WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2254/03I

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2254/03I BEFORE: B. Kalvin : Vice-Chair E. Tracey : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: October 3, 2008 at Toronto Oral DATE OF DECISION: October 22, 2008 NEUTRAL CITATION: 2008 ONWSIAT 2776 DECISION(S) UNDER APPEAL: WSIB ARO Decisions dated November 22, 2002 and January 1, 2008 APPEARANCES: For the worker: For the employer: Interpreter: P. D. Hutcheon, Lawyer The employer did not participate N/A 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. 2254/03I REASONS [1] These are the reasons for an interim decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by a worker from two decisions of the Workplace Safety and Insurance Board (the Board ) concerning the worker s entitlement to benefits following a workplace accident. (i) Background [2] The background to this appeal is as follows. The worker is 49 years old. On June 9, 1986, when he was 27 years old, he was working as a general labourer when he tripped and fell on his right shoulder. He was diagnosed with a contusion to the right shoulder. Subsequently, the diagnosis was expanded to include postural torticollis and a cervical sprain. [3] The worker made a claim to the Board for compensation benefits for the injuries he sustained in the accident of June 9, The Board accepted the worker s claim. [4] The Board eventually determined that the accident had left the worker with a permanent neck disability, namely a cervical torticollis, also known as cervical dystonia. These conditions are defined by the worker s treating neurologist, Dr. E. S. Consky, who has a sub-specialty in movement disorders, as follows: Cervical Dystonia is a neurologic movement disorder in which the neck muscles contract involuntarily causing abnormal twisting movements and postures of the head and neck. This is a result of abnormal functioning o [sic] the basal ganglia (motor control centre within the brain) rather than an abnormality of the neck muscles themselves. The terms spasmodic torticollis and Cervical Dystonia are interchangeable. The initial name for this condition was spasmodic torticollis but in the 1970 s it was recognized that spasmodic torticollis was focal form of Dystonia and the term Cervical Dystonia was adopted. [5] Because the worker s accident occurred in 1986, his entitlement to benefits is governed by the pre-1989 Workers Compensation Act (the Act ). Under that statute, a worker who sustains a permanent disability as the result of an occupational injury is entitled to a permanent disability award, called a pension. The purpose of a permanent disability pension is to compensate the worker for the impairment of earning capacity resulting from the permanent impairment. The quantum of a permanent disability pension is based on an assessment of the impact of an injury on earning capacity of the average unskilled injured worker. Unlike future economic loss ( FEL ) or loss of earnings ( LOE ) benefits found in later iterations of the Act, pensions are not tied to an individual worker s loss of earnings; the assessment for permanent disability awards does not take into consideration individual socio-economic factors. Pensions are awarded for life and do not cease at age 65 or if the injury improves. [6] The worker s permanent disability pension assessment was conducted on January 29, 1990 by Dr. D. M. Logan, a Board Pensions Medical Consultant. Dr. Logan s assessment reads, in part, as follows:

3 Page: 2 Decision No. 2254/03I He exhibits a ferocious tremor of the head, neck and hands. This is worse with conversation and diminishes somewhat if he relaxes. The head is inclined to the left at about 30 degrees and constantly rotated to the right at about 45 degrees. The tremor is sometime [sic] vertical and sometimes horizontal and sometimes a mixture of both. DIAGNOSIS AND CONCLUSIONS This man has been examined by neurologists and a neurosurgeon, so presumably there is not a neuromuscular disorder here. The tremor and restrictions of motions and deviation of the cervical region, if psychological, appears to be at an unconscious level. Prior ethanol consumption may also be a factor here. He does not appear to be employable as a result of organic and non-organic factors. He will be rated for a permanent impairment pension today. [7] Dr. Logan rated the worker s permanent disability pension at 15%. [8] The worker has never returned to work following the accident of June 9, In the years which followed, the worker disputed the quantum of his 15% permanent disability pension rating. He also claimed entitlement to benefits for dystonia affecting parts of his body other than his neck, for which entitlement had already been granted. The worker s claim for an increase in his pension rating as well as for additional areas of entitlement has consistently been denied by the Board. [9] In a decision dated December 22, 2002, a Board Appeals Resolution Officer ( ARO ) ruled that there was insufficient clinical evidence to support a causal connection between the worker s generalized dystonia that is, dystonia affecting parts of the worker s body other than his neck, and the accidental injury of June 9, With respect to the worker s pension, the ARO ruled that the worker s permanent disability rating should not be reassessed because: There are insufficient clinical findings available to support a reassessment of the worker s partial permanent disability, to include the cervical disability and cervical torticollis. [10] This finding of the ARO is somewhat confusing, since the Case Record reveals that the Board had previously accepted that the worker s cervical disability and cervical torticollis was a compensable condition. More than one Board Medical Consultant had previously opined that the worker s pension rating should not be increased because the worker s cervical torticollis had already been properly accounted for in the January 29, 1990 permanent disability assessment conducted by Dr. Logan. For instance, in an opinion dated November 11, 1998, Dr. A. Malayil stated: On January 29, 1990 the worker had a P.D. assessment and based on that assessment a 15% award was recommended and it is noted that the examining physician had taken into consideration of spasmodic torticollis [sic] also while recommending the award. [11] Similarly, on January 23, 1995, Dr. A. Hadjiski opined that the worker s cervical torticollis or dystonia had already been accounted for in the permanent disability assessment. Dr. Hadjiski went on to state that dystonia affecting other areas of the worker s body was not caused by the compensable accident and was therefore not compensable: Worker was seen for a permanent impairment assessment and was given 15% as pre Memo #92 for the neck problems. This includes a spasmodic torticollis (which could be

4 Page: 3 Decision No. 2254/03I termed as a segmental dystonia). Therefore there is no separate entitlement for segmental dystonia. If the worker is diagnosed to have generalized dystonia affecting trunk and other parts of his the body, this cannot be related to the compensable injury as a causation nor aggravation. [12] Thus, while the ARO s ultimate finding that the worker s pension rating should not be reassessed is understandable in light of the fact that a reassessment was not supported by the Board s medical consultants, the ARO s stated conclusion that a reassessment should not be done to include the cervical disability and cervical torticollis is curious. [13] Subsequent to the ARO s decision of December 22, 2002, and upon the receipt of further medical information, the Board agreed to reassess the worker s permanent disability. The worker now lives in Newfoundland, and accordingly, he was assessed on March 4, 2003, by Dr. C. McVicker at the Workplace Health, Safety and Compensation Commission of Newfoundland and Labrador. After receipt of Dr. McVicker s report, the Board confirmed the worker s pension rating at 15%. [14] Over the course of the following years, further reports were submitted to the Board by the worker s representative along with further requests for a pension reassessment. One such report was a May 31, 2007 report prepared by Dr. Consky. The report was reviewed by the Board, but the worker s request for a pension reassessment was denied. In a decision dated January 2, 2008, the ARO concluded as follows: In reviewing the information on file, the senior WSIB medical consultant found that the ongoing condition as noted in the detailed report from Dr. Consky of May 31, 2007 is not significantly deteriorated from that reviewed by the Board in Newfoundland in March of I find no reason to set aside the WSIB doctor s detailed evaluation, consequently I find that with the information on file the 15 per cent partial disability pension accurately and adequately reflect [sic] [the worker s] compensable condition as a result of his accident of March 9, (ii) Issues [15] The issues to be resolved on this appeal are as follows: 1. Is the worker entitled to benefits for generalized dystonia, or for dystonia affecting parts of his body other than his neck? 2. Is the worker entitled to an increase in his permanent partial disability pension? (iii) Request for the opinion of a Tribunal Assessor [16] Prior to scheduling the hearing of the worker s appeal, the Case Record was reviewed by the Tribunal s Medical Liaison Office (the MLO ). The MLO suggested that prior to determining the worker s appeal: an Assessor in Neurology, with an interest in movement disorders, be asked to review the case materials and provide further information regarding the worker s condition.

5 Page: 4 Decision No. 2254/03I [17] The MLO suggested a list of questions which could be posed to the Assessor. [18] Having considered the recommendation from the MLO, and having heard from the appellant s representative on this issue, we are of the view that the opinion of an assessor would be helpful. Further, in our opinion, it is desirable that in addition to reviewing the Case Record, the Assessor conducts an examination of the worker. Accordingly, we will request that an Assessor examine the worker, review the Case Record, and provide an opinion. At the conclusion of this interim decision, specific questions will be posed to the Assessor. (iv) Summary of the medical evidence [19] The medical evidence in the Case Record pertaining to the worker s movement disorder and the causal relationship between his compensable accident and that disorder may be summarized as follows. [20] The first medical report on file is a Doctor s First Report filled out on June 11, 1986 by Dr. G. A. Graham. Dr. Graham reported to the Board that the worker tripped and fell hitting the right side of his neck and right shoulder. Dr. Graham diagnosed contusions. [21] In a report dated November 27, 1987, Dr. Parsons, writing for Dr. D. B. Peddle stated the following: Physical examination today reveals a marked torticollis, the patient angulated to the right with noted increased tone in his cervical spine and just a general appearance of increased nervousness or anxiety His diagnosis is one of torticollis. His x-rays are entirely normal. [22] In July 1988, the worker was seen by Dr. W. Pryse-Phillips, a neurologist, at the Health Sciences Centre in Newfoundland. In a report dated July 27, 1988, Dr. Pryse-Phillips stated: This gentleman complains of torticollis for the last two years since June 1986 when he had an accident in Toronto, falling on his right shoulder. He had an initial pain in the shoulder but over the course of the following days, noticed a tightness in the region of the neck and shoulder and this has increased over the last 24 months to say that he is now almost constantly in a torticollis state with the head rotated to the right side and the chin up, the left shoulder also elevated, and the left ear depressed. The left head feels dead and has on and off, for the last couple of months. At times though, there is quite marked pain in the region of the insertion of the sternomastoid and of the trapezius muscles on the left side. At times, he has noticed also that his right leg may slow down and not obey his commands or occasionally, the same thing happens on the left. Also at times, he has noticed involuntary clenching of the fingers into his palms but he does not know why this should be and with some effort he can get them unstuck. [23] Dr. Pryse-Phillips diagnosed the worker with generalized dystonia : This man has generalized dystonia precipitated by his injury. This is well documented in his case and in many others This is a chronic and disabling condition and until it is markedly improved by therapy, the man is quite unfit for any kind of work.

6 Page: 5 Decision No. 2254/03I [24] Approximately six months later, in a report dated February 13, 1989, Dr. Pryse-Phillips provided a different diagnosis, namely segmental dystonia. He stated: This patient has a segmental dystonia in the form of torticollis present for the last 2 years following a trip and fall on his right shoulder while at work. He has also noted occasional expletives and grunts but has otherwise no features of dystonia than the torticollis. [25] On February 28, 1989, the worker was admitted to the Board s Downsview Rehabilitation Centre ( DRC ) where he was assessed for a month before being discharged on March 31, An Admission Report dated March 1, 1989, written by Dr. Hadjiski, diagnosed the worker as follows: ADMISSION DIAGNOSIS: 1. Soft tissue injury to right shoulder and right neck 2. Spastic torticollis. [26] The worker was also seen at the DRC by Dr. W. J. Horsey, who, on March 2, 1989, prepared a report which reads, in part, as follows: This patient has spasmodic torticollis. Its etiology is difficult to define. It has been known to follow injury, but the mode of causation has not been established. [27] On March 13, 1989, Dr. Horsey prepared a Progress Report which states: In his conversation, he indicated that he considered himself to be totally disabled. I informed him that I disagreed with this and that I felt that he was partially disabled, but with effort and patience he could be employed at a very light job. [28] Dr. Horsey referred the worker to Dr. A. Lang, a neurologist at the Toronto Western Hospital. [29] At the Toronto Western Hospital the worker was seen by Dr. Lang and Dr. Consky. In a jointly authored report dated March 14, 1989, these two neurologists stated the following: In addition to the deviation he reports parasthesis in the occipital region when he walks. He is unsure of any change in his speech, although he reports others may have noted slurring. There has been no change in his gait nor any abnormal posturing of his hands. He has noted a tremor of his hands since the age of 18 or 19 when he began drinking alcohol. He admits to drinking a dozen beers per evening during the weekends. He has no history of neuroleptic use nor is there any family history of dystonia or other neurologic disorder. His past medical history has been otherwise unremarkable. [The worker] exhibits an abnormality of neck posture with onset approximately one month following a minor right shoulder and neck injury. The deviation is exacerbated by typical aggravating manouvers [sic] and improves with the usually employed sensory tricks. Under general anesthetic there is apparently no evidence of a mechanical etiology for his torticollis such as rotatory subluxation of C1 on C2. His presentation and current clinical features are typical of an organic neurologic dystonic disorder, namely spasmodic torticollis. Increasingly, movement disorder specialists have recognized this phenomenon following peripheral trauma and in this case the injury is probably important

7 Page: 6 Decision No. 2254/03I to the etiology. In addition to the torticollis he has a mild essential tremor and indefinite findings such as minor abnomal [sic] posturing of the hands and clenching of the jaw which are somewhat suggestive of segmental and cranial dystonic involvement. It is unclear whether these features might be indicative of a predisposition to dystonic sequelae of peripheral trauma. [30] At the hearing of this appeal, the worker denied that he had a tremor in his hands since he was a teenager as reported by Dr. Consky. The worker testified that prior to the workplace accident he was in perfect health. [31] On April 7, 1989, Dr. Hadjiski wrote the DRC Discharge Report which reads, in part, as follows: At the time of discharge, we felt that patient is certainly able to return to modified employment avoiding lifting about 10 kgs. and overhead level work. This should be only temporarily for next 6 months. Further management of this claim will be left up to discretion of Claims. DISCHARGE DIAGNOSIS: 1. Soft tissue injury to neck. 2. Spasmodic torticollis 3. Alcohol abuse 4. Features of dependent and histrionic personality. [32] On June 16, 1989, the worker was assessed by Dr. D. B. Peddle, an orthopaedic surgeon. Dr. Peddle s report reads as follows: We have assessed [the worker] today in our clinic. As you know, he has had an ongoing problem with torticollis. He has been treated quite successfully by Dr. Pryse-Phillips and by Workers Compensation, in Toronto. He has been advised to return to light type of duties. He, indeed, on examination today, when he initially came in, did have torticollis that was visible and when we stressed him and moved his neck he was able to overcome this deformity. We agree with the assessment in Toronto and fell that this man should be able to return to work at this time. [33] As noted earlier, on January 29, 1990, the worker was assessed for the purposes of rating his permanent disability pension. The findings of Dr. Logan, the Pensions Medical Consultant, have been referred to earlier in this interim decision. [34] On April 18, 1991, the worker was seen by Dr. Pryse-Phillips who reported that the worker: has a benign essential tremor which seems to respond to Mysoline He is also taking Clonazepam which seems to have relieved much of the muscle spasms to do with his focal but generalizing dystonia. He had Botox injections 2 years ago for his very severe spasmodic torticollis and the effects were excellent and have remained so. I don t think any further injection is required at this time. However, he still has a good deal of muscle spasm mainly in the dorsal muscular junction and some in the periscapular and trapezius regions. He is adamant that he can not and will not work and seems to feel that I have been unfair in saying that I thought he could do some form of light work or retraining in my report of April 11, 1989.

8 Page: 7 Decision No. 2254/03I [35] Dr. Pryse-Phillips recommended that the worker be seen by an expert in involuntary movement disorders and accordingly referred to the worker to Dr. T. Curran. [36] The Case Record contains a series of reports written by Dr. Curran. On October 31, 1991 Dr. Curran wrote: I saw [the worker] today for his dystonia. He has what we would call a contra-lateral pattern in that he has a tilt to the left and a turn to the right. In addition to this he also has a yes-type of dystonic head tremor. He also has a shift to the right. The contra-lateral patterns respond less favourably to botox than the straightforward patterns, but still I would expect a good response to the botox injections. At a later date, I would try treating his ora-mandibular dystonia, but at the present time I would just limit myself to his neck. [37] On November 4, 1991, Dr. Curran provided the following assessment: In conclusion, this gentleman has obvious segmental dystonia and the most likely etiology is that of idiopathic. Although I am unable to get any history from him today about his perinatal. It is interesting that it occurred after trauma as it is now becoming increasingly recognized that peripheral trauma can induce dystonia and without a family history of this, this raises the possibility that his dystonia may be related to his trauma. As for the Workman s Compensation people I believe that [the worker] is unable to work at this present time because of the pain in his neck but hopefully with the botulinum toxin injections that I hope to perform he will be able to get back to work over the next six months to a year. [38] On April 28, 1993, Dr. Curran wrote the following: I saw [the worker] today in follow up for his post traumatic dystonia With respect to the etiology of his torticollis [the worker] feels that he is not getting adequate compensation and all that I can say is that post traumatic dystonia is well reported and that at the present time [the worker] is totally incapacitated from working because of this [39] On April 7, 1995, the worker was seen by Dr. D. C. Vance. Dr. Vance opined that the worker was suffering from traumatic torticollis resulting from his accident at work. Dr. Vance stated: This has given [the worker] severe muscle spasms in his neck and shoulder area, severe stiffness in his neck (his neck being laterally flexed left and rotated and stuck in that position). This has since advanced to include numbness in his face. [40] As noted earlier in this interim decision, on January 23, 1995, Dr. A. Hadjiski opined that the worker s 15% permanent disability pension took into account the worker s compensable cervical torticollis or dystonia. Dr. Hadjiski stated that dystonia affecting other parts of the worker s body could not be causally related to the workplace accident and was therefore not compensable: Worker was seen for a permanent impairment assessment and was given 15% as pre Memo #92 for the neck problems. This includes a spasmodic torticollis (which could be termed as a segmental dystonia). Therefore there is no separate entitlement for segmental dystonia. If the worker is diagnosed to have generalized dystonia affecting trunk and

9 Page: 8 Decision No. 2254/03I other parts of his the body, this cannot be related to the compensable injury as a causation nor aggravation. [41] On March 6, 1996, Dr. Curran wrote to the worker s previous representative and stated that he agreed with Dr. Consky that the worker was suffering from post traumatic dystonia which resulted from his compensable accident: The November 4, 1991 letter clearly states that the patient s symptoms did indeed start after the accident and there was very little, if any, symptoms present prior to the accident, and that this would have to be called posttraumatic dystonia and tremor in nature. Indeed the initial assessment done by Dr. Earl Consky, enclosed, done on March 14, 1989 also collaborates this history that all his symptoms began after the injury. [42] While it is clear that Dr. Curran was of the view that the worker suffered from dystonia caused by the workplace accident, it is not clear whether this diagnosis pertains to dystonia in the worker s neck, or whether this includes dystonia in other parts of the worker s body as well. It does not appear that Dr. Curran was asked to provide an opinion on this specific point. [43] In March 1998, that is, approximately 12 years after the compensable accident, the worker began being treated by Dr. D. R. Earle, a chiropractor. In a report dated May 25, 1998, Dr. Earle reported that the worker was suffering from left spasmodic torticollis with concurrent facet syndrome in the cervical spine and upper thoracic spine. Dr. Earle stated further: Without any other evidence to the contrary, it is my opinion that [the worker s] symptomatology is a direct result of the injury he sustained in June, [44] On November 3, 1998, Dr. Malayil, a Board Medical Consultant, reviewed the worker s medical history and opined that the worker s level of disability had not deteriorated since the pension assessment of January 29, Dr. Malayil also opined that the worker s tremors were not related to the compensable workplace accident. Dr. Malayil stated: Although there are some studies suggesting that tremors can occur following peripheral trauma the medical reports on this worker s file gave a diagnosis of essential tremors (of unknown cause) which are unrelated to the trauma this worker suffered on June 9th, On reviewing those articles I do not see any established relationship between tremors and trauma. It is also noted that this worker had a history of tremors even prior to the compensable injury as indicated in Dr. Consky s report of March 28th, 1989 [sic] which states that the worker had a history of tremor of the hands since age 18 or 19 when he began drinking alcohol. It appears that the worker s level of disability is at the previous pension level, on an organic basis. The medical reports on file do not indicate deterioration of the compensable condition (organic basis) at any time after the P.D. assessment of January 29, [45] As noted earlier in 2003, the Board agreed to reassess the worker s permanent disability pension rating. Accordingly, the worker was assessed on March 4, 2003, by Dr. C. McVicker at the Workplace Health, Safety and Compensation Commission of Newfoundland and Labrador. Dr. McVicker reviewed the worker s medical history and examined the worker. Dr. McVicker s report concludes as follows:

10 Page: 9 Decision No. 2254/03I [The worker] suffered a slip and fall injury in June of Within a very short period of time, he developed a significant left torticollis. [The worker] has been assessed by a number of different physicians and undergone a battery of investigations. The most recent diagnosis being post-traumatic segmental dystonia. [46] After receipt of Dr. McVicker s assessment the Board confirmed the worker s pension rating at 15%. [47] In a report dated July 8, 2005, the worker s treating chiropractor, Dr. Earle, reported that the worker s condition had not improved. Dr. Earle attributed the worker s ongoing symptoms to his compensable accident. Dr. Earle did not differentiate between the worker s dystonia and the worker s tremors. Dr. Earle appears to regard the worker s tremors as part of his posttraumatic dystonia: [The worker s] condition has not improved since I saw him back in I would say the tremors have become more pronounced. As per my previous reports, I feel that [the worker s] condition is posttraumatic in nature as a result of the aforementioned injury he sustained at work. There are several studies implicating the role of trauma in the development of dystonia. It is important to exclude family history of movement disorders or pre-existing condition when dealing with post-traumatic dystonia. In [the worker s] case the tremors did not appear until after the injury and no family history is present. This suggests that the injury may have precipitated the tremors. Although the exact mechanism of post-traumatic dystonia in [sic] unknown, it is seen clinically. [48] On March 3, 2005, Dr. Consky sent a report to the worker s previous representative. Dr. Consky reported that a significant proportion of patients with Cervical Dystonia will experience a spread of dystonic involvement to contiguous body parts. Dr. Consky set out the following conclusion: CONCLUSION 1. [The worker] has Cervical Dystonia. At the time of his assessment in 1988 there was suggestion of segmental dystonic involvement in addition to the Cervical Dystonia. 2. He has in addition long-standing Essential Tremor of his hands. This is an incidental finding unrelated to the trauma and to his dystonia. 3. On the balance of probabilities I would conclude that the work-related accident of June 1986 caused the onset of [the worker s] Cervical Dystonia. Trauma as a cause of dystonia is a mainstream opinion amongst experts in this field of neurology. The type and severity of cervical and shoulder injury, the interval to the onset of symptoms following the trauma and the character of the symptoms in [the worker s] case are entirely typical in my experience and that extensively reported in the neurologic literature. 4. Cervical Dystonia is a chronic neurologic disorder. I have not seen [the worker] since 1989 and I am not aware of whether he has experienced spread of the dystonia to other sites. I am also not aware of his treatment with Botox injections or oral pharmacotherapy over the years and his current level of disability. [49] At the request of the worker s previous representative, the worker was examined by Dr. Consky on January 31, In a report dated May 31, 2007, Dr. Consky diagnosed the worker as follows:

11 Page: 10 Decision No. 2254/03I [The worker] has Cervical Dystonia (spasmodic torticollis) characterized by laterocollis with associated rotational torticollis and mild retrocollis, with an associated dystonic head tremor. In addition there was evidence of mild limb and oromadibular dystonia and a postural an action tremor of the upper extremities. [50] Dr. Consky went on to provide an opinion with respect to the aetiology of the various components of his diagnosis: RELATIONSHIP OF THE WORK INJURY TO THE DEVELOPMENT OF SEGMENTAL DYSTONIA In addition to Cervical Dystonia [the worker] has evidence of segmental involvement of the oromandibular and left brachial regions. Typically the onset of Cervical Dystonia is focal. A significant proportion of patients with Cervical Dystonia however will experience a spread of dystonic involvement to contiguous body parts [The worker s] segmental dystonia is a result of spread from the Cervical Dystonia and, therefore, has the same etiology of [sic] his Cervical Dystonia, namely post-traumatic. RELATIONSHIP TO THE DEVELOPMENT OF TREMOR Tremor is defined as an oscillatory rhythmic to and from motion, as opposed to Dystonia which is a twisting movement. Patients with Cervical Dystonia frequently have an associated dystonic head tremor superimposed on the more sustained head deviation. Dystonic head tremor may be distinguished from other types of tremor by its tendency to be exacerbated on attempting to counteract or turn away from the direction of the head deviation. [The worker s] head tremor is an associated feature of his Cervical Dystonia and has the same etiology. [51] Dr. Consky also diagnosed the worker with a tremor of the upper extremities. As noted earlier, in his opinion of March 3, 2005, Dr. Consky diagnosed the worker with an essential tremor of his hands which Dr. Consky said was unrelated to the worker s accident and subsequent onset of dystonia. In his May 31, 2007 opinion, however, Dr. Consky suggests that the worker s hand tremor may be related to his compensable accident and dystonia. Dr. Consky suggests that the compensable accident may have exacerbated a pre-existing hand tremor, or may have resulted in the onset of a de novo hand tremor: Up to 50% of patients with Cervical Dystonia will exhibit an essential-like tremor of the upper extremities. The underlying pathophysiological basis of this association is unknown Whether there was exacerbation of a pre-existing hand tremor or the de novo development of significant hand tremor following traumatic [sic] is indeterminate. There is however recognized mechanisms for the development or exacerbation of hand tremor either secondary to the development of Cervical Dystonia or independent of the Cervical Dystonia, and directly related to the neck injury [sic]. [52] Finally, Dr. Consky opined that the worker s cervical dystonia may be contributing to degenerative disc disease in the worker s neck: RELATIONSHIP OF TRAUMA TO THE DEVELOPMENT OF CERVICAL DEGENERATIVE DISC DISEASE AND DEPRESSION Cervical spine x-rays obtained on June 11, 2001 reported to have shown marked degenerative disc disease of the cervical spine most significant at C3-4. Patients with Cervical Dystonia are also at risk for developing premature cervical degenerative joint disease secondary to recurrent abnormal neck movements and asymmetric postures and this may be a contributing factor to [the worker s] severe neck pain.

12 Page: 11 Decision No. 2254/03I [53] After receipt of Dr. Consky s report of May 31, 2007, the file was referred for review to Dr. W. Maehle, a Board Medical Consultant. In an assessment written on July 25, 2007, Dr. Maehle summarized the worker s medical history. Dr. Consky did not specifically comment on whether the worker s entitlement to benefits for dystonia should be expanded beyond cervical dystonia. Dr. Maehle stated that he agreed with Dr. Consky that the worker should be getting the most up-to-date treatment for his symptoms. Dr. Maehle opined that the worker s permanent disability pension should not be increased: Regarding memo #204, while wholeheartedly agreeing with Dr. Consky recommendation with respect to the worker getting the most up-to-date treatment to control his symptoms, in terms of pension quantum based on clinical, orthopaedic and neurological findings, he appears to be reasonably well compensated. (v) Questions for the Tribunal Assessor [54] We ask that the worker be examined by an assessor and that the assessor provide a written report which answers the following questions: 1. Please explain segmental dystonia. Does the worker have segmental dystonia? If so, please comment on the causal relationship, if any, between this condition and the worker s accident of June 9, In particular, do you regard the accident as having contributed significantly to the onset of this condition? 2. Does the worker have generalized dystonia? If so, please comment on the causal relationship, if any, between this condition and the worker s accident of June 9, In particular, do you regard the accident as having contributed significantly to the onset of this condition? 3. What is the nature of the tremor affecting the worker s hands? What, if any, is the relationship between the worker s hand tremor and the accident of June 9, 1986? 4. Does the worker have a tremor of the upper extremities? If so, is this condition distinct from his hand tremor and what, if any, is the relationship between the worker s upper extremity tremor and the accident of June 9, 1986? 5. Please do not comment on the quantum of the worker s permanent disability pension rating. However, please comment on whether the medical assessments of January 29, 1990 and March 4, 2003, took account of the entire range of the worker s symptoms which may be causally related to the workplace accident of June 9, Is there any other medical information which you feel would be of assistance to the Panel and parties in understanding the nature and aetiology of this worker s condition?

13 Page: 12 Decision No. 2254/03I INTERIM DISPOSITION [55] This case will be referred to a Tribunal Assessor in Neurology, with an interest in movement disorders, to examine the worker, review the case materials, and answer the questions set out above. The worker s representative s written submissions will be due four weeks after receipt of the assessor s report. DATED: October 22, 2008 SIGNED: B. Kalvin, E. Tracey, J. A. Crocker