WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1482/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1482/08 BEFORE: R. McClellan : Vice-Chair M. Christie : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: June 4, 2008 at St. Catharines Oral Post-hearing activity completed on September 19, 2008 DATE OF DECISION: November 6, 2008 NEUTRAL CITATION: 2008 ONWSIAT 2900 DECISION(S) UNDER APPEAL: WSIB ARO decision dated September 2, 2005 APPEARANCES: For the worker: For the employer: Interpreter: Mr. Raymond Seguin, Office of the Worker Adviser Not participating 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. 1482/08 REASONS (i) The appeal [1] The worker appeals the decision of the Appeals Resolution Officer, Ms Ihasz, dated September 2, That decision concluded that the worker did not have entitlement for an ongoing disability in the neck or for neurological deficit resulting from the compensable accident of December 1975; the worker did not have initial entitlement for injury to his knees or shoulders as arising either from any specific work accident or on a disablement basis; the worker did not have entitlement for bilateral carpal tunnel syndrome as arising out of and in the course of employment on a disablement or gradual onset basis. [2] The issues before the Panel are: 1. whether the worker has entitlement for ongoing disability in the neck or for neurological deficit resulting from the compensable accident of December 1975; 2. whether the worker has initial entitlement for injury to his knees or shoulders as arising either from any specific work accident or on a disablement basis; and 3. whether the worker has entitlement for bilateral carpal tunnel syndrome as arising out of and in the course of employment on a disablement or gradual onset basis. (ii) Background [3] The worker, now age 64, was the self-employed owner of a tire repair business. On December 18, 1975, the worker sustained a head injury when a tire exploded, and he was struck on the head by the tire rim on the right frontal region, causing a four-inch long laceration and a compound depressed fracture in the right frontal region. The medical report from the St. Catharine's General Hospital dated April 8, 1976 from Dr. Blue, recorded that the worker had made an uneventful recovery from surgery to repair a fracture of the right frontal bone which had been performed on December 18, [4] The worker did not file any claim for compensation benefits until October 10, [5] In a Form 6 Report of Injury dated October 10, 2002, the worker reported that he had experienced pain in his shoulders, head, neck and knees, emerging gradually over time, and cited the 1975 injury, as well as giving an accident date of January 14, [6] In Board Memo #1, dated November 6, 2002, the worker advised the Claims Adjudicator that he had shoulder surgery on January 14, 2002, that he had hurt his shoulders in a 1984 accident and that he had sustained an accident in 1976 when he hit his head on a jamming hoist, and also referred to the tire explosion in 1976 [sic]. The worker had not filed a claim for any of these injuries. He was also claiming entitlement for a knee injury arising on a disablement basis. [7] A claims investigator was assigned by the Board. The worker described the tire explosion, stated that he had been treated at the St. Catharine's General Hospital and that he had ongoing pain in the head and neck since that accident. He also had pain spreading into his shoulders, progressively worse over the years. The worker stated that he had also injured his shoulders in 1976 when he attempted to lift a crane tire weighing 500 or 600 pounds. Neither

3 Page: 2 Decision No. 1482/08 accident was reported to the Board. The worker also advised that he began to get pain in both knees in the early 1980s and received treatment from Dr. Ostrowski. The claims investigator obtained medical records for the tire explosion accident of 1975, contained in the Case Record. [8] Board Memo #10, dated January 23, 2003, recorded that proof of accident involving the head injury in 1975 was established and the question of ongoing entitlement for the neck was referred to the Board medical consultant. Proof of accident for the shoulders was not established and entitlement was denied. Entitlement was also denied for bilateral knee problems. The memo also recorded that the chiropractor had referenced a motor vehicle accident in 1987 in which the worker injured his back. [9] In Board Memo #15, dated January 27, 2003, Board medical consultant, Dr. Karr, advised that Dr. Savelli had diagnosed multiple sclerosis whereas Dr. Lo had rejected the multiple sclerosis diagnoses and held that the worker's MRI findings in the neck resulted from the 1975 injury. Dr. Karr stated, "There is no way of proving this one way or the other." She concluded that the skull fracture had healed with no residual permanent impairment and that the worker's current symptoms were likely due to a shoulder problem for which he has had surgery. [10] In an undated memo, the Claims Adjudicator recorded that the worker was entitled to four weeks of temporary total benefits from the date of the 1975 accident, December 18, There was no entitlement for permanent instability resulting from the skull fracture, no entitlement to neck or neurological problems as being related to the 1975 accident. Entitlement was also denied for a bilateral knee condition and for bilateral carpal tunnel syndrome. [11] These decisions were confirmed by the Appeals Resolution Officer. (iii) The medical evidence [12] As referenced above, the worker's record of treatment following the December 1975 compensable injury is documented in the Case Record, with a final notation that the worker had made an uneventful recovery as of April [13] A treating chiropractor, Dr. Ogilvie, advised the worker's solicitor on December 20, 1988 in connection with a motor vehicle insurance claim and that he had treated the worker for low back pain and stiffness with sciatic radiation, following the accident of March 26, [14] In a report dated June 15, 1999, treating neurologist Dr. Savelli advised that the worker had developed double vision one month earlier, had ringing in the ears worse on the left, and hearing loss with diminished energy. She referred to the 1975 tire explosion and wrote: This gentleman presents with symptoms of partial right third nerve reaches now resolved, dizziness and tinnitus. Symptoms may all be as had been thought post viral but ischemic symptomatology should not be ruled out. EEG was normal. [15] On October 17, 2000, orthopedic surgeon Dr. Ostrowski advised a family physician, Dr. Leung that the worker had injured his shoulder about 20 years ago, had pain and weakness since then and which had become progressively worse and was now severe. The diagnosis was severe chronic rotator cuff tendinitis, likely a rotator cuff tear with arthritis in the AC joint. Dr. Ostrowski confirmed this diagnosis, including rotator cuff tear through arthrogram

4 Page: 3 Decision No. 1482/08 November 16, He performed corrective left shoulder surgery on January 22, Dr. Ostrowski next performed a right shoulder arthroplasty on January 14, 2002, as a result of right shoulder rotator cuff tendinitis and AC joint arthritis and bursitis. [16] On May 27, 2002, neurologist Dr. Savelli reported that she treated the worker in 1999 for dysploplia and dizziness. The worker was now complaining of numbness over the left jaw spreading to the left hemicranium as well as numbness and stinging in the right arm down to the hand. Recent x-rays revealed degenerative changes in the cervical spine. The worker also had a mild resting tremor about the head, neck and upper limbs. Dr. Savelli suspected possible cervical reticular irritation aggravated by underlying diabetes predisposing to neuralgic pain. Sonographic imaging of the carotid and vertebral arteries was normal. [17] On July 16, 2002, Dr. Savelli reported the EMG tests identified some sensory deficits and further brain and cervical tests were ordered. [18] A CT scan of the head taken on July 25, 2002 identified a "small low attenuating area in the left frontal white matter" likely representing a small focus of previous infarct. No acute process was identified. [19] An MRI of the brain taken on July 31, 2002, identified multiple abnormal small high signal intensity foci in the left and right anterior and posterior corona radiata region, as well as other areas of the brain, which were identified as being suspicious for demyelinating disease. There were abnormal signals in the cervical cord again being suspicious for demyelinating disease. In the cervical spine, there were diffuse bulging discs throughout, from C2 to T1 with no definitive disc protrusion, no significant stenosis and moderate to marked bilateral neural foraminal stenosis at C3/4, C 4/5, C 5/6 and C6/7, with significant spondylitic changes. [20] On September 4, 2002, Dr. Savelli advised Dr. Leung that the worker had persistent pain in the neck and shoulders aggravated by work, with dysesthesia in the right hand. Based on abnormal brain signal intensity, it was felt that the condition was more in keeping with ischemia. Nerve conduction and EMG studies documented evidence of minor C5 radiculopathy and borderline changes were sensory carpal tunnel syndrome. There was no family history of demyelinating disease. On October 16, 2002, Dr. Savelli clarified that she felt the MRI findings were in keeping with demyelinating disease when combined with the results of the MRI cervical spine. [21] On November 12, 2002, Neurologist Dr. Raymond Lo, Hamilton Health Sciences Multiple Sclerosis Clinic, assessed the worker with respect to the issue of multiple sclerosis. He reviewed the recent EMG and MRI studies. He wrote: This patient s neurological examination was normal, except for benign essential tremor. The discomfort at the base of the neck is due to cervical spondylosis. He may either have mild C6 nerve root irritation or carpal tunnel symptoms in the right hand. I could not detect any signs or symptoms to suggest an upper motor neuron lesion such as multiple sclerosis. I have reviewed the MRI of the head. The abnormal signals in the white matter in the brain, given his age with a history of smoking and diabetes is more likely due to ischemic changes. The MRI abnormalities in the cervical spine at C1/2 level I suspect is related to the flexion/extension injury when the tire exploded on his face and he was blown off 14 feet. He likely has had flexion/extension injury to the spiral cord at

5 Page: 4 Decision No. 1482/08 that time. The location is not typical for MS. I do not think that he needs further investigation at this moment. [22] In a report dated December 20, 2002, Dr. Ogilvie a chiropractor reported treating the worker for back pain in 1980, 1981 and 1982, and had treated the worker three times in 1983 for neck pain, five times in 1984 for neck pain, no treatment between 1985 to 1987, treatment in 1988 and 1989, 1990 and 1991 for back pain, treatment in 1993 and 1994 for neck pain, and ongoing treatment through to 2002 for back and neck pain. He stated he had treated the worker a total of 125 times for a combination of neck pain and lower back pain since [23] On January 9, 2003, Dr. Savelli reported severe and aching neck pain with headache affecting the worker's sense of vision and balance, which the worker attributed to the 1975 tire explosion. [24] On June 4, 2003, Dr. Savelli reported ongoing headache, neck pain, upper limb pain and dysesthesia in the right hand. Following EMG testing, Dr. Savelli gave a diagnosis of right carpal tunnel syndrome, a change since July 2002, as well as changes of chronic reinnervation in the right C7/8 distribution in keeping with chronic radiculopathy. [25] On February 2, 2005, Dr. Savelli confirmed left sensorimotor carpal tunnel syndrome of the demyelinating type as a result of nerve conduction/emg studies. [26] In a letter to Dr. Leung dated June 6, 2005, Dr. Savelli reiterated her suspicion that the worker did have multiple sclerosis, despite the findings from Dr. Lo. In a report dated September 5, 2006, Dr. Savelli repeated her suspicion that the worker had multiple sclerosis. [27] On November 1, 2006 Dr. Savelli reported three episodes of loss of consciousness. [28] On February , Dr. Savelli confirmed her diagnosis of multiple sclerosis based on the MRI brain showing multiple areas of right matter signal abnormality. On December 6, 2007, she reported that his multiple sclerosis symptoms were stable, and reiterated this on January 24, [29] On February 20, 2004, the worker was assessed by Dr. Mike Pysklywec at the Occupational Health Clinics for Ontario Workers. Following a review of the medical file and physical examination, he indicated that he relied more on the report of the neurologist Dr. Lo that the worker s condition was not multiple sclerosis but was the result of a flexion/extension injury from the tire explosion in 1975, which had damaged the spinal cord. The doctor concluded as follows: [The worker] suffered from a severe head injury in His result of this injury, he had a significant flexion/extension type of effect of the cervical spine. This is subsequently left him with spinal cord damage as well as degenerative changes of the cervical spine. He should receive compensation for the ongoing symptoms from this century. [30] With respect to carpal tunnel syndrome, Dr. Pysklywec concluded that the worker's right carpal tunnel syndrome resulted from workplace exposure using vibration tools and heavy tools requiring excessive force, leading to medium nerve impingement. He stated:

6 Page: 5 Decision No. 1482/08 [the worker] is suffering from right carpal tunnel syndrome which is due to his activities at work. (iv) The worker's testimony [31] The worker described the accident of 1975, when a large truck tire exploded while he was tapping it with a hammer. He stated that the explosion threw him 14 feet up into the air, causing him to hit the ceiling and then the tire rim struck him on the head, fracturing his skull. The worker stated that he has had continuing problems since the accident, with pain in the head and neck, dizziness, weakness and difficulty with his thinking process. The worker stated that he had owned his own truck tire business and in those days it was booming; we had as many as 12 staff and were able to take time off as needed. [32] The worker stated that he had been treated by Dr. Meads at Sunnybrook Hospital and that Dr. Meads advised him he had severed nerves over the top of his head, but he was unable to obtain any records from Sunnybrook Hospital. He stated that family physician Dr. Leung also had no records from Dr. Meads. He stated he first saw Dr. Meads in the mid-80s, and that the doctor advised he had scar tissue from 1975, and that the only possible treatment was Aspirin. He stated at that time he had severe pain in the eye and right frontal area on the right side of his head. He stated that Dr. Savelli's later injections of Xylocaine had helped but did not last. [33] The worker stated that the reason he did not file a compensation claim in 1975 was that he did not understand at the time that he was covered, and thought that only his employees had WCB coverage. [34] The worker stated that he was already receiving chiropractic treatment prior to the 1975 accident from Dr. Ogilvie Sr. and that after the accident doctor all the treated his neck as well. He stated that when Dr. Ogilvie Sr. retired he continued to receive from his son, Dr. Ogilvie Jr., whose notes are contained in the Case Record. Their chiropractic records were available prior to [35] The worker stated that after the 1975 accident he reduced his working time, and frequently went home to rest two or three times a week. He stated that by 1981 his business began to decline because of his inability to give it his full attention and he eventually closed the tire side of the business altogether and turned the company over to his older son. [36] The worker testified that the motor vehicle accident in 1987 involved an injury only to his low back and not the back. [37] With respect to the shoulder, the worker stated that he injured his shoulder in the early 1980s while working on a crane tire which he tried to move by himself, causing the shoulder injury. He also stated that his shoulder condition was affected by the nature of his job duties, which included removing metal rims from truck tires requiring the use of the 15 pound sledgehammer with up to 30 blows for each tire change. He said he used heavy duty one-inch airguns which had a great deal of vibration and he was constantly lifting truck tires which weighed up to 200 pounds. [38] The worker stated that he was less able to do tire work after 1975, and did relatively little tire work after 1980 and none after 1989.

7 Page: 6 Decision No. 1482/08 [39] The worker stated that he had diabetes which he controlled by diet and have never required insulin treatment. (v) Submissions of the worker s representative [40] Mr. Seguin submitted that the 1975 tire explosion accident had caused permanent disability. He reviewed the medical evidence in detail and argued the greatest weight should be placed upon the evidence from Dr. Lo and Dr. Pysklywec, that the worker's ongoing problems were related to the 1975 trauma. He admitted that there was a probable relationship between the explosion of 1975 in the worker's neck and her logical disabilities. He also submitted that the worker s pains in the knees and shoulders as well as the carpal tunnel syndrome were compatible and related to the nature of his physically demanding work duties, based on the worker's testimony. (vi) Law and policy [41] Since the worker was injured in 1975, the pre-1985 Workers Compensation Act is applicable to this appeal. The hearing of this appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 ( WSIA ) also apply to the appeal. All statutory references in this decision are to the pre-1985 Act, as amended, unless otherwise stated. [42] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages are applicable to this appeal: 1; 31; 45; 07; 300. We have considered these policies as necessary in deciding the issues in this appeal. (vii) The Panel's conclusions [43] The adjudication of this difficult case is complicated by the passage of some 33 years since the accident of 1975, as well as the fact that the worker did not file his claim for compensation with the Board until A most problematic factor is that medical records between 1975 and 1980 are virtually non-existent. [44] With respect to the principal issues of the worker's entitlement for ongoing disability in the neck and neurological deficit as being causally related to the tire explosion of 1975, the medical evidence is supportive of entitlement. [45] Dr. Raymond Lo, a specialist in multiple sclerosis at the Hamilton Health Sciences Centre, advised in 2002 that the worker's condition was not typical for multiple sclerosis and he attributed the MRI findings to ischemic changes, and abnormalities in the cervical spine at C1/2 to a flexion extension injury caused by the 1975 explosion. [46] Dr. Pysklywec at the Occupational Health Clinic for Ontario Workers supported the finding of a significant flexion/extension injury as a result of the 1975 explosion, resulting in spinal cord damage as well as degenerative changes in the cervical spine. [47] On the other hand, the worker s treating neurologist Dr. Savelli, who continues to treat the worker at the present time, has reiterated her opinion in numerous reports that the worker is suffering from multiple sclerosis.

8 Page: 7 Decision No. 1482/08 [48] Following the hearing, the Panel requested a written opinion from Dr. Savelli, as to whether or not the worker has sustained any permanent impairment as a result of the 1975 tire explosion and if so, what was the nature of the impairment, and also, whether the worker's ongoing symptoms in the head and neck were entirely the result of multiple sclerosis or whether they were attributable to other causative factors. [49] In a letter dated August 14, 2008, Dr. Savelli replied as follows. She stated that she first treated the worker on June 15, 1999 and has continued to treat him to the present date. She reviewed the history of the 1975 trauma resulting in a stellate depressed skull fracture requiring surgical repair over the right frontal bone. It was her opinion that the worker had multiple sclerosis, based on MRI studies taken on December 17, 2006 which showed multiple high signal abnormalities consistent with multiple sclerosis by Mac Donald criteria. However, she also stated: In summary, this gentleman has multiple co-morbid illnesses, which have developed over the years as I have followed him closely. However, this does not detract from the significant nature of his original injury as described. When seen at the MS clinic it was felt that the lesions in the cervical spine were explicable by his cervical injury, and that area has shown no significant change on MRI imaging over the years. This gentleman's significant and persisting pain at the neck, headache, periscapular pain, and upper extremity pain are explicable on the basis of the sequelae from his traumatic injury in Over the years this has been an ongoing symptom requiring treatment. Other symptoms including his diplopia, gate disorder and transitory neurological symptomatology are explicable on the basis of his MS but there is still some contributing factor from his post traumatic cervical myelopathy. As you can well imagine, it is difficult to determine to what extent each progress contributes to his current findings, but his injury and early MRI studies bear witness to the significance of his work related trauma. This gentleman's pain is entrenched and is expected to continue permanently. His work trauma has contributed to the enhanced development of degenerative change within the cervical spine with aging. [50] In the Panel's opinion, Dr. Savelli has corroborated and confirmed the medical opinion of Dr. Lo and Dr. Pysklywec, that the tire explosion of 1975 was a significant contributing factor in the development of the worker s cervical myelopathy. Dr. Ogilvie has provided evidence of continual treatment for neck and back pain between 1980 and The Panel also accepts the testimony of the worker that he has experienced continuing symptoms in the head and neck since the accident of 1975 and that these symptoms have steadily progressed in severity. [51] On the basis of the medical evidence and the worker's testimony, the Panel finds that the worker sustained a permanent disability in the cervical spine as a result of the compensable accident of December 18, The Panel also accepts Dr. Savelli's opinion that the compensable post-traumatic cervical myelopathy was a contributing factor in the development of the worker s diplopia, gait disorder and transitory neurological symptomatology. Accordingly, the worker is entitled to an assessment and permanent disability award from the Board. [52] With respect to the two remaining issues, the Panel finds that there is not sufficient evidence to support entitlement, either for the bilateral knee/bilateral shoulder condition or for

9 Page: 8 Decision No. 1482/08 bilateral carpal tunnel syndrome. The worker's own testimony was that subsequent to 1980 he had significantly reduced his own physical labour. He did no physical labour after There is no record of medical treatment for either the knee/shoulder condition or the carpal tunnel condition prior to There is no contemporary medical evidence relating to either the bilateral knee/bilateral shoulder, or the bilateral carpal tunnel syndrome to work activities. Dr. Savelli has clearly related the carpal tunnel condition to the worker's MS.

10 Page: 9 Decision No. 1482/08 DISPOSITION [53] The appeal is allowed in part. [54] The worker has entitlement for a permanent disability in the cervical spine as a result of the compensable accident of December 18, The Panel also accepts Dr. Savelli's opinion that the compensable post traumatic cervical myelopathy was a contributing factor in the development of the worker s diplopia, gait disorder and transitory neurological symptomatology. Accordingly, the worker is entitled to an assessment and permanent disability award from the Board. DATED: November 6, 2008 SIGNED: R. McClellan, M. Christie, A. Grande