WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 730/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 730/11 BEFORE: A.T. Patterson : Vice-Chair B. Wheeler : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: April 18, 2011 at Toronto Oral DATE OF DECISION: August 25, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2027 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer R. Lucyk decision dated June 6, 2006 APPEARANCES: For the worker: For the employer: Interpreter: L.J. Dillon, Lawyer Did not participate A. Ventura, Portuguese 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. 730/11 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the Appeals Resolution Officer (ARO), which concluded that his ongoing left eye condition and loss of vision were not attributable to a compensable workplace injury of December 6, 2004, and that he was not entitled to a noneconomic loss (NEL) award for a permanent impairment of his left eye or to loss of earnings (LOE) benefits claimed to be related to his left eye condition. [2] Ms. A. Ventura, an interpreter of the English and Portuguese languages, assisted the Hearing Panel. (ii) Issues [3] The issues under appeal are as follows: 1. Whether the worker s left eye condition and loss of vision are attributable to the workplace injury of December 6, 2004; 2. Whether the worker has entitlement to a NEL award; and 3. Whether the worker has entitlement to LOE benefits. [4] The appeal is denied for the reasons set out below. (iii) Background [5] The following are the basic facts. [6] The now 49-year-old worker started as a labourer for the accident employer in June [7] The worker has right eye amblyopia as a result of trauma during his birth. He has very little vision in his right eye. His left eye was his good eye. [8] On December 6, 2004, the worker was at a worksite when concrete dust entered his left eye. [9] The worker testified that he was using an air compressor to break concrete in a space enclosed by tarps and that this activity created an extremely dusty environment. As he was using the air compressor, a chip jumped and hit him in the eye. He jumped off the scaffold, rubbed his eyes with his dusty hands and went to the washroom. In the washroom, his vision began to disappear. [10] The worker attended a hospital that same day where he was diagnosed with punctate keratitis. The worker underwent testing of his eyes and vision over the next few months; the medical reports pertaining to that treatment are detailed below. The diagnosis, subsequent to further testing, was changed to left optic nerve atrophy.

3 Page: 2 Decision No. 730/11 [11] Of relevance to the issue of medical causation is the worker s history of crack cocaine use. [12] The worker s testimony was vague as to when he began to use crack cocaine, but it agreed that it was likely in 1994 or He stated that he used crack cocaine maybe 10 times a year and that he might smoke it once a week, and then not use it for another three weeks. He noted that when he visited Portugal for a month, he was able to abstain. He indicated that it was never an impediment to his ability to work as he only missed a few days [of work] in 10 years. (iv) Law and policy [13] Since the worker was injured in 2004, 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, unless otherwise stated. [14] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #7, would apply to the subject matter of this appeal: Policy package #31 Secondary or Non-Compensable conditions Policy package #40 Continuing Entitlement/NEL DOA as of January 1, 1998 Policy package #300 Decision Making/Benefit of Doubt/Merits and Justice [15] The Panel has considered these policies as necessary in deciding the issues in this appeal. (v) Submissions [16] The worker s representative submitted that Dr. Wong, an ophthalmologist, who opined that the worker s left-sided optic nerve atrophy was secondary to cocaine abuse had failed to consider the possibility that the worker s condition was the result of trauma. [17] The representative referred to a document entitled Traumatic Optic Neuropathy written by Dr. James W. Gigantelli and published on a website titled emedicine and suggested that the trauma the worker sustained in the accident of December 6, 2004 was likely a contributing factor to the development of his left eye condition. [18] The representative indicated that, in addition to the failure to address the possibility that the worker s left eye condition might have been caused by trauma to the eye, Dr. Wong also failed to make any enquiry into the nature of the worker s drug use. The representative referred the Panel to the worker s testimony that his consumption of crack cocaine was relatively limited. Mr. Dillon also noted that there was no evidence of what threshold of crack cocaine consumption could or would lead to optic nerve atrophy. In short, Mr. Dillon argued that the causal mechanism between crack cocaine use and the worker s condition was unclear and had not been made clear by Dr. Wong. [19] The representative noted that the worker s loss of vision in the left eye began immediately after the incident on December 6, 2004 and that this temporal connection suggested that the condition was causally related to the incident and not to the crack cocaine use.

4 Page: 3 Decision No. 730/11 (vi) Analysis [20] For the reasons which follow, the Hearing Panel concludes, on a balance of probabilities, that the worker s left eye condition is not attributable to the workplace accident of December 6, [21] The Panel finds that the worker s testimony at the hearing downplayed his use of crack cocaine. In February 2004, the worker was brought to a hospital at 6:50 a.m. by his wife due to complaints of chest pain after smoking crack until 2 a.m. He was referred to the Mental Health Crisis Team whose clinical notes for February 16, 2004 indicate He stated that his addiction is getting worse. He has been going to crack houses and crack cocaine is his drug of choice. In a clinical note dated November 7, 2004, the following is recorded: Patient reports a 10 year history of crack cocaine use. [ ] Since then he has had ++ difficulty refraining from regular use. He reports weekly use of between $ $ per week. His most recent use was last night in which he reports $ crack use. [ ] The patient has received previous addictions counseling through the Don Wood Institute 4 years prior. He attended a 21 day out-patient program (twice a week) and reports he was able to reduce his use of cocaine but not completely refrain. He has had no on-going follow-up since discharge from this program. The patient is requesting help with his selfidentified addictions. The patient is currently employed with the same company as a carpenter for the past 10 years. He reports missing 5 days work in 10 years. [22] The Panel finds, based on the documentary evidence on file and the clinical note of November 7, 2004 in particular, that the worker was an abuser of crack cocaine for a period of approximately 10 years prior to the workplace accident. The Panel concludes from the worker s estimation that he spent between four and eight hundred dollars a week on his habit in 2004, that his consumption of the drug was significant over that period. [23] The Hearing Panel does not find that the evidence is strongly supportive of a temporal connection. In this regard, the Panel notes that the initial clinical notes on admission on December 6, 2004 indicate: - 3 d[ays] ago smoke in L eye - Whole visual field affected, worsening - Feels burning stated today - Ø discharge - Ø erythema - Ø F[oreign] B[ody], Ø trauma - Ø H/A, Ø tinnitus, Ø vertigo - Pain 2/10 [24] The worker was referred to an ophthalmologist, Dr. S. Weinstock. Dr. Weinstock s clinical notes indicate: P[atient]Hx [history]: sometimes foggy 1-2 hours before 1 x 1-2 yrs ago. Intermittent fogginess every few months.

5 Page: 4 Decision No. 730/11 [25] The clinical notes reproduced above demonstrated that the worker had left eye symptoms for some time prior to the accident of December 6, [26] An MRI performed in December 2004 demonstrated an iron foreign body in the left upper orbit. [27] On January 31, 2005, Dr. M.L. Tadros, an ophthalmologist, diagnosed the worker with left optic atrophy. [28] In an x-ray report dated March 10, 2006, prepared by Dr. M. Gildiner, the foreign body in the worker s left eye is described as a tiny metallic foreign body which is either in the subcutaneous tissues or less likely within the cortex just above the left orbit in front of the frontal sinus. [29] In a memorandum dated July 7, 2006, Dr. J. Parker, an ophtalmology consultant retained by the Board, wrote: It would appear to me that the one or two incidents involving construction work debris entering the eyes of this worker would, at the most, result in superficial irritation which is covered by the punctuate keratitis or traumatic conjunctivitis terminology. These conditions would be self-limited and would not involve a permanent impairment. They might involve a short period off work and topical treatment. The much more serious lesion of the left optic nerve, given that the right eye has not been normal from birth, would appear in all regards to be separate and I cannot build any medical construct that would relate it to the workplace. There was a thorough work-up by the Neuro-ophtalmology Service at the Toronto Western Hospital and no specific diagnosis has been reached and this is often the case in optic neuropathies. I do not relate this condition to any workplace exposure or superficial trauma. I cannot give exact answers on the time-frame of the superficial trauma, other than to say that that is compatible with the workplace, but the more serious optic nerve lesion would appear to be unrelated to any logical workplace. The red herring in all this is the orbital foreign body and the absence of radiological and neuro-ophtalmology opinion on that, I cannot comment further. It does not appear to be sufficient to have been related to the superficial injuries, nor to the loss of function in the optic nerve, from the evidence that is presented in the file. Needless to say, this is complicated by what appears to be two or three very separate situations. A re-evaluation of this file by Dr. Agnes Wong the senior neuro-ophtalmologist on the Neuro-ophtalmology Service and her interpretation of the significance of the orbital foreign body would be indicated. I would authorize that consultation and review of the file by her personally. [30] On November 14, 2006, the worker was seen by Dr. J. Noble, an ophthalmologist. Dr. Noble s report of the following date indicates: He was working in a dusty environment at work at the time [of the accident] and felt that something had irritated his eye. He went to the emergency room the next day and was found to have some type of punctuate keratitis. He was treated and was sent for a followup in the Ophtalmology Clinic. His vision continued to worsen and when he was seen by the ophthalmology service at the hospital over the next few days, he was noted to have a left anterior ischemic optic neuropathy. [ ]

6 Page: 5 Decision No. 730/11 [The worker] s past medical history is remarkable for cocaine abuse over a 10-year period. [ ] In summary, [the worker] is a 44-year-old man who suffered a left anterior ischemic optic neuropathy dating from December It was explained to [the worker] that it is highly unlikely that this type of process would be due to corneal irritation from working in a dusty environment. We have done a brief literature review and found that there are case reports of cocaine use causing anterior ischemic optic neuropathy. However, the etiology of his optic neuropathy remains to be determined. [31] On November 24, 2006, Dr. A. Wong provided the following opinion: I have reviewed as well as saw this patient with regard to his left optic atrophy. He indeed had an acute loss of vision in the left eye and was documented to have disc edema as well as an altitudinal field defect. Given his clinical picture, the most likely diagnosis is a left anterior ischemic optic neuropathy. We have performed extensive workup, but so far, no specific etiology has been identified. Of interest, this patient has a history of crack/cocaine abuse and has presented himself on several occasions at the emergency department. There has report [sic] in the literature that cocaine abuse can cause an anterior ischemic optic neuropathy. In my opinion, although a metallic foreign body was noted above the left orbit in front of the frontal sinuses on imaging, I don t think this is the cause of his optic atrophy. [32] Dr. Wong wrote a further report dated February 23, 2007 after re-assessing the worker on January 30, That report re-iterates her previous opinion: In summary, as noted in my letter to you dated November 24, 2006, I believed that his visual loss in the left eye is most consistent with a left anterior ischemic optic neuropathy. Further work-up did not show any specific etiology. It is, therefore, in my opinion that the metallic foreign body located above the left orbit in front of the sinuses on imaging is not the cause. [33] On October 20, 2007, Dr. V. Yin, an ophthalmologist, wrote a report which reads, in part, as follows: [ ] We have investigated him thoroughly with vasculitis workup as well as a lumbar puncture and all results have been negative so far. [ ] In summary, [the worker] has had a stable course in his ischemic optic neuropathy for the past few years. At this point, since all other investigations are negative we believe this to be secondary to cocaine use. The previous concern regarding a metal foreign body in the sinus causing this optic neuropathy is unlikely. [34] In considering the above-noted evidence, the Panel accepts the medical opinions of the medical specialists who posit the worker s crack cocaine abuse as the most likely cause of the development of the worker s left eye condition. [35] The Panel has considered the medical article provided by the representative in support of his contention that the worker s eye condition might have been caused by physical trauma during the workplace injury of December 6, It is the Panel s view that the medical article is not equivalent to a medical opinion prepared after examination of the worker. [36] The Panel has also considered Mr. Dillon s suggestion that the medical issue of causation be sent to an independent medical assessor for an opinion, particularly with respect to the theory

7 Page: 6 Decision No. 730/11 of physical trauma suggested by the representative. It is the Panel s view that it is not necessary in this case to obtain the opinion of an independent medical assessor. The Panel s primary reason for this conclusion is that a emergency admission clinical note and Dr. Weinstock s clinical note indicate that the worker had had symptoms in the left eye on prior occasions, going back as far as a year and a half before, and as recently as three days prior to the accident date. This symptomatology is not compatible with the theory that the worker s left eye condition was caused by a trauma sustained on December 6, [37] For all of the above-noted reasons, the Hearing Panel concludes that the preponderance of the evidence results in a finding that the worker s left eye condition is not causally related to the workplace accident of December 6, [38] It follows from the denial of entitlement for the left eye impairment that the worker is not entitled to a NEL award, or for LOE benefits.

8 Page: 7 Decision No. 730/11 DISPOSITION [39] The appeal is denied. DATED: August 25, 2011 SIGNED: A.T. Patterson, B. Wheeler, A. Grande