WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 652/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 652/16 BEFORE: J. Goldman : Vice-Chair M. Christie : Member Representative of Employers A. Signoroni : Member Representative of Workers HEARING: March 10, 2016 at Toronto Oral DATE OF DECISION: March 31, 2016 NEUTRAL CITATION: 2016 ONWSIAT 853 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated September 23, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Oliverio, 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. 652/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated September 23, 2013, which denied him entitlement for a cervical spine injury. The ARO rendered a decision based upon a written record without an oral hearing. (ii) Issue [2] The issue under appeal is entitlement for a cervical spine injury, including on an aggravation basis. (iii) Background [3] The following are the basic facts. [4] On January 19, 2012, the now 52-year-old forklift operator, employed with the accident employer since July 2011, suffered an electric shock to his right arm and hand when he broke off an electron gun from the top of a T.V. tube, causing diffuse swelling of the entire right upper extremity. The worker was granted benefits for his right carpal tunnel syndrome (CTS), flexor digitorium tenosynovitis, right ulnar neuropathy, and right medial neuropathy. On January 22, 2013, the worker underwent right carpal tunnel decompression. He received loss of earnings (LOE) benefits and returned to modified duties on December 3, On July 28, 2014, the worker underwent a trigger finger release, and flexor tendon tenosynovectomies of the right long ring and small finger. [5] In correspondence dated October 23, 2013, the Case Manager referred to the medical report dated October 7, 2013 provided by Dr. K. R. Wilkins and determined that the worker had reached maximum medical recovery (MMR) as of October 7, [6] Following a non-economic loss (NEL) assessment on February 12, 2015, the worker was granted a 14% NEL award for CTS, trigger finger and ulnar neuropathy. [7] In correspondence dated February 7, 2013, the worker s representative requested entitlement on an aggravation basis for a neck injury, based on the medical opinion provided by Dr. K. Prutis, dated October 2, 2012, which indicates that the worker has evidence of C5-C6 radiculopathy and cervical disc herniations, as documented by the MRI tests. [8] The MRI of the cervical spine performed on May 24, 2012, revealed degenerative disc disease (DDD), with multiple disc herniation of the C3 to C7 vertebrae, with C5 and C6 radiculopathy. [9] In correspondence dated March 22, 2013, the Eligibility Adjudicator denied the worker entitlement for the cervical spine. [10] In his decision dated September 23, 2013, the ARO denied the worker entitlement for a cervical spine injury. The ARO stated the following: I find that although the worker reportedly was asymptomatic prior to January 19, 2012, I am unable to conclude that his cervical conditions are related to the incident on January 19, 2012.

3 Page: 2 Decision No. 652/16 The worker has DDD with multiple mild disc herniations, which could not have been caused by the dynamics of the January 19, 2012 incident; I also cannot find evidence of an aggravation of these conditions. [11] The worker s objection to the ARO decision is the subject of this appeal. (iv) Law and policy [12] Since the worker was injured in 2012, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [13] Section 43 of the Act which governs the worker s entitlement in this case contains the following provision: Payment for loss of earnings 43.(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. Payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of injury, if the worker was 63 years of age or older on the date of injury; (d) the day on which the worker is no longer impaired as a result of the injury. [14] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [15] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [16] Section 126 of the WSIA, requires this Tribunal to apply Board policy. The Board s policy entitled Aggravation Basis, which is relevant in the present claim, is set out in Operational Policy Manual (OPM) Document No and reads as follows: OPM Document No Aggravation Basis applies in cases Where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. [Emphasis in original] (v) Worker s testimony [17] The worker testified that prior to the workplace accident on January 19, 2012, he did not suffer from neck pain. He referred to migraine headaches approximately 15 years ago. However, following the accident, he suffered right shoulder and neck pain which affected his sleeping, and made it difficult to turn his head. He continues to experience neck pain and to be treated for the condition.

4 Page: 3 Decision No. 652/16 (vi) Submissions [18] Ms. Oliverio, the worker s representative, submitted that the worker sustained injuries to his neck, as well as to his right side, as a result of the electric shock which he suffered in January She submitted that the neck injury is compatible with the mechanics of the accident and is responsible for the herniated cervical disc revealed in the MRI performed in May The injuries to the worker s right arm were treated more urgently because they appeared more serious initially. However, the neck injury manifested itself soon after and, as noted in Dr. Prutis report dated October 2, 2012, is causally related to the electric shock injury the worker sustained. [19] In the alternative, Ms. Oliverio submitted that the workplace accident aggravated the worker s asymptomatic neck condition in a significant way. (vii) Analysis [20] The appeal is denied for the reasons set out below. [21] In the present case, the worker was granted entitlement for his right CTS, flexor digitorium tenosynovitis, right ulnar neuropathy and right medial neuropathy. He later claimed entitlement for the cervical spine as causally related to the workplace accident, or on an aggravation basis. (a) Is the worker s neck condition causally related to the January 19, 2012 workplace accident? [22] In coming to its finding that the worker s neck condition is not causally related to the January 2012 workplace accident, the Panel has taken the following into consideration. [23] The MRI performed on May 24, 2012, revealed DDD with multiple mild-sized disc herniations. [24] The medical report dated June 28, 2012, provided by Dr. Prutis, referred to the results of the MRI and concluded as follows: In summary, [the worker] has evidence of multi-level cervical disc herniation and cervical radiculopathy. He is suffering from chronic pain in the right upper extremity, as a result of an electric shock injury during his work duties. [25] Dr. Prutis does not refer to the worker s neck pain, nor does she relate the cervical spine DDD, with multiple sized disc herniation and cervical radiculopathy, to the workplace accident. [26] However, in her report dated October 2, 2012, Dr. Prutis states the following: [The worker] ascertained that he was asymptomatic with respect to his neck, prior to his accident. I believe that the electric shock injury was a contributory factor to some of his cervical pathology and cervical radiculopathies. [27] Dr. Prutis report dated December 4, 2012, indicates that the worker continues to experience numbness in the right upper extremity and numbness in the right hand. There is no mention of a neck condition, nor is any treatment recommended for that condition. As well, there is no mention of a neck condition in Dr. Prutis report dated March 7, [28] The WSIB Hand and Wrist Specialty Program Assessment Report provides the following diagnosis:

5 Page: 4 Decision No. 652/16 Electrical injury global nerve dysfunction right upper extremity Moderate carpal tunnel syndrome Moderate cubital tunnel syndrome Osteoarthritis C-spine with mild radiculopathy [29] In her report dated October 7, 2013, Dr. Kathryn R. Wilkins, Physical Medicine, indicates that on examination the worker had good range of motion of the neck, although she notes some discomfort at end range with lateral bending and rotating towards the right. [30] The WSIB Surgical Specialty Program assessment dated November 21, 2014, provides the diagnosis of osteoarthritis C-spine with mild radiculopathy. [31] The WSIB Surgical Specialty Program follow up report dated April 13, 2015, provides the following diagnosis: Electrical injury right upper extremity, right carpal tunnel syndrome, right cubital tunnel syndrome, multiple finger triggers, left long finger triggering. [32] There is no mention of a neck condition in the reports of the WSIB Hand and Wrist Specialty Program and the WSIB Specialty Program. [33] The Tribunal Discussion Paper Neck and Arm Pain and Related Symptoms: Cervical Disc Disease prepared by Dr. J.F.R. Fleming, states the following with regard to degenerative or aging changes: Progressive degenerative changes (aging changes) occur in the cervical spine of all adults. Because the vertebral bodies come to lie closer together, there is increased wear and tear on the joints of the vertebral column resulting in the gradual formation of bony overgrows ( spurs:, osteophytes:, osteoarthritis...all synonyms in this context) at the disc margins This process is the normal aging process, and it begins in middle life Spondylosis (DDD) can be a cause of neck pain with repetitive activities. The worker with spondylosis of the cervical spine may commonly experience pain symptoms during neck extension beyond what is normal for him/her due to joint stiffness as in conditions such as advanced facet arthritis. this is normal and not an injury. It is most probable that the underlying DDD is just becoming symptomatic in the natural course. [Emphasis added] [34] The issue to be determined, therefore, is whether the worker s neck symptoms are the result of the January 19, 2012 accident, or whether the worker s symptoms are not the result of the workplace accident, but are merely evidence of the disabling nature of the pre-existing degenerative condition. That distinction was enunciated in Decision No. 652/87 where the Panel described the issue as follows: This case raises the issue of the distinction between disabling symptoms appearing as the result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as reflecting a compensable exacerbation or acceleration of the pre-existing condition; and disabling symptoms appearing as a result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as merely evidence of the disabling nature of the pre-existing condition. [Emphasis in original]

6 Page: 5 Decision No. 652/16 [35] However, even if the Panel found that the workplace accident exacerbated the worker s pre-existing condition, as indicated by Dr. Prutis in her October 2, 2012 report, the Panel must still determine whether, in light of the worker s pre-existing condition, the workplace accident was a significant contributing factor in the onset of his neck symptoms. [36] The Vice-Chair in Decision No. 2654/00 provides guidance in determining whether a worker s disability results from a compensable injury. In deciding whether a subsequent disability results from an original injury, the usual question asked by Tribunal decision makers is whether the original injury is a factor which has made a significant contribution to the development of the subsequent disability. This question must be answered on a balance of probabilities. The significant contribution test recognizes that there are very often multiple factors that contribute to a worker s disability. It is not necessary that the work-related accident be the sole cause of the subsequent disability. However, the work-related accident must be a factor that makes a significant contribution to the subsequent disability. In assessing the significance of the accident-related factors, it is necessary to consider the evidence about other factors and the pre-accident history. [37] In the present case, the Panel finds, on a balance of probabilities, that the January 19, 2012 accident did not contribute significantly to the worker s neck condition. The MRI performed in May 2012 revealed DDD with multiple mild disc herniation, age-related gradual changes which the preponderance of the medical evidence does not relate to the workplace accident. In her October 2, 2012 report, Dr. Prutis indicates that the electric shock injury was a contributory factor to some of [the worker s] cervical pathology and cervical radiculopathies [emphasis added]. Clearly Dr. Prutis does not think that the workplace accident was a significant contributing factor to the worker s cervical DDD as revealed on the MRI examination. As noted in the Tribunal Discussion Paper, the worker s neck pain is normal in light of his cervical DDD, and is not an injury. It is simply the underlying DDD becoming symptomatic in the natural course. [38] In conclusion, the Panel finds that there is insufficient medical evidence as noted above to conclude that the workplace accident was a significant contributing factor to the worker s present neck condition. Consequently, the worker does not have initial entitlement for the cervical spine. (b) Has the January 19, 2012 workplace accident contributed significantly to the aggravation of the worker s pre-existing neck condition? [39] OPM Document No Aggravation Basis provides that where a worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. [40] OPM Document No defines a pre-accident disability as follows: Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. [41] In Tribunal Decision No. 1354/00 the Panel noted that it is a well-established principle of compensation law that workers who sustain injuries which aggravate an underlying condition are entitled to compensation benefits until the worker reaches his or her pre-accident condition. What has to be determined, however, is whether the workplace injury made a significant contribution to the aggravation of the disability from which the worker suffers.

7 Page: 6 Decision No. 652/16 [42] In the present claim, the worker had a pre-existing degenerative condition. As noted in the Tribunal Discussion Paper, his neck pain is normal in light of his cervical DDD, and is not an injury, but rather the result of the underlying DDD becoming symptomatic in the natural course. [43] After a careful review of the evidence, the Panel is not persuaded that the workplace accident aggravated the worker s asymptomatic neck condition in a significant way. The worker is, therefore, not entitled to benefits for the cervical spine on an aggravation basis.

8 Page: 7 Decision No. 652/16 DISPOSITION [44] The appeal is denied. The worker does not have initial entitlement for the cervical spine. The worker does not have initial entitlement for the cervical spine on an aggravation basis. DATED: March 31, 2016 SIGNED: J. Goldman, M. Christie, A. Signoroni