WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2004 ONWSIAT 502 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 58/04 [1] The appeal was held in Toronto on January 14, 2004 before Vice-Chair, T. Carroll. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Mr. H. Grant, Appeals Resolution Officer at the Workplace Safety and Insurance Board (the Board), dated February 12, [3] The worker attended the hearing and gave testimony. She was represented by Mr. Vince Severino of Work Aid and Associates. [4] The employer did not participate although advised of these proceedings. THE RECORD [5] The Vice-Chair had before him the Case Record that was marked as Exhibit #1. Addendum No.1 to the Case Record was marked as Exhibit #2. Exhibit #3 was Addendum No.2 to the Case Record. Addendum No.3 was marked as Exhibit #4. A hearing ready letter from the Tribunal was marked as Exhibit #5. THE ISSUES [6] The Vice-Chair has to determine whether the worker is entitled to wrist, arm and elbow injuries under claims dated May 6, 2000 (Claim #1) or June 15, 1999 (Claim #2). THE VICE-CHAIR S REASONING (i) Background [7] The facts contained in this section are, generally speaking, not contested and the Vice-Chair relied on them in reaching his final conclusions in this matter. [8] On May 6, 2000 (Claim #1) the worker, a shift packer, reported pain in her left hand (third left finger) that she related to making cardboard boxes and packing candies over an eight hour shift. The initial diagnosis was overuse of the left hand with tenosynovitis of the third left finger. Physiotherapy was recommended. In June 2000 the worker reported pain in the left hand and distal wrist and forearm to her physiotherapist.

2 Page: 2 Decision No. 58/04 [9] The worker returned to modified work and, on June 22, 2000, reported difficulties with her right hand. The medical diagnosis was right hand tendonitis due to repetitive movements of the right wrist. The worker did not lose time from work. The Board opened a claim under date of June 15, 1999 (Claim #2) as this was the date the worker s family physician advised the Board that she began to treat the worker for right hand problems. [10] The worker continued to be treated by a number of doctors subsequent to June 2000 for bilateral wrist, forearm and elbow pain. The employer placed the worker on various modified jobs to allow the worker to continue in her employment. However, most of the modified jobs required repetitive movements of the hands. [11] The worker continued to complain of bilateral arm problems and, by February 2002, had been diagnosed with bilateral epicondylitis and extensor tendonitis of both wrists by Dr. A. Jaroszynska, a rheumatologist. [12] The worker continued to work to October 2003 until she was laid off due to noncompensable reasons. The worker had bilateral arm difficulties from February 2002 to October 2003 and she wore braces on both elbows when at work. (ii) The Medical Diagnoses and Treatment [13] On May 8, 2000 Dr. M. Krol, the worker s family physician, diagnosed tendonitis of the left third finger due to overuse at work. Medical restrictions were to avoid the repetitive use of the left third finger and hand. [14] On June 13, 2000 Dr. G. Greenspoon, in a functional abilities form (FOF), stated that the worker had limited use of left arm in lifting, pulling and pushing. [15] On June 22, 2000 the worker reported right hand difficulties to Dr. Krol. The diagnosis was right wrist tendonitis. [16] In July 2000 Dr. A. Gwardjan, a specialist in physical medicine, stated that the worker s presentation was suggestive of soft tissue musculoskeletal etilogy as RSI. The worker was to avoid repetitive lifting, pulling, pushing or gripping with her left hand for six weeks. [17] On July 24, 2000 Dr. Krol diagnosed tendonitis of the left and right wrist and left forearm. Restrictions were as set by Dr. Gwardjan on both sides. [18] In October 2000 Dr. J. Yellin stated in a FOF that the worker had restrictions in regard to repetitive movements of the wrists. In January 2001 Dr. Yellin stated that the worker had restrictions in regard to her left forearm. [19] In March 2001 Dr. Krol provided restrictions of no repetitive movements of both wrists. [20] In April 2001 the worker saw Dr. Irena Khostanteen, a rheumatologist. Dr. Khostanteen felt the worker had chronic soft tissue pain consistent with repetitive strain injury syndrome and left lateral humeral epicondylitis. The worker was to avoid repetitive use of the left arm.

3 Page: 3 Decision No. 58/04 [21] In early April 2001 Dr. Krol stated that the worker should avoid repetitive use of the left forearm and should continue on light duties for four hours per day. On April 26, 2001 Dr. Krol diagnosed repetitive strain injury/epicondylitis involving both wrists, arms and hands. [22] In May 2001 the worker was seen at the Rheumatology Day Hospital in Hamilton. The worker complained of considerable pain in her forearms, wrists and hands bilaterally. The worker was having difficulty performing the activities of daily living. Recommended limitations by the physicians at the Hospital included no bilateral pinching, gripping and the performance of repetitive tasks for over five minutes. [23] An MRI of May 31, 2001 showed no evidence of cervical radiculopathy in the worker s cervical or thoracic spine. [24] On June 6, 2001 the worker saw Dr. I. Khostanteen at the Rheumatology Clinic. It was the doctor s impression that the worker had repetitive strain injury syndrome and left lateral epicondylitis. Dr. Khostanteen felt the worker should return to work at four hours per day for three weeks with no repetitive use of her hands. On July 12, 2001 Dr. Khostanteen diagnosed repetitive strain injury syndrome. She suggested that the worker continue at work for four hours per day. [25] In August 2001 Dr. worker saw Dr. A. Jaroszynska, a rheumatologist. The diagnosis was a mild bilateral lateral epicondylitis with symptoms of extensor tendinitis in both wrists. The worker was to continue at work at four hours per day and avoid repetitive use of the arms and wrists including pinching, pulling, lifting and gripping. [26] The worker continued to be treated by Dr. Jaroszynska with little improvement. The diagnosis continued to be bilateral lateral epicondylitis and bilateral extensor tendinitis. Dr. Jaroszynska related the worker s problems to the nature of the work she was doing. [27] In November 8, 2002 a MRI showed degenerative discal disease and posterior facet disease at C5/6 and to a lesser degree at C6/7. [28] In November 2002 Dr. Jaroszynska diagnosed bilateral tennis elbow and neck pain. The doctor recommended avoidance of repetitive activities of the hands and upper extremities. (iii) The Vice-Chair s Conclusions [29] The Vice-Chair concludes, after considering all of the evidence including the testimony of the worker, that the worker is entitled to benefits for bilateral wrist and arm difficulties. [30] The Vice-Chair comes to this conclusion for the following reasons: [31] - The Vice-Chair accepts, from the testimony of the worker and documentation in the file, that the worker s job duties with the accident employer as making boxes, stacking, packing and unpacking required repetitive use of the hands including pinching, pulling and grasping activities, often against resistance. The worker primarily worked on lines where speed and dexterity of the fingers and hands was required. Work duties often required fine finger movements.

4 Page: 4 Decision No. 58/04 [32] - There was no explanation for the worker s bilateral hand and arm complaints other than her activities at work. The worker did not engage in any activities outside of work that required repetitive use of the hands. In addition, the worker s hand complaints were consistent with a work related cause. The worker s hand and arm symptoms would increase while at work while performing her regular work duties and would subside on weekends or while on vacation. [33] - A number of doctors, including Dr. M, Krol, the worker s family physician, Dr. Gwardjan, a specialist in physical medicine and Dr. I. Khostaneen, a rheumatologist, have related the worker s bilateral wrist and arm pain to the worker s repetitive activities at work. All of these doctors recommended that the worker restrict repetitive movements of the wrists and forearms at work to avoid recurrences of her ongoing bilateral difficulties. [34] In a medical report of December 17, 2001 Dr. Jaroszynska, diagnosed bilateral lateral epicondylitis and extensor tendinitis of both wrists. In the same report Dr. Jaroszynska stated, in part: Opinion and Plan: There is no doubt [the worker] has a recurrence of her symptoms of tendinitis and bilateral lateral epicondylitis. There is little doubt that this is related to the nature of the work she is doing. [35] Dr. Jaroszynska recommended rest, stretching exercises and anti-inflammatory medication. The worker contiues to be treated by Dr. Jaroszynska. [36] It is worthwhile noting that there is no medical report in the worker s file that states that the worker s job duties in general are not medically compatible with the worker s bilateral problems. [37] The Vice-Chair ultimately concludes, based on the three paragraphs above, that the worker has suffered an accident in the nature of a disablement. The worker s job duties in general have resulted in the worker s bilateral arm difficulties diagnosed as bilateral lateral epicondylitis and extensor tendonitis of both wrists. [38] The worker s bilateral wrist and forearm problems have been chronic since May The worker testified at the hearing that she continues to have bilateral arm difficulties and that she wore arm braces at work to the time of her lay off in October [39] The Vice-Chair concludes that the worker s bilateral problems have extended beyond the maximum medical rehabilitation (MMR) date and the worker is entitled to a non-economic loss (NEL) assessment in regard to her bilateral difficulties. [40] The worker s representative requested that the Vice-Chair order a labour market re-entry assessment (LMRA) as the worker was laid off from her employment in October 2003 and was terminated in January The Vice-Chair, with respect, makes no ruling in regard to the worker s right to a LMRA. There is insufficient evidence to properly conclude that the worker s lay-off and termination were as a result of the worker s ongoing compensable problems. It is the Vice-Chair s opinion that the LMRA issue is to be determined by the Board after an investigation that should include consultation with the worker and employer.

5 Page: 5 Decision No. 58/04 [41] In addition, the Vice-Chair determines, after reviewing both of the worker s claims, that all benefits to the worker resulting from this decision are the responsibility of the claim dated May 2000 (Claim #1). It is the Vice-Chairs determination that the worker s bilateral problems were as a result of her work duties in general and the worker s bilateral arm difficulties began after the worker stopped work in May In addition, the Vice-Chair finds that the worker is not entitled to ongoing benefits for her right or left hand, wrist or arm under the claim dated June 15, 1999 (Claim #2). THE DECISION [42] The worker is entitled to benefits for her bilateral wrist and forearm difficulties, diagnosed as bilateral lateral epicondylitis and extensor tendonitis of both wrists, under a claim dated May 6, [43] The worker is entitled to a non-economic loss (NEL) assessment in regard to her bilateral wrist and elbow problems that arose from her May 6, 2000 claim. [44] The worker is not entitled to ongoing bilateral benefits for her hands wrists or arms as a result of a claim dated June 15, [45] The worker s appeal is allowed, in part. DATED: March 12, 2004 SIGNED: T. Carroll