WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2721/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2721/08 BEFORE: M.C. Smith : Vice-Chair HEARING: December 12, 2008 at Kitchener Oral Post-hearing activity completed on March 19, 2009 DATE OF DECISION: April 7, 2009 NEUTRAL CITATION: 2009 ONWSIAT 916 DECISION(S) UNDER APPEAL: WSIB ARO decision dated January 24, 2008 APPEARANCES: For the worker: For the employer: Interpreter: Ms Lynda Horne, Office of the Worker Adviser Did not participate 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. 2721/08 REASONS (i) Introduction [1] The background for this appeal has been provided in WSIAT Decision No. 2721/08I dated January 12, That decision reviewed the accident history, the medical evidence, the worker s testimony, and the submissions of the worker s representative. [2] In brief, this now 23-year-old plumber s apprentice sustained injuries to his neck and scapula in October 2004 when he fell off a ladder. The worker was granted a 21% non-economic loss (NEL) award in recognition of injuries to the cervical and thoracic spinal areas. [3] In March 2007 the worker began to experience pain in the low back, and attended Dr. Rahemtulla, a chiropractor. The worker testified that the chiropractic treatments were extremely helpful, and that as a consequence of those treatments he no longer has any low back pain. [4] Dr. Rahemtulla also provided treatment for the worker s neck and shoulder pain. On May 2, 2007 the chiropractor reported the presence of calcific tissue along the scapular into the trapezius and levator scapula muscles, as well as increased tonicity of the paraspinal muscles of the lumbar spine at the left S-1. The chiropractor reported that he had used shockwave therapy and low-density laser treatment to improve the condition. [5] At the hearing, the worker testified that he had noticed a decrease in pain within two days of starting the shockwave treatments, and that after 5-6 weeks of treatment with Dr. Rahemtulla he no longer required any pain medication. [6] In this appeal the worker is seeking: Entitlement for the low back as causally related to the workplace injury in Entitlement for shock wave treatments and laser therapy. The shock wave treatments were for calcium deposits and scar tissue in the scapula. The laser therapy was for both the low back and the scapula. [7] With regard to entitlement for the low back, in Decision No. 2721/08I the Vice-Chair had noted the lack of a firm medical opinion relating the worker s low back pain to the workplace injury in October The opinion of the worker s physiotherapist and family physician that the low back pain might have been caused by muscle spasms in the scapula had been based on the absence of any other explanation for the lumbar pain. Dr. Meenan, a Board Medical Consultant, opined that the worker s low back complaints were not compatible with his workplace injury. The issue was further complicated by the MRI finding on February 15, 2005 of a spinal cord lesion (syringomyelia/hydromyelia) from T3-T6. In the final Regional Evaluation Centre (REC) report of September 23, 2005, Dr. Deathe had recommended that the Board elicit a neurologist s opinion as to whether the worker s hydromyelia was connected to the workplace injury in October [8] With regard to the shockwave treatments and laser therapy provided by the chiropractor, the worker testified that these two kinds of treatments had relieved his pain and allowed him to

3 Page: 2 Decision No. 2721/08 stop taking any painkillers, including narcotics. However, the Board Medical Consultant advised that medical evidence did not support that laser therapy was a viable treatment. With regard to shockwave treatments, Dr. Meenan noted that Dr. Rahemtulla s reports of calcific deposits in the periscapular region had not been supported by any imaging studies, and that previous imaging studies, including MRI, had not shown any lesions in the muscle fibres around the scapula. He further noted that shockwave treatments could only be administered in certain designated centres. [9] In light of these conflicting opinions, the Vice-Chair determined that the matter should be referred to a Tribunal Medical Assessor to provide an expert opinion concerning the causation of the worker s low back pain and the efficacy of shockwave treatments and laser therapy to treat the worker s pain. The worker s representative would be given the opportunity to make submissions on the assessor s report. [10] Dr. G.M. Taylor, an orthopaedic surgeon, was selected as the assessor by the Medical Liaison Office of the Tribunal. Dr. Taylor s Curriculum Vitae indicates that he has extensive clinical experience with spinal disease and surgery, and that he has made several scientific presentations on issues related to shoulder pain. [11] The following is a list of the questions submitted to Dr. Taylor: 1. What was the original diagnosis for this worker s condition? 2. What is the relationship, if any, of this condition to the hydromyelia/syringomyelia noted on the MRI? 3. Please comment on any relationship between the hydromyelia/syringomyelia and the injury in October 2004, as described by the Vice-Chair in her interim decision. i. Is it medically likely that this injury caused the syringomyelia? ii. Would this injury have aggravated or accelerated the development of syringomyelia, or caused it to increase in size? Please explain. 4. What is the medical significance of the calcifications around the scapula noted by the chiropractor? 5. Please comment on the use of extra corporeal shock wave therapy to treat this. 6. Please comment on the suggested use of laser to treat this condition and improve tissue healing. 7. Would these forms of treatment be generally accepted in the medical community as appropriate forms of therapy? Please explain. 8. Please comment on any relationship between the worker's low back pain and his injury. Is any such relationship medically likely? Please explain. 9. Is there any other medical information, which you feel would be of assistance to the Vice-Chair and parties in understanding the nature and aetiology of the worker's condition?

4 Page: 3 Decision No. 2721/08 (ii) Opinion of the medical assessor 1. Is the worker s low back pain causally related to the workplace injury in October 2004? [12] Dr. Taylor reported that the medical evidence did not provide any apparent precipitating cause for the worker s low back pain, and opined that it was unlikely that the low back pain was causally related to the October 2004 accident: [13].. From the medical information available to me there is no apparent cause or precipitating cause for [the worker s] low back pain nor is there any good evidence that the chronic pain along the patients scapula is the precipitating cause of this current low back complaint. To experience this pain for two years in the upper left back (scapula) and then for no obvious cause, develop low back pain and relate it to the original problem I believe to be a stretch. I do not believe that there is a direct or causal relationship between the low back symptoms and his injury. It is not clear however what his original injury was nor is it clear why his condition did not resolve. Soft tissue injuries of muscle usually resolve, neurologic injuries are usually objectified with neurological findings (not so in this case) and so the persistence of these subjective complaints and local scapular pain and tenderness is unusual. I concur with Dr. Meenan's conclusion and I have really nothing to add. 2. Use of shockwave treatments for treatment of the scapula [14] Dr. Taylor opined that the medical evidence did not support Dr. Rahemtulla s reports of calcification or subluxation: Should there have been calcification in the region described it would be the first time I have seen such a deposit and if present but not evident in the scapular MRI of January 2006 its presence therefore could not be the result of his original trauma and developed only in the interim between this MRI and his chiropractic treatment (most unlikely). I do not believe calcification was present. The sacroiliac joint is an extremely firm fibrous syndesmosis and may only dislocate or be subluxed by extreme trauma to the area and would be associated, clinically, with severe pain in the area and the inability to weight bare.[sic] Although not an uncommon finding in Chiropractic, managed successfully often by manipulation, I do not believe this subluxation to be present. Dr. Rahemtulla has failed to objectify either of these clinical impressions by X-ray documentation. [15] In the absence of any convincing demonstration of the presence of calcific deposits, Dr. Taylor concluded that the use of shockwave treatments was dubious: As I do not believe that calcific deposits were present and as the shock wave treatment was undertaken to "dissolve" it away, its use is questioned and the excessive use of it because of the extensiveness of the calcium is dubious. 3. Use of laser therapy for treatment of the scapula [16] Dr. Taylor further opined that laser therapy three years after an injury would not be effective: The use of laser to affect healing is unlikely to occur as any healing from whatever the cause (in November 2004) would have long occurred and now be in a dormant state. I

5 Page: 4 Decision No. 2721/08 believe that the positive affect of laser is similar to other anti-pain modalities such at deep friction massage, ultrasound, deep heat, acupuncture and TENS. All these modalities including local injection of Xylocaine plus/minus steroid will often have good but usually temporary benefit in chronic pain syndromes such as presented and demonstrated in this case. These therapies if successful in lessening the patient's pain and reliance on narcotics is obviously a good thing but is unlikely at this point heal and correct the original problem of para-scapular pain. 4. Was the worker s hydromelia caused by his workplace injury? [17] Dr. Taylor opined that the worker s hydromelia had not been caused by his workplace injury in 2004: There has been the ongoing question as to the relationship of the hydromelia and its relationship to the injury and its relationship to his parascapular pain and the current relationship to the lumbar pain syndrome, it has been suggested by two neurosurgeons that they do not believe that the hydromelia was caused by his injury and I would concur with these opinions. It should be noted however, that my expertise in spinal conditions and surgery of the spine is primarily from an orthopaedic perspective and I would defer to the opinion of experts who are more familiar with neurological conditions of the spine neural structures (neurosurgery/neurologist). (iii) Submissions of the worker's representative 1. Entitlement to the low back [18] With regard to entitlement to the low back, the worker's representative submitted that the opinions of [the worker s] family doctor and treating physiotherapist should be given more weight than Dr. Taylor s paper review opinion. The worker's representative noted that at the time of the accident there were two potential mechanisms of injury: the wrenching of the shoulder girdle due to the grab, twist and wrenching injury, and the direct impact as he struck the ground. Ms Horne stated that there had not been any intervening trauma to account for the low back pain, and that pain, which extended from the compensable scapular area down to the lumbar/sacra-iliac area would not normally be present without cause in such a young person. 2. Entitlement to benefits for laser therapy and shockwave treatments [19] With regard to entitlement for laser therapy and shockwave treatments, the worker's representative submitted that it was not coincidental that the pain had declined at the time of onset of the treatments. Rather, she argued that the treatments had been responsible for the pain reduction: It does not seem reasonable in our view, that three years post injury, after numerous unsuccessful medical interventions, that by coincidence [the worker] is showing improvement to the compensable area of injury. We submit that the therapy in question is the reason for improvement. [20] With regard to the presence of the calcific deposits reported by Dr. Rahemtulla, Ms Horne stated that the chiropractor had provided his clinical opinion as to why eight shockwave treatments were necessary, and opined that his treatment had been appropriate, as confirmed by the fact that [the worker] was no longer in need of narcotics to manage his pain. [21] The worker's representative concluded: With all due respect, Dr. Taylor did not physically examine [the worker], and as such, it is our view that his opinion on this point should not hold weight.

6 Page: 5 Decision No. 2721/08 [22] With regard to Dr. Taylor s opinion that laser therapy would not have been effective so long after the injury, the worker's representative stated that the doctor did not take into consideration that the laser therapy had not been used alone, but rather in conjunction with shockwave treatments: 3. Was the hydromyelia condition related to the workplace accident? [23] The worker's representative accepts that the worker s injury in 2004 did not cause his congenital hydromyelia condition. However, she suggests that the injury may have caused the previously asymptomatic condition to become symptomatic. In the alternative, and at the very least, we would submit that the work related injury may have aggravated the underlying asymptomatic incidental finding to the point were it did become disabling, requiring alterative treatments. Treatments, which in our view, should be a responsibility of the compensable claim. (iv) Analysis 1. Entitlement to benefits for the low back [24] In 2007 the worker began to experience pain in the low back. He is claiming that this pain is causally related to the workplace injury in In support of this claim, the worker's representative submitted the following arguments: Such a young person would not have developed back pain in the absence of a trauma. The accident in 2004 had been very serious, and both the wrenching of the shoulder girdle and the fall to the ground had the potential of injuring his back. There was no intervening trauma that could have injured his back. Both the worker s physiotherapist and his family physician have opined that the low back pain could have been related to the shoulder pain. [25] In essence, it is the position of the worker's representative that the worker s low back pain must have been caused by the accident in 2004 because there is no other explanation. I note that in his report of March 30, 2007, Dr. Cameron, family physician, stated, My rationale for thinking that this new pain is related is that there was no further trauma. [26] I am not persuaded by the argument that an inability to find an alternative explanation for the low back pain is sufficient evidence that the pain must have been caused by the 2004 accident. In the absence of any medical evidence of a causal relationship between the accident in 2004 and the onset of low back pain in 2007, I rely on the opinion of Dr. Taylor, an orthopaedic surgeon who has extensive clinical experience with spinal disease and surgery. Dr. Taylor has opined that the medical information does not provide a precipitating cause for the worker s low back pain. He stated that there was no good evidence that the chronic scapular pain was the precipitating cause of the low back pain, and that it was unlikely that someone would experience pain for two years in the upper left back (scapula) and then for no obvious cause, develop low back pain and relate it to the original problem. Dr. Taylor concluded I do not believe that there is a direct or causal relationship between the low back symptoms and his injury.

7 Page: 6 Decision No. 2721/08 [27] The worker's representative has provided the alternative argument that the accident in 2004 served to make the pre-existing hydromyelia symptomatic. However, in light of the fact that the worker did not experience any low back pain until three years after the accident, I am not persuaded that the low back pain was caused by an aggravation of the congenital hydromyelia condition. [28] Given the lack of any medical evidence of a causal relationship between the injury in 2004 and the emergence of low back pain in 2007, together with the opinion of the medical assessor that there is no relationship, entitlement for the low back is denied. 2. Entitlement to benefits for shock wave treatments and laser therapy [29] The worker is claiming entitlement to the shockwave treatments and laser therapy provided by his chiropractor, Dr. Rahemtulla. The worker testified that these treatments reduced the pain in his scapula, allowing him to stop taking narcotics or any other painkillers. [30] Dr. Rahemtulla reported that these treatments were for the calcific deposits and subluxation in the scapula. However, both Dr. Meenan, the Board Medical Consultant, and Dr. Taylor, the medical assessor, have noted that there is no objective medical evidence substantiating the presence of these conditions. [31] Dr. Taylor noted that he had never observed calcification in the region described. He further stated that since no calcification had been observed in the scapular MRI of January 2006, if it were indeed present it would have to have developed in the interim between the MRI and the chiropractic treatment in Dr. Taylor concluded, I do not believe calcification was present. [32] With regard to subluxation in the scapula, the assessor opined that this could only have been caused by extreme trauma to the area and would be associated, clinically, with severe pain in the area and the inability to bear any weight. He noted that there were no objective findings to support the presence of subluxation, and concluded, I do not believe this subluxation to be present. [33] Dr. Rahemtulla reported that the shockwave treatments were for the treatment of calcific deposits and subluxation in the scapula. However, in the absence of any objective medical evidence supporting the presence of either of these conditions, entitlement for shockwave treatments is denied. [34] With regard to the use of laser therapy, Dr. Taylor opined that, The use of laser to affect healing is unlikely to occur as any healing from whatever the cause (in November 2004) would have long occurred and now be in a dormant state. Although the worker's representative argued that it was the use of laser therapy and shockwave treatments in conjunction with one another that resulted in the healing, there is no objective medical evidence to support this conclusion. In the absence of any medical opinion to support Dr. Rahemtulla s use of laser therapy to treat the worker s scapula, entitlement is denied. In light of the denial of entitlement for the low back, the use of laser therapy for the treatment of the low back pain is not compensable.

8 Page: 7 Decision No. 2721/08 DISPOSITION [35] The appeal is denied. Entitlement for the low back as causally related to the workplace injury in 2004 is denied. Entitlement for shock wave treatments and laser therapy is denied. DATED: April 7, SIGNED: M.C. Smith.