WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2005 ONWSIAT 918 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1628/04 [1] Tribunal Vice-Chair L. Gehrke heard this appeal in Toronto on October 14, THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer dated June 25, That decision: 1. denied entitlement to carpal tunnel syndrome or chronic pain disability as a result of laceration injuries to his right wrist on May 28, 1972 or twisting injury to his right elbow and forearm on August 8, 1991; 2. denied a permanent disability reassessment for the May 1972 injury; 3. denied a non-economic loss (NEL) reassessment for the August 1991 injury; and 4. denied entitlement to a full future economic loss (FEL) award at the R2 determination in September 1998, thus confirming a FEL award based on future earnings capacity as a Restaurant Manager and Food Service Salesperson earning $10.00 per hour. [3] The worker appeared and was represented by Mr. J. T. Lamont, consultant. Both accident employers have inactive accounts. THE RECORD The following were marked as exhibits: Exhibit #1: Case Record volumes 1a and 2b Exhibit #2: Addendum #1; Exhibit #3: Addendum #2; Exhibit #4: Tribunal letter dated May 18, 2004; Exhibit #5: A legible copy of a medical report by Dr. Mahoney dated June 11, 2003, contained in Addendum #1; Exhibit #6: Addendum #3; Exhibit #7: Post Hearing Addendum #1 and Exhibit #8: Post Hearing Addendum #2. [4] Oral evidence was heard from the worker. Mr. Lamont made submissions at the hearing and after receipt of the post-hearing addenda.

2 Page: 2 Decision No. 1628/04 ISSUES AND CONCLUSIONS 1. Denial of entitlement for carpal tunnel syndrome. I requested an opinion by a Tribunal-appointed medical assessor, Dr. T.S. Axelrod, Chief of Orthopaedic Surgery, Orthopaedic & Arthritic Institute, Sunnybrook Campus. Based upon Dr. Axelrod s report, I have concluded that the worker s carpal tunnel syndrome is not the result of either the May 1972 laceration injury to his right wrist or the August 1991 twisting injury to his right elbow and forearm. 2. Denial of chronic pain disability. Following discussion with the worker and his representative at the hearing concerning the downside risk inherent in claiming chronic pain disability, since this would mean that the organic pension awards would be repealed and replaced by an assessment under the chronic pain disability criteria, the worker elected to withdraw his appeal on this ground. I note that an organic award for each injury is in accord with the medical evidence in the file, indicating that the worker s dysfunction and pain in his right forearm and wrist have an organic or physical cause and the pain from which he suffers is not of an unknown or psychogenic origin. I therefore accept the worker s withdrawal of his appeal from the ARO s denial of a chronic pain disability award. 3. Denial of permanent disability award and NEL reassessments. The Board has denied the worker a reassessment of his permanent disability award for the May 1972 injury and of his August 1991 injury. Dr. Mahoney s June 2003 report and the worker s testimony that his right hand and wrist and symptoms and functional abilities have deteriorated since the last reassessment, and there may also have been a deterioration of the right elbow condition. I would grant a reassessment of the worker s permanent disability award for the right wrist as well as his NEL award for the right elbow. 4. R2 FEL award. The worker has claimed entitlement to a full FEL award at R2, effective September The worker was unable to successfully complete retraining and job search efforts were also unsuccessful, despite full co-operation with vocational rehabilitation. I accept the worker s testimony that the reason for the worker s lack of success in retraining was his pain and his loss of function of his dominant right hand and arm as a result of the two compensable injuries. It is not likely that the worker would be able to earn $10. per hour as a restaurant manager or food service salesperson, considering the nature and effect of his disability, his transferable skills and his level of education, which he received outside Canada in a language other than English. I would therefore allow the worker s appeal, granting him a full FEL award at R2. REASONS (i) Entitlement for Carpal Tunnel Syndrome [5] The worker was employed as a cook s helper when he suffered a severe laceration injury of the right wrist on a band saw on May 28, He suffered lacerations of several tendons and nerves requiring surgery, and was left with a neurological deficit and weakness in the right hand and arm. He returned to work as a cashier and waiter on December 26, In June 1973 he was granted a ten per cent permanent disability award.

3 Page: 3 Decision No. 1628/04 [6] In 1981, he underwent EMG and nerve conduction studies. The median nerve conduction studies did not show any entrapment or scarring. However, Dr. Howes commented that there appeared to be some interruption of the fibres of the radial nerve, or of the lateral cutaneous nerve at the level of the surgical scar. In 1982 Dr. Curkowskyj, an Orthopaedic Surgeon, explored the scar tissue and removed a neuroma from the superficial branch of the radial nerve. [7] On August 8, 1991, the worker suffered a twisting injury to the right forearm at work, with pain in the elbow and swelling from the hand up to the elbow. The diagnosis was lateral epicondylitis (tendonitis of the elbow). Dr. McGoey, Orthopaedic Surgeon, performed surgery in July 1992 for right elbow lateral epicondylitis. [8] In May 1993, Dr. V. Bowen of the WSIB Hand Clinic assessed the worker, noting that there were symptoms of pain and numbness from the elbow down to the hand, with some decrease in sensation over the median nerve, as well as the radial nerve distribution. Dr. Bowen thought the forearm pain was related to the worker s 1972 injury, particularly the transection of the radial nerve. [9] In 1999, Dr. McGoey reassessed the worker, noting tenderness in the scar in the radial border of the forearm, in keeping with a neuroma of the superficial radial nerve related to the 1972 injury. [10] In June 2001, Dr. R. Kern, Neurologist, assessed the worker and noted the previous right radial nerve injury. EMG and nerve conduction studies confirmed superficial radial nerve involvement. There was also evidence of a right carpal tunnel syndrome, which Dr. Kern might account for some recent symptoms. [11] Dr. McGoey referred the worker to Dr. C. Turley, Neurosurgeon, since Dr. McGoey noted surgery by an experienced peripheral nerve surgeon was needed because of the previous injury and scarring. Dr. Turley performed a carpal tunnel release in January It appeared that the median nerve symptoms cleared after surgery. Dr. Turley commented that the result from this surgery indicated that the original median nerve injury was not the cause of his current symptomatology that had been relieved by the carpal tunnel decompression. However, the worker went on to develop sensitivity along the surgical scar and further surgery was performed to excise a neuroma in the sensory branch of the median nerve area. After this, there was some worsening of the worker s symptoms with further numbness. [12] Dr. Mahoney, when he saw the worker at St. Michael s Hospital in June 2003, felt that there was some hand dysfunction contributed to by the original injury, his most recent carpal tunnel syndrome, as well as superimposed functional abnormalities. [13] Dr. Axelrod, in his report to the Tribunal, opined: It is important to note that the worker s injury was in At the time of the injury there was no evidence whatsoever of median nerve dysfunction. This is confirmed nine years later in 1981 when EMG studies were performed by Dr. Howes. The median nerve conduction studies did not indicate any entrapment or scarring. These EMG studies, done nine years following the original injury, would indicate that the injured worker had no evidence of median nerve dysfunction as a result of his traumatic

4 Page: 4 Decision No. 1628/04 injury of It appears that the injured worker s symptoms were clearly form the soft tissue injury as well as the injury to the superficial branch of the radial nerve. The injury of August, 1991, that of lateral epicondylitis, is not in any way related to the original injury, nor did it in any way contribute to the development of carpal tunnel syndrome. Dr. Bowen s statements of 1993 give no indication whatsoever of any carpal tunnel symptoms. Rather, most of the symptoms were related to the old injury, in particular the transection of the radial nerve. It was not until June, 2001 when this gentleman presented with evidence of right carpal tunnel syndrome which ultimately underwent surgical treatment. Carpal tunnel syndrome is a very frequent condition that occurs in many individuals as they age. There are suggestions of increased risk of developing carpal tunnel syndrome in individuals who are involved in certain workplace activities, such as keyboarding and activities that require rapid, repetitive hand motion. Carpal tunnel syndrome is a compression of the median nerve at the level of the wrist on the palmar side. It is related to a lack of adequate space for the median nerve to traverse the distal forearm into the hand. Carpal tunnel syndrome results in a distinct grouping of symptoms, consisting of numbness and tingling in the thumb, index and middle finger, as well as weakness of grip and muscle atrophy into the hand. Based upon the EMG and nerve conduction studies from Dr. Kern, it is clear that [the worker] did develop carpal tunnel syndrome and that he had, at least initially, good relief of his symptoms following the decompressive operation performed by Dr. Turley. As such, this is confirmatory evidence that [the worker] did have a correct diagnosis of carpal tunnel syndrome in May, However, in my opinion, there is absolutely no relationship between the development of the carpal tunnel syndrome in 2001 and the forearm injury in 1972, some 30 years previously. There is well documented history of events form 1972 onwards, none of which show any evidence of the development of carpal tunnel or median nerve dysfunction of any significance until A 30-year time lapse with no symptoms of carpal tunnel syndrome from an original deep laceration to the forearm is not compatible with the development of carpal tunnel syndrome related to the original injury in my opinion. There was no history of injury to the wrist, no history of injury to the median nerve of significance and, as such, there would be no plausible way in my opinion that the original injury of 1972 would have contributed to, cause or worsen the development of carpal tunnel syndrome in this man s right wrist. Clearly, if there was any contribution of the injury of 1972 to the development of carpal tunnel syndrome, then the EMG studies and the clinical examinations in the years of 1981, 1982 and 1998 through 1993 would have shown some evidence of median nerve dysfunction, carpal tunnel syndrome. They simply did not and, as such, there is no relationship in my expert opinion between the worker s injury of 1972 and the ultimate development of carpal tunnel syndrome. As I described above, carpal tunnel syndrome is a very common condition and would have occurred in this man irrespective of his injury of [14] I find Dr. Axelrod s opinion to be well-reasoned and persuasive, and I therefore accept his expert opinion that there is no relationship between the worker s carpal tunnel syndrome, diagnosed in 2001, and either the 1972 injury or the 1991 injury. I have reviewed the medical reports in the record, and can find no indication of median nerve dysfunction before The reports relating to the 1972 injury refer only to radial nerve injury, and not to median nerve injury. The 1991 injury concerned a diagnosis of lateral epicondylitis, a condition of the elbow,

5 Page: 5 Decision No. 1628/04 and not the median nerve. Thus, the medical reports in the record are consistent with Dr. Axelrod s opinion. [15] The worker s representative has suggested in final submissions that the worker s years of vocational rehabilitation, during some of which he worked with computers, could have contributed to carpal tunnel syndrome, based on Dr. Axelrod s opinion that carpal tunnel syndrome can arise from repetitive, rapid movement had motion such as keyboarding. The worker s vocational rehabilitation ended in If this had been a cause, I would have expected to see earlier reporting of median nerve symptoms, which there is not. Thus, the evidence is not consistent with carpal tunnel syndrome arising from the worker s vocational rehabilitation activities. (ii) Permanent Disability and NEL reassessment [16] Dr. J. Mahoney of St. Michael s Hospital Hand Clinic was of the opinion on June 11, 2003 that the worker s hand dysfunction was secondary to the original 1972 injury, with superimposed functional abnormalities. Dr. Mahoney wrote: The diagnosis of this man I think is hand dysfunction contributed to by his original injury, his most recent carpal tunnel syndrome, as well as superimposed functional abnormalities which all together interfere with the use of his hand and subjective symptoms.. [17] Dr. Axelrod did not question Dr. Mahoney s opinion. [18] The worker has testified that he has suffered deterioration in his hand symptoms. I conclude from the worker s testimony and Dr. Mahoney s report that there has been deterioration in symptoms and function in the worker s right hand since the last assessment to which the 1972 injury has contributed. I would therefore grant a reassessment of the worker s permanent disability award for his right hand. [19] Dr. Mahoney also suspected a superimposed irritation of the ulnar nerve at the level of the elbow. It is not clear whether this represents a deterioration of the compensable elbow condition. Applying the benefit of the doubt, I would also grant a reassessment of the worker s right elbow condition. (iii) R2 FEL Award [20] The worker engaged in vocational rehabilitation up to September This included: Two unsuccessful attempts to return to modified work as a job site cleaner, patcher and sander and in a transitional work program discontinued when he suffered pain and swelling of the right hand and forearm (1992 and 1993); Referral to Downsview Rehabilitation Centre Hand Clinic (1993); Referral for a vocational evaluation (1993), setting goals of building inspector and food service buyer/supervisor;

6 Page: 6 Decision No. 1628/04 Academic upgrading at a business school with non-dominant hand train (1993) discontinued due to pain; A second attempt at non-dominant hand training, successfully completed in 1994; Academic upgrading in a mathematics, communications and introduction to computers at a community college ( ) the worker withdrew as he passed only two courses; Establishment of alternate vocational rehabilitation goal of restaurant manager or food service sales person (1995); and Participation in a job search program (1996). [21] The worker testified that his success in retraining was impeded by pain and dysfunction in his right hand and arm. He testified that he was never able to learn to write legibly with his left hand. [22] The worker s experience is limited to the construction industry as a drywall taper, and as a cook. Neither of these areas are viable vocational options because of his dominant hand disability. [23] Other areas of vocational interest, such as finance, business, office work and sales, are not options for him as he has not been able to complete upgrading and formal training. The worker received his education outside Canada, in a language other than English. A psycho vocational assessment indicated that his English reading and spelling skills are not well developed, and that he would need upgrading to pursue such goals. Further, his inability to write legibly with his dominant hand is a significant limitation in any business or office environment. [24] At the suggestion of his vocational rehabilitation services worker, the worker applied for and received CPP disability benefits in Thus, he is viewed by that government agency as unable to work because of his disability. [25] The worker was 47 years old at the R2 date, September [26] Section 43 of the pre-1997 Act provides in part: 43(1) A worker who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury. (3) Subject to subsection (8), the amount of compensation payable to a worker for future loss of earnings arising from an injury is equal to 90 per cent of the difference between, (a) the worker's net average earnings before the injury; and (b) the net average earnings that the worker is likely to be able to earn after the injury in suitable and available employment. (a) (7) For the purposes of subsection (3), in determining the amount that a worker is likely to be able to earn in suitable and available employment, the Board shall have regard to, the net average earnings, if any, of the worker at the time the Board determines compensation under this section;

7 Page: 7 Decision No. 1628/04 (b) any disability payments the worker may receive for the injury under the Canada Pension Plan or the Quebec Pension Plan; (c) the personal and vocational characteristics of the worker; (d) the prospects for successful medical and vocational rehabilitation of the worker; (e) what constitutes suitable and available employment for the worker; and (f) such other factors as may be prescribed in the regulations. [27] I have considered the nature of the worker s disabilities and their significant impact, rendering dysfunctional his dominant right hand and arm; the worker s limited transferable skills, which are in construction and cooking, both of which he can no longer engage in because of his compensable disabilities; his limited education, especially his limited ability to read and write in English, and his inability to successfully complete upgrading and retraining because of his compensable disabilities and the pain resulting from these; his lack of successful medical or vocational rehabilitation, despite co-operation, many years of vocational rehabilitation and several surgeries; the fact that he has received CPP disability benefits, recognizing that he cannot work as a result of his disability; his age (47) at the time of R2. I find on consideration of all these factors as a whole that at the R2 date (September 1998) it was highly unlikely that the worker would be able to achieve the vocational goals set by the Board or that he would be successful in finding employment in a job that he was physically capable of performing. I therefore conclude that the worker is entitled to a full FEL award at R2, recognizing that his likely future earnings capacity was nil. THE DECISION [28] The worker s appeal is allowed in part. 1. The worker s carpal tunnel syndrome is not compensable, as it did not result from his work-related injuries of May 1972 or August The worker is entitled to reassessment of his permanent disability award resulting from the May 1972 injury to his right wrist and his NEL award resulting from the August 1981 injury to his right elbow. 3. The worker is entitled to a full FEL award at R2. 4. The worker s appeal of the denial of chronic pain entitlement is withdrawn. DATED: April 20, SIGNED: L. Gehrke