WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 914/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 914/14 BEFORE: S. Netten: Vice-Chair HEARING: May 12, 2014 at Toronto Written DATE OF DECISION: June 24, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1386 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated November 29, 2012 APPEARANCES: For the worker: For the employer: Interpreter: S. Cirillo, Paralegal Not participating None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 914/14 REASONS (i) Issue [1] The issue under appeal is the worker s entitlement to reassessment of his permanent disability (PD) award for the right wrist, presently rated at 20%. (ii) Overview [2] On January 15, 1979, the worker sustained a compensable fracture of the styloid process of the right ulna and anterior dislocation of the lunate, for which scaphoid lunate arthrodesis was required. His permanent disability was initially rated at 12.5% in November 1981, and subsequently increased to 17.5% in September 1991 (retroactive to April 1990) and to 20% in September 2009 (retroactive to January 2009). [3] Following further wrist surgery in August 2010, the worker, through his representative, requested a further PD pension reassessment in January This request was denied at the operational and appeals levels of the Board. The worker now appeals to the Tribunal. [4] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In final submissions dated January 14, 2014, the worker s representative relies upon medical reports in 2013 in support of his request for reassessment. (iii) Law and policy [5] Since the worker was injured in 1979, the pre-1985 Workers Compensation Act ( pre-1985 Act ) applies to this appeal. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to the appeal. Sections 112(3) and 126 of the WSIA require Board policy to be applied to decisions after January 1, 1998, regardless of the accident date. [6] Pursuant to section 43(1) of the pre-1985 Act, a worker is entitled to a PD pension, calculated as a percentage of 75% of pre-accident average earnings, if a compensable injury results in a permanent disability. Section 43(3) provides for the use of a rating schedule to estimate impairment of earning capacity. The Ontario Rating Schedule, set out in Operational Policy Manual (OPM) Document No , provides percentage ratings for specific physical disabilities. With respect to the wrist, the benchmark rating for complete immobility of the wrist joints is 12.5%, whereas reduced mobility generates lower ratings. [7] Board policy on Determining the Degree of Disability for PD benefits (OPM Document No ) states that the worker s disability may be reassessed if permanent disability worsens. [8] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Evidence [9] The worker s most recent PD pension assessment occurred on August 26, The Board s Associate Medical Director, Dr. L. Grbac, addressed the worker s condition at that time:

3 Page: 2 Decision No. 914/14 The patient reports a pinching sensation in his wrist which was rated at 5 or 6 out of 10 with 10 being severe pain. Occasionally, the pain in the wrist will radiate proximally to the mid forearm. The pain has been getting progressively worse over about the last year and a half. Of interest, the patient is right hand dominant. The patient denied any grinding or crunching in the wrist region. He denied any fluctuation in terms of the ongoing swelling present in the wrist. The patient likewise denied any numbness or paraesthesia. He was not aware of any skin changes, skin temperature changes or sweating pattern changes. The wrist does at times interfere with his sleep patterns. The wrist itself is not weather sensitive. The patient is not currently attending any formal therapy. He does use a rigid splint on a constant basis. Medication taken specifically for the wrist injury includes Naprosyn 500 mgs bid The patient remains independent for basic activities of daily living including feeding, bathing, toileting, dressing and grooming. He is unable to perform any of the instrumental activities of daily living such as housekeeping, meal preparation, grounds maintenance, etc. He relies on his wife for these activities. This gentleman continues to work part-time as a cross-walk attendant. He does not drive. PHYSICAL EXAMINATION: The presence of a scar was noted over the dorsum of the wrist corresponding to the prior surgical interventions. Tenderness was noted over the wrist both dorsally and ventrally. The wrist appeared swollen relative to the left side In terms of the wrist range of motion, the right wrist demonstrated no flexion nor any extension Radial deviation was measured at 5 degrees on the right and 15 degrees on the left while ulnar deviation was measured at 20 degrees on the right and 30 on the left. Sensory testing was intact for light touch and pinprick The patient s grip strength was decreased on the right side The peripheral pulses were palpable and there was no difference between the two sides in terms of colour or temperature on today s assessment. [10] Dr. Grbac referenced medical documentation in March 1993 and November 2005 which identified ongoing problems along with secondary arthritis shown on x-rays; these reports were also in the case materials. Based upon a deterioration both from a functional perspective as well as based on the objective clinical findings, Dr. Grbac recommended an increase in the PD pension from 17.5% to 20%. This was granted on September 24, 2009, with arrears from January 30, [11] On April 30, 2010, orthopedic surgeon Dr. B. Graham suspected a non-union of the previous arthrodesis, and a CT scan of May 14, 2010 found incomplete luno-capitate bridging. With a diagnosis of pseudarthrosis (non-union) of the midcarpal joint of the right wrist, Dr. Graham performed an excision of the scaphoid to facilitate movement and arthrodesis (fusion) of the midcarpal joint on August 25, [12] Dr. Graham wrote to the Board on May 2, 2011, noting that the worker had been referred to him because of persistent right wrist pain: My physical examination showed that the main tenderness to palpation was over the midcarpal joint area. Movements in the wrist [were] severely curtailed and he was capable of only approximately 30 of flexion and extension. There were no neurologic abnormalities. Radiographs of the area confirmed that there had been abundant surgery in the midcarpal joint however it appeared that he had incurred a nonunion of an attempted arthrodesis in this area. This was confirmed with a CT scan. I recommended that he undergo a conversion of this failed midcarpal fusion to a full fusion of the area with an excision of the scaphoid. This was carried out August 25, 2010

4 Page: 3 Decision No. 914/14 and after this he stayed immobilized for approximately 2 months. During the latter part of 2010 he began to rehabilitate and at my last visit November 15, 2010 he indicated that his pain had been fully addressed. The range of motion was approximately the same as it had been preoperatively. [13] The worker s family doctor, Dr. R. Yau wrote to the Board on August 2, 2011: Since his surgery, he continues to have pains in the wrist of a lesser severity. He states that he is incapable of lifting in excess of 2 kg or push [sic] more than 5 kg. He has difficulty with gripping. Examination of the right wrist reveals dorsal and volar flexion to be 0 degrees and abduction is 20 degrees with adduction at 10 degrees. 1 The strength of hand grip is 2/5. There are no neurological signs. This worker has reached maximum medical recovery. No further surgery is indicated. He requires ongoing pain relief with Naproxyn 500 mg. b.i.d. with Nexium 40 mg. q.a.m. for prophylaxis for peptic ulceration. [14] Family physician Dr. U. Gizzi wrote three letters to the Board in 2013: He continues to have chronic pain in particular with any heavier activity. He takes analgesics for relief but tries to keep them to a minimum. He is limited in his activities of daily living. On examination there is limitation of movement in the right wrist in all planes. There is pain at extremes of motion in all planes. There is no specific neurovascular deficit. He is sensitive to deep palpation. Grip strength is diminished X-rays have demonstrated significant secondary arthritis. [March 15, 2013] Examination reveals marked limitation of motion of the wrist in all planes. There is pain with extremes of motion in all directions. There is swelling and remaining surgical scar. [May 16, 2013] He continues to have pain in the hand and wrist. He has secondary arthritis on top of healed fracture. I have recommended a thumb spica brace/splint to help with pain control. [June 7, 2013] (v) Discussion [15] While Dr. Graham indicated that the worker s pain had been resolved through revision surgery in 2010, it is evident from the family physician s reports that the worker continues to experience pain along with other signs and symptoms. However, I am not persuaded that the worker s condition in 2011 and 2013 is worse than that noted by Dr. Grbac at the most recent pension assessment in 2009: The worker had zero wrist flexion and extension, 5 of radial deviation and 15 of ulnar deviation in This could fairly be described as severe or marked limitation, as supported by the fact that the worker s 20% rating at that time was substantially higher than the benchmark of 12.5% for complete immobility of the wrist. In comparison, in August 2011 the worker had no flexion or extension, 20 of radial deviation and 10 of ulnar deviation; the slight decrease in ulnar deviation is in my view offset by the larger improvement in radial deviation, such that overall wrist mobility was similar in 2009 and In 2013 the worker continued to have 1 Wrist abduction refers to radial deviation, adduction to ulnar deviation, and dorsiflexion to extension.

5 Page: 4 Decision No. 914/14 marked limitation with no measurements indicative of a worsening since either 2009 or 2011; The worker had tenderness on palpation, wrist swelling, and reduced grip strength in 2009 and in 2013; There were no sensory or neurological findings in 2009, nor have any been identified since; The worker has had secondary arthritis at least since 1993; The worker used a splint in 2009, and a splint was recommended in 2013; In 2009 and 2013, the worker s wrist pain required the use of Naprosyn 500 mg b.i.d.; and As a result of his wrist symptoms, the worker was limited in his activities of daily living in 2009 and [16] The evidence in this appeal does not substantiate a worsening of the worker s permanent wrist disability in comparison to the most recent PD pension assessment in August As a result, there is no entitlement to a PD reassessment.

6 Page: 5 Decision No. 914/14 DISPOSITION [17] The appeal is denied. DATED: June 24, 2014 SIGNED: S. Netten