WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2604/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2604/06 BEFORE: T. Mitchinson : Vice-Chair HEARING: December 21, 2006 at Toronto Written DATE OF DECISION: January 11, 2007 NEUTRAL CITATION: 2007 ONWSIAT 74 DECISION(S) UNDER APPEAL: WSIB ARO decision dated October 18, 2005 APPEARANCES: For the worker: For the employer: Interpreter: Ms. Elizabeth Moniz, a Consultant Not participating None 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. 2604/06 REASONS (i) Introduction [1] I have been assigned to consider the above-referenced appeal on the basis of written submissions. [2] The worker appeals the decision of Appeals Resolution Office (ARO) B. Craddock, dated October 18, That decision denied the worker s request for a Permanent Disability (PD) reassessment. (ii) The issues on appeal [3] The sole issue in this appeal is whether the worker is entitled to a PD reassessment based on deterioration in her compensable condition since the most recent reassessment on October 30, (iii) Applicable law [4] The workplace accident occurred on January 28, Accordingly, the pre-1989 Workman s Compensation Act (the Act) applies. (iv) Background [5] The worker was employed as a production worker by the accident employer, a heavy metal stamping company. The worker suffered a gradual onset injury to her left shoulder, chest and back as a result of the repetitive nature of her job duties. [6] The worker did not fully recover from her injury, and on February 16, 1990 she was granted a 5% PD pension for the left shoulder. The pension was reviewed on July 13, 1992, and increased to 8%. [7] The worker was subsequently awarded entitlement for right elbow and neck under the original left shoulder claim. Her pension was again reviewed in that context, and increased on May 18, 2000 to a total of 22.5%: 10% for neck, 3% for right elbow, and the 8% previously awarded for left shoulder, plus a multiple factor of 1.5%. [8] Another reassessment was conducted on October 20, 2002, and the 22.5% PD award was confirmed. [9] The worker submitted another request for reassessment on January 6, She provided an updated medical report, dated March 1, 2004, which was taken into account by the Claims Adjudicator and the Board s medical consultant. The Adjudicator denied the worker s request on the basis that the current PD award was appropriate. This finding was upheld by ARO Craddock on appeal. (v) The worker s position [10] The worker provided brief reasons for her appeal on her Notice of Appeal form, but did not submit any additional representations following ARO Craddock s October 18, 2005 decision.

3 Page: 2 Decision No. 2604/06 [11] In her submissions to the Claims Adjudicator on August 24, 2004, the worker s representative submits that the worker s condition deteriorated significantly between 2002 and 2004, and that the PD award she received is very low considering that the worker has Sacroiliitis, Degeneration and areas where she has disc protrusion. [12] The worker also relies on a September 25, 2006 report submitted by orthopaedic surgeon, Dr. Sehmi. After examining the worker on June 15, 2006 and again on September 19, 2006, Dr. Sehmi diagnosed the worker as suffering from: (1) chronic cervical strain, with underlying degenerative disc disease; (2) chronic strain of the left shoulder, with bursitis; and (3) tendonitis of both elbows, which is more marked on the medial side, and the left side is more than the right. (vi) The employer s position [13] The employer did not make submissions in the course of this appeal. However, the employer did provide a letter to the Claims Adjudicator, dated June 17, 2004, supporting the decision to deny the worker s request for reassessment. (vii) Analysis [14] In determining whether the worker is entitled to a PD reassessment under the Act, I must first look to the medical evidence that was taken into account at the time of her most recent reassessment in May 2000, and compare it to the medical evidence on file since that date. If the worker has suffered a measurable permanent deterioration in her compensable neck, left shoulder or right elbow organic injuries since the earlier reassessment, I will refer the worker s file back to the Board for another reassessment. If, on the other hand, there is no measurable permanent deterioration, or the deterioration is not caused by the worker s compensable organic injuries, then I will confirm the current PD level as appropriate and dismiss the worker s appeal. (a) Neck [15] The PD award for neck disability set by the Board in 2000 was 10%. [16] The worker was examined at that time by a Board medical consultant, who concluded that the worker was tender to palpation over the paracervical muscles, the trapezia and the rhomboids. There was also spasm in the trapezia and the rhomboids during physical examination, but axial loading and distraction did not reproduce neck pain. [17] The worker was also examined during this same time period by Dr. Kekosz, a specialist in Physical Medicine and Rehabilitation at Sunnybrook Health Science Centre. Dr. Kekosz found that the worker s neck alignment was normal, but that the neck mobility was moderately restricted in all directions due to tightness and pain. She also observed that local palpation revealed soft tissue tenderness in the neck. [18] The worker s physiatrist, Dr. Wong, also examined the worker in He found that the worker s neck ranges of motion were decreased by one quarter range for flexion and rotation, and that there was tenderness in her upper trapezius muscle, especially on the left side.

4 Page: 3 Decision No. 2604/06 [19] The worker also received an MRI in 2000, which confirmed degenerative changes in her upper spine from C4 down to C7. Specifically: at C3-4 - a minimal focal midline disc protrusion without neural compromise at C5-6 - a small left sided posterior disc protrusion which minimally indents the left side of the spinal cord. The neural foramina at this level appears normal. at C6-7 - a small posterior disc osteophyte bulge which indents the subarachnoid space anteriorly. There is a small focul disc herniation on the left side. The neural foramina are mildly narrowed more on the left than the right. at C7-T1 - The appearance was normal. No cord signal abnormality demonstrated. [20] As noted earlier, the worker asked for a PD reassessment in 2002, which was turned down by the Board. The Board s medical consultant who examined the worker at that time indicated that: Inspection of her neck and upper extremities revealed no abnormalities. She was tender to palpation over her neck and no swelling was detected. Flexion and extension of the neck were limited to about 20 degrees, rotation was about 45 degrees bilaterally and lateral flexion was about 10 degrees bilaterally. [21] The consultant concluded that the objective clinical findings did not support a deterioration of the worker s compensable conditions, including her neck disability, since the 2000 reassessment. [22] Dr. Kekosz conducted a follow-up examination of the worker in She reported at that time that the worker s neck mobility was limited to approximately 50% of normal range due to pain, and that local palpation revealed tenderness of the scalenes and in the upper trapezeii. [23] Dr. Sehmi s September 25, 2006 report includes an assessment of the worker s neck disability, based on two physical examinations that took place in June and September The orthopaedic surgeon reported that the worker s neck was tender on examination, but her forward flexion was full. The worker s extension at that time was 50% of normal, and lateral flexions and rotations were 70% of normal. Dr. Sehmi also appears to have ordered x-rays of the cervical spine, and reports that they showed degenerative changes at C5-6 and C6-7. He also interprets the results of the worker s 2000 MRI, but does not appear to have ordered a current MRI for comparative purposes. (b) Left shoulder [24] The worker s 8% PD award for left shoulder remained unchanged at the time of the Board s 2000 reassessment. [25] At the time of his 2000 reassessment review, the Board s medical consultant identified decreased ranges of motion in the worker s shoulder: abduction 90 degrees; flexion 100 degrees; adduction degrees; extension 15 degrees; internal rotation to the sacrum; external rotation in adduction 70 degrees and in abduction 100 degrees. He also reported that:

5 Page: 4 Decision No. 2604/06 With her upper extremities at rest there was no subclavian bruit. With her shoulders abducted and in external rotation there was no subclavian bruit. [26] Dr. Kekosz s 2000 examination revealed that the worker s shoulder alignment was normal, but that local palpation revealed some soft tissue tenderness in the shoulder musculature. The Physical Medicine and Rehabilitative specialist diagnosed the worker at that time as suffering rotator cuff tendonitis of the shoulder. [27] By the time of his 2002 examination, the Board s medical consultant reported that the worker s left shoulder flexion and abduction were limited to 90 degrees and internal and external rotation were about 2/3 of normal. [28] Dr. Kekosz s 2004 examination also reported limited abduction to only 90 degrees and internal and external rotation limited to less than 50% of normal range. She also confirmed weakness in the shoulder area, particularly in the rotator cuff. [29] In his September 25, 2006 report, Dr. Sehmi stated that the worker continued to experience tenderness in the left shoulder, and that abduction was now 140 degrees. X-rays apparently taken at that time showed degeneration in the shoulder area, and an ultrasound confirmed bursitis. (c) Right elbow [30] The 2000 PD award for right elbow was 3%. [31] The Board s medical consultant reported at that time that there was no effusion in the elbow; bilateral cubitus valgus of 5 degrees; range of motion of degrees; and tenderness on examination over the medial and lateral epicondyles, the extensors of the forearm and the radiohumeral joint. [32] In her 2000 report, Dr. Kekosz diagnosed the worker as suffering from an epicondylitis of the right elbow. [33] At the time of her 2002 examination, the Board s medical consultant reported: Inspection of the right elbow was unremarkable but there was tenderness over the medial epicondyle. The range of motion in the right elbow was normal. [34] Dr. Kekosz commented in her 2004 report that the worker was suffering tenderness along the medial and lateral epicondylar regions of both elbows. [35] Dr. Sehmi reported that by the summer of 2006 the worker was still suffering tenderness in the medial aspects of both elbows, and also some tenderness along the lateral epicondyle. X-rays taken at that time came back normal, and an ultrasound of both elbows showed normal for the left and some fluid in the medial aspect of the right elbow. [36] Taking all of these various medical reports and assessments into account, I find that the worker is not entitled to a PD reassessment, for the following reasons.

6 Page: 5 Decision No. 2604/06 [37] The objective evidence does not establish that the worker s right elbow disability has measurably deteriorated since the time of the 2000 assessment. The worker was diagnosed in 2000 as suffering from an epicondylitis of the right elbow, and the medical evidence gathered since that time, as it relates to the compensable right elbow injury, essentially confirms that diagnosis. [38] As far as the worker s neck disability is concerned, I also find that the objective evidence does not establish that this disability has measurably deteriorated since the time of the 2000 assessment. In 2000, the medical evidence established that the worker had some degree of disc herniation in her upper spine, which resulted in reduced neck mobility. Between then and the most recent medical assessment in September 2006, the medical evidence confirms that the worker continues to experience neck mobility restrictions on physical examination. However, the only objective measure of her cervical spine condition is the x-ray taken by Dr. Sehmi, which showed degenerative changes in the worker s cervical spine, a finding consistent with her 2000 test results. In my view, this is not sufficient to establish a measurable deterioration of the worker s compensable neck disability. [39] Turning to the left shoulder, I find that the medical evidence is sufficient to establish a measurable deterioration in this disability since the 2000 assessment. The worker had significant mobility restrictions in her left shoulder in 2000, stemming from her compensable left shoulder injury. Mobility has deteriorated to some extent since that time, but objective tests ordered by Dr. Sehmi in 2006 also establish that the worker is now suffering from bursitis, a condition that was not present at the time of her 2000 assessment. [40] Having found that the worker s left shoulder disability has measurably deteriorated, I must now go on to determine whether this deterioration was caused by the worker s compensable organic injuries. [41] Dr. Kekosz first examined the worker in July After diagnosing the worker with cervical strain, rotator cuff tendonitis of the shoulder and an epicondylitis of the right elbow, Dr. Kekosz concluded: This accumulation has led to the development of a chronic soft tissue pain syndrome, which has been diagnosed as fibromyalgia in the past. [The worker] did not have all of the specific tender points at this point in time but this may be a reflection of the fact that she is now not working and is able to rest as needed. [42] Dr. Kekosz reiterates her assessment after re-examining the worker in 2004, and goes on to state: Whether [the fibromyalgia] is related to [the worker s] previous medications of whether this it totally unrelated is not known. The diagnoses made by Dr. Sehmi in his September 26, 2006 report are, for the most part, consistent with Dr. Kekosz s assessment. [43] On the basis of the medical evidence gathered since the time of the 2000 reassessment, particularly the two reports prepared by Dr. Kekosz, a specialist in Physical Medicine and Rehabilitation, I find that it does not support a finding that the deterioration in the worker s left shoulder disability was caused by her compensable organic injuries. In my view, the evidence points to potential non-organic causes for her current condition, identified as early as 2000 and confirmed on subsequent medical examinations.

7 Page: 6 Decision No. 2604/06 [44] At present, the worker does not have entitlement for non-organic disability caused by chronic pain syndrome or fibromyalgia, and is not entitled to a reassessment of her organic left shoulder PD award on the basis of non-organic considerations. [45] I should note that if I had found that the worker s neck and/or right elbow disabilities had measurably deteriorated since the time of the 2000 reassessment, I would have gone on to find that the medical evidence did not support a finding that any such deterioration was caused by her compensable organic injuries, for the same reasons as outlined for her left shoulder disability. [46] Accordingly, I find that the worker is not entitled to a PD reassessment at this time any of her compensable organic disabilities, specifically her neck, left shoulder or right elbow.

8 Page: 7 Decision No. 2604/06 DISPOSITION [47] The worker s appeal is denied. DATED: January 11, 2007 SIGNED: T. Mitchinson