SUMMARY DECISION NO. 70/98. Delay (treatment); Kienbock's disease.

Transcription

1 SUMMARY DECISION NO. 70/98 Delay (treatment); Kienbock's disease. A construction worker injured his wrist while moving a plank on September 25, He continued working and did not seek medical treatment until October 17, The worker was diagnosed with Kienbock's disease (distortion of the carpal lunate bone). The worker appealed a decision of the Appeals Officer denying entitlement. The delay in seeking treatment was reasonable considering that the worker thought the injury was minor and considering the nature of the construction industry where minor injuries are common and often overlooked. The condition preexisted the accident but the worker did not experience symptoms prior to the accident. The worker was entitled to benefits on an aggravation basis. The appeal was allowed. [5 pages] DECIDED BY: Marafioti DATE: 20/03/98 ACT: WCA

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 70/98 [1] This appeal was heard on January 19, 1998, by Tribunal Vice-Chair V. Marafioti. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Officer M. DeMarco, dated November 4, The decision concluded that a causal relationship between the claimed condition and the described episode had not been established. The Appeals Officer denied entitlement for the worker s left wrist condition, diagnosed as Kienbock s disease. [3] The worker attended and was represented by L. Dillon, barrister and solicitor. The employer duly notified did not attend. [4] A. Ventura interpreted in the Portuguese language. THE EVIDENCE [5] The Vice-Chair considered the following: Exhibit #1: Case Description; Exhibit #2: Addendum #1 - November 26, 1997; Exhibit #3: Addendum #2 - December 11, 1997; Exhibit #4: Letter from the employer. [6] The Vice-Chair heard oral testimony from the worker and the representative made submissions. THE ISSUE [7] The issue for the Vice-Chair to determine is whether the worker is entitled to benefits for a left wrist condition diagnosed as Kienbock s disease. THE REASONS (i) Background [8] The worker sustained an injury to his left wrist on September 25, 1991, while moving a plank during his employment. The worker originally considered the injury to be minor. The pain and discomfort in the left wrist started immediately after the accident and medical attention was sought on

3 Page: 2 October 17, 1991, at Doctor s Hospital. A diagnosis of tenosynovitis was provided and lost time and health care benefits were accepted initially. [9] Further medical investigation revealed that the worker was suffering from avascular necrosis and distortion of the carpal lunate bone (Kienbock s disease) and entitlement was rescinded. [10] On April 23, 1995, the Decision Review Specialist concluded that a causal relationship between the impairment and the accident history was not established. [11] The Appeals Officer also found that a causal relationship between the left wrist condition and the work accident had not been established and therefore denied the worker s claim. (ii) The law and Board policy [12] The Vice-Chair considered the applicable legislation and Board policy which essentially indicates that benefits are in order when it is established that the claimed condition arose out of and in the course of the employment. [13] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries which occurred before January 1, All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. [14] An important change relevant to this appeal is that the Appeals Tribunal is now required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. (iii) The worker s submission [15] Mr. Dillon, on behalf of the worker, submits that the worker was symptom free prior to the incident of September 25, He submits that while the accident may not have caused the Kienbock s disease, it at the very least rendered it symptomatic and caused it to progress at a greater rate than would otherwise. The representative submits that in effect the condition should not be treated any different than osteoarthritis of the lumbar spine triggered by a work-related accident. He submits that the same approach and consideration ought to apply in this case. [16] In the representative s opinion, a 23 day delay after the accident in obtaining medical attention should not be considered excessive under the circumstances. The worker originally thought that the injury was minor, as minor injuries are common in construction. As it turned out, the representative submits, the pain and discomfort did not go away after the accident and in fact became worse over the next weeks until the worker had to seek medical attention. Mr. Dillon points out that the worker is not one to seek medical treatment causally and in fact notes that the worker sought medical attention only once before and that was for an ear infection. The representative notes that the worker did not even have a family physician. Mr. Dillon maintains that the worker has had a good medical history and was 100% symptom free prior to the accident. Essentially, the representative described the worker as one who would not run to a doctor readily. The representative reviewed the evidence and submits that there is no discrepancy of any substance with respect to the worker s account of the injury. He noted that the

4 Page: 3 worker described immediate and intense pain to his left wrist on the date of the accident. Mr. Dillon notes that there is confirmation from a co-worker that the worker complained of left wrist problems since the accident. Furthermore, the representative submits that the worker experienced problems in performing his job. [17] Mr. Dillon referred to the paper on Kienbock s Disease by A.H. Alexander and D.M. Lightman and noted in particular that the etiology of Kienbock s disease, trauma, and repeated minor trauma due to excessive shear force, leads to interruption of the blood supply to the susceptible or at risk lunate and avascular necrosis results. [18] The representative also reviewed the Board s medical reporting and concluded that the reporting was not consistent with the applicable Board policy. [19] In summary, the worker s position is that there is no valid reason why the claim should be denied based on the real merits and justice of the case. There is no evidence of left wrist problems prior to the work accident. Since the accident however, the worker has experienced ongoing left wrist pain. At the very least the representative submits that the accident rendered the Kienbock s disease symptomatic and therefore the worker is entitled to benefits. (iv) The Vice-Chair s conclusions [20] I have considered all of the evidence and I am satisfied that the worker is entitled to benefits for his left wrist condition. In particular I accept that there is no evidence that the worker experienced left wrist problems prior to his September 25, 1991, accident. [21] I acknowledge that the worker continued to work and did not receive medical attention until October 17, I accept the worker s testimony that he continued to experience pain and discomfort in the left wrist and I note confirmation of complaints from a co-worker. The worker related that he thought the pain would go away and originally considered his injury minor in nature. The worker however related that his pain did not go away and as his pain and discomfort increased he sought medical attention. I accept the worker s testimony as credible. I do not find the delay in seeking medical attention unrealistic or excessive considering the nature of the injury and the environment he worked in. In the construction industry minor injuries are common and are often overlooked unless the condition persists. [22] I note the paper on Kienbock s Disease by A.H. Alexander and D.M. Lightman and I am satisfied from a reading of this literature that the accident as described by the worker is compatible to the left wrist condition from which he suffered. In my opinion, the worker continued to work after the accident of September 1991, and as long as he continued working he was aggravating the left wrist condition. I am therefore satisfied that the worker is entitled to benefits for his left wrist condition on an aggravation basis. In particular I was persuaded by Mr. Dillon s submissions, and the worker s credible testimony. Furthermore I note the supporting evidence from his physician Dr. N. Fernandez and Dr. M. Charendoff, the consulting specialist as well as the confirmation of complaint at work by a co-worker. I am therefore satisfied, on a balance of probabilities, that the worker s left wrist condition was aggravated by his construction accident.

5 Page: 4 THE DECISION [23] The worker s appeal is granted. DATED: March 20, 1998 SIGNED: V. Marafioti