Decision No. 191/09. REASONS Introduction

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 191/09 BEFORE: J. Parmar: Vice-Chair HEARING: January 27, 2009 at Toronto Oral hearing DATE OF DECISION: November 27, 2009 NEUTRAL CITATION: 2009 ONWSIAT 2770 DECISION UNDER APPEAL: WSIB ARO decision dated January 31, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Mr. M. Farago, Lawyer Did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 191/09 REASONS (i) Introduction [1] This is an appeal by the worker to the Workplace Safety and Insurance Appeals Tribunal in respect of a decision by an Appeals Resolution Officer (ARO) of the Workplace Safety and Insurance Board (the Board), dated January 31, 2006, which held the worker did not have entitlement for right hip surgery on June 4, (ii) Background [2] The worker was injured on March 31, 1964, at the age of 28 years, when he slipped and fell landing on his left buttock. The worker was granted entitlement for the back, and went on to have multiple surgeries. He was granted a permanent disability award, which was initially determined to be 20% in 1979, then increased to 25% in 1990, and most recently increased to 30% in [3] The worker also had non-compensable right hip problems. He first underwent right hip replacement in July He underwent surgical revisions of the right hip in September 1985 and April [4] On January 22, 1991, the worker slipped on ice in a parking lot at work and fell on his right hip. The worker s right hip injury was allowed on an aggravation basis under a separate claim. In relation to this accident, the worker was granted entitlement for another surgical revision of his right hip which he underwent in January 1992 as a result of a loose acetabular component. [5] In 1996, the worker developed an infection in his right hip. He underwent surgical irrigation and debridement of the right hip on August 29, This was determined to be noncompensable. [6] On October 1, 2003, the worker underwent surgical decompression and fusion for his compensable back condition. He subsequently developed an infection in the lumbar spine, and so required further surgery on February 26, 2004 for debridement, instrument removal and decompression of the dura and L3 nerve roots bilaterally. [7] Shortly thereafter, it was determined the worker had also developed an infection in his right hip. On June 4, 2004, he underwent excision and total hip arthroplasty. A hip replacement was done in May [8] The worker claimed entitlement for the right hip surgery of June 2004, as being related to the back infection, which was determined to be compensable. [9] The ARO concluded the worker did not have entitlement. This conclusion was based on the medical opinion of a Board medical consultant, which suggested the worker s 2004 hip infection was likely related to a pre-disposition to develop hip infections given his prior history. (iii) Issue [10] The issue under appeal is whether the worker has entitlement for his right hip surgery of June 4, 2004 as being related to his compensable back injury.

3 Page: 2 Decision No. 191/09 (iv) Medical evidence [11] The worker s history of hip surgeries is outlined above. The worker developed an infection in his right hip in 1996, which required surgical irrigation and debridement in August The last hip surgery prior to the development of that infection was in 1992, a number of years earlier. The microbiological lab results from August 1996 indicate few coagulase negative staphylocci. The last microbiological tests of the hip prior to 2004 are dated January 24, 1997, and indicated no growth after 48 hours further report to follow if culture grows micro-organisms after prolonged incubation. There is no further report. [12] In October 2003, the worker underwent repeat posterolateral decompression L3-4, L4-5, and L5-S1, and posterior instrumented fusion L3-S1. [13] In January 2004, the worker developed increased pain across his back with radiation into his groins. Dr. McBroom, the orthopaedic surgeon who performed the October 2003 surgery, opined this could be signs of a low grade infection. A bone scan was performed, and the report, dated January 20, 2004, indicated possible infection of the lumbar spine and findings in the right hip acetabulum which could be consistent with loosening, infection, or pre-existing underlying degenerative changes. [14] The worker was assessed by Dr. Schemitsch, the orthopaedic surgeon who treated the worker in respect of his hip since In a report dated February 10, 2004, Dr. Schemitsch noted that review of the worker s radiographs over a prolonged period of time showed movement of his roof ring. He stated that, given the worker s symptoms, he required a revision of his acetabular reconstruction. Dr. Schemitsch indicated arrangements for this would be made once the worker s spine had been addressed by Dr. McBroom. [15] On February 16, 2004, Dr. McBroom considered Dr. Schemitsch s opinion and noted the worker was not painful in his hip. He recommended exploration of the worker s back. To that end, the worker underwent debridement and removal of the instrumentation in his back on February 26, [16] In her report of March 1, 2004, Dr. Ostrowska noted that numerous intraoperative cultures from the February 2004 surgery grew coagulase negative staphylococcus. She also noted the worker s back incision was clean, but the worker had developed significant pain and swelling over the right hip. A small area of fluctuation was noted along the incision in the upper part of the hip. [17] By May 3, 2004 the worker had developed open drainage from the hip. In her report of that date, Dr. Ostrowska stated that a swab of the right hip wound showed heavy growth of Citrobacter koseri. She recommended the worker discontinue tetracycline, which had been prescribed to address coagulase-negative staphyloccus, and start ciprofloxacin. [18] In a report dated May 4, 2004, Dr. McBroom indicated that the organism in the worker s hip was the same as in his back, that is Acoagulase negative staph, and opined that it was probable that the back infection had seeded to the hip joint and caused the hip infection. He also suggested that the upcoming revision of the worker s hip joint was related to the infection in the worker s back.

4 Page: 3 Decision No. 191/09 [19] On June 4, 2004, the worker underwent excision and total hip arthroplasty. The laboratory results of the hip swab taken that date indicated coagulase negative staphylococcus species, very light growth. [20] Dr. S. Garg, Board medical consultant, considered the worker s history. Dr. Garg was of the opinion that the worker s recent right hip infection was not related to the compensable lower back surgery. The basis of this opinion was that the worker had a history of infection in the right hip prior to the development of an infection in the back and that once there is an infection in the hip it is very hard to eradicate the infection. [21] After the hearing, I concluded that it would be beneficial to obtain further medical evidence from an orthopaedic surgeon. Dr. M. D. Macleod, Clinical Associate Professor, Department of Surgery, Schulich School of Medicine, noted that while the worker had a developed a hip infection in 1996, this had been managed with no evidence of further recurrence until sometime in February/May Dr. Macleod also noted that the infecting organism in the right hip in 2004 was the same that was found immediately earlier in the worker s back wound. Noting the lengthy asymptomatic period in the hip and the temporal link between the spine and hip infection in 2004, he opined that the infection in the back in 2004 most likely served as a nidus for infection in the right hip. It was his opinion that the right hip infection, which led to the 2004 hip surgery, was more likely related to the back infection than the earlier hip infection of (v) Analysis [22] Having considered the totality of the medical evidence, I have concluded that the worker s right hip surgery of June 2004 was a result of his compensable back surgery. [23] In reaching this conclusion, I have accepted the opinions of Dr. Macleod and Dr. McBroom. I note that they both have a specialty in orthopaedic surgery, which is the relevant medical speciality in the present case. They also provided similar opinions, that the worker s spine infection led to the development of the right hip infection. [24] While I have considered the fact that the worker had a prior history of hip infection as noted by Dr. Garg, I am of the view, supported by Dr. Macleod, that the period between 1996 and 2004 during which the worker was asymptomatic in his right hip is of significance. Given that lengthy period, and the temporal link of less than a month between the back infection and the development of the hip infection, I find, on a balance of probabilities, that the worker s hip infection was a result of the worker s compensable back surgery.

5 Page: 4 Decision No. 191/09 DISPOSITION [25] The appeal is allowed. [26] The worker has entitlement for the right hip surgery of June 4, DATED: November 27, 2009 SIGNED: J. Parmar