SUMMARY DECISION NO. 248/97. Continuing entitlement.

Transcription

1 SUMMARY DECISION NO. 248/97 Continuing entitlement. The worker slipped and fell backwards in October The worker appealed a decision of the Hearings Officer denying entitlement for organic neck and head injury after February The evidence did not support continuing organic head and neck disability after February 1993 related to the 1991 accident. The Panel noted that the worker had complained of similar problems prior to the 1991 accident. The medical evidence did not indicate any ongoing organic condition. The appeal was dismissed. [7 pages] PANEL: Onen; Felice; Robb DATE: 04/04/97

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 248/97 [1] This appeal was heard in Toronto on March 12, 1997, by a Tribunal Panel consisting of : Z. Onen : Vice-Chair, C.J. Robb : Member representative of employers, D. Felice : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Hearings Officer W, Crichton, dated December 13, [3] The worker attended the hearing and he was represented by M. Sacco, a consultant. The employer did not participate in the appeal. THE EVIDENCE [4] The Panel heard testimony under oath from the worker with the assistance of an Italian/English interpreter. The Panel also considered the Case Description in two volumes and one Addendum. THE ISSUE [5] The issue before the Panel is whether the worker is entitled to ongoing compensation benefits after February 17, 1993 for organic neck and head injury sustained in a compensable accident on October 22, (i) Panel decision: issue under appeal [6] There were four issues on appeal before the Hearings Officer. The Appeals Tribunal was notified prior to the hearing that the worker only appealed denial of chronic pain disability entitlement as a result of the 1991 accident. At the hearing, Mr. Sacco notified the Panel that the worker wished to appeal continuing organic entitlement for his neck and head only, with chronic pain disability entitlement as an alternative. [7] After hearing from Mr. Sacco, the Panel noted that the Hearings Officer decision is expressly limited to the 1991 accident. We also noted that the worker has sustained a number of prior accidents, which have at times resulted in similar complaints. In view of this, we determined that we cannot consider chronic pain disability entitlement in the absence of jurisdiction to consider the relationship between any such disability, and the worker s prior accidents. The worker must be considered as a whole person. The Panel stated that in this context, chronic pain disability must be assessed on a holistic basis and cannot be adjudicated piece meal on the basis of contribution by a specific accident. Therefore any appeal of chronic pain disability must provide the Panel with jurisdiction to consider a causal connection with prior accidents.

3 Page: 2 Decision No. 248/97 THE PANEL S REASONS (i) Background [8] The worker emigrated to Canada in 1968 and started to work in the construction industry as a labourer. He has a history of several compensable accidents, the first of which occurred in At that time, the worker sustained an injury to his right chest, neck and right hip when he slipped and fell. The worker received conservative treatment, however his complaints continued. He eventually started to complain of pain in his entire right side from his neck, right shoulder, down to his feet. His complaints were investigated at the Board s hospital and rehabilitation centre in January The resulting opinion was that the worker suffered from hysteria and pain obsession problem. The worker consulted with a psychiatrist, Dr. S. Allodi. Dr. Allodi did not find a psychiatric illness although the worker noted to be was anxious and had suffered a neurotic reaction to an injury. He also stated that the worker had an anxiety reaction to what was otherwise a trivial accident. The Board terminated benefits in this case on February 14, 1977, although the worker continued to complain of pain and numbness in his right side. [9] The worker suffered a motor vehicle accident in This accident resulted in a four month absence from work. The worker stated that he primarily injured his neck in that accident, together with some injury to his low back. [10] The worker next sustained a compensable accident on November 5, 1981, when he twisted his back while lifting a container of cement. The diagnosis was lumbosacral strain. The worker s condition did not improve with conservative treatment and he was referred for assessment to the Board s hospital and rehabilitation centre in June At that time, the worker complained of low lumbar pain with ill defined distribution to the left lower extremity. Although there was an organic basis for the worker s complaints, it was found that he also suffered from functional overlay or non-organic factors. The worker was awarded a 10% permanent disability benefit for this injury in February This was increased in May 1983 to 15%. [11] On February 28,1983, the worker reinjured his back while lifting the bumper of a car. The diagnosis was back strain. Between 1981 and 1989, the date of his next accident, the worker was employed very infrequently apparently due to his injuries. [12] On April 17, 1989, he again suffered acute lumbosacral strain while in the course of employment when he lifted a barrel of concrete. The worker was granted a further 5% permanent disability award for this injury in The worker therefore has an organic permanent disability rating of 20% for his low back disability as a result of two different accidents in 1981 and [13] We note that the worker s complaints over time have included areas of the body other than his low back. In July 1983, the worker complained to his orthopaedic surgeon, Dr. B.S. Sehmi that he had pain in his back radiating up to his neck and head and that his left leg was still sore. He had problems sitting or standing for any length of time. Subsequently, in November 1985, he again complained to Dr. Sehmi that he had pain radiating to his neck area. Examination showed that objective signs were normal but there was diffuse tenderness in the worker s neck and back. Dr. Sehmi concluded that the worker had regional neck and back pain syndrome.

4 Page: 3 Decision No. 248/97 [14] The worker was assessed for the purpose of permanent disability benefits by Dr. N. Schneidman in November 1990, shortly before the 1991 accident which is at issue before this Panel. In his report of this examination, Dr. Schneidman described the worker s complaints at the time: PRESENT COMPLAINTS: He complains of constant pain in his low back with radiation to both legs to the ankles. Bending down, sitting 15 to 20 minutes, standing, walking 20 minutes, lifting, coughing and sneezing aggravates his back. The patient has urinary infection with frequency and dysuria and blames it on his back. The pain from his back goes up to his neck and both upper extremities and his fingers are hard. The patient takes medication for infection in his urine. He takes anti-inflammatory medications twice a day. He is not working. (ii) The accident of October 22, 1991 [15] After the accident of 1989, the worker returned to work in October He had been working for approximately two weeks when he sustained another accident. He was working as a carpenter s helper to install cupboards in a kitchen. At the time of the accident, he was standing on a counter, helping to steady a box on the wall. He fell backward off the counter onto the floor. The worker testified that he fell backward off the counter and he does not recall what happened in the first few minutes afterward. He was told by a co-worker that he did not appear to be responding during that time. The worker testified that shortly after the accident the back of his head hurt at the base of his skull. He assumed from this that he struck it either on the floor or 2x4s which were lying on the floor at the time. [16] The worker also testified that immediately after the accident he felt tired, somewhat dizzy but not nauseated. The worker testified that some time after the accident he started to experience pain in the back of his head, his neck, shoulders, arms and hands. The worker also has a low back injury which he has claimed as a result of this accident, however, he does not contest the Board s refusal of any additional benefits for this injury. [17] The evidence in the Case Description shows that the worker was initially diagnosed by his family doctor G.J. Fiorini as suffering from a cerebral concussion with contusion to the occiput, cervical strain, and lumbosacral strain. He was treated conservatively. The worker complained of headaches and dizziness together with neck and low back pain after this. The worker underwent extensive investigations by various specialists to which we will refer later in our reasons. It would appear from a review of these materials that the worker s complaints changed over time. Initially, he complained of lumbar pain. By May 1992 he was complaining of dizziness, feeling off balance, a sensation of nausea, and with audiologic disturbances. He also had headache and neck pain. He complained of problems sleeping at night, redness in his eyes, decreased sexual function, irritability, and difficulty with his memory. Investigations did not identify any objective explanation for the complaints. The worker was referred to the Board s Downsview Rehabilitation Centre for assessment by the Neurology and Head Injury Program. This was a team assessment which included evaluations by a psychiatrist, a neurosurgeon, and various therapists. At the conclusion of the assessment the head injury team reported that: This 47 year old carpenter was injured when he slipped and fell striking his back and occiput with minimal if any loss of consciousness. Amnesia was extremely brief as he remembers being on the floor. His most significant ongoing complaint was that he recognized his unreasonable behaviour

5 Page: 4 Decision No. 248/97 and anger with noise intolerance and nervousness. There was complaint of head pain and short term memory loss. There were no abnormal findings attributable to a head injury. There was evidence however of non-organic reaction, especially related to spinal movement. The neuropsychologist made a diagnosis of adjustment disorder with anxious mood. He thought there might be some organic mental impairment, unrelated to the accident. It is possible also that the abnormal tests were related to his emotional state and lack of education. The social worker confirmed that in the family situation he displayed altered behaviour. The psychiatrist recognized no accident related psychiatric problem although he appreciated the poor anger control. The octolaryngologist found no serious peripheral or central vestibular disorder. It was noted that this man is already in receipt of a 40% PD for low back injuries and he claimed that these had been worsened by his accident on October 22, In occupational therapy he was vocal, frequently displaying anger. He lacked motivation to benefit from physiotherapy. In the gymnasium he could not be upgraded as he focused constantly on his pain. In recreation he had a number of subjective complaints. At the Conference it was felt that this man had a mild head injury, the physical effects which had recovered. He continues with wide spread pains mainly in the lumbar area. Muscular tension in the cervical area continues. From the standpoint of the craniocerebral injury, it was felt that there was no continuing disability. However, he does complain of neck pain which has not been explained on an organic basis. It is suggested that he be considered for a CPD award. [18] We note that the assessment was mistaken respecting the worker s 40% disability award as he was in receipt of a 20% total award. [19] The worker s complaints were also investigated by Dr. J. Bruni, a neurologist and specialist in seizure disorders. In May 1992 after investigation, Dr. Bruni concluded that the worker had suffered closed head injury with a brief concussion resulting in a number of post-traumatic symptoms. He noted that the worker had significant symptomatology but lacked objective neurologic findings. He went on to state: His symptoms are predominantly subjective in nature and are a part of the post-traumatic head injury syndrome. One cannot determine what degree or rate of recovery he will make. [20] The worker was also referred to Dr. D.G. Ko, a specialist in physical medicine and rehabilitation. Dr. Ko examined the worker and reported in March 1993 in part, as follows: This patient has features of exacerbation of underlying degenerative disc disease in the cervical and lumbar spine, post-traumatic myofascial pain, post concussion syndrome and some features of somatic amplification. We note that the worker s complaints to Dr. Bruni and Dr. Ko focused on headaches, neck pain and back pain together with other accompanying symptoms such as lack of sleep and dizziness. In 1994 however, he started to complain of severe right shoulder pain together with bilateral arm and hand pain. The worker s evidence is that this condition started very shortly after the 1991 accident, however this was not documented by his treating specialist at the time. The first reference to the worker s right shoulder pain and arm pain is found in a report by Dr. A. Prutis-Misterska, dated November 8, She noted that he also suffers from carpal tunnel syndrome and wears splints for this purpose regularly. She concluded after examination that the worker appeared to be suffering from rotator cuff tendonitis with some acromial bursitis. Dr. Prutis-Misterska treated the worker for a neck pain with injections in

6 Page: 5 Decision No. 248/97 the backs of his shoulders. In January 1995, Dr. Prutis-Misterska reported that the worker was now also complaining of pain in the left shoulder. She injected both shoulders for treatment. (iii) The Panel s conclusions [21] After a careful review of the evidence, the Panel has concluded that the worker does not have entitlement for an organic disability in his neck, head, shoulders, arms and hands after February 17, 1993 as a consequence of the accident of October Our reasons are the following: 1. There is very little medical evidence to support the conclusion that the worker has any ongoing organic head injury after February 17, 1993 as a result of the 1991 accident. In reaching this conclusion we note that the worker underwent extensive investigations both by his own specialists as well as by the Board s Head Injury Clinic. The Head Injury Conference reported on its findings in January At that time it found no organic explanation for the worker s ongoing head injury complaints The Conference recommended the worker be considered for chronic pain disability for his neck complaints. Similarly, Dr. Bruni concluded that the worker suffered from a non-organic post-traumatic head injury syndrome. He could not find any organic basis to explain the complaints. 2. Dr. Ko, who saw the worker on a number of occasions after the 1991 accident, also concluded that the worker s complaints were a mixture of myofascial pain and somatic amplification. His examination results indicate that the primary contributor to the worker s pain condition was the somatic condition. 3. As we noted earlier, the worker s diagnosis of shoulder injury emerged considerably after the 1991 accident. We cannot find a diagnosis of such an injury in closer proximity to the compensable accident. The Panel is therefore satisfied that there is insufficient evidence to link any shoulder and hand complaints with the accident. 4. The Panel notes that worker complained of very similar problems prior to the 1991 accident as those he claims continued to disable him after February 1993, as a result of the 1991 accident. Dr. Schneidman conducted a permanent disability examination of the worker one year before his 1991 accident. We quoted from this report, setting out the worker s complaints. These included pain in his back, neck and arms. This is essentially the symptomatology the worker described as his ongoing complaint resulting from the 1991 accident. There is persuasive evidence to show that the complaints for which the worker claims ongoing entitlement were likely present before the 1991 accident. 5. The worker was asked about his complaints of neck pain prior to the 1991 injury. The worker was also asked about his 1981 motor vehicle accident in which he reported he injured his neck. In testimony the worker could not recall his prior complaints, nor could he recall the motor vehicle accident. We note that the motor vehicle accident required a four month period of absence from work. 6. The worker testified that even though he may have had some of these problems before the accident of 1991, he suffers with the pain much more after this accident.

7 Page: 6 Decision No. 248/97 7. As we pointed out earlier, the worker s recall concerning his condition prior to the accident is not very reliable since he cannot remember much by his own admission. As a result, the Panel cannot place much weight in his evidence that his pain is worse since the 1991 accident. [22] The Panel makes no ruling concerning any non-organic entitlement resulting from this accident. The Panel also notes its earlier ruling that any adjudication of chronic pain in this case ought to be made on a holistic basis taking into account the worker s prior injuries and the sequelae of those injuries. THE DECISION [23] The appeal is denied. DATED: April 4, SIGNED: Z. Onen, C.J. Robb, D. Felice