WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1053/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1053/08 BEFORE: B.L. Cook : Vice-Chair M. Christie : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: April 29, 2008 at Toronto DATE OF DECISION: May 15, 2008 NEUTRAL CITATION: 2008 ONWSIAT 1324 DECISION UNDER APPEAL: Appeals Resolution Officer S. Sousa, February 24, 2006 APPEARANCES: For the worker: For the employer: Eric DePoe, Consultant not participating 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. 1053/08 REASONS (i) Introduction [1] This appeal concerns problems that the worker developed while at work on August 1, He was doing work that required him to look up most of the day and experienced a sudden onset of vision problems. They resolved but he then complained of ongoing neck pain. A claim was established but the WSIB determined that the worker was not entitled to benefits. In this appeal, the worker seeks initial entitlement to benefits. (ii) Background [2] The worker, who is now 59 years of age, was employed as a sheet metal worker. He had worked in that career for over 35 years, mostly as a heating and ventilation system installer. This work is mostly done overhead. [3] In January 2004, he started working on a project at a large factory. On August 11, 2004, he was working on the installation of some fans. He was part of a crew of three and they were using a laser to determine the correct alignment between where the fans were to go on the floor and exit holes in the ceiling, which was about 30 feet high. He testified that the work required him to almost constantly look up to the ceiling. [4] After the lunch break, the worker began to experience some vision difficulties. He was taken to the First Aid department and then an ambulance was called and he was taken to a hospital. [5] There are different accounts of the type of vision problems that the worker experienced. According to the initial reports, the worker was complaining of blurred and double vision. In later medical reports, he provided a history that he experienced sudden and complete blindness which gradually resolved. This was also the history that the worker provided in his testimony. According to the Employer s Report of Accident (Form 7), a co-worker noted that the worker appeared confused. The worker recalled that he was feeling confused at the same time that he experienced the vision problems. [6] According to the records from the hospital, the worker was complaining of feeling sluggish and unsteady with improvement if he closed one eye. A family history of brain aneurysm was noted. The worker confirmed that his sister suffered brain stem aneurysm. [7] At the hospital, a CT scan was done. It was reported to show a normal intracranial anatomy with no evidence of haemorrhage. [8] The hospital records do not mention complaints of a temporary blindness. [9] The worker testified that the vision problems cleared up after about two hours. He was sent home from the hospital after a few hours, on the understanding that he would see Dr. Ari Haukioja, his family doctor, the next day. It appears that he saw Dr. Haukioja on August 17, Dr. Haukioja s clinical notes confirm this visit but they do not indicate what symptoms the worker was experiencing on that date. Dr. Haukioja referred the worker for a

3 Page: 2 Decision No. 1053/08 variety of tests, including a Doppler test that showed evidence of carotoid artery stenosis on the left side. [10] According to a letter from Dr. Haukioja dated November 9, 2005, he advised the worker to remain off work because of the possibility that the worker had sustained a transient ischemic attack, or a TIA or mini-stroke and that his job, which involved a lot of overhead work, placed him at risk of a further TIA or possibly a stroke. [11] The worker returned to see Dr. Haukioja on August 31, His notes indicate that the worker was complaining of ongoing neck pain, and parasthesia down right arm. Dr. Haukioja completed sickness and accident forms on August 31, 2004, which indicated that the worker had experienced double vision on August 11, 2004, and that he had ongoing neck pain and arm weakness, and that the symptoms first appeared on August 11, [12] The worker testified that he had experienced some occasional neck pain prior to August 11, However, he attributed this to general aches and pains that he associated with the type of work he did and his age. He testified that since August 11, 2004, he has experienced constant neck pain with reduced range of motion. The pain is always there to a significant degree and varies in intensity. [13] Dr. Haukioja s clinical notes indicate that the visit prior to August 11, 2004 had been in June 2003, when the worker had complaints of knee pain. Prior to that, he had been seen with complaints of low back pain in April The worker also had a prior right shoulder injury, which was work-related. There is no evidence of any significant neck symptoms prior to August [14] Because the worker was complaining of right arm parasthesia on August 18, 2004, Dr. Haukioja referred him for an MRI scan of his cervical spine. This was done on October 15, It was reported to show no abnormality except at C6-7, where there was: A small central disc herniation which causes mild indentation at the anterior aspect of the thecal sac. It extends to into the spinal canal by 3 ½ mms. The cord is not deformed. [15] Mild disc bulging was also noted at C5-6 and C7-T1. [16] These findings caused Dr. Haukioja to refer the worker for a neurosurgical consultation, and the worker was seen by Dr. Paul Muller, on March 1, Dr. Muller understood that the worker had suffered transient blindness on August 11, 2004, and that he had continued to experience neck pain ever since. [17] Dr. Muller indicated that there was evidence of mild degenerative disc disease at multiple levels. He commented: I think we can be confident to advise against any surgical intervention in the cervical spine. I do not think he is at any major risk from a spinal cord standpoint of view. The episode of blindness was very difficult to explain, although one might wonder about a transient vertebrobasilar insufficiency, although usually this is associated with other symptoms. I do not know that we will ever get to the bottom of what happened at the job site, but he is very anxious, and I was able to reassure him.

4 Page: 3 Decision No. 1053/08 [18] In September 2005, an EMG test showed some evidence of a right carpal tunnel syndrome in the worker s right wrist, but no evidence of motor axonal loss to suggest neither plexopathy nor radiculopathy. There was thus no evidence that the disc herniation that was noted at the time of the MRI scan was causing any symptoms in the worker s right arm or hand. [19] Dr. A. Balinson, a WSIB Medical Consultant reviewed the claim in July 2005 and expressed the opinion that the disc herniation noted on the MRI scan was not caused by the worker s activities on August 11, [20] In February 2006, the worker was assessed by Dr. Peter Tovich, a neurologist. He felt that the episode on August 11, 2004 was very suspicious of basilar artery migraine and that the worker s description of his symptoms was not consistent with an acute stroke type of symptom. He felt that the worker s neck pain was muscular in nature and not related to the disc herniation found at the time of the MRI scan. [21] A report from Dr. Muller dated May 9, 2006, recommends that the worker avoid neck extension for fear of rekindling what might have been a significant vertebralbasilar event. He also felt that the worker could not work in heavy labouring activity because of his degenerative disc disease and age. [22] In November 2006, the worker was assessed by Dr. M.C. Mason, a specialist in physical and rehabilitation medicine. Dr. Mason has seen the worker in follow-up on a few subsequent occasions. His opinion is that the worker probably experienced a brain stem cerebral-vascular accident (i.e. a TIA) on August 11, 2004, triggered by compromise of the posterior circulation from the extended neck positioning. He also believes that the worker suffered a neck strain as a result of prolonged periods of looking up. He indicated that the neck strain was superimposed on previously asymptomatic degenerative changes, and has not resolved. [23] Dr. Noel Kerin, an Occupational Health Physician at the Occupational Health Clinics for Ontario Workers, is of the view that the worker suffered a TIA or a stroke on August 11, 2004 and that he continues to experience significant neurological symptoms as a result, although it is not clear what those symptoms are. (iii) Analysis and conclusions [24] As Dr. Haukioja pointed out in his November 9, 2005 report, it appears that the worker developed two distinct problems on or about August 11, The first problem was a suspected TIA. The second problem was the start of a chronic neck pain condition. [25] On August 11, 2004, the worker experienced a visual disturbance and symptoms of confusion. These symptoms cleared after a few hours and have not recurred. There does not appear to be a clear cause of these problems. It is possible that the worker suffered a TIA, although this was not confirmed by the CT scan taken on August 11, Assuming that the worker did experience a TIA, there is some support for the suggestion that it may have been triggered by the prolonged neck extension that the worker had to maintain on August 11, 2004 and indeed as part of his regular job duties as a heating and ventilation installer.

5 Page: 4 Decision No. 1053/08 [26] The worker has a number of risk factors for stroke, including a smoking history, high blood pressure and cholesterol. There may also be a family history. The Doppler test that was done after the August 11, 2004 incident showed that the worker had some irregularity in the arteries of his neck. An EKG was reported to show some abnormality. This does not seem to have followed up at the time, but the worker advised that he had recently had quintuple bypass surgery. [27] None of these factors are work-related. [28] Assuming that the worker did suffer a TIA on August 11, 2004, and that it was triggered by prolonged neck extension, it would follow that the TIA was a compensable accident 1. However, it appears that the effects of that accident cleared within a few hours. [29] It is the underlying condition of the worker s blood vessels that puts him at risk of further TIA or stroke. This is in effect, a pre-existing condition. The prolonged neck extension on August 11, 2004 may have triggered a TIA. However, it appears that after a few hours, the effects of the TIA and the worker had in effect returned to his pre-accident state with no ongoing impairment as a result of any TIA that may have occurred on August 11, [30] Dr. Muller and Dr. Haukioja have recommended that the worker avoid prolonged neck extension, to limit his risk of a further TIA or a stroke. The worker cannot do his pre-injury job because it involved prolonged neck extension. The role of whatever happened on August 11, 2004 was to bring to the fore the fact that the worker had a risk of stroke. However, the underlying reasons for that risk are non-compensable factors. The worker accordingly has no ongoing entitlement to benefits arising out of a TIA that may have occurred on August 11, [31] The evidence indicates to the Panel that on a balance of probabilities, in addition to a possible TIA, the worker sustained a neck strain on August 11, The available evidence indicates that the worker had no significant neck problems before August 11, 2004 and that he has continued to experience neck symptoms ever since. In this regard, we note that Dr. Haukioja s clinical notes indicate that he did not see the worker for over a year before August 2004 and that the worker does not have a history of neck symptoms. The worker testified that he did experience neck pain before August 2004 but that this was on an occasional basis whereas he has experienced constant neck pain since August [32] We note that there is no mention of neck pain in the initial reports. However, in our view, this is explained by the fact that the greatest concern was obviously the possibility that the worker had suffered a stroke. Dr. Haukioja s subsequent reports, including his reports to the employer s disability insurer, indicated that the worker started to experience neck pain on August 11, There has been some controversy in this case as to whether what happened on August 11, 2004 should be considered a chance event or a disablement. In our view, there is no evidence of a chance event type of accident. However, prolonged neck extension that leads to an injury does fall under the disablement definition of accident. As noted in the Board s Operational Policy Manual Document No , a disablement type of accident includes an unexpected result of working duties.

6 Page: 5 Decision No. 1053/08 [33] On the basis of the available evidence, we conclude that it is more probable than not that the worker suffered a neck injury on August 11, 2004, as a result of prolonged neck extension on that day. [34] We note that this injury was also superimposed on a pre-existing condition as there is radiological evidence of a pre-existing degenerative condition in the worker s cervical spine. The MRI scan also disclosed that the worker had a small disc herniation. On behalf of the worker, Mr. DePoe submitted that this disc herniation might have been caused by the prolonged neck extension on August 11, We note that there is no medical evidence to support this. We also note that it is not clear that the disc herniation has any clinical significance. While there is some suggestion that the worker might be experiencing arm weakness and that this could be a neurological consequence of the disc herniation, the EMG tests failed to show any evidence of any radiculopathy. It did, however, show some evidence of a possible carpal tunnel syndrome which might explain some of the worker s hand symptoms. [35] On the basis of the available evidence, the Panel cannot conclude that the disc herniation that was found at the time of the MRI is work-related. In our view, it seems more probable that it is part of the pre-existing neck condition. However, we accept Dr. Mason s opinion that the worker suffered a neck strain, superimposed on a pre-existing condition, as a result of prolonged neck extension. On the basis of the worker s testimony and the medical evidence, we accept that the worker has never fully recovered from the effects of the neck strain. We find that the worker has a permanent neck impairment that results from prolonged neck extension on August 11, [36] The Board is directed to determine the nature and extent of any benefits that the worker is entitled to as a result of his permanent neck impairment.

7 Page: 6 Decision No. 1053/08 DISPOSITION [37] The appeal is allowed in part. [38] The worker may have suffered a TIA as a result of prolonged neck extension at work on August 11, If so, he suffered a disablement type of accident. However, the effects of that accident resolved within a few hours. The worker has been told that he has an ongoing risk of a further TIA or stroke. That risk is related to the underlying, pre-existing condition and is not related to the effects of the compensable accident. [39] The worker did suffer a neck strain as a result of prolonged neck extension at work on August 11, The neck strain was superimposed on a pre-existing degenerative condition in the worker s cervical spine and a pre-existing minor disc herniation. The pre-existing conditions are not work-related. However, the worker has never fully recovered from the neck strain and he has a permanent neck impairment that is work-related. [40] The Board is directed to determine the type and extent of any benefits to which the worker is entitled as a result of his permanent neck impairment. DATED: May 15, 2008 SIGNED: B.L. Cook, M. Christie, A. Grande