WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2001 ONWSIAT 2849 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO [1] This appeal was heard in Sudbury on July 24, 2001, by Tribunal Vice-Chair L.J. Henderson. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of an Appeals Resolution Officer, dated November 30, That decision denied entitlement to thoracic outlet syndrome and allowed further temporary total benefits from December 19, 1996 to January 20, 1997, and a Non-Economic Loss ( NEL ) assessment for the CTS. [3] The employer, represented by Ms. D. Sangiuliano of the Office of the Employer Advisor, cross-appealed objecting to further entitlement for CTS and the entitlement to the NEL assessment for the CTS. A second employer was notified but chose not to attend. [4] The worker was represented by Mr. R. Aubut and his assistant of R. Aubut Consultants. THE RECORD [5] The following documents were marked as exhibits: Exhibit #1: Case Record prepared by the Tribunal Counsel Office; Exhibit #2: the Hearing Ready letter dated October 2, 2000; Exhibit #3: Addendum #1 dated July 5, 2001; Exhibit #4: Letter to second employer, E. Martel Ent., dated July 23, 2001; Exhibit #5: Letter of Dr. Secord dated August 15, [6] Oral evidence was heard from the worker. PRELIMINARY MATTER [7] It was decided that the hearing would proceed in two parts: Entitlement to further benefits and NEL assessment for CTS would be dealt with initially; as well, the cross-appeal of the first employer objecting to the further benefits for CTS and a NEL assessment for CTS would be incorporated into the first part of the appeal hearing. The employer representative advised the Vice-Chair that the employer would not take part in the appeal hearing pertaining to the denial of thoracic outlet syndrome.

2 Page: 2 Decision No THE ISSUES [8] The issues to be determined are: Whether the worker has entitlement for CTS benefits beyond January 20, 1997; Whether the worker is entitled to a Non-Economic Loss assessment for the CTS (cross-appeal); and Whether the worker has entitlement to thoracic outlet syndrome arising out of the worker s initial complaint to the Board on January 2, THE REASONS (i) Background [9] The worker, born on May 14, 1966 has worked in various heavy jobs since high school years. She first worked in her family business and restaurant as a waitress, cook, cleaner and chambermaid. After high school, she worked for a maintenance company doing heavy institutional cleaning. She then worked for two and a half years as a waitress, cooking and doing baking as well. At the same time, she also had a second job with another restaurant as a waitress. [10] In 1987, she changed her second job and worked at another restaurant as a cook/helper, dishwasher, waitress, looking after cash and cleaning tables. [11] In July of 1987 she began working for the accident employer in a secretarial position. She also worked in the restaurant and bar area. [12] Her job as a secretary consisted of doing bookkeeping, payroll, accounts receivable and answering the telephone. The printer she used for her computer was old and had a lot of vibrations. She stated that she worked at the accident employer in her job as secretary for 37 ½ to 41 ½ hours per week and she worked approximately another 15 hours in the restaurant and bar area as well. [13] In May of 1994 she took a stress leave due to her personal health (the worker had been diagnosed with cancer). She did not work until May 1996 when she returned to work in the family restaurant and tavern. [14] The worker stated that she had occasional pain in her wrists and hands from sometime in She received Tylenol #3 and anti-inflammatory medication from her family physician or the walk-in clinic. [15] By September 15, 1996, she stopped working and sought medical attention from Dr. G. Secord, an orthopaedic specialist who examined the worker on October 22, 1996 in the EMG clinic of the local hospital. [16] She gave a five to six years history of pain in both the upper extremities; recurrent at first but by then persistent. Her hands were also swollen with symptoms always worse at night.

3 Page: 3 Decision No [17] Dr. Secord s examination revealed: There was no evidence of a cervical radiculopathy. The hyperabduction test, brachial plexis sensitivity test and a clavicular depression test were all positive. There was a positive Tinel s sign over all three peripheral nerves: over the radial nerve in the spirogrove, the ulnar nerve in the proximal cubital tunnel and the median nerve under the ligament of Struthers and in the distal forearm in carpal tunnel. The diagnoses clinically, were thoracic outlet syndrome and carpal tunnel syndrome bilaterally. [18] The worker had surgery on the left carpal tunnel on November 7, 1996 by orthopaedic surgeon, Dr. DaFoe. [19] On September 17, 1997, Dr. Secord tested the worker and found that she tested positive for CTS minimally and on the left, but strongly positive for TOS bilaterally. [20] On April 22, 1998, Dr. Secord again saw the worker for more detailed history and repeat examination. [21] Dr. Secord did not repeat the TOS testing but clinically he found that the worker demonstrated strongly positive findings as on previous occasions. Dr. Secord also noted that electrical findings showed delay through both carpal tunnels on April 22, [22] Dr. Secord had advised the worker as early as September 17, 1997, that she should stop all heavy or awkward lifting and that she be retrained for more sedentary type of work. [23] On June 1, 1998, Board Medical Advisor, Dr. DeDomenico reviewed the claim file and concluded that thoracic outlet syndrome would not be compatible with her job description as indicated. [Her work was keyboarding and mainly a sedentary type of work]. [24] Dr. DeDomenico also concluded that based on the information from Dr. Secord and the worker s job description of the work she performed which was on a repetitive sustained basis and could be considered as a repetitive strain injury and therefore compatible with a diagnosis of carpal tunnel syndrome related to her working activities. [25] On June 17, 1998 the Board Adjudicator advised the worker by letter that entitlement had been granted for carpal tunnel syndrome and benefits would be paid for a six-week period of time. [26] On November 13, 1999, the Appeals Resolution Officer extended temporary total benefits from December 19, 1996 to January 20, 1997, and found that the worker was entitled to a Non-Economic Loss assessment for the CTS. (ii) The worker s testimony [27] The worker stated that she had worked at heavy manual jobs since high school days (as noted above).

4 Page: 4 Decision No [28] She always worked more than one job and all of her jobs with the exception of the secretarial position at the accident employer were manual and heavy. [29] After Dr. Secord advised her in September of 1997 to refrain from heavy manual work as she had done in the past, she trained as an underwriter and began selling insurance and RRSP s. The underwriting position involved computer work, travelling and a good amount of telephone work. She was unable to continue this work due to pain in her wrists, hands, arms and neck with headaches. [30] At that point, she had no other alternative but to return to work for her father s establishment. She attempted eight hours per day, seven days a week but on some days she was only capable of two hours per day due to the pain. [31] She indicated she would return to Dr. Secord within the next two months for his assessment of her right wrist and for further tests because of continued pain (in the same areas as indicated above). (iii) Submissions of the worker representative [32] The worker representative submitted that it was immaterial which employer was responsible for the injury. It was a stated fact that the worker had entitlement to bilateral CTS. [33] The worker representative stated that after the left carpal tunnel surgery, the worker did not have sufficient time to heal. It was the position of the worker representative that if the worker had had extended benefits, she would have had the opportunity and time to heal. (iv) The medical evidence [34] Dr. Secord who examined the worker on several occasions supported that the worker had bilateral carpal tunnel syndrome and thoracic outlet syndrome. Dr. Secord s report dated August 15, 2001 received in a post-hearing submission confirms the worker s medical status. Dr. Secord had the worker tested for: Cervical radiculopathy; Right and Left Thoracic Outlet and Right and Left Carpal Tunnel. The testing concluded that the worker tested strongly positive both in the Thoracic Outlet testing both right and left and moderate positive in the Carpal Tunnel testing both right and left. (v) The employer representative s submissions [35] The employer representative submitted that there was no entitlement for a NEL assessment. There was a finding of bilateral CTS. [36] There was no medical to support a diagnosis of bilateral CTS until November 18, 1996, when she attended with her family physician, Dr. Abdulhusein to remove sutures from her surgery of November 7, 1996 which was done by a specialist in another city. [37] The family physician saw the worker again on December 17, 1996 and she complained of pain in the left wrist, which would shoot up to the left elbow and was worse at night. On examination, it was found that both hands felt cold and she had pain on both flexion and extension of the left wrist.

5 Page: 5 Decision No [38] The employer representative referred to the September 17, 1997 report of Dr. Secord who provided a diagnosis of thoracic outlet syndrome bilaterally and advised that the worker stop all heavy or awkward lifting and be retrained for sedentary type work. She pointed to the fact that Dr. Secord had not made mention of any carpal tunnel syndrome. [39] The employer representative reviewed the job function of the worker while employed with the accident employer from July 1987 to May 1994 and stated that the type of work performed was multi-tasking and not continual repetitive keyboarding. It was her position that entitlement to bilateral CTS was not related to the work performed at the accident employer based on the fact that there were multiple duties and lack of medical evidence supporting any diagnosis of CTS. (vi) The law and policy [40] Since the accident in this appeal occurred in 1992, the pre-1997 Act applies. In addition, the Board has provided the Tribunal with the following policies pursuant to section 126 of the WSIA: Policy Package #1 Initial Entitlement Prior to January 1, 1998 Policy Package #30 Policy Package #33 Policy Package #85 (vii) Benefit of Doubt No Continuing Entitlement Recovered from Original Accident Suitability of Employment. The Vice Chair s conclusions [41] There was some confusion in the materials and testimony as to the job actually performed by this worker in the years from 1987 to October 1996 when she was diagnosed with bilateral carpal tunnel syndrome and thoracic outlet syndrome by Dr. G. Secord. [42] The worker s testimony supports that while employed at the accident employer from the years 1987 to May 1994, she worked in a secretarial position and always worked at some other job part-time. [43] I accept that besides the secretarial position in those years, the worker performed heavy manual tasks in restaurants and bars. This required constant and strenuous movements to the upper body and especially the arms and hands. [44] I am satisfied that the worker is a hard-working person who appears to overwork in order to be able to meet her commitments to her family. [45] I accept that the worker, whom I consider to be credible, did experience pain in her wrists, hands and arms as well as headache and neck pain throughout the period from 1987 to May 1994, even though medical documentation is not present to support the worker s testimony. [46] I agree with the representative of the accident employer, that the worker was not diagnosed with bilateral carpal tunnel syndrome and thoracic outlet syndrome until October 22, [47] I have also considered the fact that the worker left the accident employer in May of 1994 due to a personal illness unrelated to her physical pain.

6 Page: 6 Decision No [48] I am satisfied that the work performed by the worker at the accident employer as a secretary from the years 1987 to May 1994 was not a significant contributing factor to the worker s physical problems. [49] As I have indicated above, the worker pushed herself to work several hours of overtime in manual jobs in addition to working her regular job for the employer approximately 37½ to 41½ hours per week. A review of the job duties pertaining to the secretarial position at the accident employer clearly indicates that her work consisted of multitasks with little, if any, repetitive work which would cause the worker s present injuries. [50] I have also considered the worker s evidence pertaining to her return to work in May of 1996 at her father s establishment, which consisted of a restaurant/bar and ten cottages. The worker worked eight hours a day cooking, preparing and chopping food, waitressing and cleaning ten cottages which required vacuuming and scrubbing of showers, tubs and toilets. [51] I accept that by September 15, 1996, the worker could not work due to the pain in her upper body, specifically hand, wrists, arms with headache and neck pain. I note that the worker sought medical attention with Dr. G. Secord who referred her to an orthopaedic surgeon, Dr. DaFoe who performed surgery on November 7, 1996 for the left wrist. Based on the worker s testimony and the supporting medical diagnosis and evidence of surgery, I am satisfied that the worker was totally disabled from October 22, [52] I am satisfied that the worker s injuries did arise out of and in the course of employment with the accident employer. [53] I accept the worker s testimony that she was advised not to return to heavy manual work by Dr. DaFoe and Dr. Secord. [54] I accept that the worker attempted to retrain as an underwriter and worked in that capacity selling insurance and RRSP s but was unable to continue due to several factors including the amount of travelling, the amount of phoning and computer work which proved to be too much. [55] I am satisfied that the medical evidence supports that the worker tested positive for CTS and TOS bilaterally again on September 17, [56] I note that there is medical evidence on April 22, 1998 which again confirmed CTS bilaterally and TOS clinically, demonstrated by strongly positive findings as on previous occasions. [57] There is further medical evidence contained in a report dated January 19, 2000 from Dr. G. Secord, which supports carpal tunnel syndrome on the right and thoracic outlet syndrome clinically only. [58] I have reviewed the Discussion Paper prepared for the Workplace Safety and Insurance Appeals Tribunal entitled Thoracic Outlet Syndrome January 2000, prepared by Dr. J.F.R. Fleming, who states:

7 Page: 7 Decision No Diagnostic tests: There is no single laboratory test that can confirm the diagnosis of TOS. The diagnosis must be based on a combination of the patient s symptoms, the findings on physical and neurological examination, plus appropriate laboratory tests. Non-specific neurogenic TOS: In non-specific or disputed neurogenic TOS, there are no abnormal mode of findings (i.e. no true muscle weakness or wasting), and no sensory findings. The predominant complaints are pain and sometimes tingling and numbness, often in a rather diffuse and non-specific distribution in the shoulder, arm, forearm and hand. These symptoms are sometimes worse with activity or when carrying a heavy object in the hand and sometimes persists at rest. In non-specific TOS, there may also be a variety of symptoms that are completely unrelated to this thoracic outlet, such as headaches. Electro-diagnostic test: In non-specific TOS, there are no consistent or reliable electro-diagnostic abnormalities. [59] The above supports the testimony of the worker in relating her pain in her upper body, which is made worse with carrying or lifting, and continues to persist at rest. [60] Having considered all of the evidence, I am persuaded on a balance of probabilities that the worker has entitlement to thoracic outlet syndrome and that the worker is entitled to further benefits for the CTS from January 20, 1997 to the date of the NEL assessment. I leave it to the Board to determine the periods of lost time. THE DECISION [61] The appeal is allowed: The worker is entitled to further temporary total benefits from January 20, 1997 for CTS. The worker has entitlement to thoracic outlet syndrome. [62] The cross-appeal of the employer is allowed in part: The date of injury for CTS is October 22, The worker has entitlement for a NEL assessment for CTS. DATED: September 26, 2001 SIGNED: L.J. Henderson