FD: FD: DT: D DN: 767/93 STY: PANEL: Newman; Shartal; Chapman DDATE: ACT: KEYW: Diabetes; Pensions (assessment) (back). SUM: A 67 year old

Transcription

1 FD: FD: DT: D DN: 767/93 STY: PANEL: Newman; Shartal; Chapman DDATE: ACT: KEYW: Diabetes; Pensions (assessment) (back). SUM: A 67 year old worker was struck by a car in a minor compensable accident in The initial diagnosis was left arm and buttock contusion. The worker appealed a decision of the Hearings Officer denying entitlement for diabetes and a number of other conditions. The Panel accepted medical opinion that the worker had non-insulin-dependent diabetes, a condition in which heredity is a very important component. It was likely that the worker had diabetes for many years. It was very unlikely that the trivial trauma of the accident had a role in worsening the diabetes, which was not diagnosed until more than one year later. Uncontrolled diabetes can delay wound healing but the worker did not have uncontrolled diabetes and did not have open wounds. The Panel concluded that the accident did not cause the worker's diabetes or render it symptomatic. The worker did have continuing low back disability and minor continuing shoulder pain for which he was entitled to a pension. In the extraordinary circumstances of the case, including the worker's age and serious non-compensable conditions, the Panel did not refer the worker back to the Board for a pension assessment. Rather, the Panel assessed the disability and awarded a 20% pension. Other disabilities, including leg problems and organic brain disorder, were not compensable. The appeal was allowed in part. [13 pages] PDCON: TYPE: A DIST: IDATE: HDATE: TCO: KEYPER: D. Day; D. Francis TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 767/93 This appeal was heard in Toronto on November 10, 1993, by a Tribunal Panel consisting of: E. Newman : Vice-Chair, S.L. Chapman: Member representative of employers, S. Shartal : Member representative of workers. Post-hearing evidence and submissions were received by the Panel on November 8, THE APPEAL PROCEEDINGS The worker brings this appeal from the decision of Hearings Officer Paavola dated March 9, On this appeal the worker attended and was represented by Mr. David Day, barrister and solicitor. The employer was represented by Mr. Donald Francis. THE EVIDENCE The Panel considered the Case Description, Exhibit #1; Addendum #1, Exhibit #2; Addendum #2, Exhibit #3; transcript of Hearings Officer proceedings, Exhibit #4. The Panel heard evidence under oath from the worker's wife. The following post-hearing evidence was considered: Exhibit #5, report of Dr. Nicholas Forbath, June 20, 1994; Exhibit #6, post-hearing medical files including North York General Hospital radiological consultation report, records of Baycrest Centre for Geriatric Care, North York Branson Hospital Record, Record of Barry A. Tobe, and from North York Central Hospital; Exhibit #7, post-hearing submission of worker's solicitor. THE NATURE OF THE CASE On December 14, 1988, the worker was struck by a car while in the course of his employment. The initial diagnosis from the emergency room report of Sunnybrook Medical Hospital on the date of the accident is "left buttock contusion and left arm contusion". The worker's position is that the initial diagnosis of the emergency room is inaccurate. The worker's position is that he suffered injuries in the motor vehicle accident which were not explored or diagnosed by the emergency room staff. The worker's wife testified that immediately after the accident, the worker suffered vomiting, dizziness, and incontinence of bladder and bowel.

3 2 He suffered low back pain, difficulty walking, difficulty standing, and difficulty moving in the days immediately following the accident, and ever since. Approximately one year after the accident occurred, the worker was diagnosed with diabetes mellitus. Since that time, his medical history has been a difficult one, including numerous hospitalizations for treatment of acute diabetic symptoms. He also recently suffered a stroke. On appeal, the worker's position is that the motor vehicle accident which he suffered in the course of employment in 1988 triggered the worker's current complex and disabling medical condition. The worker's representative asserted the position at hearing that the motor vehicle accident either triggered the diabetes, or triggered the process through which that disease became symptomatic. It was on the basis of this position that following the initial day of hearing, the Panel ordered medical investigation and expert opinion regarding the plausible medical connection between a motor vehicle accident, and the development or aggravation of a diabetic condition. Upon receipt of the post-hearing data, as reflected in the worker's representative's submission (Exhibit #7), an alternative position was asserted. This position is one which the Panel considers to be an alternative argument. It is that the existence of the diabetic condition, a severe condition, obscured the degree to which medical practitioners and the Workers' Compensation Board have been able to identify the immediate and long-term effects of the motor vehicle accident. These, in Mr. Day's submission, include permanent organic brain damage, and multiple soft tissue injuries from which the worker has never healed. Although provided with an opportunity to do so, the employer made no post-hearing submission on respect to this appeal. THE PANEL'S REASONS The Panel reviewed the evidence in this case with a view toward two distinct questions: 1. Did the motor vehicle accident on December 14, 1988, significantly contribute to the development of this worker's diabetic condition or aggravate it? 2. If not, has the existence of the diabetic condition obfuscated the identification of injuries suffered by the worker in the motor vehicle accident? If so, what is the nature and extent of these injuries? (i) Did the motor vehicle accident on December 14, 1988, significantly contribute to development of this worker's diabetic condition or aggravate it? It was the view of this Panel at the time of initial hearing on November 10, 1993, that the appeal raised a question requiring expert medical

4 3 input. The extent to which a motor vehicle accident may trigger symptoms of diabetes, or accelerate the development of that disease, appeared to this Panel a question of medical fact. For that reason, Tribunal Counsel Office was instructed to seek an opinion necessary to educate the Panel on point. Tribunal Counsel Office did, on May 27, 1994, solicit the opinion of Dr. Dr. Nicholas Forbath, of the Toronto Hospital. His response, dated June 20, 1994, forms Exhibit #5 to these proceedings. Dr. Forbath wrote, in part: The worker, a 67 year old cleaner at Sunnybrook Health Centre was hit by a slowly moving vehicle on December 14, He was knocked to the ground but did not injure himself from the fall. The driver of the motor vehicle took him to the Hospital and left. The licence plate of the motor vehicle was not noted by the worker. The worker reported the accident and injuries to his supervisor, Mr. Sinclair, who escorted him to the Occupational Health Department, where the Occupational Health nurse assessed him and referred him to the Emergency Department of the Hospital. According to the Emergency Report (page 67), he was alert, oriented and walking without a limp. There was no spine tenderness. There was no bony tenderness in the left elbow and there was no effusion or bruising. There was full range of movement in the hips and there was no bruising. The diagnosis was left buttock and left elbow contusion. X-ray orders are not documented in the Emergency report. The worker consulted his family doctor, Dr. Gabriel Vadasz about multiple aches and pains, now in the spine and also in the right side, which he attributed to the accident, on January 16, In the following months, he was seen by Dr. Bernard Schacter, a neurosurgeon, Dr. Perry Rush a rheumatologist and Dr. Jose Jimenez, a physiatrist. Dr. Schacter reported that he had pain in the right scapular region and in the left elbow and in his lower back. Dr. Schacter found no neurological deficit. He noted a muscle spasm in the right scapular region and in the paraspinal muscles. He recommended physiotherapy. Dr. Rush and Dr. Jimenez saw the worker a year later, in the spring of The findings were consistent with osteoarthritis in the knees and peripheral neuropathy. The neuropathy was confirmed by nerve conduction studies and it was attributed to diabetes. Diabetes was first diagnosed on February 28, He had a random blood sugar of 15.3 and a haemoglobin A1c of The latter result indicates that the worker must have had markedly elevated blood sugar for at least six

5 4 weeks prior to the diagnosis. He was found to have peripheral vascular disease with no palpable pulse below the right femoral and the left popliteal. He was admitted to the Mt. Sinai Hospital in Toronto on December 20, 1990 with ulcer on his left foot. He was treated with antibiotics and was discharged a week later. He was admitted in January 1991 to the York Central Hospital in a toxic state. He was found to have osteomyelitis of the left 3rd metatarsal. Subsequently, he had exploration and debridement of the left foot with partial excision of the 3rd metatarsal and the base of the proximal phalanx of the left toe. Pathological examination the excised specimen confirmed the diagnosis of acute suppurative synovitis and acute osteomyelitis. The patient subsequently recovered. OPINION REGARDING THE QUESTIONS POSED: Question #1: The accident of December 14, 1988 was not the cause or an important triggering factor of the symptomatic diabetes first diagnosed in February The patient was diagnosed having noninsulin diabetes, in the 7th decade. It is very likely that the patient had diabetes for many years. The early stages of noninsulin-dependent diabetes, which may last for decades, are not associated with symptoms and are usually unnoticed unless blood tests are done. The worker's father had noninsulin dependent diabetes. As this disease has a very important hereditary component, one has to assume that genetic factors had a major role in the worker's illness. It is very unlikely that the trivial trauma caused by the accident had a role in the worsening of his diabetes 14 months later. Question #2: Uncontrolled diabetes can delay wound healing. The worker had no symptoms of uncontrolled diabetes at the time of the accident. There is no evidence that mild diabetes delays wound healing. Most diabetic patients who undergo surgery, including major surgery, have mild-to-moderate elevation of blood sugar during the postoperative period. There is no evidence that this is causing delayed wound healing. The worker had no open wound, not even bruising, according to the Emergency report. One can assume that the term contusion was used to denote subtle

6 5 soft tissue injury causing discomfort, but no tenderness. Question #3: Question #4: Question #5: It is more probable that the injuries resulting from the motor vehicle accident coexisted with diabetes without either one aggravating the other. The findings described by Dr. Schacter mentioned the right scapular region and lower back pain. Neither of these are mentioned in the Emergency report. As a matter of fact, it is expressly stated that he had no spine tenderness. The worker's symptoms and findings following the diagnosis of diabetes are in no way related to the motor vehicle accident in Diabetic foot ulcers are common in patients who have peripheral vascular disease and neuropathy. The immediate cause of the foot ulcer was "peeling off some skin from the plantar surface of his left foot. He lacerated the skin in this area into the deeper tissues" (page 81). This is the classical history of diabetic foot ulcer causing osteomyelitis. It was the patient's good luck and the excellent surgical and medical care provided at the York Central Hospital that the patient's leg was saved. It is common that these trivial injuries end up with below knee, or even mid-thigh amputation due to infection and gangrene. The history of the patient's diabetes is typical. I trust this information will be useful to you. In his submissions to the Panel, the worker's solicitor, Mr. Day, takes issue with some of the factual assertions included in Dr. Forbath's report. It is his submission that the car which struck the worker was not a slow moving car, as it was described by Dr. Forbath. Dr. Forbath's identification of the fact that the worker suffered no injuries in that accident is also, in Mr. Day's submission, inaccurate. Mr. Day on this basis submits that the value of Dr. Forbath's opinion is entirely impugned. Given the questions which Dr. Forbath was asked to answer, the Panel disagrees. It is clear from Dr. Forbath's opinion that it is not a medically plausible submission that the worker's diabetes was either caused or contributed to by the motor vehicle accident. The Panel has no difficulty in accepting the opinion of Dr. Forbath as weighty and persuasive. It is our conclusion, based upon that opinion, that the first submission made on behalf of the worker, that the motor vehicle accident caused the diabetes or rendered it symptomatic is rejected.

7 6 As will be seen from the further reasons of the Panel, it is not in our view necessary for the Panel to reach an independent decision regarding the degree to which, if at all, the pre-existing but undiagnosed diabetic condition extended the healing period from injuries received in the motor vehicle accident. Uncontrolled diabetes can delay wound healing. The worker had no symptoms of uncontrolled diabetes at the time of the accident. There is no evidence that mild diabetes delays wound healing. Most diabetic patients who undergo surgery, including major surgery, have mild-to-moderate elevation of blood sugar during the postoperative period. There is no evidence that this is causing delayed wound healing. The worker had no open wound, not even bruising, according to the Emergency report. One can assume that the term contusion was used to denote subtle soft tissue injury causing discomfort, but no tenderness. The post-hearing submission of Mr. Day (Exhibit #7) paints a difficult and troubling picture. His submission is first that in the motor vehicle accident of December 14, 1988, the worker was injured far more seriously than anyone immediately realized. The worker was struck by a motor vehicle at approximately 7:00 a.m., at the commencement of his work day. The submission is that the worker was disoriented and confused as a result of the event. The driver of the motor vehicle took him to the entrance of the K building at the Sunnybrook medical facility. However, for reasons which are not explained in the documents, the worker was not examined until 10:40 a.m. in the emergency room. The delay in receiving attention, in Mr. Day's submission, is likely due to the fact that the injured worker was disoriented, and "probably suffered head injuries in the accident". Mr. Day's further submission is that the worker did not receive "impartial advice" in the emergency room of the medical facility. He was seen by a nurse, not a doctor. The injuries were not thoroughly investigated, in Mr. Day's submission, and a possible head injury was completely missed by emergency room staff. Mr. Day continues in submission to suggest that the symptoms of this severe accident did not manifest themselves immediately. The worker returned to work, and being stoic, did not complain. However, the evidence of the worker's spouse is that on the night after the accident he vomited profusely and suffered some evidence of disorientation. Mr. Day submits that the following injuries were caused by the motor vehicle accident: 1. injury to the scapular region; 2. left arm injury above the elbow; 3. lower back injury; 4. bilateral posterior calf and leg injury; 5. injury to the knees; 6. injury to the hip;

8 7 7. left and right shoulder problems; 8. generalized weakness. In Mr. Day's submission the worker also suffers from an organic brain disorder, caused by the motor vehicle accident. Because diabetes was diagnosed in this worker approximately one year after the accident and because the symptoms of that disease became complicated in this individual, medical treatment focused on the diabetes as the cause of all of this worker's problems. In Mr. Day's submission, the focus of medical attention had the effect of obfuscating the continuing impact of the motor vehicle accident. Because of the importance of the voluminous medical evidence now available in this case, the Panel's intention is to repeat that which is critical and relevant within this decision. On the day of the accident in 1988, the following record was made of the worker's treatment in the Sunnybrook Medical Centre emergency room: 10:40 - states was struck by car this a.m. in parking lot and complained of left hip. Sixty-seven year old male... hit by slow moving vehicle in parking lot. Knocked over. Not thrown. Did not hit head. No LOC. [Loss of consciousness], got up immediately. Complains of left buttock pain, left elbow pain, low back pain... O/B alert oriented, up walking. No limp. No G-spine tenderness. Abdomen soft [unintelligible]. Left elbow, no bonny tenderness. No effusion. No bruising. No pelvic unintelligible tenderness. Hips full, ROM non-tender, no bruising. The history and examination portion of the form includes a space for the signature of the physician. The box on the form indicated for the name of staff physician is completed which a name which appears to be R. Vanderbelt. The initials R.V. appear on the physician's signature line. The form is indicated as a Workers' Compensation Board claim, and concludes with a diagnosis of left buttock contusion, left elbow contusion. The first submission of Mr. Day is that because the worker was also an employee of the health facility at which he received emergency care, that his care was less than impartial. Mr. Day asserts that the worker was examined by a nurse, not a physician. Mr. Day submits that the examination conducted is obviously incomplete. The Panel is unable to identify any support for the submissions made in this respect by Mr. Day. The report appears to be authored and signed by a staff physician. It appears, on its face, to be a reasonably thorough emergency room record. Enquiry was made regarding the possibility of head

9 8 injury, and the response received from the individual who, to the examining physician appeared alert and oriented, identified no episode of head injury. There being no evidence to substantiate the allegation that the initial enquiry and examination of this worker was biased or incomplete, the Panel rejects this aspect of the submission as a basis for questioning the initial diagnoses. However in our view, the earliest medical records also reveal, quite clearly, that the worker complained of pain in the scapular region, in the left arm above the elbow, in the buttocks low back and left hip. The Panel then explored the medical evidence which establishes continuity of these complaints from the time of the motor vehicle accident to present. As the following evidence demonstrates, our conclusion is that the worker continued to suffer significant low back pain, as well as some other diffuse areas of discomfort. These indeed, consistent with the submission of Mr. Day, appear to have become matters of less significant priority in terms of medical attention, as other more dangerous and acute matters developed. First, the clinical record of the worker's family doctor (included in Exhibit #6) reveal continuing complaint of low back pain from the date of the accident onward. Notations by Dr. Gabriel Vadasz record complaint of low back pain on January 16, 1989, January 20, 1989, January 26, 1989, February 20, 1989, March 7, 1989, July 11, 1989, February 13, 1990, February 28, 1990, October 29, 1990, at which time the primary complaints altered to those associated with the diagnosis of diabetes. In March 1989, Dr. Vadasz referred the worker to Dr. Bernard Schacter, a neurosurgeon, to the explore the consequences of the motor vehicle accident. Dr. Schacter identifies that since the accident the worker has had pain in the right scapular region, pain in the left elbow, or specifically, in the left arm just above the elbow, and pain in his lower back. Dr. Schacter stated on March 1, 1989: As a result of an accident in mid-december 1988, this man sustained a trauma to the right scapular area and a movement injury of the lower back. He is still having a lot of difficulty with both the shoulder area and the back, and I would suggest at this time that he go to some physiotherapy treatments to elevate some of his symptoms. Beyond that, I don't think that he requires any more specific investigation or treatment. Dr. Schacter is in an unusual position to assess the effect of these injuries, primarily because his attention was focused upon them, and he was working in the absence of the diagnosis of the diabetes. Having reviewed the matter and in reporting again on July 30, 1992, Dr. Schacter puts his view in very clear terms: First let me clarify the questions raised regarding my report of March It is noted that this man was struck by an automobile and thrown to the roadway. When I saw him he had continuing pain in the right scapular region and

10 9 left elbow and problems with lower back pain. These injuries I feel were sustained at the time of the trauma and I do not think that there was any basic question that this is the case. Now some time subsequent to that, that is a year later, he was seen by Dr. Rush who noted some peripheral neuropathy changes and his diabetes was diagnosed in In my opinion he did not have this problem when I saw him in March 1989 and as far as I am concerned, the injuries which I reported were related to the motor vehicle pedestrian accident. As far as some of his other ongoing problems are concerned such as the ulceration of the left foot and the peripheral neuropathy that is present that is certainly related to his diabetes and I do not think that we can relate that to the trauma of the vehicular accident. This man continues to have major problems and is certainly unemployable... I certainly stated that although I did not involve patellar femoral crepitus in both knees, his shoulder and back disabilities were definitely related to the trauma and I do not think that I could state this any more emphatically than I have to date. The Panel had available therefore the report of Dr. Schacter which clearly identifies back and shoulder disability resulting from the 1988 accident. There can be no doubt, in the view of the Panel, that the shoulder and low back injuries did result from that accident. Nor can there be any doubt, reviewing the history of the matter, that not withstanding the existence of non-compensable disabilities such as the diabetes, which captured significant mandatory medical attention after February 1990, that the worker continued to complain of low back and shoulder pain, in addition to a number of other problems. The worker's complaints led in 1993 to exploration of the skeletal system by CT scan. The radiological report of North York General Hospital (included in Exhibit #6) and dated November 22, 1993, identifies Grade 1 spondylolisthesis in the worker's spine. It also identifies severe degenerative change at L2-3. Based upon this medical evidence, the Panel concludes that the worker did suffer injury to his low back in the motor vehicle accident of December 14, 1988, which represents an aggravation of a previously asymptomatic degenerative disc disease. That in our view is a compensable disability, and one worthy of a permanent partial disability assessment. Specific diagnosis of the nature of complaint pertinent to the shoulder is not available. However, the worker's continuing complaint of left shoulder pain is one which is supported by medical evidence as well, and one which in our view forms a minor portion of the worker's continuing compensable disabilities. Turning to the worker's complaints of bilateral calf pain, generalized weakness, and organic brain syndrome, the Panel concludes that the medical

11 10 evidence does not support a causal connection leading back to the 1988 motor vehicle accident. The worker's complaints of generalized weakness and pain in the lower legs was first explored by Dr. Jimenez of the Mt. Sinai Hospital in April He reported on April 18, 1990: This patient has early peripheral neuropathy with mild signs of enervation in the right posterior and anterior compartment muscles. In addition, there are mild signs of enervation in the left paraspinal muscles, which could either be part of his neuropathy or superimposed with mechanical root impingement. Simultaneously with the diagnosis of diabetes in this worker in February and March 1990, Dr. Perry Rush of Mt. Sinai Hospital reviewed the worker's history, in light of the diabetes diagnosis. He said, on March 6, 1990: The patient appears to have a peripheral neuropathy with possible associated myopathy in the lower extremities. It could likely be related to his diabetes. In submissions, Mr. Day points to the reports of Dr. Ronald M. Goldenberg, a specialist in internal medicine and metabolism. These reports are dated September 1, 1992, and June 2, 1992, and are written to the family doctor. Mr. Day relies upon these reports in support of the contention but the pain in the lower legs resulted from the motor vehicle accident. However, upon review of these reports, the Panel is not satisfied that they do so. It is Dr. Rush, in our view, who is the only physician to specifically address the possible connection between the lower leg difficulties and the accident of Dr. Rush provides the opinion that the lower leg difficulty is a symptom of the diabetes, and not a symptom flowing from injuries obtained in the accident. For this reason, the Panel must conclude that although the worker's complaints of low leg pain did arise after the accident, we note that they arose in time more closely associated with the development of symptoms of the diabetes, than they did as development and complaint of symptoms arising out of the motor vehicle accident. Because of the temporal connection, and the view of Dr. Rush, the Panel does not conclude that there is evidence upon which it can consider the lower left pain a result of the 1988 motor vehicle accident. The worker does suffer from a condition which has been diagnosed as a chronic organic brain syndrome. This diagnosis arises out of events, in particular, which took place in June The worker was suffering from extreme general weakness, pain in the lower legs, cellulitis involving his right foot, diabetic neuropathy, hyperlipemia, peripherovascular. By the fall of 1993, his family reported that he was gradually becoming more confused, and disoriented. This is five years after the accident of 1988.

12 11 Upon admission on North York Branson Hospital a CT scan was conducted, and it appeared that the worker may have suffered a mild stroke. A subsequent diagnosis was made by Dr. Barry Tobe by report of October 22, 1993, suggesting that the worker's present symptomology was essentially a "continuation of his chronic longstanding organic brain syndrome which had been present for a number of years". In submissions, Mr. Day suggests that Dr. Tobe's report supports a causal connection between the accident of December 1988, and the diagnosis of organic brain disorder. The Panel notes that the original investigation of this worker, as we have previously found, identified no head injury. There is, in the view of the Panel, no evidence which suggests that the moderate degree of cerebral atrophy, or the small area of hypodensity in the right internal capsule area, representing an infarct, as identified on a CT scan of the head in September 1993, is evidence that the accident of 1988 caused or contributed to the organic brain disorder. The temporal connection between accident and identification of symptoms of organic brain syndrome is so remote, in our view, as to raise no possibility of causal connection. (ii) Summary of conclusions The Panel's review of the medical evidence, read in light of the submissions provided by Mr. Day, leads to the following conclusions: 1. The worker's low back pain, and minor continuing complaints of shoulder pain, represent a permanent partial disability resulting from the motor vehicle accident of December 14, The Panel is not satisfied that there is evidence of continuing discomfort in the left arm to warrant identification of a continuing disability resulting from the accident. 3. Complaints of bilateral posterior calves and calf and leg pain and weakness, knee problem and hip problem are not revealed by the medical evidence to represent compensable consequences of the motor vehicle accident. 4. The worker's complaint of generalized weakness, diabetes, his plantar foot problems, his skin problems, his cataract problems, and the organic brain disorder are considered non-compensable problems.

13 12 THE DECISION The appeal is allowed in part. The worker is entitled to a permanent partial disability award for a continuing low back and left shoulder disability resulting from a compensable accident of December 14, In the extraordinary circumstances of this case, including the worker's age and serious non-compensable medical conditions, the Panel is reluctant to refer him to the Board for assessment of the permanent partial disability award. Based upon our own view of the medical evidence, we assess entitlement at 20%. DATED at Toronto, this 13th day of December, SIGNED: E. Newman, S.L. Chapman, S. Shartal.