SUMMARY DECISION NO. 1316/99. Delay (diagnosis).

Transcription

1 SUMMARY DECISION NO. 1316/99 Delay (diagnosis). The worker appealed a decision of the Appeals Resolution Officer denying entitlement for fractured ribs and vertebra. The worker was in a non-compensable motorcycle accident in September 1994 but there was emphatic evidence from the worker's doctor that the worker did not fracture his ribs and vertebra in that accident. The worker was performing heavy work in October 1995 when he heard a pop and felt an immediate onset of pain between his shoulder blades. Six weeks later, he was still in pain, and a bone scan revealed the fractures. The Panel concluded that the worker suffered the fractures at work in October The appeal was allowed. [4 pages] DECIDED BY: Zimmerman; Beattie; Meslin DATE: 10/08/99 ACT: WCA

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1316/99 [1] This appeal was heard in Toronto on August 3 rd 1999, by a Tribunal Panel consisting of : A. G. Zimmerman: Vice-Chair, M. Meslin : Member representative of employers, D.B. Beattie : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer V. Escobar, dated February 20 th, That decision concluded that as the evidence on file did not establish compatibility between the accident history and the diagnosis of fractures, there is no entitlement for the diagnosed fractures. [3] The worker appeared and was represented by Mr. Terry Gorman from C.A.W. Local The employer was notified but chose not to attend. THE EVIDENCE [4] The Panel considered the material included in the Case Description prepared by the Tribunal Counsel Office (Exhibit #1). In addition, we considered Addendum No. 1 to the Case Record (Exhibit #2), a letter dated January 26, 1998 from Dr. D. Ho-A-Shoo (Exhibit #3), a letter dated January 29, 1998 from co-worker A (Exhibit #4), a letter dated January 22, 1998 from co-worker B (Exhibit #5), a letter dated January 27, 1998 from co-worker C (Exhibit #6), a letter dated January 23, 1998 from co-worker D (Exhibit #7) and a letter dated September 26, 1996 from Dr. R.D. Silver (Exhibit #8). [5] The Panel also heard oral evidence from the worker. Submissions were made by Mr. Gorman. THE ISSUES [6] The panel was asked to determine whether or not fractures to the worker s right ribs and vertebra were the result of a work related accident. If so, the worker would benefit from the provisions of section 3(1) of the (pre-1991) Worker s Compensation Act.

3 Page: 2 Decision No. 1316/99 THE REASONS (i) Background [7] On October 14 th, 1995 the worker was at his work station on an automobile assembly line installing heaters with a pneumatically assisted articulating arm. This work was physically demanding requiring the installation of seventy three to seventy four twenty-five pound heater units per hour with a pulling, twisting and pushing motion. Uncontraverted evidence before the Panel establishes that this ordinarily demanding work was made even more so for the following reasons: on this date the pneumatic assist was working only intermittently; extra force was needed to install the heaters because thicker than normal firewall insulation was being used; the worker was behind on his job and was rushing to keep up with the line; due to engineering problems it was difficult to line up holes on the firewall with the studs on the heater. [8] At 7:00 p.m. the worker felt what he described as a sharp pain between my shoulder blades and upper back. He had experienced pain in his shoulders the day before and had reported right shoulder pain on two prior occasions resulting in modified work being assigned (Case Description, p.91). In his testimony the worker reported hearing a pop when he felt the sharp pain just described. This popping noise was also heard by a co-worker who was assisting him at the time (Exhibit #4). [9] The worker subsequently sought medical treatment for pain in the upper thoracic region. Six weeks after the accident the worker was still complaining of ongoing pain in the thoracic spine around the T1-2 level with radiation along his right upper shoulder (Case Description, p.123). The worker was referred to Dr. Michael Wood, an orthopaedic surgeon, for further investigation. Dr. Wood ordered a total body scan which showed increased foci of the 7 th and 8 th ribs suggesting, in his opinion, healing fractures (Case Description, p.119). There was also an abnormality detected at approximately T3 which appeared to be mainly spinous process (Case Description, p.110). [10] The only other significant and relatively recent injury suffered by the worker was as a result of a motorcycle accident on September 18, At that time the worker slid off his motorcycle to avoid a collision with another vehicle and in so doing sustained soft tissue injuries to his left leg and hip (Addendum No. 1, p. 13). Physical examination did not reveal any pain in the ribs or upper thoracic spine (Addendum No. 1, p.5). (ii) Medical Opinion [11] Two family physicians have expressed the opinion that the worker did not sustain the rib and vertebra fractures mentioned above in the September 18, 1994 motorcycle accident. Dr. Michael Ostro saw the worker immediately after the accident and continued to treat his injuries. In a report (Addendum No. 1, page 5) he writes (h)e did not sustain any fracture to his ribs nor did he fracture vertebra T3. Dr. Deanne Ho-A-Shoo has been the worker s family doctor since October

4 Page: 3 Decision No. 1316/ In a letter (Exhibit #3) she writes, (the worker) did not sustain the rib fractures and the T3 fracture from the motorcycle accident. In addition, two specialists have referred to evidence of rib fractures in the November 30, 1995 total body scan. Dr. Wood reports at page 119 of the Case Description that (h)is scan shows increased foci of 7 th and 8 th ribs and the distribution suggests a healing fracture. Dr. W. M. Roy, a consultant radiologist, commenting on this same evidence at page 69 of the Case Description states: And further: The increased radioactive pick-up in the region of the right 6th and 7th rib cages is associated with a previous rib fracture. The activity in the 6th rib is slightly less than the 7th. We cannot determine the date of the fractures, but we note that the date of the trauma occurred approximately six weeks prior to the scan and therefore one would have to assume that the fracture occurred at that time There appears to be a recent rib fracture involving the right 6th and 7th ribs posteriorly. [12] A second bone scan was conducted on April 8 th, In her report, Dr. Judith Ash, a nuclear physician, writes: Again, there is a focus of increased activity in the right 7th rib and a very faint focus in approximately the right 9th rib, in keeping with healing fractures. (italics added) (iii) Conclusions [13] The worker has had two significant accidents in recent history; one while riding a motorcycle on September 18, 1994 and another while at work on October 14, In the motorcycle accident, the worker suffered extensive bruising to his left leg and hip together with abrasions to his left elbow. He never complained of nor was he treated for any pain or discomfort in his ribs, shoulders or upper back. His family doctor and the doctor who treated him immediately after this accident emphatically deny that his ribs and vertebra were fractured at that time. In the workplace accident of October 14th, 1995 however, the worker heard a pop and felt an immediate and sharp pain between his shoulder blades. The work he was engaged in at the time was physically very demanding and can be characterised as involving some degree of violence to the arms and upper body. Six weeks after the accident the worker was still in pain and a bone scan taken on November 30, 1995 revealed two recently fractured ribs which were said to be healing, together with a fracture to the T3 vertebra. While the cause of these fractures cannot be known to a certainty, the Panel is persuaded, on a balance of probabilities, that they are the result of the workplace accident of October 14 th, THE DECISION [14] The appeal is allowed in part. Having concluded that the worker sustained fractures to his ribs and vertebra while at work on October 14, 1995, we remit the question of entitlement to compensation for the period September 13, 1996 to October 31, 1996 to the Board for determination.

5 Page: 4 Decision No. 1316/99 DATED: August 10, 1999 SIGNED: A. G. Zimmerman, M. Meslin, D.B. Beattie