2001 ONWSIAT 1893 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 193/00 [1] This appeal was heard in Toronto on September 22, 2000, by Tribunal Vice-Chair N. McCombie. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Acting Appeals Officer K. Gowans, dated December 18, 1997, rendered without an oral hearing. That decision concluded that the worker did not have entitlement to a permanent partial disability assessment for his organic complaints, nor did the worker have entitlement for non-organic conditions either psychotraumatic or chronic pain disability. [3] The worker appeared and was represented by his lawyer, M.S. Mangat. The accident employer was notified of the hearing but did not participate. M. Aslam attended to translate in the Punjabi language. THE EVIDENCE [4] The material included in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1) was considered. In addition, the following were considered: Exhibit # 2 The worker s completed Information Request form; Exhibit # 3 Addendum #1; Exhibit # 4 Addendum #2; Exhibit # 5 Material provided by Dr. R.G. Perrin; Exhibit # 6 Correspondence from Mr. Mangat; Exhibit # 7 Addendum #3; Exhibit # 8 Post-Hearing Addendum #1; Exhibit # 9 Post-Hearing Addendum #2; Exhibit # 10 Medical Report from Dr. S. Fainman; [5] Oral evidence was heard from the worker. Submissions were made by Mr. Mangat. THE ISSUES [6] The worker is seeking a permanent impairment assessment on the basis of either chronic pain disability or on an organic basis.
Page: 2 Decision No. 193/00 THE REASONS (i) Background [7] The worker sustained a compensable injury on July 6, 1988, when, in bending over to pick something up, he banged his head on the edge of a machine. The Physician s First Report noted a diagnosis of laceration forehead, mild head injury. At that time the worker received some stitches and there were four days of lost time, after which he returned to work. There was no further communication with the Board for more than three years. [8] By letter dated October 17, 1991, a former representative at Brampton Community Legal Services sent a letter to the Board indicating that the worker wishes to make a claim for workers compensation. The grounds for compensation were not clear at that time. The representative noted: Apparently his doctors have found a bump on the back of the head related to the accident which has affected his orientation and memory. He is being treated for pain in his head and the other symptoms through medication. [9] The Board was unable to get in touch with the worker, who had moved, and no further action was taken until a series of telephone calls with the representative in the spring. In a memorandum dated May 15, 1992, this representative was quoted as saying, that the worker does not even recall his accident in July of 88. She advised my worker has no current issue and is not claiming anything. [10] Things remained dormant until a further letter from Brampton Legal Services, dated March 23, 1993. That letter enclosed a number of medical reports and concluded: it now appears [the worker s] symptoms are psychiatric in nature, including depression. [11] As a result, the Board sent an investigator to interview the worker and collect further evidence. The worker was interviewed on August 20, 1993. This interview is worth quoting at some length: JULY 28, 1988 TO PRESENT WORK HISTORY The injured worker returned back to the accident employer and worked for a couple of weeks. He actually worked for a personnel company and therefore, he was not at any job for any length of time. When he returned back to work, they put him on more or less a janitorial job. Again, he was laid off due to lack of work. He then worked for a company called [xxx], from 1988 to 1989. He worked there for less than a year and he worked on the line. He was just making boxes and that was it. He remembers that it was a fairly easy job. He admits that he really did not complain to anyone about his headaches. He did not know anyone that he worked with and therefore, basically kept to himself. GENERAL CONDITION The injured worker states that he has always had continuous headaches ever since the original accident. The pain was always in his forehead. He would just take some Tylenol and that would be it.
Page: 3 Decision No. 193/00 NEW ACCIDENTS The injured worker admits that there were no new accidents or incidents to cause any further problems. He also states that he had no prior problems with headaches prior to his accident in 1988. MEDICAL TREATMENT The injured worker started seeing his family doctor, Dr. Malhotra. He has been referred to a number of Specialist s [sic] since that time. He has seen a Dr. Fainman, Dr. Zaitlen Dr. Chen, a Psychiatrist by the name of Dr. Acharyya, a Dr. McFadyen and a Dr. Chow. Please note that these reports have already been obtained by the [Brampton] Legal Services and are on file. PRESENT COMPLAINTS The injured worker has not worked since 1989. When he was laid off from his last employer, he admits that he has looked for work, but cannot find any due to his age. He is still not working as basically he is now retired, but he has never collected any money. CLAIMING The injured worker is claiming a pension. He figures that he is entitled to some sort of compensation as he has had continuing problems with headaches. He is not claiming for any lost time, as again he is more or less retired, but would like to be assessed for a pension. DISCREPANCIES The injured worker feels that his present condition is a direct result of the original accident. Even though he was only off work for a few days, he has always had continuing pains in his forehead and also in the back of his head. He has seen a number of doctors and has also gone back home to India in 1992, where he saw a doctor back home. He cannot remember the name of the doctor he saw back home. He was in India for approximately three months. As far as he is concerned, again he feels that he is entitled to some sort of pension. INVESTIGATION NOTES Please note that the injured worker admits that he never really complained to anyone who he worked with and besides he does not know anyone s names. There are a list of doctor s reports on file and I did contact his family doctor, Dr. Malhotra, and they will send a up to date report outlining the injured worker s present condition. They will be sending this by mail. [12] The Board denied the worker s claim for headaches and psychotraumatic disability in a letter from the claims adjudicator dated October 15, 1993. [13] A new representative was retained and as a result of his submissions a Decision Review Branch decision dated April 7, 1994 was issued denying entitlement for headaches, dizziness and psychotraumatic disability. [14] A third representative was retained in December 1995. In a letter dated December 21, this representative sought to appeal the Decision Review Branch decision. The Board moved to schedule a hearing, but the worker again switched representatives to Mr. Mangat. [15] Mr. Mangat sought an appeal in a letter dated May 23, 1996. There were some delay of various reasons and then, exactly one year later, Mr. Mangat again wrote asking that nothing be done, pending the receipt of further medical evidence.
Page: 4 Decision No. 193/00 [16] On October 8, 1997, more than nine years after the original accident, Mr. Mangat sent in his submissions along with a report from Dr. S. Fainman, with Headache and Pain Management. Mr. Mangat suggested that this report supported a finding of chronic pain disability. [17] The Acting Appeals Officer, issued the decision under appeal on December 18, 1997, concluding, among other things, that: there is no evidence of ongoing problems related to this injury. The worker s pain complaints appear to be centred around his neck and headache pain which do not have entitlement under this claim. [18] The finding that there was no entitlement for neck and headache pain was based on a conclusion that there was no neck involvement at the time of the accident and no mention of neck or headaches or at least one year after the minor injury. It was also noted that the worker was then over 65 years old and suffering from degenerative disc disease of the cervical spine. [19] The worker appealed to the Tribunal and a hearing, originally scheduled for January 2000 was adjourned at the worker s request so that further medical information could be obtained. This was done and is included in the post-hearing addenda. (ii) The medical evidence [20] Mr. Mangat argues that it was originally thought that the worker s headaches were the result of dental problems. This was investigated for some time, to the point that he worker s teeth were removed. When this did not cure the problem, the compensable accident was considered to be the cause of the problem. [21] Mr. Mangat relies, in particular, on the reports from Dr. Fainman. In a report dated March 20, 2000, Dr. Fainman noted that he first saw the worker in October 1992. He reviewed the history of cervical degenerative disc disease, demonstrated by x-rays, MRI and CT scans, since December 1989. [22] With respect to the specific question asked by Mr. Mangat, Dr. Fainman noted that there was not evidence of brain injury at the time of the compensable accident but that there was injury to scalp nerves. He was of the view that the contemporary medical reports and the nonthrobbing nature of the pain were consistent with nerve damage. He also noted that local anaesthesia provided relief, again consistent with local nerve damage. [23] Dr. Fainman also was of the opinion that the worker had likely sustained a whiplash type neck injury, although he noted in this case the degenerative changes noted were not typically associated with headaches. Dr. Fainman concluded: In conclusion, I believe that the medical evidence supports the claim that [the worker] sustained not only a frontal scalp laceration as a result of his fall injury but also sensory nerve damage involving frontal sensory nerves and a whiplash-type syndrome with resultant occipital neuralgia and myofascial pain involving paracervical muscles. It should be noted that a review of the documentation indicates that [the worker] struck his head on some type of object but the nature of this object is somewhat unclear due to numerous descriptions. I suspect that the discrepancy is a result of either a language barrier or
Page: 5 Decision No. 193/00 [the worker] simply not remembering due to his cerebral atrophy. I do not believe that the discrepancy is a result of malingering because a malingerer would likely be consistent with the details of the injury and would likely avoid the painful injections which [the worker] has undergone for several years to help control his symptoms. Based on the history of events as described to me, the objective medical evidence and the consistent clinical findings on repeated examinations, I believe [the worker s] symptoms of head and neck pain resulted from injuries sustained in his fall accident in July of 1988. [24] There is also a report from Dr. R.C. Bunn. Dr. Bunn saw the worker prior to the accident. He also treated the worker at the time of the original accident. According to his report dated March 24, 1995, Dr. Bunn removed the sutures on July 11, 1988, five days after the accident. At that time, there were no complaints of headache or facial pain. Dr. Bunn saw the worker for unrelated reasons a month later on August 26, 1988 and, again, there were no complaints of headache or facial pain. Dr. Bunn did not see the worker for more than two years and did not relate that he was having facial pains until May 16, 1991. [25] The other general practitioner that the worker attended was Dr. V. Malhotra. Dr. Malhotra wrote to the Brampton Legal Clinic on January 18, 1993, outlining the worker s treatment. The worker was first seen on March 15, 1989. By May 1, 1989, these pains had improved but the worker was complaining of facial pain and the worker was referred to a dentist as it was thought that his teeth were the cause. In an entry dated September 16, 1989, 14 months after the accident, the first mention of headache is made. Dr. Malhotra summarized: In summary, patient was seen several times in my office regarding facial pain which I though initially related to the teeth, however in spite of several antibiotics and extraction of teeth pain persists. Patient also complains of headache, sleep problems, dizziness, being forgetful, neck pain and difficulty in concentration. Patient states, his problems started after the work related injury. His forehead scar is well healed, however complains of paraesthesia. Patient has consulted several specialists (copies enclosed) in different fields, unfortunately, we have not been able to help him, in his ongoing problems. In my opinion, patient may have developed depressive symptoms secondary to his physical ailments. This could very well be chains of events starting with his injury at work. In short, patient seems to be genuinely suffering and needs help. (iii) Conclusions [26] Mr. Mangat argued that the worker suffered from a language barrier and his memory from the effects of the accident. He did acknowledge that there was a continuity problem. [27] In my view, this continuity problem is fatal to the worker s claim. There is a plausible theory from Dr. Fainman to explain his headache problems. I cannot accept, however, that the worker sustained a whiplash injury on July 6, 1988. As has been noted, the injury was relatively minor, involving a few stitches and the worker returned to work within a week. For the next year, there is no medical evidence whatsoever that can be related to this injury. [28] Then, in September 1989, the worker starts to complain of headaches. At that time, they were not related to the fall. In fact, as a review of the above history will demonstrate, there was no reference to the accident until October 1991 when on-again, off-again claims were made to the Board. In May 1992, the worker has no current issue and is not claiming anything
Page: 6 Decision No. 193/00 [29] The basis for the claim has varied between headaches, cervical degenerative disc disease, chronic pain disability, dizziness and depression. As noted, there is evidence of degenerative disc disease, but, in my view, little to related it to the compensable event. [30] The worker himself testified that the accident was dramatic, with a loss of consciousness of several hours and injuries to all his right side. This is contradicted by the reports at the time which relate only a small laceration between the eyes (forehead) with no loss of consciousness. [31] The worker s much more dramatic history might convince later attending physicians that a whiplash injury had occurred, but I accept that the contemporary reports are correct. [32] The worker also testified that he had initially not been sure whether the pains were in his stomach or his head. He stated that he did not follow up with the Board for a long time because of his mental condition. [33] Dr. Fainman, the most supportive of the attending doctors, suggests that the history of accident is unclear. The history provided by those attending at the time does support a conclusion that there was a minor blow to the forehead, with no loss of consciousness and a return to work within a few days. I agree with Dr. Fainman that the discrepancies are not due to malingering, but to suggest that the case is decided as either malingering or entitlement is to suggest a false dichotomy. [34] On balance, the weight of the evidence supports a finding that there was a delay in the onset of complaints, that the complaints varied over time and that there are alternative explanations for the complaints; for example, the worker does have cervical degenerative disc disease which is not unusual at his age. THE DECISION [35] The appeal is denied. DATED: This 18 th day of June 2001. SIGNED: N. McCombie.