WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1023/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1023/14 BEFORE: G. Dee: Vice-Chair HEARING: May 28, 2014 at Toronto Oral DATE OF DECISION: June 12, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1284 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 15, 2012 and November 6, 2012 APPEARANCES: For the worker: For the employer: Interpreter: M. Beausoleil, Paralegal R. Boswell, Lawyer 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. 1023/14 REASONS (i) Issues [1] The worker seeks entitlement for a neck injury on a disablement basis. [2] The worker also seeks continuing entitlement beyond April 20, 2009 for a left knee injury including recognition of a permanent impairment. (ii) Background of the knee claim [3] The worker injured her left knee on March 23, 2009 when she slipped and twisted her knee while standing on a short stool that she was using while cleaning hydraulic lines behind a machine. The worker was 38 years old at the time and had been working for the employer since [4] The initial diagnosis at hospital on the date of injury was a Grade 1 sprain of the MCL (medial collateral ligament). [5] The worker returned to work performing modified duties for a time before eventually returning to her regular employment as a machine operator towards the end of April [6] The worker s return to regular duties at that time reflected opinions that were obtained from health care providers. [7] Some of the medical opinions provided at that time did not note any need for continuing restrictions. However, the family doctor, Dr. V. Rapson, recommended on an FAE dated April 20, 2009 that while the worker could return to work without restrictions that she should avoid repetitive squatting and that a supportive knee brace was desirable due to ongoing symptoms and instability in the knee. The report also indicated that an MRI was to be booked. [8] A further report by Dr. Rapson dated April 23, 2009 noted that the worker was experiencing pain deep in her knee with difficulties at the end of her range of motion. The worker continued with physiotherapy. [9] The MRI exam took place on May 28, 2009 and resulted in the following conclusions: There is evidence of a radial tear involving the posterior horn of the medial meniscus which extends into the root attachment zone with associated extrusion. There is evidence of previous high grade partial injury to the PCL (posterior collateral ligament) which is grossly attenuated but intake. There is MCL thickening. [10] The report also noted that there was focal chondrosis involving the medial femoral condyle anteriorly which approaches full thickness. [11] The family doctor reported on June 4, 2009 that the worker s condition was improving but that she still had good and bad days. Hesitation at full range of motion was noted as was locking of the knee at times and almost giving way. There was also swelling and medial tenderness noted. The diagnosis of meniscal tear was repeated. The report noted that an orthopaedic consultation was pending. [12] A history similar to the June 4, 2009 history was provided by the family doctor in a referral note dated June 9, 2009.

3 Page: 2 Decision No. 1023/14 [13] A progress report dated June 21, 2009 noted continuing improvement but similar observations to the previous reports. [14] The worker saw Orthopaedic Surgeon, Dr. S. McKenzie on October 6, 2009 where observations similar to those made by the family doctor are repeated. The MRI findings showing a medial meniscus tear with normal x-rays were mentioned and the worker was observed to have stable cruciates and collaterals. The report states that the worker had agreed to undergo arthroscopy which was to be booked at the next available time slot. No specific diagnosis was provided by Dr. McKenzie. [15] The worker s surgery took place on March 10, Continuity of medical treatment with the worker s family doctor on November 30, 2009 and February 23, 2010 are confirmed in a report from Dr. Rapson dated March 1, [16] The diagnosis after surgery refuted the earlier MRI findings regarding the meniscus. The meniscus was thoroughly examined and found to have no tearing whatsoever. Cartilage damage was found that was described as Grade III in nature and quite focal. The post-operative diagnosis was: Medial, tibial, plateau and femoral condyle damage, superomedial plica and suprapattellar pouch synovitis. [17] The operation was described as: Debridement of synovitis and debridement of medial tibial plateau and medial femoral condyle. [18] There were some apparently brief complications following surgery the next day but subsequently the worker was provided with a Functional Abilities Form on March 30, 2010 from Dr. McKenzie authorizing a full return to work with no restrictions. [19] The worker s knee surgery and recovery period were recognized by the WSIB as being related to the worker s initial accident on March 23, [20] A progress report from Dr. Rapson on March 23, 2011 states that the worker has had a chronic ache since the March 2010 surgery but was able to work but recently had noticed some increased symptoms with changed job duties following another injury (presumably the worker s neck injury). No treatment or referrals were suggested but only monitoring. No restrictions were suggested either although use of a brace at work when the knee was aching was supported. (An FAF of the same day regarding the worker s neck claim did however contain some limitations including prolonged standing). [21] In a detailed typed report faxed to the WSIB on March 1, 2012, Dr. Rapson incorrectly states that the March 23, 2011 visit occurred in June of 2011 and then goes on to state that she discussed the worker s knee difficulties with the worker in September 19, 2011 and her x-rays had been normal at that time. There was no swelling but there was discomfort. It was hoped that her knee symptoms would improve with lessened work demands resulting from her neck difficulties. [22] The same report states that the worker was next reviewed on February 16, 2012 and the worker s knee difficulty was described as primarily functional. There was no swelling and a good range of motion. With repetitive stairs the worker would notice throbbing and cracking of the knee. The knee was not thought to be debilitating enough at that time to warrant further

4 Page: 3 Decision No. 1023/14 management other than exercise. The worker s other health problems were seen to take priority at that time with possible further MRI and orthopaedic evaluation in the future. [23] The worker requested entitlement for a permanent impairment rating from the WSIB that was refused. On appeal to an Appeals Resolution Officer further investigation of the worker s claim was ordered in a decision dated April 3, [24] In a report dated April 25, 2012 Dr. Rapson repeats much of the same history that has been referred to above but also notes that as of February 16, 2012 the worker likely had some chronic changes in her knee related to her prior injury and surgery. [25] A referral to a Regional Evaluation Centre was intended to clarify the worker s diagnosis, prognosis and the relationship of her ongoing knee symptoms to the initial accident. [26] The referral took place on May 11, The result of the referral was a diagnosis of a Grade 2 PCL strain/chondral lesion medial compartment left knee. The worker was found to be partially recovered with no further recovery expected. No opinion was provided on the relationship of the worker s ongoing knee problems to the initial accident. [27] An opinion was then requested from a WSIB medical consultant, Dr. Balinson. The opinion is contained in a report dated July 10, Following a review of some of the medical history regarding the knee the report states the following opinions: The initial diagnosis of a radial tear medial meniscus was not substantiated at the time of arthroscopy. PCL strain injuries arise from direct trauma with a flexed knee of falling onto flexed knee with ankle in plantar flexion. It is less common than ACL injuries. It would not appear to be compatible with accident history as described. Noting that there was no evidence of meniscus tear and no apparent weight-bearing fall, diagnosis of chondral lesion medal compartment left knee would not appear to be compatible with the accident history. [28] Based upon this medical opinion the worker s initial entitlement for her knee injury was withdrawn at the claims level of the WSIB. [29] On appeal to the Appeals Resolution Officer initial entitlement was restored but the worker s entitlement to benefits was restricted to April 20, 2009 based upon a finding that the worker s knee injury had fully resolved by that time. [30] The worker now appeals this finding to the Appeals Tribunal. [31] The employer participated in the appeal and opposes the worker s appeal. (iii) Analysis of the left knee entitlement [32] The worker s appeal for continuing left knee entitlement is allowed. [33] Based upon the history of medical treatment provided above it is apparent that the worker s knee impairment did not resolve by April 20, 2009 and there are no significant gaps in the medical treatment right up to the time of surgery in March [34] The worker is therefore entitled to loss of earnings benefits for the time lost from work due to her surgery.

5 Page: 4 Decision No. 1023/14 [35] While there is a gap in medical treatment from March 31, 2010 until March 23, 2011, given the findings made when the surgery took place in March 2010; the statement regarding continuity of complaint during this period that has been provided in a co-worker statement dated May 4, 2011; the family doctor s acceptance of the worker s ongoing complaints as being related to her initial accident; the lack of any new diagnosis regarding the worker s knee; and the lack of any evidence of any new injury regarding the worker s knee in this period, I accept that the worker s left knee problems in March 2011 are essentially the same left knee problems that the worker had in March [36] The limitations caused by the worker s left knee condition would not appear to be extensive given her ability to return to regular duties following her surgery and given the limited findings of the family doctor with respect to loss of range of motion. However, given the duration of the worker s symptoms and given the conclusions of the REC referral that the worker was only partially recovered with no further recovery being expected, I find that the worker s condition meets the definition of permanent impairment that is found in section 2 of the WSIA: permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [37] The worker is therefore entitled to a non-economic loss determination in respect of her left knee pursuant to sections 46 and 47 of the WSIA. [38] In reaching this determination I have considered the employer representative s submission regarding the lack of medical documentation between 2012 and However, given that the injury occurred in 2009 and the REC assessment took place in 2012 and indicated that no further recovery was expected, I am satisfied that the worker s left knee condition is a permanent one. [39] I have also considered the opinion provided by Dr. Balinson of the WSIB. While I agree with Dr. Balinson that there are difficulties with the initial diagnosis that was made in this claim, I do not find Dr. Balinson s opinion with respect to the cause of the worker s knee problems to be persuasive given the complete absence of any consideration in the doctor s opinion of the history of onset and the continuity of complaint and medical treatment that followed the accident up to the time of the worker s surgery. [40] While the diagnosis of the precise medical reason for the worker s left knee difficulties may be somewhat problematic, the difficulties in the knee do appear to be clearly related to the injuring incident that occurred in March 2009 given the lack of a prior impairment and the continuity of medical and other complaint since the accident with no known intervening events. (iv) Background with respect to the neck claim [41] The worker described the work that she performed for the accident employer. [42] I have no difficulty accepting that this work was heavy, repetitive work based upon the worker s testimony, a letter provided by a co-worker, and the employer provided report regarding the physical demands required of the worker while performing her work as a machine operator.

6 Page: 5 Decision No. 1023/14 [43] In the fall of 2010 the worker began to develop neck complaints with gradual onset. These complaints grew worse and have resulted in the worker experiencing chronic pain in her neck with headaches. The worker also experienced pain radiating from her neck down her arm to her right thumb with numbness and tingling in the thumb. [44] In November 2010 the worker attended at the emergency department of her local hospital regarding these concerns. A CT scan was conducted on November 23, 2010 and her family doctor submitted a Health Professional s Report (Form 8) on November 23, 2010 with a diagnosis of cervical neck pain, disc herniation, and repetitive strain injury. [45] The CT scan demonstrated osteocartilaginous bar formations at C4-5 and C5-6 with central and right-sided foraminal narrowing or stenosis at both levels. It also showed a probable small right-sided foraminal disc herniation at C6-7 with no significant central canal stenosis at that level. [46] A subsequent MRI examination on February 27, 2011, had somewhat similar findings at the C4-5 and C5-6 levels but did not find any abnormality at the C6-7 level. [47] The worker was seen for electodiagnosis by a Physical Medicine and Rehabilitation specialist, Dr. K. Wilkins. A report dated April 5, 2011 noted the worker s complaints including right thumb tingling. It also noted that an EMG study of the worker s triceps showed definite abnormalities. It was the doctor s impression that the symptoms fit a C7 radiculopathy. [48] The medical restrictions provided by Dr. Wilkins for the worker were not compatible with the worker s performance of her regular duties. [49] The worker in her testimony described the pain through her neck and down towards her shoulders with the right being worse than the left and that she also experienced pins and needles down into her right arm and her right thumb as well as the palm of her right hand at the thumb. [50] The worker continued to work in modified duties for a period of time but stopped work altogether in September The worker had other health issues at that time as well as her knee and neck difficulties. She testified that those other health issues are no longer continuing. [51] A report dated April 25, 2014 from Dr. Rapson states as follows with respect to the worker s neck and arm difficulties: [The worker] is a patient in my practice. She suffers from chronic pain related to cervical radiculopathy and a left knee injury. In terms of her neck, she suffers chronic discomfort, often worse depending on prolonged activity. She gets intermittent headaches. She has some restricted movement with left lateral rotation and flexion over the right. She gets intermittent numbness into her right hand and discomfort into the right forearm with excess use. She is unable to lie on her right side as she develops numbness. She treats this primarily with stretches at this point due to the chronic nature. She tends to alter her positions to limit discomfort. Prolonged sitting and head positioning aggravate this particularly. She is on some chronic pain medications in the form of Nortriptyline to improve headaches and chronic pain pathway. She takes only Tourprofen p.r.n. for flares. [52] The worker s claim for entitlement for her neck difficulties on a disablement basis was denied by the WSIB. [53] The worker appealed to an Appeals Resolution Officer who obtained a medical opinion from WSIB medical consultant Dr. Kanalec dated October 18, Following a file review the doctor provides the following opinion:

7 Page: 6 Decision No. 1023/14 MRI scanning does not confirm a disc herniation however electrophysiological studies do indicate probable involvement of the right C7 nerve root. I would suggest that electrophysiological studies be repeated in six months. Based on review of the medical information as well as the jobs demands analysis there isn t evidence of a work accident but there is a gradual onset of symptomatology. Upon reviewing the work demands and based on the fact that we do not have imaging confirmation via MRI scanning of a disc herniation I cannot relate the symptoms and findings as released to work exposures. [54] The Appeals Resolution Officer denied the worker s appeal and the worker now appeals to the Appeals Tribunal. [55] The accident employer opposes the worker s appeal. (v) Analysis with respect to the neck claim [56] The worker s appeal for neck entitlement is denied. [57] There is no dispute that the worker cannot perform her pre-injury job with the neck impairment that she has. That job was a heavy job and any attempt to perform that work with the neck impairment that the worker has would result in significant pain and discomfort for the worker. [58] The issue however is not whether the worker can perform her pre-injury job with the impairment that she has. The issue is instead whether the work that she was performing was a significant contributing factor in causing the neck impairment. [59] The only detailed medical report that addresses the issue of causation is the report of WSIB physician Dr. Kanalec who expresses the opinion that I cannot relate the symptoms and findings as related to the work exposures. [60] Although the worker s representative made some criticisms of Dr. Kanalec s report and how comprehensively the doctor examined all of the work duties of the worker, there is no medical evidence that I can rely upon in preference to this opinion that has been expressed by Dr. Kanalec with the only possible exception of the very limited information found on the initial Form 8 that provided a diagnosis of repetitive strain injury while also describing the worker s difficulties as being cervical neck pain and disc herniation. [61] However, the diagnosis of a repetitive strain injury is one that is difficult to accept given that there would appear to be a neurological component to the worker s impairment with radiation of pain into the worker s right arm and right thumb, as consistently reported by the worker and also given the triceps weakness as reported in one test result from Dr. Wilkins. [62] According to the information contained in the Tribunal s Medical Discussion Paper on Neck and Arm pain and Related Symptoms: Cervical Disc Disease that is contained within the appeal record, this is not the type of impairment that is expected to result from repetitive strain on a disablement basis. [63] The Medical Discussion Paper was prepared for the Tribunal by Dr. J.F.R. Fleming Professor Emeritus, Division of Neurosurgery, University of Toronto and revised in 2012 by Orthopaedic Surgeon Dr. J. Finkelstein, Associate Professor, Department of Surgery, University of Toronto.

8 Page: 7 Decision No. 1023/14 [64] The opinions expressed in the Tribunal s Medical Discussion Papers do not necessarily represent the views of the Tribunal. However, Panels may consider and rely on the medical information provided in the Discussion Paper subject to the need to recognize that it is always open to the parties to an appeal to distinguish a Discussion Paper and challenge it with alternative evidence. See Kamara v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2009] O.J. No (Ont. Div. Court). [65] In the Discussion Paper the following statements are made: Soft tissue injuries can result from any sudden unexpected movement of the head which can wrench or strain structures such as muscles or ligaments in the cervical spinal column, and these injuries will normally heal within a few weeks. It is very rare for such an injury to cause rupture or herniation of an intervertebral disc, with compression of a nerve root causing nerve root pain. Repetitive neck movements or prolonged awkward positioning of the neck in a workplace activity are usually well tolerated by most individuals, although they may be associated with muscular aches and pains. Localized bony overgrowth, hypertrophy and spurs at the site of injury may develop in a small percentage of individuals who have sustained a severe localized injury to the cervical spinal column; however, these degenerative localized bony changes take a long time )possibly a year or more) to develop. Thus, severe injury to ligaments and/or disc at a single vertebral level may result in delayed x-ray or scan evidence of localized degenerative changes at that level many months or years after the injury, however the acute injury is well noted at the time of insult. Muscle fatigue may come on in a delayed fashion by a few hours to a day. This is a strained muscle and is generally self-limiting. This would be expected to resolve with short period of rest, anti-inflammatory medication and muscle conditioning exercises. Pain that is neuropathic is caused by a nerve root. This can be due to a disc herniation or chronic compression. This will radiate to a specific dermatome in the arm. Mechanical neck pain does not radiate below the shoulder. [66] The opinions expressed in the Medical Discussion Paper would appear to indicate that while difficult work conditions may result in neck pain, it is not likely to result in the type of permanent neurological difficulties that appear to be being experienced by the worker. [67] Even if I am not correct in my understanding of this paper I again note that there is no specific medical report contained within the appeal record that indicates that the worker s neck pain, including the referral into her right arm and hand, was caused by her repetitive and difficult work duties whereas there is a medical opinion stating that the worker s symptoms were not related to her workplace activities. [68] The submissions made by the worker s representative that the worker was not known to have a pre-existing neck problem, that her co-workers were aware of her ongoing neck difficulties when they did occur, and that the worker found it not possible to perform her work with her neck impairment, do not in my view address the central issue of whether the workplace duties themselves played a causative role in bringing about the worker s impairment. These

9 Page: 8 Decision No. 1023/14 observations do not address the central issue as these observations are entirely consistent with the worker experiencing the onset of neck difficulties due to degenerative causes. [69] The last observation I will make about the medical evidence regarding the worker s neck in this appeal is that there is not very much of it for such a significant and prolonged injury and the findings that do exist are somewhat perplexing. [70] There are no neurological reports in the appeal record. There are no orthopaedic reports either. [71] In terms of specialists reports there is only the one report from Physical Medicine and Rehabilitation Specialist Dr. Wilkins. [72] The suggestion by Dr. Wilkins of a C7 radiculopathy is based on electromyography results and is made despite the absence findings at the C6-7 level in the MRI that was conducted. [73] Dr. Wilkins belief at the time of examination was that the worker s symptoms might be explained by a small disc herniation that was resolving. However, this belief appears to be at odds with the fact that the worker s ongoing symptoms did resolve. [74] There are no follow-up reports from Dr. Wilkins and the suggestion by Dr. Kanalec that electrophysiologic studies be repeated in six months does not appear to have been acted upon. [75] I also note that according to the Tribunal s Medical Discussion Paper the worker s consistent reports of right thumb tingling and numbness would be consistent with a C6 nerve disorder but there is no diagnosis of a C6 nerve disorder in the medical information that is available or any other explanation for the thumb symptoms although there are MRI findings of degenerative changes at the C5-6 level. [76] In denying the worker s appeal for entitlement for her neck difficulties I have considered whether the appeal could be allowed on an aggravation basis. [77] Workers with medical conditions that were not caused by the work they were performing may nonetheless still experience pain or other symptoms while performing their work duties as a result of the medical condition. This, on its own, is simply evidence that the work is not suitable for the worker given the non-compensable condition. [78] There are circumstances however where the work duties worsen the underlying noncompensable condition which may result in workers compensation entitlement being granted. [79] Decision No. 652/87 states the following regarding the difference between these situations: This case raises the issue of the distinction between disabling symptoms appearing as the result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as reflecting a compensable exacerbation or acceleration of a pre-existing condition, and the disabling symptoms appearing as a result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as merely evidence of the disabling nature of the pre-existing condition. [80] Decision No. 1592/01 states the test that is applied to distinguish these two situations at paragraph 21 of the decision: It is now commonplace in Tribunal case law that for entitlement to succeed on an aggravation basis, one must be satisfied that the work duties or a work incident changed the natural course of the underlying condition.

10 Page: 9 Decision No. 1023/14 [81] There is in the present appeal no medical evidence that directly supports the proposition that the worker s employment duties changed the natural course of her neck impairment. [82] The appeal may not therefore be allowed on an aggravation basis.

11 Page: 10 Decision No. 1023/14 DISPOSITION [83] The worker s appeal is allowed in part. [84] The worker is entitled to loss of earnings benefits for the lost time she experienced as a result of her left knee surgery in March [85] The worker is also entitled to a non-economic loss determination in respect of her left knee. [86] The worker is not entitled to recognition of a neck impairment. DATED: June 12, 2014 SIGNED: G. Dee