WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1941/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1941/09 BEFORE: A. T. Patterson: Vice-Chair HEARING: October 5, 2009, at Sudbury Oral DATE OF DECISION: October 15, 2009 NEUTRAL CITATION: 2009 ONWSIAT 2389 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated September 29, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Terry Walker, Paralegal Did not participate 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. 1941/09 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that the worker had returned to his pre-accident state by July 29, 2004 and that further benefits after that date were not in order. (ii) Issues [2] The issues under appeal are as follows: 1. whether the worker is entitled to ongoing Loss of Earnings (LOE) benefits subsequent to July 29, 2004, including entitlement to health care benefits and a Labour Market Re-entry (LMR) assessment, and 2. whether the worker is entitled to a Non-Economic Loss (NEL) award. [3] The appeal is denied for the reasons set out below. (iii) Background [4] The following are the basic facts. [5] The now 47-year-old worker was employed as a registered nurse with a supervisory role with the accident employer, a home for the aged. He was injured on July 10, 2003 when he slipped and fell. The worker completed his shift and admitted himself to the Emergency Room of Ross Memorial Hospital the following day with complaints of pain in his shoulder blade, right neck and arm, and numbness to the left thumb and fingers of the left hand. [6] Prior to the workplace injury the worker had been involved in a motor vehicle accident in The worker was injured in that accident and required surgery to the neck as a result of it. On October 16, 1995 the worker underwent an anterior cervical discectomy and fusion at the C5-C6 level for a herniated left C5-C6 disc with radiculopathy. [7] The worker returned to his regular duties at full-time hours after he recovered from the surgery in On January 16, 1999 the worker was struck in the left rib cage by a patient, he suffered fractures to his left 8 th and 10 th ribs. The worker remained off work for approximately a month. This claim was allowed. [8] On August 22, 2002 the worker bumped his back on a chair while assisting ambulance attendants. He missed his shift on August 23, 2002 but returned to his regular duties thereafter. [9] In early 2001 he was terminated from his employment as a forensic nurse, but found a position with the accident employer starting in July [10] The worker has not returned to work since the accident of 2003.

3 Page: 2 Decision No. 1941/09 (iv) Law and Policy [11] Since the worker was injured in 2003, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended. [12] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, 40, 107, 300 Revision #7, would apply to the subject matter of this appeal: [13] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual ( OPM ) Document # , Payment of LOE Benefits; OPM Document # , Assessing Permanent Impairment. (v) Submissions [14] The worker representative s submissions were, in essence, that while the worker had had a serious non-compensable motor vehicle accident in 1993 he recovered fully from that accident after 1995 as demonstrated by his return to full-time regular duties. The worker cannot, he submitted, be considered to have returned to his pre-2003 accident condition. The 2003 accident has left the worker with functional limitations and, consequently, the worker should be granted ongoing LOE and other benefits related to those limitations as well as a NEL assessment for a permanent impairment. (vi) Analysis [15] Following the worker s motor vehicle accident the worker suffered from a constellation of symptoms relating to dislocation of the left shoulder as recorded by Dr. J. Mah in his report of May 6, [16] In November 1994, the worker had a left carpal tunnel release without much relief as reported by Dr. A. Guha in his report of March 28, [17] On June 19, 1995 the worker s spine was imaged by CT scan. Dr. A. Larhs, a radiologist, noted disc herniations at the C5-6 and C6-7 levels. [18] On October 16, 1995, Dr. Guha performed an anterior cervical discectomy and fusion which appeared to have resulted in good alignment until January 9, 1996 when imaging of the cervical spine revealed: There is osteophyte formation at the anterosuperior aspect of C6. This osteophyte was not present on the prior study [of November 1, 1995]. This suggests progressive bony fusion across this disc. There is somewhat more exaggerated kyphotic angulation of C5 on C6. There is also occurring some mild posterior displacement 1 to 2 mm of C5 on C6 which was not present previously. There is mild osteophyte formation in the left C5-6 neural foramen. In comparison to October 1995 the degree of kyphosis across C5-6 has increased and there is now a posterior subluxation of C5 on C6 (1 to 2 mm) that was not present previously.

4 Page: 3 Decision No. 1941/09 [19] On April 22, 1999 Dr. Guha wrote: [H]e has been doing well other than recently when he has had a recurrence of his neck and left arm symptoms. He claims that he does get thrown around at work as he works in a forensic unit. He also says that turning his neck to the right occasionally causes him to have presyncopal symptoms. His legs are of normal function as is his right arm. [20] On April 30, 1999 x-rays of the cervical spine were taken by Dr. Willinsky, and on July 27, 1999 Dr. Mikulis performed an MRI of the cervical spine. Dr. Mikulis report noted, in part, There is slight narrowing of the right C3-4 neural foramen due to uncovertebral osteophytes. Spinal canal was patent. There is mild posterior bulging of the disc at this level. There is no compression of the spinal cord. There is also mild central bulging of the C4-5 disc without compression of the spinal cord. The foramen are patent. There is an anterior fusion at C5-6. The fusion appears solid. However, this would have to be confirmed with a study sensitive to osseus structures. There is minimal narrowing of the foramen due to uncovertebral osteophyte. The spinal cord is not compressed at this level. There is posterior bulging of the C6-7 disc, effacement of the ventral subarachnoid space and no spinal chord compression. There is prominence of the right uncovertebral joints due to early degenerative change. This results in moderate narrowing of the right foramen. This might result in slight compression of the exiting right C6 nerve root. The spinal cord itself appears normal. No signal changes are seen. There is slight reversal of the cervical lordosis with alignment otherwise normal. Conclusion: The only abnormality that may be referable to the patient s symptoms is narrowing of the right C6-7 foramen. Clinical correlation is suggested to confirm this result. This would need confirmation with an x-ray study. There are minor degenerative changes elsewhere in the cervical spine. [21] On February 8, 2001 Dr. Guha examined the worker. His report of that date reads as follows: He has recently stopped his job as a forensic nurse as the job was terminated rather than the recurrence of his symptoms, which he has come to see me for. Although there was some improvement, it was not total after his initial spine procedure and he has persistent pain in the base of his neck. Over the last two years he says there is progressive increase in the pain and the numbness going down his left arm. This goes down his triceps, medial aspect of his elbow, extending in his medial fingers and occasionally into his thumb and index fingers around the first web space also. His right arm, lower extremities and bladder and bowels are unaffected. In addition, he is complaining of headaches which he describes goes through the middle of his brain to the sagittal suture etc. He did see Dr. Schneider and an MR scan was undertaken which apparently is normal. With regards to his cervical disc disease, no further investigations have been undertaken. He has stopped physiotherapy though he was on it up to a few months ago. He does exercises on his own at home. He takes Oxycocets about 1 tablet every 4 to 6 hours. [ ] On examination he seemed to be slightly fixated about his complaints going into great detail explaining where it was etc. Neck movements were limited especially on extension, lateral rotation and bending. Flexion was done well. Motor examination revealed no loss of bulk however, on his non-dominant left hand which is his symptomatic side. There

5 Page: 4 Decision No. 1941/09 was grade 4+ weakness in his biceps, anterior deltoid function as well as his wrist extensors. [ ] This gentleman I believe does have some left radicular signs but this very well may be old. [22] An MRI of the cervical spine performed by Dr. Willinsky on June 6, 2001 led the radiologist to suspect a small right lateral C6-7 herniation. [23] On July 10, 2003 the worker slipped and fell at work. [24] The following day the worker had his cervical spine imaged by a CT scan reported by Dr. P. Marrocco. Dr. Marrocco noted in particular: I do not see any evidence of a fracture and I do not see any other alignment abnormalities or evidence of a significant soft tissue injury. Interpretation Old fusion of C5 to C6 is noted. Disk bulging, possibly with herniation does involve multiple segments and is most pronounced at C6-C7. I cannot tell whether this is due to the recent trauma or whether this is a chronic phenomenon. There is no evidence of a recent fracture. [25] On July 11, 2003 Dr. Carruthers wrote: Last night (10/7/03) at work in the [employer s] nursing home he slipped in some urine on the floor and fell flat on his back. Since then he has had numbness + tingling in the C6 + C7 dermatomes of his L arm with a weak grip and biceps and on the side. A CT of his neck showed central disc bulging (effacing C6-7 and C4-5 (above + below the fusion), and flex/extend views showed 3 mm of anterior movement, C4 on the C5-6 fusion. There was no shift on the extension views. [26] X-rays of the worker s cervical and dorsal spine were also taken on July 11, 2003 by Dr. Feaver. Dr. Feaver noted: Cervical spine There is fusion of the bodies of C.5 and C.6. No other bone change is evident. Facets, processes and neural spines are intact. Flexion and extension views No bone change is evident. There is a normal range of neck motion. Dorsal spine Discs and vertebrae are normal. Pedicles are intact at all levels. No other change is evident. Left shoulder There is no sign of fracture. No other bone change is evident. The AC joint is intact. The scapula is normal. Flexion and extension views cervical spine There is normal range of neck motion. Motion occurs around the disc C.4-5.

6 Page: 5 Decision No. 1941/09 [27] A Functional Abilities Form completed by a Dr. Eckler on August 6, 2003 indicated that the worker had limitations to bending or twisting of the neck and repetitive movement of the arm. Dr. Eckler did not indicate that any rehabilitation or further treatment was required. He was uncertain as to the expected duration of the limitations noting? 2 months. Dr. Eckler also noted previous injury to neck w radiculopathy L arm and neck pain seen neurosurgeon Fall 03 Oct 20, 03. [28] On October 23, 2003 Dr. Guha wrote a report indicating, in part, the following: On examination his neck movements were restricted to all modalities especially rotation to the left. There were no lhermittes phenomena. On examination I think there is subtle C6 weakness, but this is probably residual from his prior surgery. I did not find any new C7 weakness in terms of triceps or wrist or finger extensors. His intrinsics were normal on bulk and power. Reflexes other than a slightly diminished grade 1 biceps reflex, compared to grade 2 in the other groups in the upper extremity, were unremarkable and probably old in origin. His reflexes at the knees were grade 2 and unremarkable with downgoing toes bilaterally. [The worker] is of course quite anxious and taken back by this setback. I ve told him that most likely there isn t any new pathology that will require surgical attention. [ ] Overall I feel that there will not be anything new in terms of structural alterations to come from all of this. I think he will require physiotherapy with neck muscles strengthening exercises as well as possibly message (sic) that may help. [29] On December 15, 2003 Dr. P. Garces performed an MRI on the worker. No new findings resulted from the MRI. In March 2004 the worker s condition did not improve, indeed his pain increased. [30] The worker was seen in April 2004 by Dr. S. Sharma who conducted an electrophysiological study. Dr. Sharma reported on April 7, 2004: [The worker] reported that he had been doing well until July 10, 2003, when he slipped on the wet floor and injured his left shoulder and neck again. Subsequent to this, he started feeling radiation of pain in the left arm and numbness and tingling along the lateral border of the forearm involving the second and third intermetacarpal spaces. He also reports some pain in the left thumb. Since the injury, he has not been able to work. He has been taking Percocet, up to 7 tablets per day. Prior to his injury, he was taking only 5 Percocets per day. [ ] Conclusion The clinical as well as electrodiagnostic findings are negative for C6-7 radiculopathy on the left side. There is some evidence of arthritis in the AC joints bilaterally, which could be contributing to some of the pain. [The worker] may also have developed some dependence to Percocet as he has been taking them for more than eight years. [31] On April 13, 2004 the worker saw Dr. Mah. Dr. Mah reported: Clinically he has full movement of the cervical spine and full movement of the shoulder girdle. There is decreased sensation along the ulnar aspect of his right little finger. [ ]

7 Page: 6 Decision No. 1941/09 In addition I have suggested that perhaps it would be ideal for him to return to nursing where the physical demands that are needed for community nursing home in North Bay or to other capacity where the WSIB may be able to assist him. [32] On April 28, 2004 Dr. Eckler wrote that he has a great deal of difficulty with his job as a nurse. Please reassess his case + consider retraining and some interim physio. [33] In a memorandum dated June 10, 2004, Dr. Grbac, a Board Medical Consultant opined: 1) the LOI would be considered partial. In the recent reports the objective evidence supports a return to the pre-injury clinical state. This then implies that no PI is evident. Even though the IW claims a resolution of symptoms at some point after the surgery, medical documentation indicates otherwise. [ ] 2) MMR for this injury would have been attained by the visit date with Dr. Guha of 23 Oct 03, again with no PI evident. 3) With regards limitations, overhead work should be avoided (neck extension) Heavy physical labour may be limited. Medical opinion re: pre-existing conditions A review of the available medical information as detailed above supports the presence of a pre-existing condition which may be enhancing this claim and prolonging recovery. The severity of this condition would be severe in summation. [34] In a report dated June 15, 2004 Dr. Guha wrote: [The worker] remains symptomatic from his neck pain but no radicular symptom or myelopathic symptoms. These are exacerbated with certain movements. This is causing him difficulty in continuing in his physically demanding job. [ ] I told [the worker] that there are no surgical issues at the current time. He should continue with physiotherapy and neck strengthening exercises with judicious use of antiinflammatories and analgesics under your guidance. He will also have to look at job modification to obtain some kind of employment compatible with his disability. [35] In an MRI scan report dated November 4, 2005 Dr. P. Garces noted that there was a new right paracentral disc herniation seen at C4-5 extruding slightly inferiorly. It causes mild narrowing of the left side of the spinal canal at this level and mild compression of the cervical spinal cord. No myelomalacia. A follow-up MRI report from Dr. Garces dated November 17, 2006 notes that the left paracentral disc herniation at C4-5 is no longer seen. No disc herniation noted at any level of the cervical spine. There is no spinal canal stenosis and no cord compression. [36] On October 3, 2007, Dr. Guha wrote a report which reads, in part, as follows: [ ] On examination his neck movements are markedly restricted. He does not have any focal motor weakness in his upper extremity. There is no objective sensory loss. His reflexes are grade 2 in all groups in the upper extremity and symmetric. His knee reflexes are symmetric toes are downgoing bilaterally. I ve looked at his MRI scan, which was done in February of 2007 in Sudbury. This shows multiple mild to moderate degenerative changes at the level above at C4-5 and below.

8 Page: 7 Decision No. 1941/09 However, there is no compression of the thecal sac or any signal changes in the cord. There may be some foraminal stenosis, but theses are not of high degree. The fusion site is well placed with some collapse in the anterior height. I ve explained to [the worker] and his mother who was here today that looking at the MRI scan and looking at his physical examination there is no structural clinicalanatomical correlate which would lead me to offer him any surgery with good expectation of relief. [37] On December 4, 2007, Dr. Guha noted as follows: [The worker] wanted my comments whether his current symptoms were related to a slip and fall in July [ ] With regards to the link between the fall in July 2003 and his current complaints, I cannot say with certainty one-way or another. He does have some collapse in the anterior height at his previous C5-6 fusion site. In addition, the degenerative changes above and below the fusion site may be secondary to the expected increased stress above or below a fused segment as is well recognized. The fall may have accelerated this process. [38] Having reviewed the medical information on file, I make the following findings. [39] Notwithstanding the worker s testimony that he had recovered from the 1993 motor vehicle accident, it is clear that he continued to have symptoms arising from that incident up to the date of the 2003 compensable accident. I do not accept that those symptoms were only intermittent, brought on by difficult days at work. I prefer the worker s statement made more contemporaneously to Dr. Guha as reported in the latter s report of February 2001 which indicates that [a]lthough there was some improvement, it was not total after his initial spine procedure and he has persistent pain in the base of his neck. Over the last two years he says there is progressive increase in the pain and the numbness going down his left arm. [40] In his report dated April 13, 2004 Dr. Mah noted that the worker had full movement of the cervical spine and shoulder girdle. The worker continued to have complaints of neck pain and numbness down the arm, but those symptoms existed prior to the 2003 accident. While Dr. Guha refers to those symptoms as new symptoms in his report of October 23, 2003 this is clearly not the case as the same symptoms were recorded in Dr. Guha s report of February 8, 2001, prior to the accident. [41] The worker s representative noted that the MRI of December 15, 2003 identified disc bulging at C3-4 and characterized this as a new finding. I am not convinced that it is a significant medical finding. It is noted in the report as mild diffuse disc bulging noted from C3-4 to C6-7 and no particular significance appears to be attached to it by the radiologist, Dr. Garces; indeed it is not noted in Dr. Garces subsequent MRI report of November 17, 2006 nor in Dr. Struk s MRI report of May 11, A left paracentral disc herniation at the C4-5 level first observed on November 4, 2005, some two years after the 2003 accident appears to have resolved by the time a further MRI taken on November 17, 2006 was taken a year later. [42] The worker s representative suggests that Dr. Grbac s opinion cannot be relied upon as he did not appear to have information relating to the worker s 1999 accident claim before him. In my view, whether or not that is the case, it does not impact in any significant way upon the value of Dr. Grbac s opinion as to whether the worker s condition had resolved to its pre-2003 accident

9 Page: 8 Decision No. 1941/09 condition. There is no basis to find, and I have no jurisdiction in the matter, that the worker s 1999 accident resulted in a permanent aggravation of his non-compensable pre-existing condition. [43] It is my view that the increase in use of Percocets from 5 per day prior to the 2003 accident to 7 per day afterwards is not a sufficient basis to conclude that the worker s condition was permanently aggravated. The worker s consumption of Percocets did not increase dramatically, in my view. I also note Dr. Sharma s concern that the worker had been taking Percocets for eight years and might have developed a dependence on them. [44] Finally, I note that Dr. Guha, in his most recent report of December 4, 2007 wrote that the worker wanted his comments on whether the worker s symptoms were related to the July 2003 accident and opined: I cannot say with certainty one-way or another. He does have some collapse in the anterior height at his previous C5-C6 fusion site. In addition, the degenerative changes above and below the fusion site may be secondary to the expected increased stress above and below a fused segment as is well recognized. The fall may have accelerated this process. [45] In my view, Dr. Guha s opinion expresses a possibility, not a probability. This is, in the context of the remainder of the medical information on file, insufficient evidence to support a finding that the July 2003 accident resulted in a permanent aggravation of the worker s preexisting non-compensable condition. [46] I find that the July 2003 accident caused a temporary exacerbation of the worker s preexisting condition and that the worker s on-going medical condition is related to the noncompensable motor-vehicle accident and its sequelae. [47] Dr. Grbac noted in his memorandum of June 10, 2004 an MMR date of October 23, In his subsequent memoranda dated July 21, 2004 and August 29, 2005, Dr. Grbac refers to the medical reports of Drs. Mah and Guha dated April 13 and June 15, 2004, respectively, but does not change his opinion on the MMR date or in any other respect. It is unclear from the case materials why the worker continued to be paid full LOE until July 29, 2004, given that the Claims Adjudicator and the Appeals Resolution Officer relied upon Dr. Grbac s medical opinion that the worker. In any case, the issue of potential down-side risk was not raised at the hearing so I will not direct the Board to reduce the worker s benefits. [48] It follows from the above-noted that the worker is not entitled to any further benefits after July 29, 2004, nor is he entitled to a NEL assessment.

10 Page: 9 Decision No. 1941/09 DISPOSITION [49] The appeal is denied. DATED: October 15, SIGNED: A.T. Patterson.