WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2207/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2207/11 BEFORE: S. Ryan: Vice-Chair HEARING: November 7, 2011, at Toronto Oral DATE OF DECISION: November 17, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2663 DECISION(S) UNDER APPEAL: D. McParland, Appeals Resolution Officer, September 16, 2009 APPEARANCES: For the worker: For the employer: Interpreter: P. Roche, 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. 2207/11 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals the Appeals Resolution Officer (ARO) decision dated September 16, That decision denied the worker initial entitlement for a neck injury, entitlement for a recurrence on June 27, 2007 and entitlement to Loss of Earnings (LOE) benefits from June 27, These issues arise out of a claim established for the worker s compensable right shoulder and elbow injuries occurring on December 14, (ii) Issues [2] At the outset of the hearing, I discussed the issue agenda with Mr. Roche. Pursuant to that discussion, I accept that in this appeal the Tribunal must decide: 1) whether the worker has initial entitlement for a neck injury; 2) whether the worker suffered a recurrence on June 27, 2007; and 3) whether the worker has entitlement to LOE benefits beyond June 27, (iii) Background and testimony of the worker [3] The worker was born in He testified that he did not complete high school, but took some night school classes after leaving high school. The worker testified that he always worked in the construction industry for various employers as a labourer and later as a construction supervisor. [4] The worker testified that in 1995, he suffered an injury to his left eye when some debris fell into it. The worker confirmed information in the Case Record that he also suffered an injury to his left forearm. The worker recalled that he was using a Ramset nail gun which had become jammed. He hit it with a hammer and the nail penetrated his left forearm piercing a vein. [5] On June 24, 2002, the worker was hired by the accident employer, a landscaper. [6] On December 14, 2005, the worker sustained injuries when a snow plow he was driving struck a boulder buried under snow. At the time of the compensable accident, the worker was 64 years old and earned $14.00 per hour in a 40 hour work week. The worker testified that he did not have a family physician when the compensable accident occurred. [7] The worker testified that he injured his right hand, right arm and neck as a result of the accident. He explained that when he struck the large boulder, his right hand was holding a lever that controlled a front bucket. The worker testified that although he got a shock from the impact, he did not experience any significant symptoms until the following day. At that time, he experienced pain in his right hand, arm and neck. [8] The worker did not file an injury report with the Board. The employer advised on its Form 7, dated December 15, 2005, that the worker reported injuring his right shoulder and elbow. [9] On December 17, 2005, the worker attended a local medical walk-in clinic where he was seen by Dr. D. Lettner, family physician. In a report of that date, Dr. Lettner advised that the worker suffered a strain/sprain to his right shoulder and elbow. She diagnosed fluid in the bursa of his right elbow and right rotator cuff tendonitis. Dr. Lettner prescribed anti-inflammatory medication and recommended that the worker avoid heavy lifting with his right arm for a period of one week. The worker recalled that he was prescribed pain medication which helped to alleviate some of his symptoms.

3 Page: 2 Decision No. 2207/11 [10] The worker did not lose time from work and the Board accepted the claim for health care benefits. [11] In a report dated January 08, 2006, 1 it was noted that the worker presented with water on elbow due to the compensable accident. The report also indicated that the worker experienced 2 episodes prior never fully better. The report offered a diagnosis of bursitis. At the hearing, the worker denied ever experiencing episodes of water on his elbow prior to the compensable accident. He also denied any problems with his right hand, arm or neck prior to the compensable accident. [12] On February 13, 2006, a physiotherapist advised that the worker presented with complaints of pain and reduced range of motion in his right shoulder. The physiotherapist also examined the worker s cervical spine. She noted that there was no reduction in range of motion and no complaints of pain from the worker. The worker was questioned about this report. He testified that he experienced pain in his neck and continues to do so to the time of the Tribunal hearing. He stated, however, that despite neck pain, he never experienced any significant reduction in the movements of his neck. [13] In a physiotherapy requisition note, a physician queried biceps tendonitis and radial nerve weakness with atrophy of the thenar nerve. 2 [14] In an initial treatment plan report dated February 15, 2006, a physiotherapist advised that the worker sought for treatment of his right shoulder diagnosed as bicep tendonitis. [15] In another physiotherapy note dated May 10, 2006, it was noted that the worker required treatment of his shoulder, elbow and arm. It was also noted that the Board granted entitlement for the physiotherapy. [16] In a Health Professional s Report (Form 8) dated March 10, 2006, a physician 3 advised that the worker presented with a right shoulder injury and demonstrated pain and reduced range of motion. The physician recommended that the worker avoid using his upper extremities and operating heavy equipment. [17] On July 6, 2006, the worker completed a Worker s Progress Report. He advised that he could not lift his arm and that his right hand was weak. [18] In a Health Professional s Report (Form 26), 4 it was noted that the worker suffered from a soft tissue injury. A diagnosis of brachial plexus palsy was queried. [19] In a hand-written report, 5 Dr. A. Zohrab, general practitioner, advised that the worker suffered a right elbow injury at work in December 2005 and that he now suffered from thenar wasting with reduced range of motion and reduced strength in the right thumb. A referral to a plastic surgeon was made at that time. At the hearing, the worker recalled that the plastic surgeon then referred him to a physiatrist. 1 The precise date is difficult to read and the physician s name is illegible 2 The physiotherapy requisition note is undated and the physician s name is illegible. 3 The physician s name is illegible. 4 The date and physician s name are not indicated on this report 5 This report is undated

4 Page: 3 Decision No. 2207/11 [20] On October 23, 2006, the worker was examined by Dr. M.C. Mason, physiatrist. In his ensuing report, Dr. Mason advised: The patient s presenting complaint is weakness and numbness in the right upper extremity. This onset nearly 2 years ago. He recalls a precipitating event in which he was driving a snowplow which hit a boulder, and the patient had the sudden onset of pain radiating throughout the right upper extremity and right side of neck. He had marked pain in the upper extremity initially, which has improved. He has had marked weakness and numbness in the upper extremity which is also improved, but certainly not resolved with the arm still weaker than in the past. [21] Dr. Mason advised that EMG and nerve conduction studies demonstrated significant abnormalities in multiple muscles in the distribution of many different peripheral nerves and cervical roots. He advised that the size of the lesion would appear to be proximal, brachial plexus, nerve root or motor neuron. [22] In a Health Professional s Progress Report dated December 11, 2006, Dr. P. Narini, family doctor, repeated the observations of Dr. Mason and recommended a referral to the Board s Regional Evaluation Centre (REC). This was not arranged. [23] On February 8, 2007, Dr. Bishop, Board Medical Adviser, reviewed the history of injury and medical reporting in the claim file. He noted the initial diagnoses of fluid in the right elbow bursa and right rotator cuff tendonitis. He reviewed the EMG and nerve conduction studies and opined: There is no evident medical basis to relate the present neurological condition which is not specifically diagnosed yet to the work accident of being jarred in a snowplow on December 14, [24] In a report dated April 2, 2007, Dr. Mason advised that the worker complained of an inability to fasten clothing, turn keys or handle fine objects due to the weakness and wasting of his right hand. Dr. Mason also noted that the worker was off work at that time due to cataract extraction and intraocular lens implant surgery on the left eye. He advised that he would arrange further imaging investigations because the worker reported a history of injuries resulting in foreign metal bodies in his left forearm and a problem with his left eye. [25] At the hearing, the worker recalled the surgery to his left eye. He stated that he was prescribed pain medication after the surgery and that the medication also helped reduce the pain in his right upper extremity. The worker recalled that he returned to work to regular duties, but experienced increasing difficulty operating a large lawnmower. [26] On June 27, 2007, the worker was seen by Dr. Mason again. He repeated his understanding of a nearly two year history of onset when the worker was driving a snowplow and hit a boulder. Dr. Mason advised that an MRI scan revealed a small metallic foreign body in the worker s left forearm. He advised that the MRI scan also showed significant cervical spondylosis including central spinal stenosis affecting the cord and neuroforaminal narrowing. He opined that the worker was completely disabled from the workforce due to the terrible function in his right hand. He recommended a neurosurgeon consultation for consideration of cervical decompression surgery. The worker testified that Dr. Mason took him off work and stated that he has not returned to any type of gainful employment since that time. [27] On April 29, 2008, the worker underwent cervical laminectomy and decompression surgery. The worker testified that the surgery reduce some symptoms, but he continued to experience persistent weakness in his right hand and neck pain.

5 Page: 4 Decision No. 2207/11 [28] In a report dated June 3, 2008, Dr. Mason advised that the worker demonstrated marked wasting in the right hand. He advised that the previous MRI scan indicated cervical spondylosis with central spinal stenosis at C6-C7 and C5-C6 and probable myelopathy at the C6-C7 level. Dr. Mason noted that the worker was appealing the issue of entitlement with the Board. [29] In a report dated December 9, 2008, Dr. Mason advised that in addition to right hand wasting and weakness, the worker s gait was mildly wide-based. He advised that the worker was unable to perform a tandem gait properly and Romberg testing indicated a mild sway. [30] On August 20, 2009, Dr. Mason advised that the worker reported and demonstrated some mild improvement in the function of his right hand. [31] On February 18, 2010, Dr. Mason advised that the worker s condition was reaching a plateau and that he was not capable of any type of employment. [32] The worker testified that currently he is able to perform some activities around the house and outside. However, he is significantly limited by the reduced function in his right hand. He has difficulty dressing. (iv) Submissions [33] On behalf of the worker, Mr. Roche submitted that the worker was a hard worker of many years and not one to complain or run to the doctor for minor injuries or ailments. He acknowledged the Board s concern about an apparent gap in medical continuity. However, he submitted, the apparent gap in medical continuity occurred shortly after the worker s eye surgery and that the pain medication prescribed for the eye surgery also reduced the worker s pain in his upper right extremity. Mr. Roche acknowledged the lack of reporting of a specific neck injury in the initial reports. However, he stated, it would be reasonable to assume that the worker s neck was involved in the compensable accident given the mechanics of the accident. He also noted Dr. Mason s report of October 23, 2006, in which the physiatrist recorded the worker s history of accident as: He recalls a precipitating event in which he was driving a snowplow which hit a boulder, and the patient had the sudden onset of pain radiating throughout the right upper extremity and right side of neck. [34] Mr. Roche asked that the Tribunal grant the worker initial entitlement for his neck, a recurrence on June 27, 2007 and LOE benefits. (v) Findings and conclusions [35] I have carefully considered all of the available evidence in the Case Record, testimony of the worker and submissions of Mr. Roche. 1. Does the worker have entitlement for an injury or aggravation of his cervical spine as a result of the compensable accident? [36] The accident date at issue in this appeal occurred on December 15, Accordingly, the Workplace Safety and Insurance Act (WSIA) applies. Section 2 of the WSIA defines accident as: accident includes, (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and

6 Page: 5 Decision No. 2207/11 (c) disablement arising out of and in the course of employment; ( accident ) [37] Under section 126 of the WSIA, the Board identified Operational Policy Manual (OPM) Document No , Aggravation Basis which states, in part: Aggravation basis - determining entitlement Entitlement in a claim is accepted on an aggravation basis when a relationship is shown between the pre-accident impairment and the degree of impairment resulting from the accident, and an increased degree of impairment occurs, which exceeds the usual, owing to the pre-accident impairment. [38] The preponderance of evidence before me indicates that, on a balance of probabilities, the worker did not suffer an injury or aggravation of his cervical spine as a result of the compensable accident of December 14, The preponderance of evidence before me indicates that the development of right hand wasting and weakness that occurred after the accident did not occur as a result of the accident. [39] In reaching this conclusion, I am generally persuaded by the absence of any indication of a neck problem in the initial injury reporting and medical reports. Thus, I cannot conclude that a relationship has been shown between the pre-accident impairment and the degree of impairment resulting from the accident. The worker did not file an injury report. The employer advised, however, on its Form 7, that the worker reported injuring his right shoulder and elbow. The employer did not mention any injury to the worker s neck. In the report of December 17, 2005, Dr. Lettner diagnosed strain/sprain of the right shoulder and elbow. He did not mention any problem respecting the worker s neck. In the report of February 13, 2006, the physiotherapist examined the worker s cervical spine. She noted no reduction in range of motion and no complaints of pain from the worker respecting his neck. In his own progress report dated July 6, 2006, the worker complained of an inability to lift his arm as well as right hand weakness. The worker did not mention a problem with his neck. [40] I acknowledge Dr. Mason s report of October 23, 2006, in which the physiatrist understood from the worker that he had a sudden onset of pain radiating throughout the right upper extremity and right side of his neck. This understanding is not consistent with the initial and early contemporaneous reports. This understanding is also not consistent with the worker s testimony at the Tribunal hearing where he explained that his symptoms were not sudden, but rather delayed until the following day. [41] The first indication of a cervical neurological impairment is the undated physiotherapy requisition note in which the physician reported nerve weakness with atrophy of the thenar nerve. The worker was subsequently investigated and treated for persistent and progressive wasting and weakness of his right hand. The problem with the worker s right hand was ultimately diagnosed by Dr. Mason as significant cervical spondylosis including central spinal stenosis affecting the cord and neuroforaminal narrowing. Given the absence of evidence of an injury to the worker s neck in the contemporaneous evidence, I cannot relate this diagnosis to the compensable accident. [42] I am also persuaded by the absence of any supporting medical opinion. Dr. Mason was well aware that the worker was seeking entitlement to WSIB benefits, but did not indicate in any of his reports that a causal relationship existed between the worker s ongoing right upper extremity symptoms and the compensable accident. The only medical opinion that speaks

7 Page: 6 Decision No. 2207/11 directly to the issue of causation is the opinion of Dr. Bishop who concluded that there was no medical basis to relate the worker s neurological condition to the compensable accident of December 14, [43] The worker does not have entitlement for a neck disability or the associated wasting and weakness of his right hand. 2. Does the worker have entitlement for a recurrence on June 27, 2007? [44] Under section 126 of the WSIA, the Board identified OPM Document No , Recurrences states, in part: Recognizing a recurrence Clinical compatibility To establish clinical compatibility, a decision-maker compares the worker s current clinical condition to that following the initial accident. The decision-maker considers whether the parts of the body affected now are the same as, or related to, those affected initially whether the body functions affected now are the same as those affected initially, and the degree to which body functions are affected now (as compared to the effect of the initial condition). Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence. Continuity To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury demonstrated ongoing symptoms since the original injury required work restrictions or job modifications had ongoing treatment for the original condition, or experienced a lifestyle change since the original accident (e.g., has the worker become unable to participate in household duties, or social or recreational activities?). In complex cases, the decision-maker may consult with WSIB clinical staff to assist in making this determination. [45] Information in the Case Record indicates that the worker stopped working altogether on June 27, He also saw Dr. Mason who, in a report of that date, repeated his finding of weakness and wasting of the worker s right hand. As noted above, Dr. Mason understood that the onset of symptoms occurred suddenly after the compensable accident. [46] However, as I have noted, the evidence does not support a relationship between the worker s condition in June 2007 and the original injuries. The parts of the body affected in June 2007 were not the same as those injured in December The worker injured his right shoulder and elbow in the compensable accident. There was no mention of a neck injury or problem with his neck at the time of the compensable accident and, moreover, the

8 Page: 7 Decision No. 2207/11 physiotherapist s post-accident examination of the worker s neck revealed full range of motion and no complaints of pain. [47] Dr. Mason repeats the history of symptoms as reported to him by the worker. The physiatrist does not offer any supporting opinion of a relationship between the worker s presentation in June 2007 and the compensable accident. Again, the only medical opinion that speaks to the issue of causation is that of Dr. Bishop who found there was no causal relationship between the findings in the worker s cervical spine and the compensable accident. [48] The worker does not have entitlement for a recurrence on June 27, Does the worker have entitlement to LOE benefits beyond June 27, 2007? [49] Section 43 of the WSIA states, in part: 43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1). Amount (2) Subject to subsections (3) and (4), the amount of the payments is 85 per cent of the difference between, (a) the worker s net average earnings before the injury; and (b) the net average earnings that he or she earns or is able to earn in suitable and available employment or business after the injury. [50] OPM Document # , Payment of LOE benefits, states, in part: Law A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of the day on which the worker s loss of earnings ceases the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or the day on which the worker is no longer impaired as a result of the injury. Policy LOE benefits are based on 85% of the worker s pre-injury net average earnings (NAE) subject to the legislated minimum and maximum amounts of compensation, see , Calculating Net Average Earnings.

9 Page: 8 Decision No. 2207/11 A full LOE benefit is 85% of the worker s pre-injury NAE. A partial LOE benefit is some portion of 85% of the worker's pre-injury NAE.... Payment of full LOE Treatment with no return to work If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker cooperates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker s LOE benefits. [51] In order to qualify for LOE benefits under the WSIA, there must be sufficient evidence that the worker s loss of earnings results from the accident. In this case, the evidence (as described above) indicates that the worker s loss of earnings resulted from the progression of his non-compensable cervical impairment and associated right hand wasting and weakness. Accordingly, the worker does not have entitlement to LOE benefits.

10 Page: 9 Decision No. 2207/11 DISPOSITION [52] The worker s appeal is denied. DATED: November 17, 2011 SIGNED: S. Ryan