WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2323/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2323/09 BEFORE: M. M. Cohen : Vice-Chair B. Wheeler : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: November 27, 2009, at Toronto Oral DATE OF DECISION: December 17, 2009 NEUTRAL CITATION: 2009 ONWSIAT 2915 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated November 18, 2008 APPEARANCES: For the worker: For the employer: Interpreter: Brenda Snider, Union Representative 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. 2323/09 REASONS (i) Introduction [1] This is a worker appeal from a decision of Appeals Resolution Officer (ARO) Mrs. N. Berman of the Workplace Safety and Insurance Board (the Board), dated November 18, 2008, denying the worker entitlement for injuries to her neck and right elbow. (ii) Background [2] The worker was employed as a rehabilitation assistant at a health care centre when on September 14, 2004 she injured her right shoulder, right bicep and right thoracic area when catching a falling post-stroke patient. She returned to her duties but by mid-march 2005, she was moved to modified duties, assisting higher functioning patients who could weight bear. [3] She suffered from a further accident in late December 2005, and as of February 8, 2006, was restricted from working more than four hours per day at her modified duties. [4] In May 2006, the employer advised that they could no longer accommodate her. She has not worked since May [5] The worker was referred for Labour Market Re-Entry (LMR) assessment but the worker was not considered to be ready for the LMR program until she completed some psychology sessions. [6] Due to her right shoulder injury, the worker was recognized as having a permanent impairment and on November 26, 2007, the worker was granted a 5% NEL award. [7] The worker had a prior claim which was allowed for bilateral wrist repetitive strain injury and for which she was granted a 4% Non-Economic Loss (NEL) award. [8] The worker claimed that she also suffered injuries to the right side of her neck and right elbow as a result of the September 14, 2004 accident. However, the ARO found no mention of neck symptoms until mid-june 2005 and that medical opinion was expressed that her neck symptoms did not correlate with the MRI findings. The ARO determined that the worker did not seek medical attention for her right elbow until five months after the accident. The ARO concluded that there was no proof that the elbow and neck were injured at the time of the accident. (iii) The issue [9] The issue was whether the worker suffered neck and right elbow injuries from her accident of September 14, (iv) The worker s evidence [10] The worker testified that she had no prior injuries outside of work and that her only previous work injury was for bilateral wrist strain injury. She explained that on September 14, 2004, she was working during a rehabilitation clinic. She was walking with a post-stroke woman patient from the treatment room to the elevator. She was holding the

3 Page: 2 Decision No. 2323/09 patient s right hand with her left hand when the patient started to fall. The patient weighed less than 100 pounds. She caught the patient with her right arm extended and was able to lower her to her hands and knees. [11] She stated that the injury at that time was to her right bicep and right shoulder. She stated that she was later found to have suffered a torn labrum in her right shoulder. She said she was referred to Dr. Kozac, a staff physician, who in turn referred her for massage therapy. [12] She recalled that she was then moved to higher functioning patients where there was more staff and no occupational therapy involved until about April 2005, when she was asked to go back to her regular post. She explained that her regular job involved a lot of transferring of patients i.e. from wheelchair to bed, from wheelchair to toilet, assisting patients in dressing, and that she needed to use her shoulders in the occupational therapy part of the job. She stated that she was having pain and increased difficulty and could not perform her regular duties, and so continued on with her modified duties. [13] In late December 2005, she explained that she was coming down stairs with a patient when the patient had respiratory arrest and collapsed. In assisting the patient, she fell down the stairs to the right side of her body and got knocked back to the railing. She described that her head snapped back and forth and that her upper back and neck hit the railing. She stated that she slid the patient down in front of her body and laid her on a landing, which was a couple of steps below where the patient fell. She stated that she called for help, a Code Blue was called and a medical team arrived to take over the patient. She stated that she filled out the patient s chart and patient incident form and then felt exhausted. She stated that she went down the basement to the occupational therapy area but found it closed. [14] She explained that Dr. Kozac was not available until early January 2006, and that he then referred her to a chiropractor for her neck and back. She stated that she had pain from the base of her neck down. The chiropractor recommended that she work half days and she stated that she then worked at most, four and a half hours per day until May 19, 2006 when she stopped working. [15] In explaining the injury to her right elbow, she stated that it was on the inside of her right arm and affected her when she twisted or turned her arm. She stated that the chiropractor, Dr. Hunter treated her elbow area with laser and ultrasound. [16] She explained that after the December 2005 accident, her neck pain got worse. [17] She advised that following an LMR assessment, the LMR plan was put on hold and it just started during this past year. (v) Medical evidence [18] In a Form 8 (Report of Injury) dated January 26, 2005, Dr. Kozac noted that after treating the patient on September 14, 2004, he treated her on September 28, November 25, December 7, and December 21, 2004, and on January 11, On November 25, 2004, he diagnosed her with strained right bicep, mechanical right thoracic strain and soft tissue injury to her right

4 Page: 3 Decision No. 2323/09 shoulder. He noted a flare up of pain in the right scapular arm on December 7, Initially, there was symptomatic treatment with ice, pain medication and therapeutic massage. [19] In her report of January 10, 2005, the massage therapist advised that the worker presented with muscular spasm predominantly located in the right thoracic region spanning T3-T12. Other compensatory areas treated included the interscapular region, right rotator cuff and right shoulder and surrounding musculature. Following the sixth visit in mid-november 2004, the worker was described as still experiencing pain, fatigue, discomfort, including a reduced range of motion in lateral bending away from the injury and with reaching in general. [20] On March 16, 2005, a Functional Abilities Form (FAF) completed by Dr. Chris Boulias, physiatrist, indicated the area of injury to be the right shoulder and right elbow. In a March 22, 2005 progress report, Dr. Kozac described the worker as having ongoing pain/discomfort to her right shoulder and right elbow with a working diagnosis of rotator cuff strain and right lateral epicondylitis. On March 28, 2005 an ultrasound showed no evidence of rotator cuff tendon impingement and moderate tendinopathy of the common extensor tendon without tendon tear. [21] On April 6, 2005, Dr. Boulias reported that while the worker continued to experience pain in the anterior shoulder area with the elevation of her arm, she did not have any pain in the elbow area. [22] As a result of an MRI of the worker s right shoulder on April 28, 2005, Dr. Boulias confirmed that there was a tear of the superior labrum, extending across the superior aspect to the posterior superior aspect from 4 to 5 o clock to the 9 to 10 o clock position. [23] On May 10, Dr. Kozac reported that the worker felt numbness/tingling in the right posterior scapula area and pain in the right shoulder on reaching. He confirmed the diagnosis of labral tear of the right shoulder. [24] In a note of June 19, 2005, Dr. Kozac noted that the worker had right shoulder inflammation and right cervical strain and prescribed therapeutic massage therapy. [25] On July 6, 2006, Dr. Boulias completed a FAF indicating that the worker had a strained right bicep and muscle spasms down the right side, thoracic area and restricted her above shoulder activity. [26] On October 17, 2005, Dr. Erin Boynton, orthopaedic surgeon, reported: She comes today for pain in the right shoulder and paresthesia in the elbow and arm for almost a year. She has a history of minor injury in the right shoulder in September The pain has improved in the last couple of months but is continuous and she takes onetwo pain killer tablets a week. Her cervical spine movements are mildly restricted our impression is that most of her problems are coming from the cervical spine she can go for acupuncture in the neck and rotator cuff and scapular strengthening exercises for the shoulder.

5 Page: 4 Decision No. 2323/09 [27] On January 11, 2006, following the worker s December 2005 accident, Dr. Kozac referred the worker to Dr. Amy Hunter, chiropractor for treatment of cervical strain and right rotator cuff injury. [28] An MRI of the cervical spine taken January 14, 2006 indicated cervical spondylosis with ossification of the posterior longitudinal ligament from C4 to C7. Right severe foraminal stenosis was also noted. [29] On March 23, 2006, Dr. Rob Chase, family physician, who last treated the worker in 1998 for her bilateral upper extremity condition for which she eventually received vocational retraining by the Board, described her initial symptoms from the September 2004 injury as right bicep strain and right sided shoulder girdle and upper back extensor muscle strain. He noted her right shoulder and cervical spine MRI and stated: In the summer of 2005, further massage therapy around the right shoulder and arms improved right shoulder range and reduced symptoms. In December 2005, she had a general setback when she reinjured herself arresting a fall of a patient who went to respiratory arrest. Following this injury symptoms have been largely related to posterior neck and upper shoulders bilaterally, more so on the right side as well as arms and hand tingling. Treatment included chiropractic to the neck, therapeutic ultrasound to the shoulder and exercises including the pool program. She has responded relatively well with improved function My positive findings include: myofascial tenderness and right upper trapezius right subscalaris and pectoralis major bilaterally. She has moderate tenderness bilaterally in the lateral forearms. In the neck she has altered sensation to scratch testing left side C4 to C7 right side C6 to T1 with tenderness over the dorsal spine T1 to T2 there are clinical suggestions of shoulder instability that are consistent with the labral tear found post injury by MRI. Diagnoses of bilateral carpal tunnel syndrome and postural changes in the neck are likely pre-existing but have flared in the symptom level with her two work injuries over the past two years. [30] In a March 30, 2006 report, Dr. Steven Halman, orthopaedic surgeon, described her September 24, 2004 work injury to her arm as a traction injury. He stated that the labral tear was a sudden traction injury which occurred as a result of the work related injury. [31] On April 26, 2006, Dr. Hunter reported that in all likelihood the cervical spondylosis was present previous to her injury in September 2004, but undoubtedly has been exacerbated by her work injuries. She stated that the worker first attended her office on January 19, 2006 complaining of right arm, neck and thoracic pain. She agreed that the worker should not exceed 4.5 hours a day of workload. [32] On June 30, 2006, Dr. Hart Schutz, neurosurgeon, found her neck movements to be normal and stated that her symptoms do not correspond with her MRI. [33] On August 25, 2006, Board Medical Adviser Dr. Grbac considered the existing medical information and stated that the elbow was only identified well after the accident of September 2004 and did not appear to be compatible. Dr. Grbac considered that the medical evidence did not support that a neck (cervical) injury was compatible with the accident history. [34] On May 3, 2007, Dr. Halman reported that the worker s symptoms seemed to have progressed since the last consult with diffuse neck, arm, shoulder, and chest pain.

6 Page: 5 Decision No. 2323/09 [35] An MRI report of the worker s spine of July 14, 2007 showed the worker with multilevel degenerative change most marked at the C5-C6 and C6-C7 levels with new development of faint increased cord signal at the C6 level. [36] On April 2, 2007, Dr. Roland Wong, family physician, provided a report based on the worker s medical documentation. He stated that the worker had several musculoskeletal problems. With respect to the right elbow tenopathy diagnosed through an ultrasound about six months after her injury, he stated that she may have injured her right elbow in addition to her right shoulder. Alternatively, she may have used the right elbow to a greater extent after her right shoulder injury and therefore, increased the amount of strain on her right elbow. He said she likely injured her right elbow as well as a cervical lesion affecting the right side of her neck and upper back likely arising from the same initial attempt to restrain the patient from falling. [37] With respect to her back, he stated that the finding of a higher level lesion, for example, at C5-C6, may be located closer to the neck and upper back, extending into the deltoid area. Although she had pre-existing facet joint arthritis causing severe narrowing of the foramen, she had apparently no problem in her cervical spine prior to the incident. [38] Commencing in late 2007, the worker underwent psychological assessment. Based upon the opinion of a Board Medical Consultant, the Board determined that the worker had no entitlement to Chronic Pain Disability. (vi) Submissions [39] Ms. Snider submitted that Dr. Wong s opinions should be given weight. She observed that Drs. Boulias, Hunter, and the cervical spine MRI revealed the worker to have cervical strain which she regarded as being from the neck down. She submitted that following the accident in December 2005, the worker s neck pain became more pronounced. She submitted that the worker had neck and right elbow problems that were compatible with the nature of the accident. (vii) Analysis (a) Right elbow [40] The worker did not complain of any injury to the right elbow until March 2005, some five or six months post accident, notwithstanding that she saw Dr. Kozac regularly and had massage treatment. Within a few days following an ultrasound on March 28, 2005, which showed moderate tendinopathy of the common extensor tendon without tendon tear, a further report from Dr. Boulias, dated April 6, 2005, indicated that the worker did not have any pain in the elbow area. The worker herself could only point to the inner area of her arm, near her elbow, as an area that bothered her. There was no reference to any injury of her ulnar nerves. There is little reference to medical reporting of any ongoing elbow complaints after April Dr. Grbac did not consider an elbow injury to be compatible with the accident history. [41] Given the lack of medical evidence available of any elbow injury other than in March 2005, or other comments regarding the elbow from her treating physicians, we are unable to give any weight to Dr. Wong s comments as to how she may have injured her right elbow. Given the lateness of the initial complaint and the sparsity of evidence relating specifically to the

7 Page: 6 Decision No. 2323/09 worker s right elbow, we find there to be insufficient proof that the elbow was injured at the time of the accident. (b) Neck symptoms [42] There was no reference to any neck problem until Dr. Kozac submitted a note on June 19, 2005, some nine months post accident, indicating that the worker needed therapeutic massage therapy for right cervical strain. Dr. Schutz reported that her symptoms did not correspond with her MRI. The MRI report of the worker s spine and comments from Drs. Hunter and Chase indicated that a neck problem existed prior to the accident. The description how the work accident of September 14, 2004 occurred does not suggest that the worker then suffered a neck injury. Again, Dr. Wong seems to be alone in his diagnosis and his comments appear to be speculative. [43] The worker s description of the December 2005 accident indicated that she suffered a certain amount of whiplash injury across her shoulders and the back of her neck. These injury symptoms were recognized by Dr. Chase on March 23, He stated that the worker had responded relatively well and with improved function as a result of therapy. Given that the neck symptoms were not mentioned in any medical reports until nine months after the date of the accident, and received little mention thereafter, we find that the evidence to be insufficient to establish that the worker s neck was injured at the time of the September 2004 accident. [44] Ms. Snider made reference to certain Tribunal decisions that she considered to be supportive of her submissions. We found these decisions to be very fact specific and not of assistance to the circumstances of this particular case.

8 Page: 7 Decision No. 2323/09 DISPOSITION [45] The appeal is denied. DATED: December 17, 2009 SIGNED: M. M. Cohen, B. Wheeler, M. Ferrari