WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2080/04

Transcription

1 2005 ONWSIAT 2925 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2080/04 BEFORE: A. Signoroni, Vice-Chair B. Wheeler, Member Representative of Employers A. Grande, Member Representative of Workers HEARING: December 13, 2004, at Toronto Oral Post-Hearing Activity completed on September 21, DATE OF DECISION: December 22, 2005 NEUTRAL CITATION: 2005 ONWSIAT 2926 DECISION(S) UNDER APPEAL: WSIB ARO DECISION DATED FEBRUARY 8, APPEARANCES: For the worker: For the employer: Interpreter: J. Viera, Consultant (WR) L. Brown, OEA (ER) None

2 Decision No. 2080/04 REASONS (i) The issues [1] The first issue in this appeal is whether the worker is suffering from a condition diagnosed as a form of fibromyalgia. If the presence of such a condition is established, the next issue is whether the worker s September 11, 1995 compensable accident - that precipitated the onset of a condition diagnosed as left lateral epicondylitis - could be treated as a significant contributing factor at the source of the symptoms reported as of May 14, (ii) The decision [2] The worker, in her mid 40s at the time of this hearing, started her full time employment as a machine operator - requiring her to work on a rotating basis on different machines that processed plastic parts - with the employer in July [3] There is no dispute that the worker, by the early part of September 1995, reported symptoms of left upper limb epicondylitis. Eventually, by January 1997, this condition precluded the worker from resuming her regular job on a steady basis. [4] On January 29, 1997, the worker underwent a multidisciplinary health care assessment. The last portion of the resulting report, bearing the same date, states, in part, the following: Based on the findings today we feel that [the worker] should refrain, on a permanent basis, from any resisted or repetitive left wrist extension, elbow/flexion/extension or heavy lifting with the left arm. Additional treatment can include one further cortisone injection but ultimately invasive surgical management may be deemed necessary. [5] Bearing in mind that the original work performed by the worker could not be sufficiently accommodated to address the permanent restrictions, the WSIB activated the first phase of VR services made available to the worker. [6] In the context of the VR assistance received, employment with a Custom Brokers company was identified. According to the evidence, the worker started the secured job on March 31, However, after approximately a week, the worker discontinued this job due to left arm pain. [7] In the face of ongoing symptoms, the anticipated surgery was undertaken on May 21, [8] In the mean time, the WSIB reactivated additional VR services. [9] In the process, the worker was able to identify a receptionist position as of September 11, Given that the relevant reports did not disclose any problems, the WSIB closed the VR services in October [10] According to the evidence, this receptionist position lasted only two months. [11] In the months following the termination of her second post-accident job, the worker reported a deterioration of her symptoms.

3 Page: 2 Decision No. 2080/04 [12] This deterioration is confirmed in a medical report to Dr. C. Nicholson, the family doctor, dated May 14, 1998, prepared by Dr. J. Ostrowski, the treating orthopaedic surgeon. The relevant comments state the following: I treated her operatively on May 21, 1997 for a chronic lateral epicondylitis. She initially improved and then later regressed and is still having significant pain which is somewhat disabling for her, and she has had difficulty working. You had her seen by Dr. Hoh for a Cortisone injection but that did not help. She also has mild but similar symptoms of the right elbow, consistent with a lateral epicondylitis, and she is also having some bilateral scapulothoracic pain. I am somewhat concerned about her multiple aches and pains. Her symptoms are somewhat suggestive of fibromyalgia, however, she does have lateral epicondylitis symptoms. We discussed this in detail. You were wondering if she would warrant a resurgery. She has not improved with anti-inflammatories, physiotherapy and she can t tolerate the tennis elbow, so she really doesn t have a lot of options. She is considering it and I will see her again in the next few weeks to discuss this further. [13] The second surgery was performed by Dr. Ostrowski on June 15, [14] Approximately three months after the second surgery, the family doctor - in response to the question as to whether there were significant factors delaying recovery found in a progress report dated September 15, also makes reference to possible fibromyalgia. [15] Then, in a subsequent report dated September 29, 1998, Dr. Ostrowski confirms that the worker s condition improved a great deal irrespective of some underlying discomfort and weakness. At the same time, the same report states the following: I suggest she continue physiotherapy for one month. She can return to a light job at any time now. She is apparently looking for work as a front desk clerk at a hotel. I think that would be an ideal situation for her. She will likely always have some underlying discomfort and weakness and this is complicated by the fact that she has fibromyalgia. [16] On October 7, 1998, the worker underwent a second multidisciplinary care assessment. The medical findings covering the injured area found in the resulting report essentially confirm that the worker had achieved an adequate recovery. [17] In this respect, the medical findings mentioned in the stated report are essentially consistent with the medical input received from Dr. Ostrowski just days before this re-assessment. However, in contrast to the complementary input received by Dr. Ostrowski, the October 7, 1998 report mentioned does not indicate that the worker may be suffering from fibromyalgia. [18] According to the documentary evidence, the worker managed to find, for a short period of time during the 1998 Christmas period, her third post-accident job in the nature of part-time work in a department store. [19] In the early part of 1999, the worker underwent a medical assessment for NEL purposes that resulted in the allowance of a 5% NEL award, on an organic basis, in June 1999.

4 Page: 3 Decision No. 2080/04 [20] In her submissions, the WR argued that the diagnosis of fibromyalgia is also confirmed in two additional reports. The first one, dated September 20, 1999, was prepared by Dr. Nicholson. The second one, was prepared by Dr. J. Tokar, a specialist on nervous system disorders. [21] On the one hand, Dr. Nicholson s report makes reference to fibromyalgia in this context: [The worker] is left handed. She has chronic left elbow epicondylitis, operated upon twice, and also has fibromyalgia, and chronic depression. She experiences marked variability of her functional ability on a day to day basis, most recently she has a right hip bursitis which significantly affects her mobility (eg. : she needs a wheelchair at a shopping mall at times). In the past she had a left hip bursitis. [22] On the other hand, the worker was apparently referred to Dr. J. Tokar, in response to some concerns that she could possibly suffer from Multiple Sclerosis. The report from this specialist, states, in part, the following: Her brain MRI study was entirely normal, although some thickening of the mucosa was noted in the right maxillary sinus and ethmois air cells. Lyme serology, vitamin B- 12 level and routine chemistry were normal. NEUROLOGICAL EXAMINATION On clinical examination this time, pinprick was slightly reduced in a stocking distribution to the ankles with cold sensation slightly impaired to the mid feet. The remaining sensory modalities were intact as were deep tendon reflexes. IMPRESSION AND RECOMMENDATIONS There is no evidence of any central or peripheral neurologic cause for the patient s present complaints, which are undoubtedly attributable to fibromyalgia symptoms. [23] At the same time, the WR made reference to the July 4, 2000 report from Dr. R. McMillan, a specialist in physical medicine and rehabilitation that treated the worker more than once. [24] When commenting about this report, the WR argued that the report - by stating that the worker continues to present with non-specific widespread soft tissue pain - suggests that the worker is suffering from a form of fibromyalgia. [25] In the course of her testimony, the worker confirmed that lately she was not receiving any active medical treatment for her symptoms. However, she continued to see her family doctor in order to receive appropriate renewed prescriptions for her medications. [26] It should also be noted that as of April 2004, the worker was able to secure, with the ongoing assistance of her husband, her fourth post-accident job, namely being a superintendent in an apartment building with 32 units. [27] At the time of this hearing the worker was still holding onto the stated superintendent job. [28] Although this job which currently attracts a salary of $ a month plus a $ discount in the rental cost of their apartment unit requires some demanding physical tasks such as vacuuming, the worker testified that she can manage to carry out the tasks expected from her by taking recurring breaks whenever required and by receiving help from her husband when necessary.

5 Page: 4 Decision No. 2080/04 [29] When asked whether she could have done the same job earlier on bearing in mind for instance the September 1998 recommendation from Dr. Ostrowski that she could by then return to a light job at any time now she responded that she could not have done so. [30] When asked to be more specific, the worker confirmed that her compensable condition is not necessarily better. However, with the passage of time, she testified that she has learned more effective ways to deal with her compensable symptoms. [31] According to the WR, the medical input received from Drs. Nicholson, Ostrowski and Tokar, and to some extent also from Dr. R. McMillan, confirms that the worker is suffering from fibromyalgia at least since May 14, [32] At the same time, the WR argued that there are no references to other traumatic events and/or medical factors, other than the compensable condition, that could medically explain the onset of the fibromyalgia symptoms reported by the worker. [33] In response to the arguable causal impact of the chronic depression symptoms still suffered by the worker, the WR argued that the reference suggesting that the worker was taking antidepressant medication as of January 1995 is incorrect. [34] In other words, the WR argued that the worker took antidepressant medication only for a brief period of time prior to the date of her compensable accident and that she eventually resumed taking antidepressant medication after her first surgery. [35] Finally the WR argued that the evidence introduced meets all the entitlement requirements under the appropriate WSIB policy, namely policy No , including the criterion dealing with marked life disruption. [36] In response to the submissions advanced by the WR, the ER argued that the evidence does not disclose a specific fibromyalgia diagnosis given by a qualified specialist in the relevant field such as a rheumatologist. [37] To be more specific, the ER argued that the evidence only discloses speculative references regarding the alleged fibromyalgia diagnosis as indicated in the two medical reports prepared by the WSIB physicians, namely the report from Dr. Walker dated January 20, 2000, and the report from Dr. MacArthur dated September 20, [38] Among other things, these two reports state the following: The 14MAY98 report from Dr. Ostrowski indicates her symptoms are somewhat suggestive of fibromyalgia but he does not provide any trigger point information. She has mild but similar symptoms on the right elbow, consistent with a lateral epicondylitis and she was having some bilateral scapulothoracic pain. By 01JUNE 98 this same specialist indicates bilateral scapulothoracic myofascial pain. No trigger points and the comment that her multiple locations of pain are somewhat disconcerting. 29SEP98 Dr. Ostrowski : 3 months post op with no evidence of fibromyalgia although mention of it as a complicating factor.

6 Page: 5 Decision No. 2080/04 The 09JUL99 REC report: no complaints that sound related to fibromyalgia. The left shoulder complaints and left paracervical area of discomfort appear to be on the basis of the strengthening exercises for the left arm as would be expected and no mention is made of such subjective complaints being on the basis of fibromyalgia. The DX is strictly related to the left lateral epicondylitis and is Chronic Left Elbow Lateral Epicondylitis. There is no mention of fibromyalgia and the conclusion is, particularly as there is no convincing evidence of such a DX in the earlier reporting, that fibromyalgia is not an issue. If the contention is made that such a DX is an issue, there is no reason to consider such a DX claim related. A brief note, 20SEP99, from the GP indicates that she has hip bursitis, depression and bursitis. Medically, fibromyalgia is not a reasonable work-related DX as the responsibility of this claim for a left lateral epicondylitis particularly noting the multitude of complaints/problems catalogued in the 150CT99 report from Dr. McMillan. [Dr. Walker s report] Fibromyalgia is a very controversial disorder and it has not been diagnosed in this particular case. A rheumatologist would have to make the diagnosis, but it appears to me that there has been no submitted evidence of tender points. A number of precipitating factors have been blamed for fibromyalgia syndrome, these include trauma, infections, stress, sleep, destruction and depression. There is no doubt about it that this lady has evidence of depression and the two symptoms go together and just because you have a repetitive strain injury, you do not have to develop total body pains. I am not supporting that there is a diagnosis of fibromyalgia here and I do not believe that there is any evidence out there that fibromyalgia follows trauma. However, a number of rheumatologists support this, but there are a number of physicians who do not. As stated before, depression and fibromyalgia go together, however, I do not believe that this symptom complex is related in any way to a chronic epicondylitis and if it is present, it is purely a coincidence. Time wise, depression was there before the diagnosis of epicondylitis and this condition has never been totally proven. [Dr. MacArthur s report] [39] By relying on the reports outlined, the ER stressed that, to the day of the hearing, the WR has not as yet submitted an appropriate diagnosis from a qualified specialist to rebut the medical input received from the WSIB physicians, this being a factor that considerably undermines the medical theory advanced by the WR from the outset. [40] Regarding the applicable WSIB policy criteria to be met, particularly the marked life disruption one, the EW stressed that the worker was off work - due to severe and pre-existing non compensable factors, such as the depression condition precipitated, among other things, by an injury suffered by her husband before her compensable accident - when the relevant symptoms, attributed by some physicians to a form of fibromyalgia, surfaced. [41] In these circumstances, according to the ER, it is not strictly necessary to even address the medical issue as to whether the condition was precipitated by the compensable injury.

7 Page: 6 Decision No. 2080/04 [42] Regarding the medical reliability of the fibromyalgia diagnosis, the Panel could not identify the specific medical findings that allowed Drs. Nicholson and Ostrowski to move beyond the level of speculation raised on the diagnostic issue in their respective first reports. [43] Regarding the medical input from Dr. Tokar, requested from the family doctor, there are good reasons to believe that the specialist was likely asked to consider whether the worker, in addition to fibromyalgia, was also suffering from another condition such as multiple sclerosis. [44] In the Panel s view, the report of this specialist, on its face, does not disclose on which basis the fibromyalgia diagnosis was confirmed. In other words, the relevant report simply seems to indicate that the worker does not have multiple sclerosis and, accordingly, the fibromyalgia diagnosis already advanced, fully accounted for the symptoms reported. [45] Furthermore, regarding the applicable WSIB policy, the Panel has concerns as to whether the evidence introduced supports a finding of marked life disruption following the compensable accident. [46] To be more specific, Dr. Ostrowsky s report dated September 29, 1998, in addition to commenting about the unresolved symptoms suffered by the worker also recommends that the worker has, to a great extent, recovered from her compensable condition and was ready to return to a light job. [47] On the evidence, the medical reports subsequently generated do not disclose any significant deterioration of the worker s symptoms. This is consistent with the fact that the worker managed to perform her superintendent job for approximately eight months at the time of this hearing. [48] In these circumstances, there are valid reasons to conclude that the worker could have done similar work before if such work could have been secured on the labour market. [49] Accordingly, there are strong indicators leading to the conclusion that the evidence does not likely establish the marked life disruption criterion. [50] Regarding the depression issue, the crucial reference placed before the Panel at the time of the hearing was found in the report covering the medical assessment conducted on January 29, According to this report, the worker disclosed having been on antidepressant Zoloft for approximately two years, namely as of January [51] On this important aspect of the case, the worker testified that after a few months following the incident of her husband that apparently precipitated the need for antidepressant medication, she discontinued such a medication. Eventually she resumed it after the first compensable surgery. [52] However, this testimony could not be reconciled with the documentary evidence filed indicating that the worker apparently disclosed to a caseworker that she was already on antidepressant medication as of March 3, 1997, this being before the first surgery. [53] In light of this conflicting evidence, the Panel identified the compelling need to retrieve the worker s relevant medical charts from the family doctor.

8 Page: 7 Decision No. 2080/04 [54] Irrespective of the fact that the hand-written medical charts retrieved could not be accurately read, there are some unequivocal references that contradict the worker s testimony that after being prescribed antidepressant medication for a few months in 1995, she only resumed taking antidepressant medication after her first compensable surgery on May 21, [55] One relevant medical chart entry supporting this position is the reference that the worker was prescribed Zoloft on February 22, [56] Leaving aside the credibility issue raised by the medical evidence discussed, in this case there are also several reports generated prior to the time when the worker started her job with the employer in July 1995, indicating that she suffered from a considerable wide range of medical problems, including a severe bilateral hip condition and other musculoskeletal symptoms, due to a form of inflammatory disorder already identified in the latter part of [57] In this context, it could be argued that, in spite of the identified pre-existing symptoms, the worker was able to work up to the time of her compensable accident. [58] However, the problem with this argument is that the fibromyalgia condition is claimed only as of May 14, At that time, the pre-existing condition, and particularly the depression symptoms, were likely continuing their course in a context where the compensable condition, to a great extent, gradually resolved itself after the second surgery. [59] By then, the compensable condition was not the only medical problem experienced by the worker but rather only one of many and arguably it was no longer a severe one. This is consistent with the fact that the worker was also suffering from right lateral epicondylitis not attracting entitlement and bilateral hip bursitis symptoms at the source of severe disabling episodes as documented in a medical report dated September 20, 1999, from the family doctor. [60] Incidentally, when the worker was questioned as to whether she is also suffering from a chronic back condition disclosed by a medical report, the worker denied the allegation and at the same time testified that the references to osteoarthritis reflect a medical misunderstanding. [61] Furthermore, when asked to comment about her irritable bowel problems, the worker attributed the symptoms to her fibromyalgia condition precipitated, according to her testimony, by her compensable accident. [62] To conclude, even if the Panel were to assume, without deciding the issue for the time being, that the fibromyalgia diagnosis is established by the evidence, we would not be able to find that the compensable injury could be treated as a significant contributing factor in the development of the condition in question. [63] Accordingly, irrespective of the diagnostic debate that, in and of itself could arguably justify additional medical investigation, there are no valid grounds endorsing, on a balance of probabilities, the medical theory advanced by the WR.

9 Page: 8 Decision No. 2080/04 DISPOSITION [64] The appeal is denied. DATED: December 22, SIGNED: A. Signoroni, B. Wheeler, A. Grande.