SUMMARY DECISION NO. 1008/00. Continuity (of treatment).

Transcription

1 SUMMARY DECISION NO. 1008/00 Continuity (of treatment). The worker appealed a decision of the Appeals Officer denying a NEL award for permanent shoulder impairment resulting from an accident in May 1990 when she slipped and fell on a wet floor. Considering lack of continuity of treatment until after a non-compensable fall in September 1993, the Panel concluded that the worker did not suffer a permanent shoulder impairment as a result of the 1990 accident. The appeal was dismissed. [8 pages] DECIDED BY: Henderson; Rao; Barbeau DATE: 29/06/2000 ACT: WCA

2 2000 ONWSIAT 1942 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1008/00 [1] This appeal was heard in Sudbury on April 19, 2000 by a Tribunal Panel consisting of : L.J. Henderson : Vice-Chair, P.A. Barbeau : Member representative of employers, F. Rao : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Officer M. DeMarco, dated December 3, 1997 which denied ongoing entitlement to the left shoulder including a NEL assessment. [3] The worker appeared and was represented by Mr. Rick Hamilton. The employer was notified, but chose not to attend. THE RECORD [4] The Panel considered the material included in the Case Record, prepared by the Tribunal Counsel Office (Exhibit #1). In addition, we considered the following: Exhibit #2: Containing worker Information Request form and the report of Dr. J.E Andersen, Occupational Health Physician; Exhibit #3: Case Record - Addendum No. 1, which contained Board policy. [5] The worker testified under oath. Submissions were made at the hearing by the worker s representative, Mr. Rick Hamilton. THE ISSUES [6] The Panel must decide whether the worker has ongoing entitlement including a NEL assessment as related to the left shoulder arising out of the workplace accident on May 17, THE REASONS (i) Background [7] The worker, now 46 years of age, was employed as a waitress/cashier at a donut shop for less than two weeks before suffering a left wrist and forearm injury on May 17, Total temporary benefits were paid from May 1990 to April 19, The worker received section 37(2)(b) benefits from April 19, 1991 to November 1, 1991 when the worker returned to work with another employer. The worker is receiving a 3% pension for the left wrist and a 5% pension for the left elbow as a result of a workplace injury in 1986 with another employer.

3 Page: 2 Decision No. 1008/00 (ii) Medical evidence [8] The initial report of the family physician, Dr. Young, dated May 23, 1990 indicates that the worker had a flare-up of tendonitis in the left forearm. [9] Dr. Young s progress report of June 11, 1990 provides a diagnosis of recurrent tendonitis in the left forearm. [10] Dr. Young s progress report of September 14, 1990 gives a diagnosis of recurrent tendonitis in the left forearm and states that the worker cannot do repetitive movements with her left wrist or lift any weight with her left hand. [11] Dr. Young s progress report of November 6, 1990 again indicates recurrent tendonitis of the left forearm. A referral to an orthopaedic specialist, Dr. Lockstadt, is noted. [12] Dr. Young s progress report of December 20, 1990 indicates that the worker had an injection of cortisone in the left subacromial bursa given by orthopaedic specialist, Dr. Lockstadt. [13] On January 21, 1991, Dr. Young s progress report indicates that the worker was referred to orthopaedic specialist, Dr. G. Koppert. [14] Dr. Koppert s report of February 12, 1991 indicates that he has treated her in the past for her workplace injury in 1986 regarding problems with her left arm. His report states the following, pertaining to the May 1990 injury: She apparently was doing reasonably well until she suffered a fall at work on May 17, At that time, she slipped on water and basically came down on both arms, injuring her left arm, as she tried to break her fall. She noted diffuse symptoms about the left arm and apparently was seen by Dr. Lockstadt. She underwent a cortisone injection, I believe of her left shoulder for suspected rotator cuff tendonitis, without significant improvement. [15] Dr. Koppert goes on to state: At present, her complaints include the following: 1. Can t lift the left arm. 2. Can t grip with the left hand. 3. Left arm pain at rest. 4. Numbness of the tip of the left thumb. The pain about the shoulder runs from the top of the shoulder down to the elbow, over the flexor aspect of the forearm. She describes discomfort also of the metacarpal phalangeal joint of the thumb. [16] On physical examination of the worker, Dr. Koppert states: I am not convinced that the worker is the best historian. She has a very difficult time pinpointing the location of the symptoms. About the left shoulder, she is noted to be tender diffusely, with tenderness also at the acromioclavicular joint, anterior acromion or greater tuberosity.

4 Page: 3 Decision No. 1008/00 Radiograph of the left shoulder, left elbow, left wrist were all within normal limits. The worker has generalized symptoms of her left upper extremity, related to a fall, likely having experienced an axial loading injury. [17] He concludes with his clinical impression as follows: Axial loading injury left arm, with left shoulder pain (? rotator cuff tendinitis), medial and lateral epicondylitis left elbow, left wrist thumb pain. [18] Dr. Young s progress report of March 25, 1991 again indicates recurrent tendonitis of the left forearm. He also indicates current symptoms and physical findings of pain in the left elbow, left shoulder and left wrist and hand. [19] Dr. Koppert s report of May 21, 1991 indicates as follows: The worker gained some benefits from the shoulder cortisone injection, no significant benefits from the medial lateral elbow injection. She still describes discomfort over the medial and lateral sides of the elbow, running down the extensor aspect of the forearm, with pain at the left shoulder, which is anterior lateral posterior. [20] Dr. Young s report of September 23, 1991 again indicates recurrent tendonitis of the left forearm and notes that the worker cannot work with the left arm. [21] The file indicates, and the worker confirmed, that she returned to full-time employment in October 1991, at a bakery and continued at that job until May 17, 1993 because she was moving to Elliot Lake, Ontario. The Case Record indicates that the worker became a patient of Dr. McMillan in Elliot Lake on June 9, There was no documentation of any physical ailment in the initial interview with Dr. McMillan. [22] The Claims Investigator s report found in the Case Record indicates the following: On July 15, 1993 the worker was seen in Dr. McMillan s office and it was noted that she had fallen and hurt her knee. It was also mentioned that she had a sore left shoulder from an old WCB claim. The doctor renewed Voltaren. He also manipulated the left shoulder. The doctor noted the claim number and the accident date of May 17, 1990 in his note. [23] The worker again saw Dr. McMillan on August 6 and August 13, 1993 with no mention of a shoulder problem. [24] On September 13, 1993, Dr. McMillan did note that the left shoulder was still sore and on examination, it was stiff and it was manipulated. An x-ray was ordered with the following results: There is no bony abnormality and no periarticular soft tissue calcification is identified. [25] The Board Medical Advisor, Dr. Walker, reviewed this claim on October 6, 1993 and provided the following: The left shoulder complaints clearly are not compatible with the accident under this claim noting the extensive and inappropriate delays in reporting. The most recent doctor s report dated July 22, 1993 indicates the diagnosis as ligamentous muscle strain contusion of left shoulder. The left elbow and forearm

5 Page: 4 Decision No. 1008/00 problems appear resolved and as there is no compatibility concerning the left shoulder no permanent impairment is evident. The return to work date of November 1, 1991 is suitable for maximum medical recovery status. [26] Dr. McMillan s record indicates that the worker did not mention the left shoulder in her follow up visits until one year later on September 7, [27] The next mention of pain over the shoulder area in Dr. McMillan s record was on April 27, [28] On May 31, 1995, Dr. McMillan noted that there was a full range of motion of the left shoulder and crepitus in the shoulder at times. [29] On September 6, 1995, Dr. McMillan noted that the left arm was still weak and the shoulder still tender. [30] On October 5, 1995, the doctor injected the anterior joint of the shoulder. [31] Dr. McMillan saw the worker again on October 13, 1995 and he noted that the worker had an injury on October 10, This was a whiplash-type of head injury. The doctor also noted that there was some left arm pain. [32] On March 20, 1996, the Board Medical Advisor, Dr. Hickman, reviewed the file and concluded: The left forearm wrist was clearly the most symptomatic area and dominates the medical reporting. However there does appear to be mention made early by the worker of symptoms of left shoulder at three and five weeks post-injury and there was sufficient medical complaint that a shoulder injection was done by November 1, The mechanism of the fall appears compatible with causing a rotator cuff tendonitis, which is the speculative diagnosis. I agree the early shoulder reports are scanty and the medical delayed. However, with some benefit of doubt, I think the injured worker did experience shoulder symptoms at that time and that they have persisted. [33] On May 17, 1996, Dr. Hickman was asked to review the file and he reported as follows: Rotator cuff tendonitis may settle down and periodically flare-up with later change/increase in activity. As of May 31, 1995 per Dr. McMillan s office notes reported in investigation notes, there is a full range of motion in the shoulder. There was some crepitus, but this alone would not reflect a permanent impairment. Next following visits did not mention shoulder, so it is presumed resolved. Next shoulder visit in September 1995 with steroid injection on October 5, No range of motion or physical findings are documented. It appears precautions were in force for wrist/elbow. I note new injury October 10, 1995, whiplash, arm aggravated. Most recent report from the worker is October 13, 1995 following the new injury. But in her report of her condition she makes no mention of the new injury. From the available medical prior to the new injury, I am unable to identify any residual permanent impairment, particularly noting the full range of motion on May 31, I cannot identify any new precautions beyond those established for the wrist and hand in the FAE in I assume this is why she began doing light custodial duties when she began the janitorial job in February 1995.

6 Page: 5 Decision No. 1008/00 There is no medical evidence that the injured worker was not fit for modified duties at least from June to September [34] The worker s representative submitted a report from the Occupational Health Clinic for Ontario from Dr. J.E. Anderson, Occupational Health Physician, who examined the worker on February 12, 1999 and reviewed the WCB claim file. [35] His physical examination revealed the following: Examination of her left shoulder reveals tenderness over the anterior and lateral rotator cuff. This pain is accentuated by internal rotation which is limited mildly. She has about 130 degrees on forward flexion of her left shoulder and 80 degrees of abduction. She has full external rotation which is non-painful. There is no muscle wasting around her left shoulder. She is unable to abduct beyond shoulder height due to pain in the anteriolateral rotator cuff. [36] Dr. Anderson concludes as follows: In the absence of any other known trauma to her left shoulder either at the workplace or away, it is probable that the worker s fall at the workplace in May 1990, resulted in an axial loading injury to her left shoulder and produced her current symptom complex. (iii) The worker s testimony [37] The worker explained the work accident of May 17, She stated that she slipped on a wet floor and both feet went out from under her and she came down on her buttocks. She used her left arm to brace herself and her arm crumbled. This was the pre-injured arm. She was in pain but got up and drove home. The next two days were her days off. When she returned to work the first or second day after the accident, she told her manager that she couldn t do the job because her arm was too sore. [38] The worker s initial report to the WCB indicates that: Slipped and fell on wet floor, put hands down to block my fall, then for the next three days, filling and lifting pails of water, mopping the floor and then to empty the mop pail. [39] There was no mention of a left shoulder injury. [40] The worker stated that she experienced the same pain in the shoulder from the date of accident in May of She had difficulty raising her arm, bearing strength and repetitive motions caused pain. [41] She attended with her family doctor, Dr. Young, who treated her for tendonitis of the left forearm. She received a cortisone injection on November 1, 1990 from orthopaedic surgeon, Dr. Lockstadt. On February 12, 1991, the worker attended with orthopaedic surgeon, Dr. Koppert. On May 21, 1991, Dr. Koppert recommended repeat cortisone injections of the shoulder and both sides of the left elbow. [42] She attended her family physician, Dr. Young, on September 23, 1991 and he noted: Pain over extensor tendon left forearm over lateral epicondyle of left humerus and a bruised feeling on left deltoid muscle at shoulder level. His diagnosis was tendonitis of the left forearm.

7 Page: 6 Decision No. 1008/00 [43] The worker stated that in the summer of 1991, she went to work at a bakery and her duties included cashier, filling of phone orders and general clean-up with no heavy lifting. [44] The worker testified that she attended with her family physician, Dr. Young, to obtain anti-inflammatory medication from September 1991 to May of 1993 for her left arm and shoulder. There are no medical reports pertaining to the arm and shoulder in that time period. She stated that she was in pain when she worked at the bakery but she made no complaint because she did not want the employer to know. [45] The worker stated that she moved to Elliot Lake, Ontario in May of She was under the care of family physicians, Dr. P. McLean and Dr. McMillan. She did not work from June of 1993 until the end of February of 1995 when she worked as a school janitor from February 27 to June 23, [46] She stated that she was unable to work between June of 1993 until the janitorial position in February of 1995 because of shoulder pain. She described the pain as a pounding pain in her shoulder as if someone was constantly punching her shoulder. [47] The worker was asked to describe the fall of July 15, 1993 in which she hurt her knee. The worker stated that she tripped over a doorsill and fell forward and came down in the sitting-kneeling position. The worker was emphatic that she did not hurt her shoulder and only her left knee was injured. (iv) The Panel s findings [48] The Panel must determine whether the accident of May 17, 1990 resulted in a permanent impairment as related to the left shoulder. [49] As the Hearings Officer noted, it is necessary to determine whether or not a causal relationship can be established between the worker s current condition and the original work injury. A relationship can be established by examining elements of continuity such as medical treatment, complaints by the worker and the work history. [50] In reviewing the medical evidence, the Panel notes that there is no mention of shoulder pain after September 23, 1991 until July 15, 1993 at which time the worker attended with Dr. McMillan due to a fall and an injury to her knee. Dr. McMillan s note indicates that she mentioned a sore left shoulder from an old WCB claim. The doctor s notes indicate that he did provide treatment in that he manipulated the left shoulder on that day. [51] The worker s description of the June 15, 1993 non-compensable knee injury is difficult to comprehend. The worker states that she fell forward over a sill and did not use her arms to break the fall. [52] The Panel finds it difficult to accept that the accident could have physically occurred in the manner described. The Panel concludes that it is more probable than not, that the worker injured her left shoulder in this non-compensable accident. This is supported by an immediate complaint of sore shoulder to the family physician. Further, it is the first complaint of sore left shoulder by

8 Page: 7 Decision No. 1008/00 the worker since November 1991 and it is the first medical notation of treatment for the left shoulder since November [53] The Panel notes that the worker received no medical attention for the left shoulder from September 1993 to September Dr. McMillan s notes of May 31, 1995 indicate there is a full range of motion in the shoulder. His notes make no mention of complaint or treatment for the shoulder until late September [54] Based on the foregoing and specifically the lack of complaint and medical treatment for lengthy periods of time since the initial accident, the Panel concludes that, on a balance of probabilities, the evidence does not support a permanent impairment of the left shoulder resulting from the May 17, 1990 workplace accident. THE DECISION [55] The appeal is denied. DATED: June 29, 2000 SIGNED: L.J. Henderson, P.A. Barbeau, F. Rao