WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1645/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1645/08 BEFORE: V. Marafioti: Vice-Chair HEARING: July 23, 2008 at Toronto Oral Post-hearing activity completed on July 17, 2009 DATE OF DECISION: August 19, 2009 NEUTRAL CITATION: 2009 ONWSIAT 1933 DECISION(S) UNDER APPEAL: WSIB ARO decision dated May 11, 2007 APPEARANCES: For the worker: For the employer: Interpreter: Ms. Joanne Ford, Benefits Representative for United Food and Commercial Workers Canada, Locals 175 and 633 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. 1645/08 REASONS (i) Background [1] The worker worked as a poultry packer since On January 18, 1995 she reported the onset of low back pain after repetitively lifting heavy boxes onto a skid. She was off work for several months. Her regional evaluation on May 2, 1995 by Dr. Kumbhare indicated cervical and left trapezius as well as lumbar strain. Physiotherapy was recommended with expected recovery. However, she was seen by Dr. Varey in August 1995 who recommended a graduated return to modified work. In spite of that she continued to have ongoing low back and right leg pains, worse with repetitive bending and lifting. On March 4, 1998, she was evaluation by Dr. H. Fuller for coughing and wheezing. Pulmonary function tests showed evidence of airway obstruction in keeping with asthma. After that she coped reasonably well until January 23, 2001, when after a slip and fall on a wet floor while at work, she grabbed a pole to break her fall and sustained a right hand, hip and buttock pain. The worse consequence of this was the right chest pain with coughing and deep breathing. The worker testified of a pulling sensation in her chest. The incident was reported to the employer on the same day, but no medical attention was immediately sought. On January 17, 2003, the worker was seen by Dr. N. Pastuszewska whose diagnosis was chronic chest pain of musculoskeletal origin and abdominal pain related to irritable bowel syndrome. [2] An evaluation on September 30, 2003 by Dr. J.B. Forrest led him to suspect a right T7 nerve root irritation. A diagnostic nerve block was done for pain and relief, confirming one possibility for the origin of her chest wall pain. An evaluation by Dr. N. Vinay on December 12, 2003 and March and May of 2004 as well as April 25, 2005 indicated unremarkable chest and cardiac evaluations, including a normal myocardial perfusion study. His diagnosis was chest wall pain rather than any visceral condition. The worker was off work in 2004 because of her chest wall problems. [3] On November 19, 2004, the worker felt pain in her chest after lifting at work. She reported the incident to the first aid department but did not seek medical attention until November 29, 2004, the date of the first available appointment with her family physician. This doctor indicated a diagnosis of strain left pectorals major. A complete recovery was expected and the worker was to continue on modified duties. The Claims Adjudicator of the Workplace Safety and Insurance Board (WSIB) could not establish a causative relationship between the worker s chest impairment with the accident history described and denied initial entitlement. The Appeals Resolution Officer (ARO) on May 11, 2007 concluded that there was no continuing entitlement under Claim A (accident date January 23, 2001) and the lost time occurring in 2003 and early Therefore benefits under this claim was denied. The ARO concluded the incident of November 19, 2004 under Claim B (accident date November 19, 2004) would be allowed for health care benefits only with all resultant lost time denied. (ii) The issues [4] I must determine whether the worker suffered a disablement causally related to or as a result of the work being performed.

3 Page: 2 Decision No. 1645/08 (iii) The law and Board policy [5] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. However pursuant to section 102 of the WSIA, the Workers Compensation Act continues to apply to pre-1998 injuries. [6] Pursuant to section 112 and 126 of WSIA, the Appeals Tribunal is required to apply applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies as applicable to this appeal. [7] The Legal Services Division of the WSIB has identified the following policy packages, Revision No. 7, as applicable to this appeal: Policy Package No. 1 - Initial Entitlement Policy Package No Recurrence Date of Accident as of January 1, 1998 Policy Package No Aggravation Basis/SIEF Policy Package No Decision-Making/Benefit of Doubt/Merits and Justice [8] I have considered the policies in the context of legislation in arriving at my decision. The policies will not be duplicated here for practical reasons. As Claim A occurred in the year 2001 and Claim B occurred in the year 2004, the Workplace Safety and Insurance Act applies. (iv) The worker s position [9] Ms. Joanne Ford provided submissions on behalf of the worker. What follows is a summary of those submissions. I have considered the total submissions in arriving at my decision. Essentially Ms. Ford submitted that the nature of the worker s injury is that of a gradual disablement deteriorating over time and consistent with WSIA and Board policy on disablements in the workplace. She submitted that there is continuity on file between a gradual onset following the 2001 fall and the 2004 onset which supports the relationship of the duties performed and the injury. Ms. Ford reviewed the medical evidence in particular from Dr. N. Pastuszewska, the worker s treating physician, and the clinical notes on record. In addition she noted the reporting from Drs. Nikore Vinay and Dr. J.B. Forrest, specialist in pain medicine. [10] Following the hearing the Vice-Chair requested an independent medical assessment by a Tribunal Medical Assessor and Ms. Ford indicated that the report from Dr. Gordon dated June 2, 2009, after the examination of the worker, supported the worker s position. In particular she noted that Dr. Gordon concluded that the worker had a chronic widespread pain condition associated with left shoulder strain, lower costochondral strain and intercostal neuralgia confirmed by Dr. Forrest s right T7 nerve block. She noted that Dr. Gordon concluded that the worker s chronic pain including the chest, shoulder and low back was work-related. [11] In addition, Ms. Ford referenced the submissions made to the ARO N. Norvack dated April 11, 2007 which were provided by a previous representative in support of the worker s claim.

4 Page: 3 Decision No. 1645/08 (v) The Vice-Chair s analysis and conclusions [12] I am satisfied that the evidence, in particular the medical evidence, establishes that the worker suffered a disablement that could be causally related to or as a result of the work being performed. I am satisfied that the worker s chest/left shoulder condition arose out of the course of her employment with the accident history beginning with the work-related fall of January 23, In my opinion the medical evidence on file supports compatibility between the worker s ongoing symptomatic condition and the physical demands from the job of working in the label room after the 2001 work related accident that was described in testimony by the worker. I am satisfied that the work aggravated the worker s existing condition and symptoms and led to increased onset of chest wall left shoulder pain by November 19, 2004 when the worker documented the second accident. (a) The medical evidence [13] I reviewed the medical evidence in detail in arriving at my decision. I note that on January 17, 2003, the worker was seen by Dr. N. Pastuszewska, an internist, who diagnosed a chronic chest pain of musculoskeletal origin and abdominal pain related to irritable bowel syndrome. I note also that the worker was evaluated by Dr. J.B. Forrest who diagnosed a suspected right T7 nerve root irritation. A diagnostic nerve block was performed for pain relief confirming one possibility for the origin of her chest wall pain. I note that Dr. N. Vinay evaluated the worker on December 12, 2003 and March and May of 2004 as well as April 25, Dr. Vinay indicated unremarkable chest and cardiac evaluations, including a normal myocardial perfusion study. His diagnosis was chest wall pain rather than any visceral condition. [14] Again after the accident of November 19, 2004, the worker suffered episodes of left shoulder and left pectoral chest pain with restricting activity. The worker testified ongoing problems with her chest, left shoulder and back pain as well as neck stiffness with left trapezius aching. Her current worst problems related to her left pectoral chest and right anterior lower costal margin pain. [15] I note that Dr. Auchinacie reported on the WSIB Form 8 that the causation of the chest pain and tenderness was compatible with the worker s fall at work. This is also reported in his chart notes on record. [16] Dr. Pastuszewska on July 17, 2003 diagnosed the worker with pleurisy and then bronchitis due to difficulty breathing at work and chest pain. The symptoms extended to the left shoulder. [17] As noted the worker was seen by Dr. Forrest who provided a report dated September 30, I note that the areas of injury include the left shoulder and chest pain which spread to the rib cage and pectoral area. Dr. Forrest noted that although the worker had been seen by many doctors and had received numerous therapies, there was no clear indication as to the cause of her pain. The doctor injected her with T7 intercostal nerve with demomedoral in order to provide some relief and to determine whether right T7 nerve root irritation was the cause of the worker s ongoing symptoms. The worker was seen by the specialist Dr. Nikore Vinay on December 19, 2003 for ongoing problems. Dr. Nikore Vinay confirmed the chest wall pains.

5 Page: 4 Decision No. 1645/08 [18] I note in particular the reports from Dr. D.A. Gordon, rheumatologist, who provided an independent medical assessment as a Tribunal Medical Assessor. His report is dated June 2, 2009 and it also encompasses findings on the physical examination carried out on the worker. The report provides that the worker has chronic widespread pain conditions associated with left shoulder strain, lower sternal costochondral strain, intercostal neuralgia confirmed by Dr. Forrest s right T7 nerve block and pain magnification associated with non-restorative sleep pattern and the worker s chronic deconditioned anaemic state of health plus her joint hypomobility syndrome. Dr. Gordon, although believing that the cause of the worker s chronic pain disorder was multifactorial, concluded that the chest, shoulder and low back areas were work-related. Dr. Gordon, however, also concluded that the worker s general joint hypomobility was not. He noted that the worker had suffered and was susceptible to a variety of repetitive work strains during her employment. (b) Conclusions [19] As indicated I am satisfied that the worker should be granted initial entitlement as a disablement causally related to the work being performed. I am satisfied that the worker s problems in the chest and left shoulder conditions particularly, arose out of and in the course of her employment on a gradual basis beginning with the work related fall on January 23, 2001 requiring ongoing medical examinations that followed. In my view the medical evidence supports compatibility between the worker s ongoing symptomatic condition and the physical demands from the work which she described in the label room after the 2001 work-related accident. [20] I am satisfied that the work aggravated the condition and led to increase onset of chest wall/left shoulder pain documented by November 19, 2004 and the treatment that followed. I accept from the worker s submissions that the nature of the worker s injury is that of a gradual disablement deteriorating over time and is consistent with the WSIA and Board policy on disablements in the workplace. Initial entitlement, therefore, is allowed. I note that the worker did lose a significant amount of time between 2001 and 2004 related to the medical investigations that took place to address her condition which were authorized by her treating doctors. I also am satisfied that there is ongoing medical intention as noted above and there is no non-occupational factors being related to the causation of the worker s condition, particularly in the medical evidence. [21] In summary, I am satisfied that the worker s chest, rib cage left shoulder condition arose out of and in the course of her employment. I am satisfied that the work-related accidents noted above and the physical demands of the job, which were clearly described in testimony by the worker, caused the worker s ongoing problems. As indicated, in my view the medical documentation supports entitlement to this claim as a disablement and therefore the worker s appeal is granted.

6 Page: 5 Decision No. 1645/08 DISPOSITION [22] The worker is granted initial entitlement for a chest wall impairment. DATED: August 19, SIGNED: V. Marafioti.