FD: FD: DT: D DN: 768/91 STY: PANEL: Strachan; Crocker; Apsey DDATE: ACT: KEYW: Significant contribution (of compensable accident to

Transcription

1 FD: FD: DT: D DN: 768/91 STY: PANEL: Strachan; Crocker; Apsey DDATE: ACT: KEYW: Significant contribution (of compensable accident to disability); Benefit of the doubt. SUM: The worker suffered pain in her wrist and shoulder in June 1981 when she was using an electric polishing machine which struck a wall and bounced. She experienced chest pain when using a similar machine in July She was awarded a 10% pension for thumb, wrist and chest disability. In 1990, the Board granted entitlement for right shoulder and neck disability. The employer appealed a decision of the Hearings Officer confirming entitlement for the shoulder and neck. There was uncertainty as to the worker's shoulder disability. The Panel concluded that the worker was not suffering from thoracic outlet syndrome, as indicated in some reports. However, there was evidence that the worker exhibited signs of non-organic disability after the 1981 accidents. The Panel concluded that the neck and shoulder disability may have its roots in a non-organic compensable condition related to the 1981 accidents. These symptoms, created by chronic muscle tension resulting from an underlying psychological condition, could mirror the symptoms of thoracic outlet syndrome. Applying the benefit of doubt in favour of the worker, the Panel found that employment was a significant contributing factor to the worker's shoulder and neck disability. The appeal was dismissed. [14 pages] PDCON: TYPE: A DIST: IDATE: HDATE: TCO: KEYPER: L. Russell; M. Barclay TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 768/91 This appeal was heard on October 8, 1991, by a Tribunal Panel consisting of: I.J. Strachan: Vice-Chair, R.H. Apsey : Member representative of employers, J.A. Crocker : Member representative of workers. THE APPEAL PROCEEDINGS The employer appealed the February 15, 1990, decision of WCB Hearings Officer M.C. Turner. That decision granted the worker initial entitlement to benefits for a right shoulder and neck disability which the worker related to a compensable accident on June 23, 1981, and/or July 2, L. Russell of CompClaim Management Inc. represented the employer. M. Barclay of Injured Workers Consultants represented the worker. L. Strachan and D. Douville attended as observers. THE EVIDENCE (i) Hearing The Panel reviewed the Case Description prepared by the Tribunal Counsel Office containing various WCB decisions, memoranda, policy statements and medical reports together with Addendum #1. The Panel also reviewed a 1981 pocket diary kept by the worker and made extracts for distribution to the parties. The Panel heard testimony from the worker and submissions from Ms. Russell and Mr. Barclay. (ii) Post-hearing (a) Reports of Dr. Evans During the hearing, the worker testified that she was involved in a non-compensable accident in She retained the services of a solicitor who subsequently obtained a settlement of approximately $50,000. Although the worker was being treated by Dr. D'Onofrio at the time, the worker's lawyer arranged for her to be examined by Dr. Evans. Dr. Evans' reports apparently formed the basis for the settlement. The Panel, with the assistance of the Tribunal Counsel Office and the worker's former lawyer, obtained copies of the reports from Dr. Evans and provided them to the parties for post-hearing submissions. (b) Reports of Dr. Susan Mackinnon The Panel instructed the Tribunal Counsel Office to write to Dr. Mackinnon, who had diagnosed a right thoracic outlet syndrome condition

3 2 in July The Panel posed series of questions for Dr. Mackinnon relating to the 1984 incident and her reports subsequent to July (c) WCAT assessment After receipt of the post-hearing materials, the Panel requested that the Tribunal's Medical Liaison Office arrange an assessment of the worker by an orthopaedic surgeon. The Panel posed a series of questions to be answered in conjunction with the assessment report. Dr. Welsh's report dated February 3, 1993, was circulated to the representatives who made written submissions on the post-hearing materials. THE NATURE OF THE CASE The Hearings Officer considered the issue of "entitlement for [the worker's] right shoulder and neck problems, including the diagnosed condition of thoracic outlet syndrome". The Panel must determine whether the worker was disabled by a right shoulder and neck disability and, if so, whether any disability was causally related to the compensable accidents of June 23, 1981, and July 2, THE PANEL'S REASONS (i) Background In 1981, the worker was employed as a service helper. She stated that, on June 23, 1981, she was using an electric polishing machine which she estimated weighed approximately 95 pounds. The polishing machine struck a wall and bounced. She testified that she felt pain in her wrist and right shoulder and that her wrist was swollen the next morning. On July 1, 1981, she was using a similar machine and felt pain in her chest. She testified that she took a break and used a dry mop to finish this job. She received a 10% permanent disability award for her right thumb, wrist and right anterior chest as the result of a permanent disability examination by Dr. H. Hall on December 3, Subsequently, the Hearings Officer granted entitlement to benefits for a right shoulder and neck condition on February 15, The worker testified that she was also involved in a non-compensable accident at Simpsons in She testified that she caught her foot on some reinforcing rods and was thrown off balance. She did not fall. She stated that she felt pain in her low back immediately and that a security guard had to assist her with a wheelchair. She testified that her shoulder was not involved in this incident; she did not fall or catch her shoulder on a reinforcing rod. She testified that, during the time she was off work because of her low back condition, her neck had stopped hurting because she was not active. She also testified that at the time the hearing she was not experiencing any problem with her neck but her shoulder still caused problems when she was active. She also testified that the neck and shoulder had bothered her since the incidents in 1981.

4 3 (ii) WCB administration The Hearings Officer granted the worker's request for initial entitlement for the right shoulder and neck condition, partially on the basis that the mechanics of the accident could have caused an injury to her shoulder and neck. He also concluded that the worker's symptoms and complaints were consistent throughout the years since He granted entitlement for thoracic outlet syndrome "if substantiated". Subsequently, the Board accepted entitlement for thoracic outlet syndrome and the proposed surgery, partially on the basis of a memo from Dr. Whitty who also commented that there were "assumed anatomical reasons for the condition and recommended SIEF (Second Injury and Enhancement Fund) relief for the employer utilizing a minor pre-existing condition and degeneration in the worker's cervical spine. The employer's appeal is complicated by the lack of a consensus among the various physicians concerning the worker's condition. Dr. Susan Mackinnon, a plastic surgeon, examined the worker on a number of occasions and offered an unequivocal opinion that the worker had a thoracic outlet syndrome. Other physicians attributed the worker's neck and shoulder problems to muscle tension, strain, degenerative neck condition and functional overlay or other non-organic factors. Because of the differing medical opinions, the Panel requested a post-hearing assessment by a WCAT assessor. (ii) Employer's submissions The employer's basic position is that any neck and right shoulder disability, whether organic based or not, are not related to the June 23, 1981, or July 2, 1981, incidents. The employer also objected to any entitlement for a chest condition, although this was not addressed in the Hearings Officer decision. The employer's representative submitted that entitlement for thoracic outlet syndrome was allowed on the basis of Dr. Mackinnon's opinion. In her submission, Dr. Mackinnon's diagnosis was discounted by subsequent medical examiners. She also submitted that any symptomatology with respect to the neck and shoulder arose after the 1984 non-compensable fall. The employer's representative submitted that a reasonable explanation for the worker's symptoms was the presence of advanced degenerative disc disease in the cervical spine and bursitis in the worker's shoulder. She submitted that the major complaint arose after 1986 and the absence of any temporal connection should be sufficient to eliminate any causal relationship. She referred to an examination by Dr. J.A. Mayer dated December 16, 1987, which described "good range of neck movement" and "... some limitation of movement of the right shoulder, probably due to periarthritis, she does have some degenerative cervical disc disease as well". She also noted the comment of Dr. Welsh in the February 3, 1993, letter to the Tribunal's Medical Liaison Office in which he expressed some problems with the chronology of the worker's complaint and noted that the worker was able to function at a reasonable level in modified work by Dr. Welsh also noted that the worker had not complained to Dr. Evans about her neck, shoulder or arm, only her low back.

5 4 Dr. Welsh also concluded in paragraph 3 of his report on page 5 that "there is not indication in my opinion of a significant thoracic outlet syndrome". The employer's representative submitted that this comment together with the comment of Dr. J.F. Murray, a partner of Dr. Mackinnon, that it was "fortunate" that surgery for thoracic outlet syndrome was not carried on the worker, indicated that the worker did not suffer from thoracic outlet syndrome. The employer's representative also requested that the Panel reduce the worker's permanent disability award from 1985 and restrict the entitlement to the wrist disability - i.e., eliminate any allowance for a chest condition. (iii) Worker's submissions Ms. J. Noble, filed submissions on behalf of the worker. In her submission, the most extensive examinations were conducted by Dr. Susan Mackinnon. In her written submissions, Ms. Noble also reviewed a report to the employer's representative from Dr. Greenwood on the issue of causality and a thoracic outlet syndrome. The following excerpt from her submission deals with that argument: As was noted above, Dr. Mackinnon's firm opinion is that [the worker] has thoracic outlet syndrome related to the injury. We would like to point out that Dr. Mackinnon's (and Dr. Patterson's) evidence is not the only medical evidence before the panel which asserts both that [the worker] has thoracic outlet syndrome and that it is related to the 1981 accident. In the medical opinion of Dr. R. Whitty, W.C.B. medical advisor, there is entitlement for the thoracic outlet syndrome on the grounds that it is work-related, and Dr. Whitty authorizes proceeding with surgery for the condition in 1990 (see C.D. p. 169, Memo #102). Other physicians agree with Dr. Mackinnon's diagnosis of thoracic outlet syndrome, but are less clear about the relation of the syndrome to the physical aspects of the 1981 accident. I refer to Dr. R. Greenwood, whose report dated September 12, 1990, was requested by and submitted by the appellant employer in this case, and is located in Addendum No. 1, pp Dr. Greenwood accepts the diagnosis of thoracic outlet syndrome. Dr. Greenwood never did examine [the worker], and bases his opinions on a review of her file, as provided to him by the employer, only. Apparently, his review of her file does not suggest to Dr. Greenwood that the diagnosis of thoracic outlet syndrome is inconsistent with her test results and medical examination findings.

6 5 What Dr. Greenwood is not clear about is the cause of the thoracic outlet syndrome. He states in his report: "There are several conditions which can create this... [condition] including an extra cervical rib, increased tension in the scalene muscles of the neck drawing the two bones together, an abnormal droop of the shoulder girdle pulling the structures downward, a direct blow, or swelling of the surrounding structures". (p. 7, Add. #1). This list of possible causes of thoracic outlet syndrome is very interesting. We know [the worker] does not have an extra rib, for that would have been reported, as well as would have an abnormal droop of the shoulder girdle. The remaining possible causes listed therefore are increased tension in the scalene muscles of the neck, a direct blow, or swelling of the surrounding structures. And any one of these 3 possible causes could be related to the 1981 accident and/or its sequelae. Dr. Greenwood goes on to state that: "In [the worker's] case it is hard to clearly define what caused this condition. It probably arose from chronic tension of the scalene muscles of the neck pulling the structures together". (p. 8, Add. #1) Dr. Greenwood here acknowledges that it is hard for him to choose one of the three possible causes; and it must have been very difficult indeed since he has never examined [the worker] and cannot check for tense neck muscles or swelling, or any other symptoms, or inquire further into her accident history. Nevertheless he does choose between swelling, tense neck muscles and a direct blow. He opines that "probably" chronic tension of the scalene neck muscles caused her thoracic outlet syndrome. Dr. Greenwood then attempts to offer an opinion on the accident-relatedness of such tension of the neck muscles (should it exist). And, he states "It is not clear from the record that the 1981 accidents directly caused this increased tension". Indeed, it is difficult for a doctor working from records only, to clearly determine matters of medical causality, and Dr. Greenwood is candid about this. However, I would submit that if it is not clear that the accident did cause chronic scalene muscle tension (thereby eventually causing thoracic outlet syndrome), then it cannot be clear that it did not cause it.

7 6 Finally, Dr. Greenwood offers a tentative alternative explanation for the (possible) chronic muscle tension. He states: "I understand that [the worker's] thoracic outlet symptoms have subsided as (sic). This could be due to a decline in chronic muscle tension as the symptoms of the underlying depression cleared. This would imply that this major (and previously undiagnosed) depression was a significant contributor to her increasingly widespread symptoms in the years following the previous, and normal psychiatric examination of 1984." This suggested alternative explanation for the chronic muscle tension (the proposed cause of the thoracic outlet syndrome) is interesting. [The worker] does have entitlement for a psychological condition related to the 1981 accident, and her condition did worsen in the years between 1984 and However, I would submit that Dr. Greenwood simply did not have enough information at his disposal in the form of his own examination impressions to rule out the other possible causes of the thoracic outlet syndrome; indeed I would submit that the conclusions reached are highly speculative and while interesting, would need to be followed up with examinations and testing to be confirmed. To sum up, Dr. Greenwood accepts that [the worker] has thoracic outlet syndrome, and in this regard agrees with Dr. Mackinnon; he believes that the thoracic outlet syndrome is not related to the physical aspects of the accident itself, but to muscle tension related to the depression which is noted in her muscles. He does not consider the "source" of her depression. (p. 9, Add. #1) I would add that the only depression [the worker] has ever been diagnosed with, is clearly related to the 1981 accident and is compensable, and therefore Dr. Greenwood's opinion on "causality" would also support the work-relatedness of the thoracic outlet syndrome, in the sense that the chain of causality would move from the accident, to depression, to chronic muscle tension, to thoracic outlet syndrome. Ms. Noble also submitted that even if the Panel found that the worker did not have a thoracic outlet syndrome, she was still entitled to benefits for a right shoulder and neck condition in accordance with the Hearings Officer decision. She reviewed medical records on file which, she submitted, clearly established continuity of complaint for both areas of her body. She also submitted that the October 20, 1984, fall which resulted in the reports from Dr. John G. Evans did not represent a significant intervening event with respect to the worker's neck and right shoulder problems. She noted that Dr. Evans did not treat the worker for neck or shoulder problems

8 7 but concentrated on the low back condition which was attributable to the 1984 incident. In her submission, any neck or shoulder problems would not be viewed by Dr. Evans as attributable to the 1984 incident. She also submitted that the worker continued to seek treatment from other physicians for her neck and shoulder problems. In reviewing all of the medical reports, she submitted that Dr. Murray, Dr. Greenwood, Dr. Hall and Dr. dedemeter spent the least amount of time examining and treating the worker while Drs. Mackinnon, Patterson, Bubela, Mewa, Syed and Mayer spent the most time examining and treating the worker. In her submission, most of the doctors (with the possible exception of Dr. Welsh and Dr. Murray) agreed that the worker had a disabling physical condition, although Dr. Welsh and Dr. dedemeter doubted the causal relationship. In her submission, the Panel ought to prefer the opinions of the five other specialists who spent more time examining and testing the worker over the opinion of Dr. Welsh who conducted a one-time assessment. (iv) Conclusions The worker's appeal is complicated by a number of factors including (1) the employer's request that the Panel address entitlement to benefits for a chest disability, (2) the wording of the Hearings Officer decision to allow benefits for a thoracic outlet syndrome "if substantiated", (3) the diversity of medical opinions, (4) the existence of other claims by the worker which, at the time of the hearing, were before the WCB and not before the Hearing Panel, and (5) the inability to contact Dr. Mackinnon who had moved her practice to the United States. With respect to the employer's request that the Panel consider the issue of entitlement to benefits for a chest disability, we conclude that we do not have jurisdiction to address this issue. It is our finding that the Hearings Officer was clear in his definition of the issue as entitlement to benefits for right shoulder and neck problems. The 1985 permanent disability award has not been appealed by the employer and therefore the Board appeal processes have not been exhausted. The Act requires that the Board's appeal process be exhausted before the Appeals Tribunal assumes jurisdiction. In these circumstances, we decline to accept jurisdiction on the issue of benefits awarded for a chest disability. From the medical evidence before us, we are unable to conclude that the worker suffers from a thoracic outlet syndrome. Dr. Mackinnon's basic opinion is represented in her May 4, 1989, letter to the WCB which states in part: We saw this patient in the Thoracic Outlet Clinic on May 1st and re-evaluated her once again in significant detail. We are quite convinced that she does have thoracic outlet compression and that it is related to her accident. She would benefit from first rib resection, scalenectomy, brachial plexus decompression and neurolysis. Dr. Mackinnon appeared to modify her opinion slightly in a September 30, 1989, letter to the worker's family physician, Dr. Syed. That letter reads in part:

9 8 This woman has a problem with pain in her arm which may, indeed, have a significant functional overlay, however, I do believe that it is related at least in part to pressure on the nerves in the thoracic outlet. Because of the uncertainty of this whole diagnosis, it is the policy of the Board not to cover this procedure. It would probably be covered under OHIP. (emphasis added) Dr. J.F. Murray appears to cast doubt upon the diagnosis of thoracic outlet syndrome. In his October 10, 1991, report to the WCB, which was referred to by the employer's representative, he stated in part: She has been a patient of Dr. S. E. Mackinnon. It is quite possible that I referred her to Dr. Mackinnon. The only correspondence from Dr. Mackinnon that is available was a letter to Dr. M. Mitchell of the Compensation Board dated 21st January, In this letter she requests that reconsideration of this woman should be entertained regarding surgery for thoracic outlet syndrome. This was never carried out - fortunately! She is coming up for review of her pension which is now at 10%. She has pains pretty well every where including the flexor and dorsal aspects of the forearm, both surfaces of the upper arm around the front of the chest and neck. Dr. Mackinnon notes the distinct change in her grip strength between right and left hands in January of It remains remarkably weak. What is surprising, however, that with such a weak grip strength and the passage of a decade that there is really no objective evidence of any muscle wasting in the arms, forearms, hand and around the shoulder girdles. One would expect after this length of time that there would be an obvious difference. She is a very healthy looking woman for one who has been labelled "totally disabled". In my opinion this woman should never have surgery performed for complaints related to her injury of The Appeals Tribunal's assessor, Dr. Welsh, an orthopaedic surgeon, also expressed doubts about the diagnosis of thoracic outlet syndrome. At pages 3-6 in his report he commented in part: When seen by Dr. Langer in 1987 he too was bemused by the odd pain pattern in the upper extremity. She saw Dr. Mewa who recognized this as a regional pain process, even suggesting there may be a sympathetic component to the problem to the point where sympathetic blocks were suggested as a possible avenue of treatment. However, when Dr. McKinnon reviewed with [the worker], the back problems had been essentially resolved by Dr. Evans and his team, and the Court case had been settled and now [the worker] seemed it would appear to focus in again on the right upper extremity and the chest pain as her

10 9 problems. Dr. McKinnon invoked the possibility of a thoracic outlet syndrome contributing to her ongoing difficulties. This is at the best of times a difficult diagnosis to confirm, and EMG studies and special thoracic outlet x-rays certainly were confirmed as totally normal indicating at least there was no neurologic bony or major musculoskeletal obstruction to support such diagnosis. It was proposed that a surgical procedure might be undertaken, it was never in fact carried out. [The worker] contended that at the time of review her symptoms were essentially similar to those which were defined and described by Dr. McKinnon. CURRENT SITUATION: [The worker] consistently describes this pain in the arm which radiates from the wrist and hand up the arm into the neck, has pain in the base of the neck in abducting the shoulder, and if she is to use the arm in any kind of repetitive activity it just becomes intensely uncomfortable to her. She claimed that after my examination she was sure she would have a terrible weekend!... IMPRESSION: [The worker] presents with an ongoing regional pain syndrome. There is not indication in my opinion of a significant thoracic outlet syndrome. There may be some minor irritation arising in that area but it is certainly not borne out by objective indicators of disease process for which further treatment is required. The problem with this kind of situation where we have an individual with subjective complaints is that we try to explain [to] them in terms that we medically can understand. That is we like to look for a nerve compression, or nerve irritation problem. Be this in the neck from the cervical spine due to degenerative disease, be it in the thoracic outlet from compression by the scalene muscles or by a first rib irritation, and sometimes we try to invoke the involvement of the sympathetic system. Often there are components of these present in an individual's pain complex and indeed there may have at different times been some of these present in [the worker's] case but it is my overwhelming impression that the major problem here is essentially non organic as was early defined by Dr. Bubela, further suggested by Dr. Langer and by Dr. Mewa. In my own review I am not convinced there is ongoing organic injury process here at all. [The worker] presents with the dysfunctional features of an individual affected by a regional pain

11 10 syndrome. It does I am afraid beg the whole question as to what is the genesis of this condition and I just have to end up saying like everybody else, I do not know! One can say that this is an effect of the accident, she developed this and relates her symptoms at this time to the effects of that strain injury. That certainly seems to be the way she believes it and there is nothing of course that we can say or do that is going to alter that situation. (emphasis added) The issue considered by the Hearings Officer was whether the worker had entitlement for a neck and right shoulder disability. While the Hearings Officer appeared to focus on the diagnosis of a thoracic outlet syndrome, he did not restrict himself to this diagnosis. He also had a number of reports before him which made reference to a "psychogenic regional pain", "a functional component to her pain problem" "anxiety", and possible "psychological factors". In our view, the worker's claim for entitlement to benefits does not necessarily fail if the Panel rejects the diagnosis of "thoracic outlet syndrome", provided the Panel is satisfied, on a balance of probabilities, that the worker does have a neck and shoulder disability which is causally related to her employment and in particular to the incidents on June 23, 1981, and/or July 2, The worker was examined by Dr. C. Bubela at the Smythe Pain Clinic on February 23, 1983, and March 16, In a report dated March 22, 1983, Dr. Bubela commented: On physical examination today, she continues to exhibit trigger point tenderness of the right trapezius, deltoid and head and neck area. There was also evidence of some superficial sensitivity over the scar site. In view of the findings of trigger point tenderness, one must conclude that the patient is exhibiting a myofascial type pain syndrome... Dr. Bubela examined the worker again on June 1, 1983, and, in a June 9, 1983, report to Dr. R. Ginsberg at Toronto General Hospital, commented in part: On physical examination today, there remains nothing new to find. She continues to have trigger point tenderness about the head and neck area and right shoulder and right deltopectoral fold.... In summary, this lady continues to complain of pain in the hand and her shoulder. She does demonstrate signs and symptoms suggestive of a functional component to her pain problem. I was, however, wondering whether she was developing an early hand/shoulder type syndrome.... (emphasis added)

12 11 Dr. Bubela saw the worker again in the Pain Clinic on August 24, In a report dated August 26, 1983, Dr. Bubela commented on the worker's complaints of "associated pain involving a right shoulder" and noted "the pain continues to be exacerbated with activity in any form of movement of the right shoulder...". In a subsequent letter dated November 1, 1983, Dr. Bubela suggested that the worker was suffering primarily "...from pain of muscular origin. We indicated this to the patient and suggested there probable was a component of anxiety in her life style...". The worker was referred to Dr. Friedman for a psychiatric appraisal. We note that these complaints of neck and shoulder pain, whether organically based or not, precede the 1984 non-compensable incident which gave rise to the lawsuit. Dr. Bubela's comment that the worker's pain may be of muscular origin was also suggested by Dr. Mayer in a report to the WCB dated December 16, He suggested the worker had "suffered an acute sprain to the soft tissues of her right upper limb, chest and shoulder". He also suggested that some of the limitation of the right shoulder was due to periarthritis and noted that the worker had degenerative cervical disc disease. In February 1988, Dr. Mewa, a rheumatologist, noted spasm in the right trapezius and suggested that "clinically she has post-traumatic right neck and shoulder type of syndrome with reflex sympathetic like components to it...". This diagnosis was subsequently rejected by Dr. Mackinnon. Although Dr. R. Greenwood did not examine the worker, his September 12, 1990, letter prepared for the employer's representative, does offer some insight into the worker's condition. At page 4 of his report, he comments on thoracic outlet syndrome and the compression of nerves which will create the symptoms. He appears to accept the diagnosis of thoracic outlet syndrome but, at page 5 of his report, comments in part "in [the worker's] case, it is hard to clearly define what caused this condition. It probable arose from chronic tension of the scalene muscles of the neck pulling the structures together. It is not clear from the record that the 1981 accidents directly caused this increased tension...". Dr. Greenwood went on to note that Dr. R.S. Crozier, a psychiatrist, had noted that the worker exhibited features of a major depression. He suggested that Dr. Crozier's prescription of an anti-depressant may have caused the worker's thoracic outlet symptoms to subside and commented: This could be due to a decline in chronic muscle tension as the symptoms of the underlying depression cleared. This would imply that this major (and previously undiagnosed) depression was a significant contributor to her increasingly widespread symptoms in the years following the previous and normal psychiatric examination in Whatever the source of her depression it would be helpful for [the worker] to improve her confidence by working within her limitations. It is interesting to examine Dr. Greenwood's comments in light of Dr. Welsh's opinion at page 5 of his report that "... it is my overwhelming

13 12 impression that the major problem here is essentially non-organic as was early defined by Dr. Bubela, further suggested by Dr. Langer and by Dr. Mewa". The early suggestions of a non-organic problem by Dr. Bubela included "psychogenic regional pain", "post-traumatic neurosis" "trigger point tenderness of the right trapezius", a "functional component" and "anxiety". In our view, Dr. Greenwood best explains the effect of the non-organic condition as a cause of chronic muscle tension which he describes as a symptom of the worker's underlying depression. From the evidence before us, it appears that the worker exhibited signs of a non-organic disability after the 1981 incidents and these are reflected in the comments of Dr. Bubela in If the worker's anxiety condition resulted in chronic muscle tension, this would explain some of the symptoms which would mirror a thoracic outlet syndrome condition. While the explanation of chronic muscle tension by Dr. Greenwood was only one of his explanations, we find that it is an explanation which accords well with Dr. Welsh's "overwhelming" impression that the worker's major problem was essentially a non-organic one as defined in 1983 by Dr. Bubela. When we consider the mechanics of the June 23, 1981, accident, the record of neck and shoulder complaints contained in the reports of Dr. Bubela at the Pain Clinic, the continuity of complaints which ultimately resulted in Dr. Mackinnon's diagnosis of thoracic outlet syndrome, and the explanations of Dr. Greenwood and Dr. Welsh, we conclude that medical evidence indicates that the worker suffers from a neck and right shoulder disability which may have its roots in a non-organic compensable condition related to the 1981 incidents. The symptoms created by chronic muscle tension resulting from an underlying psychological condition could mirror the symptoms of thoracic outlet syndrome. As the employer's representative pointed out in her submissions both at the hearing and on a post-hearing basis, there is medical evidence suggesting that the worker does not have a neck and right shoulder disability which is work-related. While we agree with her submission that there is evidence of cervical degenerative disc disease and periarthritis in the worker's shoulder, we are not satisfied that these are the only causes of the worker's disability. We accept that these conditions are underlying conditions but find that the evidence is approximately equal on the issue of whether or not her employment was a significant contributing factor to the neck and right shoulder disability. The test adopted by the Tribunal of a "significant contributing factor" does not require that the employment or work accident be the major cause of a worker's disability; the test only requires that the employment be a "significant" factor. We find that the evidence for and against the issue of causation is approximately equal and, in such a situation, the legislation requires that the worker receive the benefit of the doubt. In summary, we find that the Hearings Officer was correct in concluding that the worker had entitlement for a neck and right shoulder condition. We find that the condition had its roots in a non-organic condition which is related to the 1981 incidents. Since the Board has a number of other worker appeals which are not before this Panel, we recommend that the worker's entitlement to benefits be considered as part of a whole person assessment taking into account any organic and non-organic components.

14 13 THE DECISION The appeal is denied. DATED at Toronto, this 9th day of November, SIGNED: I.J. Strachan, R.H. Apsey, J.A. Crocker.