WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1339/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1339/11 BEFORE: E.J. Smith: Vice-Chair HEARING: June 20, 2011, at Toronto Written DATE OF DECISION: July 5, 2011 NEUTRAL CITATION: 2011 ONWSIAT 1641 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated September 22, 2010 APPEARANCES: For the worker: For the employer: Interpreter: Mr. C. Sacco, Paralegal Not participating Not applicable 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. 1339/11 REASONS (i) The issue; the outcome [1] The employer requests Second Injury and Enhancement Fund (SIEF) relief. The ARO accepted that the worker s accident was minor but found that there were no pre-existing conditions that contributed to the worker s CTS and/or ulnar neuropathy within the terms of the SIEF policy. [2] The employer submits that the worker had relevant pre-existing cervical and left shoulder degeneration and hypothyroidism which entitle the employer to SIEF relief. [3] I have found that the hypothyroidism is a relevant minor pre-existing condition. I have found that the evidence is insufficient to determine that cervical or left shoulder degeneration is a relevant pre-existing condition. [4] The ARO found that the accident was minor. Therefore there was a minor accident and a minor pre-existing condition. I have granted the employer 50% SIEF relief. (ii) Relevant law and policy [5] Pursuant to subsection 126(1) of the Workplace Safety and Insurance Act (the WSIA), if there is an applicable Board policy with respect to the subject-matter of an appeal, the Tribunal shall apply it when making its decision. [6] In this case, the Board notified the Tribunal that Board Operational Policy Manual (OPM) Document No , entitled Second Injury and Enhancement Fund, applies. This policy defines pre-accident disability as a condition which has produced periods of disability in the past requiring treatment and disrupting employment and pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident. The policy states that both physical and psychological disabilities are included. The policy also provides a table of relief applicable when there is a pre-existing condition or disability that has enhanced or prolonged recovery, as follows: Medical Significance of Severity of Accident 2 Percentage of Cost Pre-existing Condition 1 Transfer 3 50% 25% 0% 75% 50% 25%

3 Page: 2 Decision No. 1339/11 90%-100% 75% 50% [7] The notes that accompany this chart state: Notes 1) The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. 2) The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components Mechanics (lift, push, pull, fall blow, etc.) Position (kneeling, standing, sitting, squatting, bending, etc.) Environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident : expected to cause non-disabling and minor disabling Injury : expected to cause disabling injury : expected to cause serious disability probable Permanent disability 3) The percentage of the total cost of the claim transferred to the SIEF. (iii) Background [8] The worker has been granted initial entitlement on a disablement basis for bilateral carpal tunnel syndrome and bilateral ulnar neuropathy. [9] In a memo dated November 27, 2008, the Board s Dr. C. Lau states: Neck x-rays to rule out cervical degenerative disc disease will be helpful...improvement and benefit of surgical release for the problems may be disappointing if cervical degenerative changes are present. [10] However, there is no cervical x-ray, CT, or MRI on file. [11] The worker had surgery for right CTS on June 16, 2009 and for left CTS on July 20, 2009.

4 Page: 3 Decision No. 1339/11 [12] A report dated March 24, 2010 of Dr. A. Abdelgader, a rheumatologist, describes hypothryodism in the worker s medical history. [13] A bone scan dated April 1, 2010 describes that: Presumed degenerative change is demonstrated within the cervical spine, dorsal spine, lumbar spine and left shoulder. [14] The medical reporting also includes frequent references to pain, swelling and redness in both the worker s arms. The treating specialists, Dr. Abdelgader and Dr. McMurtry, a specialist with the upper limb sprecialty clinic of St. Joseph s Hospital, query whether the worker is developing a complex regional pain syndrome (CRPS) or regional sympathetic dystrophy (RSD) despite the negative bone scan. However, entitlement has not been granted on the basis of those conditions. [15] The worker returned to modified work at the employer. Her restrictions are described in an ergonomics report dated November 9, The area of injury identified is bilateral wrists/elbows. The restrictions are described as no lifting greater than five lbs floor to waist and waist to shoulder ; avoid repetitive use of hands ; and avoid above shoulder activity. [16] A restriction on above shoulder activity may sometimes be related to conditions of the shoulder or neck. However, the body of the report does not refer to the neck. The reason for the restriction on lifting above the shoulder found in the body of the report is as follows: Unloading boxes on skids that are stacked at higher than shoulder level would require above shoulder reach thereby increasing strain on the shoulder, elbow and wrist areas (increasing wrist deviation). [17] I read this to mean that the strain would cause greater wrist deviation and would therefore be outside the restrictions provided for the wrist, quite aside from the shoulders or elbows. There is nothing in the report that relates this restriction to a shoulder or neck condition. [18] There is nothing in the reports of the worker s treating specialists that attributes her symptoms to a shoulder or neck condition. Instead, there are numerous descriptions of pain, swelling and redness in the worker s bilateral arms and her doctors query whether the worker s condition is progressing to CRPS or RSD. [19] Mr. Sacco has provided a letter from Dr. J. Brennan, a family practitioner with a diploma in sports medicine, who addresses whether the worker has any pre-existing conditions that have contributed to the severity of her CTS or ulnar neurpathy. Mr. Sacco relies on the follow statements of Dr. Brennan: In my view, there are multiple conditions that have contributed to the severity or duration of her compensable condition. Cervical and left shoulder degenerative disease as evidenced on her bone scan of April 1, 2010 is likely causing her difficulty with above shoulder work, even after her CTS surgery and that is why a bone scan was done. CTS, either before or after surgery, does not generally lead to difficulties with above shoulder work and this has been a persistent issue for her. This is a moderate co-existing and likely pre-existing condition that she continues to be symptomatic from according to the records.

5 Page: 4 Decision No. 1339/11 Hyperthyroidism requiring replacement therapy is a risk factor for developing neuropathies in general and may well be a contributing factor in her bilateral carpal and ulnar neuropathies that do not seem to have improved with surgery or work modifications. It is difficult to know the exact functioning of her thyroid through this period of time since there is no blood work on file that I could find. If she is in poor thyroid control this would be a major pre-existing condition and if she is in normal control it is possible that the effects could range from mild to major in terms of giving her symptoms or delaying recovery. It is very important to note that people on adequate levels of thyroid replacement often have symptomatic neuropathies in spite of having adequate treatment. [20] I note that Dr. Brennan makes no mention of the references on file to the symptoms of swelling, pain and redness in the worker s arms, to the queries about CRPS or RSD, or to the possibility that the bone scan might have been undertaken because it might be relevant to the diagnosis of those conditions. (iv) Conclusions [21] I do not find Dr. Brennan s opinion sufficient to establish that there was a relevant preexisting condition with respect to the neck or shoulder that was causative in the injury or that has prolonged the worker s recovery or enhanced her symptoms. [22] From the vocational rehabilitation report, the restrictions against above shoulder work are necessary because of the impacts on the wrist, quite aside from any impacts on the shoulder or neck. The neck is not referred to in the discussion of these restrictions. In addition, none of the treating specialists attribute the worker s ongoing symptoms to the worker s shoulder or neck. They have not even referred the worker for an x-ray, CT or MRI of these areas. Instead, they query whether the worker s condition is progressing to CRPS or RSD. That is because of her symptoms of arm swelling, pain, and redness. While the Board has not yet considered the worker s entitlement to those conditions, and the diagnoses are not confirmed, I find them a more possible explanation of these ongoing symptoms, given the evidence, than the suggestion that there may be a neck or shoulder condition that is impacting. [23] In providing his opinion about the worker s symptoms, Dr. Brennan does not refer to the symptoms of pain, swelling and redness in the worker s bilateral arms, which the treating physicians describe as suggestive of these conditions. There is no opinion that the symptoms that the specialists attribute to possible CRPS or RSD were pre-existing. [24] In my view, the emphasis that the treating specialists place on these symptoms and their possible etiology provides an alternate possible explanation for the worker s symptoms and/or for why the worker s symptoms are enhanced or prolonged. I place more weight on their opinions than on that of Dr. Brennan in this respect. Dr. McMurtry and Dr. Abdelgader are both specialists. Given that they were treating the worker over time, they were in a better position to review her ongoing symptoms more fully, as the basis for their diagnoses. I do not consider the evidence sufficient to establish that degenerative conditions of the shoulder or neck have played a role.

6 Page: 5 Decision No. 1339/11 [25] However, I accept that the worker has a history of hyperthyroidism and I accept the opinion of Dr. Brennan that this condition can pre-dispose a worker to CTS and/or ulnar neuropathy. There is no contrary opinion. Dr. Brennan describes a range of possible degrees of impact for this condition. However, given that none of the treating physicians describe this condition as being in poor control, or as otherwise affecting the worker s symptoms, I find that the worker s hyperthyroidism most likely constitutes a minor pre-existing condition.

7 Page: 6 Decision No. 1339/11 DISPOSITION [26] The appeal is allowed in part. [27] The worker s hyperthyroidism is a minor pre-existing condition. [28] The employer is entitled to 50% SIEF relief. DATED: July 5, 2011 SIGNED: E.J. Smith