SUMMARY DECISION NO. 1336/98. Consequences of injury; Benefit of the doubt.

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1 SUMMARY DECISION NO. 1336/98 Consequences of injury; Benefit of the doubt. In Decision No. 1336/98, the Panel dealt with five issues, and decided to obtain a report from a Tribunal assessor on the remaining issues. The Board granted the worker entitlement for chronic prostatitis, secondary to steroidal medication taken for asthma. The issues in this decision concerned entitlement for transurethral microwave treatment (TUMT), payment for a drug and denial of a claim for impotence. In addition to the compensable condition of chronic prostatitis, the worker also suffered from noncompensable benign prostatic hyperplasia. There was conflicting expert opinion as to whether the TUMT treatment related only to the non-compensable condition or whether it related also to the compensable condition. Applying the benefit of doubt in favour of the worker, the Panel concluded that the worker had entitlement for the TUMT treatment. The issue of payment for the drug was now moot. There was a consensus in the medical opinion that the impotence was not related to his compensable conditions or treatment for those conditions. The appeal was allowed in part. [6 pages] DECIDED BY: McCombie; Anderson; Nipshagen DATE: 28/09/2000 ACT: WCA CROSS-REFERENCE: Decision No. 1336/98I

2 2000 ONWSIAT 2660 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1336/98 [1] This appeal was heard in Toronto on September 11, 1998, by a Tribunal Panel consisting of : N. McCombie : Vice-Chair, G.M. Nipshagen: Member representative of employers, J. Anderson : Member representative of workers. Post-hearing investigation was completed on August 14, THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Officer, R.B. Kamin, dated March 25, That decision denied the worker s objections concerning eight issues. [3] The worker appeared representing himself, assisted by his daughter. The employer was represented by D. Fedora, a consultant with the firm CompClaim Management. [4] In Decision No. 1336/98I, dated March 31, 1999, the Panel addressed five of the eight issues before us. With respect to the other three issues involving the worker s prostate problems, the Panel decided to seek further medical evidence. That evidence has now been received. THE EVIDENCE [5] In addition to the material noted in the interim decision, the Panel has now considered three post-hearing Addenda (Exhibits #4 6). [6] Written submissions concerning the new evidence were made by the worker (July 1, 2000) and by D. Kersey another consultant with CompClaim (February 4, 2000). PROCEDURAL RULINGS [7] The worker had initially also made submissions in February. Those submissions, however, also included further medical evidence. That evidence, we were informed, was not general scientific/medical information, but was specific to him [the worker] but mainly deals with asthma. Mr. Kersey objected to the admission of this evidence, evidence which had not been sought by the Tribunal. [8] Given the fact that we had not sought this evidence and that it did not appear relevant to the issues before us, we did not accept it.

3 Page: 2 Decision No. 1336/98 [9] On August 10, 2000, the Panel learned that the worker wanted us to reconsider the interim decision, Decision No. 1136/98I. The Panel ruled that it would make sense to complete the decision first and at that point the worker could decide whether he wanted to seek reconsideration and, if so, on what issues. THE ISSUES [10] The issues remaining to be decided are the following: 1. Denial of transurethral microwave treatment. 2. Denial of payment for the drug Proscar. 3. Denial of a claim for impotence. THE REASONS (i) Background [11] The Panel noted the following background information and decided to refer the claim to an assessor. [12] The worker has entitlement for a condition of chronic prostatitis. The Board accepted that this condition was secondary to steroidal medication taken for his asthma. [13] In a letter dated November 14, 1994, Dr. R.W. Casey, a urologist, recommended that the worker undergo treatment by way of transurethral microwave treatment ( TUMT ). This was recommended for treatment of obstructive voiding symptoms, due to enlarged prostate or prostatitis. It was noted that TUMT was not covered by provincial health insurance and that the cost was $3,400. [14] In a memorandum dated November 28, 1994, Board Dr. A. Wardekar, responded to Dr. Casey s letter by giving an opinion that: Based on the available information it appears that the obstructive uropathy which this worker has relates to the benign prostatic hypertrophy and the surgery which is contemplated is for relief of this symptom. Reviewing his claim it does not appear that benign prostatic hypertrophy has been accepted as a compensable disease in this worker. He has only been accepted to have chronic prostatitis for which he is in receipt of a PD [permanent partial disability pension] which usually does not require any surgical correction apart from treatment of an acute infection and sometimes preventive antibiotic therapy. [15] Prostatic hypertrophy is defined as enlargement of the prostate gland due to the aging process rather than inflammation or neoplasm. 1 [16] On January 11, 1995, Dr. Casey responded to the Board s decision, noting that the worker s problems resulted from, 1 Taber s, 15 th Edition.

4 Page: 3 Decision No. 1336/98 a combination of prostatitis and early benign prostatic hyperplasia. Most of his symptoms though are likely on the basis of chronic abacterial prostatitis. [17] There is a further opinion from urologist J. Trachtenberg, dated April 4, That opinion also supports the use of TUMT to treat the worker s symptoms of prostatism 2. Dr. Trachtenberg notes that the worker has tried Proscar and is refractory to this ; that is, the worker was resistant to this medication. [18] Finally, the worker s family doctor, Dr. F.C. Francisco, in a letter dated August 21, 1998, repeated the suggestions of Dr. Casey and Trachtenberg. Dr. Francisco concludes this letter by noting: [The worker] is also complaining of impotence. Whether this is the result of his frequency and dysuria 3 or the result of his ongoing medication or the result of poor general health, possibly its the combination of all the above. [19] Dr. K.S. Peterson, another urologist had also noted impotence in a May 10, 1990 report. And in Dr. Casey s 1994 investigation, tests were carried out which noted that the worker had difficulty obtaining an erection. Mild atherosclerotic disease in the CFA bilaterally was noted. (ii) The post hearing assessment [20] The Panel, noting that the Medical Liaison Office had proposed a number of questions, decided that a further opinion be obtained. The Tribunal assessor chosen was Dr. G. A. Farrow, a specialist in urology and surgery at the Toronto Hospital. [21] Dr. Farrow did not examine the worker, but reviewed his medical records. In a report, dated October 19, 1999, he answered a number of questions posed by the Medical Liaison Office. In reviewing the material, Dr. Farrow was of the view that the worker s urinary problems were likely due to early benign prostatic hyperplasia (hypertrophy) ( BPH ) and not to prostatitis. He was of the view that the treatment Proscar and the TUMT was for the BPH, not prostatitis. [22] It was noted that TUMT was primarily used for treatment of BPH, it was also used for the treatment of chronic prostatitis, although such use was somewhat controversial, its results are marginal and it is not universally recognized as being effective. It is not commonly used. [23] With respect to the worker s impotence problem, Dr. Farrow noted that There is no evidence to suggest that [the worker s] impotence is related to his asthma or its treatment. It is most unlikely to be related to asthma. There is no evidence to suggest [the worker s] impotence is related to prostatitis or the treatment of prostatitis. Impotence is most unlikely to be related to chronic prostatitis. [24] Dr. Farrow concluded that the likeliest cause of the worker s problems was BPH and not prostatitis. He noted that BPH begins to occur in most males at the age of [the worker currently 57 years old] and the obstructive symptoms of BPH are superimposed on the symptoms 2 3 Any condition of the prostate gland that interferes with the flow of urine from the bladder. Taber s, 15 th Edition. Painful or difficult urination. Taber s, 15 th Edition.

5 Page: 4 Decision No. 1336/98 of chronic prostatitis. He reiterated that the treatment proposed for this worker Proscar and the TUMT was treatment designed for controlling BPH, not prostatitis. [25] These findings are in keeping with the conclusion of the Appeals Officer who ruled that the worker s treatment was for BPH, for which he did not have entitlement, rather that the prostatitis for which he did have entitlement. [26] In his post-hearing submission, the worker argues that, while TUMT is not effective treatment for prostatitis, it is effective treatment for BPH, and should therefore be recognized as compensable. (iii) Conclusions [27] The Panel has carefully considered Dr. Farrow s report and the parties submissions, in addition to the documentary evidence previously reviewed. There is no clear consensus that the TUMT treatment relates only to benign prostatic hypertrophy or hyperplasia and not to prostatitis. The worker has no entitlement for BPH and therefore treatment for this condition is not a responsibility of the Board. The worker does have entitlement for prostatitis. While Dr. Farrow supported the opinion of Dr. Wardekar that TUMT was not an effective treatment for this condition, others Dr. Casey, Dr. Francisco and Dr. Trachtenberg suggest that the treatment be undertaken to address not only the BPH, but also the prostatitis. There is also a report from another urologist, Dr. K.S.S. Peterson, dated November 26,1992, referring to unrelenting prostatitis with moderate obstructive element. [28] Given this disagreement among the medical experts, we conclude that the evidence that TUMT treatment, related to the worker s prostatitis is approximately equal in weight. Therefore, the benefit of doubt provision in section 4(4) applies. That section reads: 4(4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. [29] The worker therefore does have entitlement for the TUMT procedure. [30] It is not at all clear what is being requested with respect to the drug Proscar. Given our ruling on the TUMT, and the fact that the worker is refractory to the drug, we gather that it is now a moot point. [31] There does, however, appear to be a consensus that impotence cannot be related to any of the worker s compensable conditions or the treatment for those conditions. This was confirmed by Dr. Farrow.

6 Page: 5 Decision No. 1336/98 THE DECISION [32] The appeal is allowed in part. 1. The worker does have entitlement for transurethral microwave treatment. 2. The worker does not have entitlement for impotence. DATED: September 28, SIGNED: N. McCombie, G.M. Nipshagen, J. Anderson.