WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1051/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1051/06 BEFORE: G.R.W. Gale : Vice-Chair M. Christie : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: May 29, 2006 at Toronto Oral DATE OF DECISION: October 18, 2006 NEUTRAL CITATION: 2006 ONWSIAT 2310 DECISION(S) UNDER APPEAL: WSIB ARO decision dated January 29, 2004 APPEARANCES: For the worker: For the employer: Interpreter: Mr. Richard A Fink, Lawyer Mr. William Hilson, W. Hilson & Associates Inc. Hamilton None 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. 1051/06 REASONS (i) Issue and Accident Date [1] Mr. Fink confirmed to the Panel that his client is seeking entitlement to an assessment for non-economic loss (NEL) benefits for a permanent impairment of the worker s neck which is alleged to have occurred on December 3, (ii) Background [2] The worker is 57 years old. He has worked all his life as a rodman in the construction industry, where he carries, places and ties down reinforcing steel rods on construction sites. [3] The worker explained that he would be hired onto construction jobs through the hiring hall operated by his trade union. In December 2001, he was engaged as a rodman at a site north of Toronto. He was installing reinforcing steel in a wall using a scaffold structure which reached up the three levels of a scaffolding frame, which supported horizontal wooden planks for the use of those working on the wall. [4] The worker testified that the headroom on the lower two levels of the scaffolding was about five feet high, which required him and most of his co-workers to crouch down as they moved around on the scaffolding to place and tie down the lengthy bars or rods of reinforcing steel. This work was carried out by the worker and his fellow rodmen over a nine-hour day, six days a week, with a two week break at Christmas. [5] On the morning of December 3, 2001, the worker was moving across a lower level of the scaffolding and planning to climb to the next level above. He thought he had reached the end of the scaffold frame when he stood up, striking his hard hat against the scaffolding in the area of his forehead. He felt a cracking noise in his neck. He did not stop working, but he recalls making some mention of this incident to his co-workers. [6] Subsequent investigations by the Board indicated that the co-workers all had a very vague recollection of the worker s complaint that he had bumped his head, but they could not recall the date or the details of any particular injury. As noted by the employer in its letter to the Board quoted below, the arrangement of the scaffolding and planks, with their lower headroom, made a bump on the head a daily occurrence, and one which the rodmen would ignore in much the same way the worker did. [7] After this incident, the worker continued his full shift and regular duties through to the company s Christmas break and afterwards into January of He was laid off in late January for lack of work at the job site in question. When he applied for employment insurance, he indicated that he would be available for work by registering that fact with his union local. He was eventually hired onto another job in May of 2002, and he has continued to accept work as a rodman whenever it was offered since that time.

3 Page: 2 Decision No. 1051/06 (iii) Report of Injury [8] Subject to the comments to his co-workers referred to above, the worker did not report the incident at the time it occurred on December 3, 2001, or for nearly two months thereafter. Once he had been laid off, he spoke to his supervisor on January 29, 2002 and the accident employer subsequently submitted its Report of Injury (Form 7) to the Board dated July 11, Along with that Form 7 Report, the accident employer submitted its letter of July 10, 2002 to the Board, which contained the following comments and observations: We are writing to you to express our concerns and doubts and extreme reluctance to file a Form 7 for [the worker s] alleged accident. The background information is that [the worker] was a Rodman in our employ between November 22, 2001 and January 18, 2002 (except for the Christmas shutdown between December 21, 2001 and January 3, 2002). [The worker] worked at the [accident employer] project under the supervision of our superintendent [name]. The project consisted of a 32 high wall which would involve working within scaffolding for 8 hours a day. [The worker] was laid off due to shortage of work on January 18, 2002 at the conclusion of the project. The facts of this case are as follows: [The superintendent] stated [the worker] called him on his cell phone around 12:30 p.m. on January 29, 2002 and related the following information. That he had numbness in his elbow. He went to the doctor after he was laid off because he thought the numbness was due to something else other than hitting his head. [The worker] thought the numbness was from the chips in his elbow. There were no witnesses. [The worker] did not say anything to his immediate supervisor [name] the Carpenter Foreman on site. That the doctor had told [the worker] that the numbness was due to hitting his head on the scaffolding. As a follow-up [the superintendent] phoned [a co-worker] on January 29/02, an ironworker who worked with [the worker] on the entire project. He related the following facts. [The worker] did mention hitting his head sometime before Christmas. [The worker] did not mention anything about having numbness. [The co-worker] did not tell anyone about [the worker s] incident. We firmly believe there was no accident, hitting your head on scaffold (where the entire job was a wall of scaffold) became a daily occurrence for everyone involved on this project. Also, there is such a lapse between the alleged accident and the report date which makes the whole incident hard to substantiate. Lastly, we believe there was a preexisting condition for bone chips in his elbow that he was being treated for prior to working for us. [9] The worker eventually submitted his Form 6 report dated July 15, 2002, more than six months after the claimed incident. In his Form 6, he described banging his head on the scaffolding and indicated that he had reported this to his employer on January 18, The employer s Form 7 states that the report to its supervisor was on January 29, In his Form 6

4 Page: 3 Decision No. 1051/06 report, the worker also referred to having neck and arm pain and numbness, but he added that he was continuing to work. [10] The worker explained to the Panel that his family physician was Dr. Leo Cellini. He was not able to arrange an appointment with Dr. Cellini in January or February, 2002, and there is no Form 8 (Physician s First Report) in evidence in the Case Record. In fact, Dr. Cellini is now deceased, and there was never any report written by that physician in connection with the worker s claims in this matter. (iv) Investigations and Initial Ruling [11] Between late July and early August, 2002, a Claims Investigator at the Board conducted a number of telephone interviews with the worker, his co-workers and the accident employer. As noted, the co-workers were very vague about the possibility that the worker had remarked on an incident on the scaffold, and neither the dates nor any details could be recalled by those individuals the following summer. The employer s superintendent told the Investigator that he had no report of any problem or accident, and Dr. Cellini s office told the Investigator that the physician was away on vacation until the first week in August of [12] In the course of these investigations, the Claims Investigator wrote a detailed letter to Dr. Cellini requesting a report about the history of any prior problems with the worker s health, all attendances and treatments from December, 1999 to the summer of 2002, and other information concerning the doctor s findings and treatments, etc. The Case Record indicates that Dr. Cellini did not respond to that inquiry or provide the Board with any information about any role he may have played in dealing with the worker s incident in December of [13] On October 28, 2002, a Claims Adjudicator at the Board wrote to Mr. Fink setting out her views on the new claim file opened for the neck injury in December, 2001, including the following points and comments: Workers are entitled to loss of earnings (LOE) benefits and payment of health care expenses if they are injured in an accident which happens during their assigned work duties, and while performing a reasonable act within the scope of their job. There must be satisfactory proof that the accident or disablement happened as reported. [The worker] submitted a Form 6 dated July 15, 2002 which established his claim. The accident date is December 3, Noting the delay in reporting to the Workplace Safety and Insurance Board (WSIB), the file was listed for an investigation to obtain statements from all parties and as well, medical documentation from [the worker s] family physician. The investigator met with [the worker] and obtained a statement from him. [The worker] is claiming entitlement for his neck, shoulders, arms, elbows, hands and wrists. [The worker] stated that his accident occurred on December 3, 2001, sometime in the morning. At that time, he was employed with [the accident employer]. [The worker] stated that he was working on a scaffold and he had to go into different areas, and to do this he had to go under another scaffold. He was wearing his hard hat. As he was walking, he stooped down to go underneath another scaffold, which he felt was near the end of the scaffolding; however, he walked into a metal bracing of the scaffold. He told the investigator he hit the front of his hard hat, not the tope of his hat. The force knocked

5 Page: 4 Decision No. 1051/06 his hat off and jarred his neck backwards. He felt a crack in his entire neck; he went a couple of feet back due to the jarring; he did not fall; he grabbed the brace to steady himself. He stated this happened very fast. He stated that when this happened, he felt pain in the whole of his neck and could feel it through his whole body. Pain went down into the top of both shoulders. [The worker] sated that no one was there to witness his injury. He advised he went to [a co-worker] right away and advised what happened. [The worker] stated that he would take it easy At coffee break, he told [the superintendent] of the job. He stated no report was ever made. [The worker] also states he did not see a doctor right away as he felt he would be ok. From December 3, 2001 to present, [the worker] advises that he had stiffness in the neck, however, no particular neck or shoulder pain. Eventually, he did go to see Dr. Cellini, he believes on January 8, 2002 because, as he states, he was tired of waking up with symptoms. The doctor had referred him for an EMG, which was conducted on February 6, 2002 at the Hamilton General Hospital. The EMG report is on file; however, it was placed in [the worker s] back claim for which he has no entitlement for this area of injury and therefore was placed in his present claim [ ] The EMG that was taken confirmed carpal tunnel syndrome as well as chronic cervical polyradiculopathy. Please note this EMG is dated February 6, [The worker] also went to the St. Joseph s Urgent Care in Stoney Creek on June 2, 2002 and this report is on file. [The worker] also stated that there were no other new injuries and he lost no time from work. He had applied for Employment Insurance benefits after this job and indicated that he was available and willing to work. He worked with [the accident employer] until his layoff in January 2002 and then worked for [ ] in Brampton from May 28 to June 22, 2002 when his job ended. [14] The worker objected to this decision and appealed to an ARO at the Board, whose decision is now on appeal before this Panel of the Tribunal. (v) Medical Reports [15] Dr. Cellini did arrange for the worker to attend the Hamilton General Hospital for an electromyography examination which was carried out on February 6, A report records the worker s complaints of pain in his shoulders and the outer aspects of both elbows, along with tingling and numbness over his hands. The worker told the hospital clinical personnel that he had experienced tingling and stiffness when he woke up in the morning, and he testified before the Panel that this would improve over the course of the day. [16] After conducting various neurophysiological tests and considering the findings, the EMG report done in February, 2002 contained the following conclusions: Conclusions 1. Right carpal tunnel syndrome, moderately severe, demyelinating. 2. Left carpal tunnel syndrome, mild, demyelinating. 3. Chronic cervical polyradiculopathy affecting C5 and C8 roots. [17] The day before the EMG examination, the same hospital conducted an x-ray examination of the worker s cervical spine and reported that it had particularly observed his cervical discs

6 Page: 5 Decision No. 1051/06 from C1 to C7. No definite fracture, malalignment or vertebral soft tissue swelling was identified, no significant extension was seen, and there was only limited flexion. [18] On June 8, 2002, the worker attended the Urgent Care Clinic at a Centre for Ambulatory Health Services in Hamilton, which recorded that he had complained about a bilateral elbow pain since January of 2002 caused by a work accident in which he hit his head on a scaffold. The Centre s discharge diagnosis was carpal tunnel syndrome. [19] Following the death of Dr. Cellini, the worker s primary health care needs were provided by Dr. Leslie Lee, who referred him for a further EMG examination at the same Hamilton hospital in January of After referring to the worker s claim that his neck and arm problems were caused by the workplace accident in which he struck his head on some scaffolding, the report in 2004 noted the following conclusions: CONCLUSIONS: This EMG and nerve conduction study yields: 1. Increased piolyphasic potentials in the right C5 distribution/deltoid suggestive of C5 radiculopathy. 2. Right median terminal motor latency; right median sensory axon loss and demyelination. This suggests a moderately severe degree of right carpal tunnel syndrome. 3. Left median terminal motor latency increases; left median mid palmar latency increase. This suggests a moderate degree of left carpal tunnel syndrome. 4. Right radial and ulnar 4 th sensory amplitude reduction. He does have to be monitored for a generalized sensory neuropathy there is a positive family history of diabetes. The results were reviewed with the patient, and it would seem reasonable that he go on to have referral to a plastic surgeon to discuss possible carpal tunnel release procedure given his persistent symptomology. I assume he has had recent C-spine x-rays, and/or MRI for full investigation of his previously detailed and currently noted C5 radiculopathy. [20] Armed with these reports, Dr. Lee wrote to the Board on March 2, 2005 in the following terms: [The worker] has asked me to write you about his chronic and on-going pains which he relates to the injury of the above date and Claim # which occurred at [the accident employer]. He was walking under scaffolding, looked up, and banged head against the scaffolding. He knocked off his hard hat and felt a crack that shot from top of his head to his lower back. He saw stars and went to his knees. He slowly stood up. He continued working. No time was lost from work. About two weeks later he began to have pain, numbness and tingling in both hands, which he never had before. He relates this to the accident or it could be from repetitive work injury leading to carpal tunnel syndrome. He has been wrapping the wrists with tensor bandages at night to sleep with, like a splint, and it has helped. But the pain is gradually getting worst. He is reluctant to have surgery. Enclosed are reports of EMGs, Cervical Spine x-ray, and MRI Cervical Spine.

7 Page: 6 Decision No. 1051/06 The EMG 6 Feb demonstrates moderately severe right CTS and mild left CTS as well as 341 cervical radiculopathy at C7 and C8. The EMG 19 Jan 2004 shows that the left CTS is now moderate. A C5 level radiculopathy was also present. The Cervical x- ray demonstrates narrowing of C7-T1 disc. The MRI showed a small central disc at C5-6 with no significant cord compression. There was mild to moderate foraminal narrowing of C4-5 and C5-6. It is possible that in addition to his carpal tunnel syndrome that he is having some radiculopathy referable to his neck which could be related to the injury as claimed. [21] The Panel notes that the final paragraph of Dr. Lee s letter is largely speculative as to the possibility of a neck injury in addition to the carpal tunnel syndrome referred to in this letter and in earlier in the EMG reports. In fact, he refers only to some radiculopathy referable to his neck, from which Dr. Lee would only say that it could be related to the injury as claimed. [22] During his submissions to the Panel, Mr. Fink agreed that all the references to the scaffolding incident recorded in the EMG reports and Dr. Lee s letter came from the worker himself, and that there were no independent or concurrent medical or other reports which made any such connection. (vi) Previous Motor Vehicle Accident [23] In 1994, the worker sustained serious injuries, including a fractured collarbone, in a motor vehicle accident which put him in hospital for nearly a week and caused him to lay off work for several months. Mr. Fink took the Panel to various reports which, he submitted, showed that the neck or cervical discs did not appear to be injured in that accident. While we understand this aspect of the Record and Mr. Fink s submissions, the Panel does not believe or accept that those reports, made over seven years earlier, provide a satisfactory answer to the key question raised in this appeal and put by Mr. Fink during his opening submissions: did the scaffolding incident cause the worker s symptoms of stiffness and numbness in his neck, arms and hands, or lead to a permanent impairment of the work s neck? [24] In his able submissions to the Panel, Mr. Fink asked us to infer that the absence of neck or cervical disc injuries in the non-compensable motor vehicle accident, which was otherwise sufficiently serious to keep the worker off work for several months, means that the neck and disc problems identified by examinations conducted in 2002 must have been caused by the worker s incident on the scaffolding. However, in the absence of clear, independent and persuasive medical support for the causal connections argued by Mr. Fink, the Panel cannot accept or act on this submission or the inference he asked us to draw. Whatever did or did not happen to the worker in 1994, his examinations at that time do not contribute to or inform us on the required causal connection or compatibility between his scaffold incident and his later complaints leading to this claim for an award of NEL benefits based on a permanent impairment. (vii) Employer s Position [25] Mr. Hilson asked a number of questions which served to record the fact that the worker had continued to do his regular job without any reduction of hours, accommodation or modification of his work following the scaffold incident. He established that the worker had applied for employment insurance (EI) benefits following his layoff for lack of work in January, 2002, when the worker also advised the EI office through his union hiring hall that he continued to be available for work.

8 Page: 7 Decision No. 1051/06 [26] In his closing submissions, Mr. Hilson pointed out that the only references to any problem with the worker s cervical disc and neck area were in the two EMG reports, and in the possibility raised by Dr. Lee in his letter of March 2, 2005 quoted above. He also referred to certain materials in the Case Record which record the fact that the worker has a NEL award for a degenerative disc disease, and that his neck problems could possibly be the product of the aging process. (viii) Law, Policy and Conclusions [27] The worker s accident arising from the scaffolding incident was accepted as having occurred on December 3, On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) came into force and thus governs the merits of this appeal. Under section 126 of WSIA, the Appeals Tribunal is now required to apply any applicable Board policy when making decisions. The Board identified certain policies as applicable to this appeal, and the Panel has considered these policies as necessary in making its decision. [28] The Panel is satisfied that the worker gave his evidence in a straightforward and candid manner. His recollection of the events of late 2001 and beyond were not particularly detailed or useful, but there seems no doubt that he has complained about some form of stiffness and numbness in his neck and arms over the past four years. The worker also testified that these problems would diminish over the day, and that they have not prevented him from continuing to work as a rodman over the years since the incident on the scaffold. [29] The Panel listened carefully to the evidence and has considered the submissions of the representatives as well as the materials provided in the Case Record. We have made the following findings of fact which support our conclusions in this matter: the worker is an experienced rodman who has spent many years working in the kind of conditions encountered with the accident employer in December, 2001; the worker bumped the front of his hard hat against a scaffolding while he was doing his rodman job on December 3, 2001; while the worker may have remarked on this incident to his co-workers, the evidence about those alleged reports was minimal and not helpful; the worker did not report the incident until late January, 2002, and he continued to do his full day s work six days each week for the balance of December, 2001 and for a couple of weeks in January, 2002 following the two-week Christmas break; the worker did not cause any formal report of his scaffolding incident to be provided to the Board until July of 2002; the focus of the medical reports arising from the EMG examinations conducted in 2002 has always been on CTS; in March, 2005, Dr. Lee, who had not treated the worker in late 2001 or early 2002, would only refer to the possibility of a neck injury which could be related to that incident; and

9 Page: 8 Decision No. 1051/06 apart from Dr. Lee s speculative and inconclusive comment, there is no medical evidence stating or offering the concrete opinion that the worker has a permanent impairment to his neck because of the scaffolding incident in [30] As Mr. Fink recorded at the outset of our hearing, the worker is seeking an assessment for a NEL award based on a finding of a permanent impairment to his neck caused by the scaffolding incident. In addition to the worker s threshold difficulty in connecting his neck condition with that incident, none of the medical reports in evidence provide any support for a permanent impairment of the neck based on that incident. The treating doctors and various imaging tests simply have not identified a permanent impairment based on the bump on the head, and even the worker candidly admitted that any sleeping problems tend to go away during the day, and that he has been able to work in the same job throughout the years since late [31] In these circumstances, the Panel has determined that the worker has been unable, on the balance of the probabilities raised by all the evidence, to establish the necessary connection between the scaffolding incident and his neck problems, or a finding of any permanent impairment, sufficient to warrant an assessment for the award of NEL benefits.

10 Page: 9 Decision No. 1051/06 DISPOSITION [32] For these reasons, the worker s appeal is denied. DATED: October 18, 2006 SIGNED: G.R.W. Gale, M. Christie, A. Grande