SUMMARY DECISION NO. 715/95. Benefit of the doubt; Nerve entrapment (ulnar).

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1 SUMMARY DECISION NO. 715/95 Benefit of the doubt; Nerve entrapment (ulnar). The worker appealed a decision of the Hearings Officer denying entitlement for left ulnar neuritis. The worker claimed that a compensable wrist fracture aggravated his preexisting non-compensable elbow condition. Medical evidence as to whether the compensable accident aggravated the preexisting condition was approximately equal in weight. Applying the benefit of doubt in favour of the worker, the Panel found that the worker was entitled to benefits. The appeal was allowed. [6 pages] PANEL: Newman; Shartal; Shuel DATE: 25/03/96 CROSS-REFERENCE: Decision No. 715/95I

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 715/95 This appeal was heard in Toronto on September 26, 1995, by a Tribunal Panel consisting of: E. Newman : Vice-Chair, R.J. Shuel : Member representative of employers, S. Shartal : Member representative of workers. The post-hearing process was completed on February 2, THE APPEAL PROCEEDINGS The worker brings this appeal from the decision of Hearings Officer Prpic dated May 23, The Hearings Officer denied entitlement for a condition diagnosed as left ulnar neuritis. The Hearings Officer denied entitlement to workers compensation benefits for a variety of other disabilities. However, the worker has discontinued his claim for benefits for the neck, shoulder, inner ear, low back, vertigo and dizziness. The worker has also discontinued a request for an increase in a permanent partial disability award for the left wrist. Inc. On this appeal the worker is represented by A. Barbato, of Injured Workers in Need (London) The employer was not represented and did not attend. THE EVIDENCE The Panel heard evidence under oath from the worker and considered the Case Description, which was marked as Exhibit #1. The evidence required by the Panel in its interim decision is contained in Addendum #1, marked as Exhibit #2. The worker s representative informed the Tribunal Counsel Office on February 1, 1996, that he intended to make no post-hearing submissions. THE NATURE OF THE CASE When the worker was a child, he suffered an injury and fractured his left elbow. The elbow was in a cast for a long time and was broken several times in an effort to achieve improved alignment. This caused a deformity of the left elbow, but according to the worker, caused him no pain or difficulty in the left arm or in the fingers of the left hand. This pre-existing disability of the left elbow was referred to as a gun stock deformity by Dr. P. Mehta, who reported the same in his report of December 4, 1987 (Exhibit #1, page 424). In an entirely unrelated event, on February 22, 1983, the worker was working on a dig valve four to five feet off the floor. While attempting to tighten a bolt, he fell backwards off the machine. He fell, landing on his left hand with his fingers outstretched, with his thumb pushed back. According to x- 1

3 rays taken at the time (Exhibit #1, page 160) the worker suffered a fracture of the waist of the scaphoid and a fracture across the distal pole. The worker denies striking his elbow in that fall. He denies striking any other part of his body in that fall. However, on this appeal the worker maintains that when he fractured the scaphoid and fractured the distal pole in the left wrist injury, he aggravated the pre-existing damage caused in the childhood fracture to the ulnar nerve. Thus, the worker claims that when he underwent surgery for the ulnar nerve in 1988, it was as a result of the compensable accident and compensable fracture to the left wrist in February (i) The medical evidence When the appeal was initially presented to this Panel on September 26, 1995, there was conflicting medical evidence on the question of whether the worker s compensable accident of February 22, 1983, aggravated his pre-existing non-compensable left elbow disability. The worker s treating orthopaedic specialist, Dr. W. Peter Southcott, said in a report dated December 5, 1984:...I do not think that it would be unlikely that the accident that he had, or any examination or treatment which he received in Toronto or here aggravated the old injury... Dr. Pran Mehta, consulting on the matter, said in a report dated December 4, 1987: I really feel that this patient s symptoms are that of ulnar nerve paresthesia from ulnar tunnel syndrome, which is not totally unexpected from a gun stock deformity. There was also disagreement among the Board s medical advisors. Dr. S.A. Kamin, responding to a memorandum from the Claims Adjudicator on September 17, 1984, agreed with the Claims Adjudicator s recommendation to allow entitlement for the left ulnar nerve problem, on the basis that the compensable accident aggravated it. However, Dr. Haines, reviewing the matter on September 24, 1984, stated: Medically, I do not feel that the ulnar nerve problems are related to the injury of February 22, 1983, and most likely relate to the fracture of the left elbow that this fellow experienced at age three and a half years. Therefore, I would disallow entitlement for ulnar nerve problems... By its interim Decision No. 715/95I, dated October 16, 1995, this Panel sought the medical opinion of an assessor, pursuant to section 87 of the Workers Compensation Act. The report of Dr. James H. Roth of the Hand and Upper Limb Centre of St. Joseph s Health Centre in London provided a report on December 8, Dr. Roth reviewed the factual history, and medical history of the worker s left elbow problem. He also examined the worker, and examined x-rays of the left wrist and elbow. Dr. Roth said in part: On examination of his left upper extremity, [the worker] has a full range of motion of the left shoulder including full forward flexion and external rotation. There is an obvious deformity of the left elbow with varus 2

4 angulation. The olecranon is prominent posterolaterally. There is a scar along the posteromedial aspect of the elbow. He does have a lack of the last 30 degrees of elbow extension but does have full flexion, pronation and supination. There is no crepitation at the elbow to movement. He does have full dorsiflexion, palmar flexion, radial and ulnar deviation of the wrist. He does have tenderness on palpation of the volar radial aspect of the wrist. He has tenderness on palpation of the anatomical snuff box and on palpation of the dorsum of the wrist. He is able to flex to touch the distal palmar skin crease with the tips of the index, long, ring and little fingers. The fingers are not swollen. Clinically, he does not have evidence of sympathetic dystrophy. Two point discrimination measures six millimetres on the radial and ulnar aspects of all digits of the left hand. Grip strength testing on the Jamar dynamometer at level two measures 34 kgs. on the left versus 70 kgs. on the right. Key pinch strength as measured on the Bunnell pinch meter measures 4 kgs. on the left versus 8 kgs. on the right. Tapping the elbow on the anteromedial aspect causes him tingling and numbness into his hand similar to his clinical discomfort. Clinically the ulnar nerve has been transposed anterior to the medial epicondyle. Thank you for providing me with radiographs of his wrist and elbow. Radiographs of the wrist demonstrate that there has been a transverse fracture through the scaphoid which has gone on to union in a satisfactory position. X-rays of the elbow demonstrate that there has been a previous fracture of the distal humerus which has gone on to heal in an abnormal position. I suspect that the initial injury at age three and one-half was an intra-articular fracture of the distal humerus. It appears that the medial aspect of the distal humeral growth plate may have gone on to premature closure resulting in overgrowth of the lateral condyle. There is also a large notch through the trochlea. The radial head articulates normally with the capitellum. There is no evidence of an acute bony injury to the elbow on the radiographs you have provided. Despite radiographic union of the scaphoid fracture, [the worker] continues to have wrist discomfort and weakness. he continues to have the sensation of tingling and numbness into his long, ring and little fingers despite an anterior transposition of the ulnar nerve. [The worker] notes that prior to his fall on February 22, 1983 he was entirely asymptomatic with respect to his elbow. He has had ongoing symptoms since. He understands that he did have a very significant injury to his left elbow as a child. I feel that the fall that he sustained at work aggravated the pre-existing left elbow problem. 3

5 THE PANEL S REASONS Section 4(4) of the Workers Compensation Act provides: 4(4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. This is a case in which, in the Panel s view, the medical evidence for and against the issue is approximately equal in weight. The Board s medical staff disagree on the question of whether the compensable accident aggravated the pre-existing elbow problem. The worker s own treating and consulting orthopaedic specialists disagree. The Assessor, whose opinion was obtained by this Panel, has opined that the compensable accident aggravated the pre-existing left elbow problem. In our view, this is exactly the sort of situation contemplated by section 4(4) of the Workers Compensation Act. The statute requires that the issue shall be resolved in favour of the claimant. 4

6 THE DECISION The worker s appeal is allowed. Entitlement to workers compensation benefits shall be granted to the worker, in an amount to be determined by the Workers Compensation Board, for a compensable aggravation of the left elbow problem. Included in the compensation to be determined by the Board shall be compensation for the ulnar nerve compression of the left elbow, conducted on February 18, DATED: March 25, 1996 SIGNED: E. Newman, R.J. Shuel, S. Shartal 5