SUMMARY DECISION NO. 701/96. Continuing entitlement.

Transcription

1 SUMMARY DECISION NO. 701/96 Continuing entitlement. The worker struck the back of his neck against a rack in August The worker appealed a decision of the Hearings Officer denying continuing entitlement after January On the evidence, the worker was not disabled by an organic condition after January The issue of non-organic disability was not before the Panel. The appeal was dismissed. [10 pages] PANEL: Faubert; Higson; Chapman DATE: 02/10/96

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 701/96 This appeal was heard in Sudbury on January 12, 1996, by a Tribunal Panel consisting of: M.J. Faubert : Vice-Chair, S.L. Chapman : Member representative of employers, R. Higson : Member representative of workers. THE APPEAL PROCEEDINGS The worker appeals the January 9, 1995, decision of WCB Hearings Officer L. Mitschele, which denied the worker s entitlement to ongoing benefits beyond January 29, 1993, for a disability which the worker relates to his August 24, 1992, compensable accident. The worker attended the hearing and was represented by M. Dempsey, from the Office of the Worker Adviser. The accident employer was represented by M. Trudeau from the Office of the Employer Adviser. THE EVIDENCE The Panel considered the Case Description and two Addenda to the Case Description which were entered as exhibits at the hearing. We also reviewed a copy of a report from the worker s family physician, Dr. A. Kuchtaruk and four pages of medical charts from Dr. Kuchtaruk. These documents were also entered as exhibits at the hearing. Following the hearing, we received a complete physiotherapy report dated February 1, 1993, from the worker s physiotherapist, as well as further submissions from the employer s representative. The worker s representative had no further submission to make with respect to this additional information. At the hearing the worker gave evidence under oath, as did the employer s safety and WCB claims manager. Mr. Dempsey and Mr. Trudeau made submissions. THE NATURE OF THE CASE The Panel must decide whether the worker continued to be disabled after January 29, 1993, as a result of injuries sustained in his August 24, 1992, compensable accident. The worker s representative confirmed at the outset of the hearing that no claim was being made at present for entitlement to benefits on the basis of a chronic pain disability. Thus, the decision is confined to the issue of whether the worker had a continuing organic disability after the date his benefits were terminated. 1

3 THE PANEL S REASONS This 34 year old worker was employed as a fork lift operator in the employer s grocery warehouse. On August 24, 1992, the worker was bending underneath a rack to pick up a case of pudding. When he stood up, he struck the back of his neck against a rack. The accident occurred on a Monday. The worker continued working at his usual job until Thursday of that week, and on Friday, performed the duties of a picker. He received medical attention from Dr. Kuchtaruk on September 1, 1992, at which time Dr. Kuchtaruk recommended that the worker perform modified duties for one to two weeks, with restrictions against work involving neck rotation, such as driving the fork lift. If no such work was available, Dr. Kuchtaruk recommended that the worker remain off work for one to two weeks. Initially, there was some question with respect to the area of the worker s injury. The employer understood that the worker hit his right shoulder, and identified the right shoulder as the area of the injury in its report to the Workers Compensation Board. However, in the worker s report of his accident, he stated that he hit the back of neck against the rack, and that he experienced pain going from middle back to top of head and shoulder to shoulder. When Dr. Kuchtaruk examined the worker, he described an injury to the right neck area and right trapezius muscle, and diagnosed a neck strain. Dr. Kuchtaruk obtained an x-ray of the worker s cervical spine, which he described as negative. He prescribed anti-inflammatory medication and analgesics, as well as physiotherapy. In October 1992, the employer advised the WCB that it was prepared to offer the worker modified employment. On October 20, 1992, Dr. Kuchtaruk wrote that the worker had still not received physiotherapy treatment, and that he had persistent discomfort in his neck and right arm with motion. Dr. Kuchtaruk wrote that the worker was unable to do repetitive neck motions involved in operating a motor vehicle, and that he would be restricted from employment involving overhead work or driving which required twisting or hyperextension of the neck. The Board s Regional Medical Adviser, Dr. Erola, reviewed the worker s file on October 27, 1992, and concluded that the worker was fit for modified work with temporary restrictions as outlined by Dr. Kuchtaruk. The Claims Adjudicator documented numerous difficulties encountered in the worker s return to work. The worker reported to the employer for light duties on October 19, According to the WCB file, the worker worked that day, but was off work the following week. He began employment again on October 26, 1992, at which time he worked full shifts. On November 2, 1992, Dr. Kuchtaruk advised the Board that he had placed restrictions on the worker including no overhead work, and no work below the waistline which involved prolonged forward flexion of the neck. On November 6, 1992, Dr. Kuchtaruk advised the Board that he suggested that the worker return to work for two hours a day at the outset as this was the only thing we could come up with in order to have him return to some productive work without suffering much neck discomfort as it appears that there is compliance on the employer s part (sic) in meeting the restrictions that we placed on his work abilities. This did not prove successful. On November 9, 1992, the worker was assessed at the Board s Regional Evaluation Centre by orthopaedic surgeon Dr. J.C. Wardill, and physiotherapist L. Ferroni. The physiotherapist documented 2

4 the worker s prior history of low back pain originating nine years ago as a result of lifting. As well, the worker indicated that he hurt his neck and back in an accident at home in December The worker had just returned to work in June 1992 following this accident. At the time of the examination, the worker reported his activity level as nil, and stated that he rested a lot and occasionally would shoot pool. He reported difficulty sleeping and eating, and stated that he had been threatened at work. The physiotherapist observed that the worker held his head stiffly, although this posture varied considerably. The physiotherapist wrote that the worker had complaints of persistent cervical symptoms and somewhat diffuse non-anatomical arm symptoms. He had a reported high level of pain, and demonstrated features of chronic pain behaviour. Dr. Wardill observed that the worker reported pains that Dr. Wardill felt were of a bizarre nature and not quite related to any initial trauma. Dr. Wardill observed a general minor restriction of neck movements, but there was full rotation in each direction on passive movement. He had a minor restriction of flexion and extension of the neck, and a lot of restriction appeared to be voluntary. The worker held himself rigidly and stiffly when he moved. He had a full range of shoulder movement without any local tenderness, although he reported pain on abducting his arms above the horizontal position at first. Dr. Wardill wrote: I am not able to discover objective physical features to account for the multiplicity and bizarreness of his complaints. I note that he had had a long time off work on previous occasions. Dr. Wardill recommended that the worker have a course of physiotherapy lasting about a month in addition to exercises which Dr. Wardill demonstrated. Dr. Wardill felt that following this, the worker could return to his work as a fork lift operator. He advised the worker that the worst thing that he could do was to continue to stay off work and remain at home. On November 24, 1992, the Board s Regional Medical Adviser reviewed the reports of Dr. Wardill and Dr. Kuchtaruk. Dr. Erola felt that the worker would be fit for modified work with temporary restrictions against overhead work and twisting activities of the neck. He felt that following the worker s physiotherapy treatment, he would be fit for his regular work by December 10, He did not feel that the worker had an assessable permanent impairment. On December 16, 1992, Dr. Kuchtaruk reported to the Board that the worker still had discomfort on extension of the neck, but he had a better range of motion than before. He wrote that the worker had improved quite a bit and did not provide any medical restrictions that should be observed on the worker s return to employment. On January 6, 1993, Dr. Kuchtaruk reported that the worker still had occasional spasm in the neck and pain with excessive force. He diagnosed neck pain postinjury. He noted that the worker would be returning to modified employment on January 11, The accident employer arranged for the worker to return to work two hours per day beginning on January 11, 1993, to perform his regular picking duties. His hours were to be increased to three hours per day on January 18, 1993, with a reassessment after that. On January 27, 1993, the worker returned to a full eight hour shift. In his progress reports dated January 15, 1993, February 8, 1993, and February 24, 1993, Dr. Kuchtaruk reported that the worker had ongoing discomfort with excessive turning of the neck. Dr. Kuchtaruk advised the Board that the worker should avoid overhead work or excessive neck turning. 3

5 The worker testified that upon his return to work in January on a full-time basis, he worked as a fork lift operator, on the picking job, and on the warehouse job. He felt that there was much heavy lifting, and he stopped work again on February 5 because he was in way too much pain. He remained off work until March 9, 1993, at which time he returned to work performing a combination of duties as a picker and a fork lift operator. During the period the worker was off work, he was assessed by neurosurgeon Dr. A.B. Adegbite. The worker complained of pain in the left shoulder area extending down the left upper extremity, as well as persistent neck pain. Dr. Adegbite noted a tendency for the worker to keep his left shoulder area stiff. Palpation of the neck revealed tenderness in the paraspinal neck muscles and both trapezius and neck movements were mildly to moderately restricted in all directions. Dr. Adegbite noted that EMG and nerve conduction studies on the right upper extremity were done November 24, 1992, but were unremarkable. He felt that the worker had a chronic cervical strain. He also noted that the worker had had neck pain on and off as a result of riding in a fork lift, for about two years prior to the August 1992 incident. Dr. Adegbite did not believe the worker would benefit from further physiotherapy, and he recommended a home exercise program. He felt there was a significant functional overlay. Dr. Adegbite also reviewed x-rays of the worker performed on September 1, In his opinion, they showed slight thinning of the C5, C6 disc space with mild marginal osteophytic spurring especially posteriorly. The appearance was not significantly changed when compared with prior films done in December 1989 but it was slightly worse when compared with films done in There was no neuroforaminal encroachment on either side. Dr. Kuchtaruk wrote to the Board on April 22, 1993, commenting on Dr. Adegbite s opinion. He wrote: There is an interesting new finding in [the worker s] case that will enable him to ensure adequate compensation for his time off work. I have reviewed Dr. Adegbite s note of February 22, 1993, and in his note he states that he had reviewed the x-rays that were recorded to be normal by the radiologist and felt there was slight thinning of the C5, C6 disc space with some mild osteoarthritic spurring posteriorly suggesting degeneration at the lower cervical spine. The degenerative process of the lower cervical spine would explain the length of time that it took for [the worker] to achieve alleviation of pain in his lower cervical spine. Thus I feel that this patient should have compensation for his time off work, as it was work related, and reported at work and established to be work related and he was very compliant with all the treatment regiments (sic) that were given to him, as well as several work trials with his disability. Dr. Wardill reassessed the worker on March 10, Dr. Wardill noted that when the worker returned to work in January 1993, he did not operate a forklift, but also did a lot of packaging with his arms elevated above his head. The worker complained of severe pain in his left arm which he reported became almost paralysed, but by the time Dr. Wardill saw him it had settled down and he 4

6 had no complaints in that area. He felt that he was fit to return to work at the time he saw Dr. Wardill. On examination, the worker had a minor general restriction of movement of his cervical spine. There was a good range of movement of the dorsal spine, but there was tenderness in the mid dorsal region at about the level of D7-8. He had a normal range of shoulder movement without any local tenderness. Dr. Wardill wrote my view is that this man has some continued complaints; these no longer appear to come from his neck which was the original complaint but come from the mid dorsal spine. Dr. Wardill recommended that the worker have chiropractic treatment for his complaints in the dorsal region of his back for a maximum of six treatments. However, Dr. Wardill advised the worker that he considered him fit to return to his work. In a subsequent report dated March 16, 1993, Dr. Wardill wrote that he had reviewed his findings at the time of his earlier examination of the worker. His review of the worker s chart did not cause him to change his opinion. He felt the worker should see a chiropractor for a maximum of six treatments and thereafter exercise his back and look after his own back problem. Dr. Wardill wrote, there is a considerable non-physical component to his complaints. The worker did return to work on March 10, 1993, and continued working until May 17, During that period, the worker worked more than half his shifts as a fork lift operator, and worked the remainder of his shifts as a picker. The worker described the duties of a picker as being heavy work. In this job, he would go up and down the warehouse aisles, building skids up to approximately seven feet high with cases of food. He was expected to pick 1200 pieces per shift, with an average weight of greater than 30 pounds. Although the worker testified that he was expected to lift weights up to 88 pounds, the employer s witness testified that the only item weighing 88 pounds was the skid itself. In the worker s opinion, 50% of the work he performed as a picker was above shoulder level. The employer s witness confirmed that the picker job was considered the most demanding in the warehouse, as there was repetitive movement of each case manually. The workers had six and a half hours to do their job, and each hour, they would take a 10 to 15 minute break in addition to their regular coffee breaks. Although the worker testified that he had help from his co-workers doing his job, the employer s witness testified that this would be most unusual in his experience. The Panel reviewed the employer s production records, which show that the worker generally was able to meet the production target when he did the picking job. The employer s records document that on some occasions, the worker met his production requirements and left work early. The worker testified that he had a great deal of difficulty doing the picking job, and it was for this reason that he finally left work in May Dr. Kuchtaruk supported the worker s position that he was not capable of returning to his employment as a picker because of the repetitive lifting overhead, which he felt was difficult with his chronic neck disability. Dr. Wardill reassessed the worker in October He confirmed that the worker left work because of severe pain on lifting above his head. The worker felt that he had arthritis in his neck which was pinching a nerve going to his arm. The worker s maximal complaint was of pain going to his left shoulder. On examination, Dr. Wardill observed a good range of back movement. There was some discomfort on rotating his shoulders but also on rotating his pelvis, which was anomalous. The worker 5

7 had tenderness starting in his cervical spine going down between his shoulder blades, but there was no associated hypersensitivity on skin rolling. The worker had an excellent range of movement of his neck, although he had discomfort in forcing his neck into full extension. He had a normal range of shoulder movement without any local tenderness. Dr. Wardill wrote: This young man, as he presented before, has complaints for which there is very little in the way of physical basis to confirm them. Certainly some people do get pain in the shoulder from derangement in the upper dorsal spine; if these pains are not helped by physiotherapy or chiropractor they are likely to persist but certainly improve with time. However there does seem to be a considerable psychological component to his complaint and I don t believe that further investigation of physical treatments will make any difference to him. Dr. Wardill wrote: I can only state that he can manage to do some kind of work; he tells me he has pain with lifting above the shoulder level and I am not in a position to disprove this; an FAE may provide a firm answer about this. Finally I would not have anticipated that, under normal circumstances, somebody who bangs their neck against a bar from behind would have long continued incapacitating complaints. Today he brought a one and a half inch thick file into the office. The French have a term for this maladie de papier. The worker underwent a Functional Abilities Evaluation on November 18 and 19, The evaluation was carried out by physiotherapist G. Chabot, the same physiotherapist who treated the worker one year previously. Mr. Chabot noted that the worker presented as a very slim gentleman who tended to hold his right shoulder depressed and retracted. Mr. Chabot noted that the worker demonstrated normal quality of movements through the thoracic spine, lumbar spine and lower extremities bilaterally, as well as through the left upper extremity. However, there was a loss of smooth movement of the cervical spine and right upper extremity as the worker tended to splint and protect his right side. The cervical spine range of motion and thoracic spine mobility were within normal limits. However, with respect to the right shoulder, the worker had full glenohumeral joint flexion with normal rhythms only with encouragement. Abduction of the shoulder joint was full with normal rhythms, although there was slight tightness at the end of abduction. External rotation of the shoulder was full. The neurological evaluation of the upper extremities bilaterally was normal. In spite of these observations, Mr. Chabot noted that the worker demonstrated loss of endurance and tolerance for working with arms above his head. The worker had significant difficulty keeping his arms above his head due to difficulties in the cervical spine and right upper extremity. This gentleman should not be asked to work with his arms above shoulder height. In Mr. Chabot s opinion, the worker would not be capable of carrying out the physical requirements necessary for lifting, carrying and working with his arms above his head. 6

8 Although the Functional Abilities Evaluation would appear to support the worker s claim that he was not capable of performing his pre-accident job as a picker, it is necessary to compare Mr. Chabot s observations in November 1993 with his discharge summary dated February 1, Mr. Chabot had treated the worker since November 11, Mr. Chabot wrote: He did present with signs of mechanical neck pain and continues to have some limitation. We have seen significant gains however in his mobility, strength and endurance, as well as subjective complaints of pain. Presently, this gentleman continues to have minimal loss of movement at end range. There continues to be minimal loss of function as well. His subjective complaints of pain and physical limitation, however, appear to exceed his clinical physical findings. Mr. Chabot commented in his report with respect to the worker feelings about returning to employment. He wrote that the worker was in a very precarious position presently, and really is at a loss as to what he should do. I feel that he really only has two options, one of which is to return to work full-time and see if he can tolerate this amount of activity or go on to unemployment insurance and retrain himself in a less physically demanding position. Mr. Chabot qualified his comments in conversations with the Claims Adjudicator in December The Claims Adjudicator wrote: (i) I discussed with Gilles Chabot who is the physiotherapist for this man and stated that this man does not want to return to work because he is in trouble with the A/E and cannot get along well at work. Gilles is describing this man as being very thin and so nervous that he is almost shaking... According to Gilles this man is able to return to modified work. Conclusions At the outset of the hearing, Mr. Dempsey confirmed that the worker was not seeking entitlement to benefits on the basis of a chronic pain disability. In his submission, the Functional Abilities Evaluation supports the worker s claim of ongoing disability, when viewed in conjunction with Dr. Kuchtaruk s reports. The worker s claim has been reviewed on many occasions by the Board s Regional Medical Advisers Dr. Erola and Dr. R.D. Longmore. In May 1993, Dr. Erola compared the opinions of the specialists who had examined the worker with Dr. Kuchtaruk s opinions. Dr. Erola noted that Dr. Adegbite observed some mild degenerative disc disease and osteoarthritic spurring, which was obviously a pre-existing problem. Dr. Erola felt that the specialist s opinions indicated that there was very little to find in the way of significant physical findings, although there was a significant functional overlay. Dr. Erola wrote, based on the minor injury under this claim and the specialist s report this worker was able to return to his pre-accident work. Similarly, Dr. Longmore reviewed the file on July 15, Although Dr. Kuchtaruk supported the worker s opinion, Dr. Longmore felt that it was 7

9 appropriate to give precedence to the reports of the specialists, since they were more complete and specific for management purposes. As well, Dr. Longmore noted that Dr. Kuchtaruk described complaint symptomatology only, while the examinations of Dr. Adegbite provided specific information with respect to the worker s physical condition. After considering the evidence, the Panel has concluded that the reports of the physicians who have examined the worker do not support the worker s claim that he continued to be disabled on an organic basis after January 1993 as a result of his August 1992 compensable accident. The worker s family physician, Dr. Kuchtaruk, reports only subjective complaints of pain after that time. The physical examinations carried out by the specialists do not disclose any organic basis for the existence of these complaints, which in the Panel s view, appear to have changed over time. For example, there is no explanation for the worker s complaints of left shoulder pain in early 1993, in the absence of any injury to that area at the time of the worker s accident. Furthermore, the physiotherapist who conducted the Functional Abilities Evaluation appears to support the worker s claim that he cannot perform above shoulder work, but there is no evidence in his previous assessment of the worker that this was his opinion. For this reason, the Panel finds that it is unable to place significant weight upon the results of the Functional Abilities Evaluation in November In all the circumstances, we conclude that the preponderance of evidence does not support the worker s claim that he continued to be disabled after January 1993 as a result of his August 1992 compensable accident. 8

10 THE DECISION The worker s appeal is denied. DATED: October 2, 1996 SIGNED: M.J. Faubert, S.L. Chapman, R. Higson 9