was lifting a printer at the time the back pain came on.

[118] Dr. Germansky noted in Memo # 63 that the numerous investigations carried out throughout 1991 were normal except for indicating some mild spinal stenosis at the lower lumbar level. It would appear that the ARO relied heavily upon this memo from Dr. Germansky. However Dr. Germansky noted in this memo that neither Dr. Wherrett’s nor Dr. Bril’s reports were on file. As noted above, Dr. Bril’s reports were also not in the Case Record.

[119] The Panel considered that Dr. Germansky made no reference whatsoever to Dr. Tator’s reports and wrote he saw no evidence in the medical file that the worker’s problems were in any way work related. We conclude that Dr. Germansky had also not seen Dr. Tator’s reports because we find Dr. Tator’s opinion to be very convincing that the worker’s problems were very likely related to the February 1991 incident. Accordingly the Panel was not at all persuaded by Dr. Germansky’s opinion on the basis that he did not have all of the most pertinent medical records available to him.

[120] Dr. Omarali referred to the “great controversy” as to the exact diagnosis of the worker’s disability. The misdiagnosis of meningitis appears to have led Dr. Goldman to believe there was a large functional component in the worker’s complaints. Dr. Germansky noted this and appears to have relied on it in giving his opinion in Memo # 63. Dr. Chapman noted the worker’s myelogram to be “most interesting”. Dr. Bookman expressed his puzzlement as to the worker’s admission to North York General Hospital with meningitis. Dr. Bookman found the clinical picture to be “certainly confusing” and noted that meningitis had not been documented at North York General Hospital so that the veracity of the diagnosis remained unconfirmed. Dr. Wherrett described the history of the worker’s case as “puzzling” and noted that the diagnosis of meningitis at the hospital was not confirmed. He thought the herniated disc had presented in 1991 in a “somewhat unusual way”. All of this leads the Panel to conclude that this has been somewhat of a difficult medical case for the physicians and specialists to come to a conclusion on.

[121] Nevertheless, on the basis of the evidence before us, we conc lude that the worker was injured in a workplace accident on February 14, 1991 and that he sustained a herniated disc for which he underwent two discectomies. We fully accept the worker’s explanation for his delay in filing the Form 6 until 1993 because he was led to believe that his back problem was caused by meningitis and it was not until Drs. Wherrett and Tator confirmed from the 1991 CT scan that there was a herniated disc. Unfortunately the surgeries in 1993 and 1995 have not provided the worker with any relief from his pain and he continues to be disabled to this day.

[122] Accordingly we conclude that the decision of the ARO should be overturned and direct that initial entitlement be granted to the worker for the February 14, 1991 accident. In addition to other benefits that will flow from this decision, we find that the worker is entitled to health care benefits effective as of February 14, 1991. We find that the worker has suffered a permanent impairment and that he is entitled to a NEL assessment by the Board. The worker is entitled to temporary total disability benefits from February 14, 1991 until such date as the Board shall determine that he is entitled to FEL benefits and we direct that a FEL assessment be conducted to determine the quantum and duration of FEL benefits the worker is entitled to.


[123] The worker advised Dr. Tator that he considered going back to school for job retraining and the worker informed the Panel that he has an affinity for computers. Although the worker presents as being totally disabled, we nevertheless recommend that an LMR Assessment be conducted to determine if the worker is capable of completing a college computer program or an equivalent program that might assist him in integrating back into the workforce.

[124] In determining what benefits the worker is entitled to, we direct the Board’s attention to the disability payments the worker received from the employer, the fact that the worker has been receiving CPP disability benefits since 1997 and that he received unemployment insurance benefits and social assistance benefits earlier on.

THE DECISION

[125] The worker’s appeal is allowed. The worker has initial entitlement for a workplace accident that took place on February 14, 1991. The worker has suffered a permanent impairment to his spine and he is entitled to a NEL assessment for it. The worker is entitled to health care benefits effective as of February 14, 1991 and to temporary total disability benefits from February 14, 1991 until such date as the Board shall determine he is entitled to FEL benefits. We therefore direct that a FEL assessment be conducted to determine the quantum and duration of FEL benefits the worker is entitled to. The worker is entitled to the usual rights of appeal from the decisions of the Board made pursuant to these directions.

[126] The Panel recommends that a Labour Market Re-entry Assessment be conducted in order to determine if an appropriate program can be developed and followed for the worker’s rehabilitation and possible return to gainful employment.

DATED: January 17, 2002

SIGNED: M. Butler, B. Wheeler, J.A. Crocker

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNALwsiat.on.ca/decisions/2002/1417 00.pdf · WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL ... 1993 the worker underwent a left L5-S1

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