* WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 84/07

Transcription

1 * WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 84/07 BEFORE: A. Suissa: Vice-Chair HEARING: January 12, 2007 at Toronto Written DATE OF DECISION: January 12, 2007 NEUTRAL CITATION: 2007 ONWSIAT 90 DECISION(S) UNDER APPEAL: Appeals Resolution Officer, S. van Veen, dated March 15, 2006 APPEARANCES: For the worker: For the employer: Mr. C. Topple, Consultant Not participating 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. 84/07 REASONS (i) Introduction [1] The worker appeals from the decision of the Appeals Resolution Officer ( ARO ) dated March 15, That decision concluded that the worker was not entitled to a non-economic loss ( NEL ) redetermination. The worker also appeals from the subsequent Board decision dated June 26, 2006, following the submission of further medical evidence by the worker s representative. That decision confirmed the ARO s earlier ruling that the worker was not entitled to a NEL redetermination. (ii) Background [2] The worker is currently 76 years of age and was previously employed as a construction labourer for approximately thirty years. On June 19, 1990, while carrying two heavy extension cords, the worker struck his right elbow against some metal scaffolding. The worker s claim was approved for right lateral epicondylitis. The worker was treated conservatively, which included a referral for physiotherapy. [3] The worker s claim for initial entitlement for a neck injury was denied by the Board on the basis that there was no causal connection between the worker s compensable neck injury and the accident history. This was confirmed in the decision of the Hearings Officer dated February 1, [4] As the worker right elbow injury had not reached maximum recovery, he underwent a permanent impairment assessment on September 15, 1992, for which he was granted a NEL award of 8% for his residual right elbow impairment, or more specifically, right lateral epicondylitis. The worker s request for a NEL redetermination was initially denied by the Board on April 9, This denial was subsequently confirmed on August 17, 2005, following the Board s consideration of additional medical evidence submitted on behalf of the worker. [5] Pursuant to the ARO s decision of March 15, 2006, the worker s request for a NEL redetermination was also denied. That decision was subsequently confirmed by the Board on June 26, 2006, following the submission of further medical evidence by the worker s representative. The worker now appeals from these decisions to the Tribunal. (iii) Issue [6] The issue to be determined in this appeal is whether the worker is entitled to a redetermination of his NEL award. (iv) The medical evidence [7] The worker attended for a NEL assessment for his right elbow injury on September 15, 1992, conducted by Dr. J.T. Brown. The diagnosis was right lateral epicondylitis. In his assessment, in addition to reports of pain, Dr. Brown noted significant reduction in extension and supination relating to the range of motion of the worker s right elbow. [8] In a subsequent consultation report only two weeks later on September 29, 1992, prepared by Dr. W. Silecky, rheumatologist, the assessment was primarily focused on the

3 Page: 2 Decision No. 84/07 worker s non-compensable neck condition. Dr. Silecky reviews the worker s neck-related complaints, which he attributes to the cervical traction that the worker received as part of his physiotherapy treatment for his right elbow injury. As a result of the worker s neck impairment, Dr. Silecky noted the worker s reports of neck and right arm pain, along with right-sided headaches. There was little reference to the worker s compensable right elbow impairment, and minimal investigative findings respecting this injury. [9] The report by the worker s family physician, Dr. J. Barrettara, dated February 3, 1993, was directed to the Board s claim adjudicator in response to the denial of the worker s request for a permanent assessment to his neck impairment. Dr. Barrettara detailed the worker s neck-related complaints, including pain radiating to the mid-back, and right arm pain radiating to the right wrist. As a result of these symptoms, the worker experienced ongoing headaches and problems sleeping. Dr. Barrettara s report also did not contain findings in respect of any detailed examination of the worker s right elbow injury. [10] In a subsequent assessment by Dr. Y.J. Park, physical medicine and rehabilitation specialist, dated December 29, 1993, an updated assessment of the worker s right arm and neck impairments was provided. As noted in Dr. Park s consultation report, the worker continued to report persistent pain in his neck and right arm. Dr. Park s examination revealed reduced range of motion to the worker s neck and right shoulder. There was no reference to the worker s compensable right elbow impairment in this report, other than reference to the prior treatment received, which consisted of a cast and cortisone injections. Dr. Park also suggested that the worker s injury incurred three years earlier resulted in the worker s current neck and right upper extremity problems. [11] In two further reports directed to the Board by Dr. Barrettara, dated January 13, 1995, and October 21, 1996, the worker s ongoing neck, right upper extremity and right wrist impairments were reviewed. These reports however, failed to provide any investigative findings as to the worker s compensable right elbow condition, other than in the report of January 13, 1995, in which Dr. Barrettara stated the worker also has a chronic tendonitis involving the right extensor area of the elbow. [12] The worker was subsequently assessed on two occasions by Dr. S. Kesmarky, orthopaedic surgeon, as noted in the consultation reports dated November 28, 1996 and January 2, As to Dr. Kesmarky s assessment of the worker s right elbow injury, she indicted that there was tenderness in the right elbow and increasing pain when gripping. However, Dr. Kesmarky also indicated that the right elbow demonstrated normal range of movement. Dr. Kesmarky s treatment recommendations for this compensable injury consisted of a repeat corticosteroid injection to the worker s right elbow area, in addition to Amitriptyline medication. In her subsequent assessment on December 19, 1996, as reviewed in the report dated January 2, 1997, Dr. Kesmarky noted no change to the worker s neck and elbow problems since his prior visit. Although x-ray results reviewed from November 29, 1990 demonstrated normal findings, Dr. Kesmarky noted a small ossicle medially at trochleoulnar joint. [13] The worker subsequently attended for assessment by Dr. M.C. Mason, physical medicine and rehabilitation specialist, on April 21 and June 11, Dr. Mason s examination on April 21, 1997 was primarily focused on the worker s non-compensable neck and right arm

4 Page: 3 Decision No. 84/07 problems. However, Dr. Mason s examination did include a review of the worker s right elbow impairment, in which Dr. Mason stated the following: The pain is rather diffusely in the neck, but particularly on the right side. He has pain in and around the right shoulder particularly with movements. He has pain on both sides of the elbow, and in fact today indicated the medial elbow most often. [14] In his report dated June 11, 1997, Dr. Mason s reference to the worker s compensable right elbow impairment was limited to reporting the worker s complaints of pain to that area. As this examination was also primarily focused on the worker s non-compensable neck and right arm impairments, no investigative findings were noted to the worker s right elbow injury. Dr. Mason also considered the results from recent nerve conduction and electromyography ( EMG ) testing, which indicated evidence of entrapment to the right median nerve at the wrist, suggesting carpal tunnel syndrome. [15] In Dr. Barrettara s latest report to the Board dated August 1, 2005, he maintained that the worker continued to complain of pain and numbness involving the right upper extremity starting from the neck involving the right elbow and down the forearm to the hand. However, in reviewing the scope of his examination, it was limited to an assessment of the worker s non-compensable neck and right upper extremity impairment. [16] In a recent examination by Dr. A. Newall, physical medicine and rehabilitation specialist, undertaken on May 3, 2006, he stated that the worker had been referred to him for evaluation of right-sided neck and hand pain. Dr. Newall reported however, that the worker complained of constant pain in his right elbow, associated with neck, arm and hand pain. Based on Dr. Newall s review of the results from the latest nerve conduction and EMG studies, he provided the following opinion: There was no evidence of radiculopathy. Indeed, [the worker] showed remarkable development of his muscles on physical examination, indicative of regular exercise. This was not reflected in his efforts during the physical exam. He denies any paraesthesia, but has a moderate sensory motor CTS and a moderate ulnar neuropathy at the right elbow. These do not appear to be symptomatic, and certainly given this, can be followed clinically. His main complaints seem to be at the elbow, where he has chronic pain from a previous fracture. (v) Analysis [17] The workplace accident that is the subject of this appeal occurred in June Accordingly, the worker s entitlement to benefits in this appeal is governed by the pre-1997 Workers Compensation Act. The relevant Board policy with respect to the redetermination of NEL awards is contained in Operational Policy Manual (OPM) Document No [18] This policy provides the following: The WSIB may consider a worker's request for a redetermination of his/her existing non-economic loss (NEL) benefit provided that the worker's degree of permanent impairment was previously determined to be greater than zero the worker's condition has deteriorated significantly since the last NEL medical assessment, and

5 Page: 4 Decision No. 84/07 12 months have passed since the worker's last NEL decision. The guidelines contained in this policy define significant deterioration as follows: A "significant deterioration" is a permanent worsening of the work-related medical condition occurring after the most recent NEL medical assessment. The significant deterioration must be demonstrated by a substantial change in medical findings. [19] In the present case, for the worker to be entitled to a redetermination of his NEL rating, the worker s compensable condition must be shown to have significantly deteriorated since his NEL assessment in September Any such deterioration must be supported by a substantial change in medical findings. Having carefully reviewed the entire medical and other evidence submitted in this appeal, including the relevant provisions of the applicable Board policy referred to above, it is my view that the worker is not entitled to a NEL redetermination, for the reasons set out below. [20] Since the worker s NEL assessment in September 1992, he has been attended to by numerous medical specialists and his family physician, Dr. Barrettara. In my consideration of the medical evidence, I note that the predominant focus of the medical investigations was in respect of the worker s neck and right arm impairments, which were determined to be non-compensable, as set out in the Appeal Officer s decision, dated February 1, I find that there are not only very few findings as to the worker s compensable right elbow injury, but also that they do not demonstrate a significant deterioration of that condition. [21] As to the medical evidence pertaining to the worker s right elbow injury, I have considered the investigations conducted by Dr. Kesmarky and Dr. Mason, the findings of whom have been reviewed earlier in this decision. In particular, with respect to the worker s range of movement in his right elbow, Dr. Kesmarky s findings in her report dated November 28, 1996, indicated that there was normal range of motion. Similarly, Dr. Mason stated the following in his report dated April 21, 1997: He was hesitant and inhibited in movements around the right elbow, but I was able to obtain almost full flexion and extension, supination and pronation. [22] In my view, not only do these findings fail to demonstrate a permanent worsening of the worker s compensable right elbow condition, but they in fact suggest an improvement in the worker s range of movement in his right elbow. When compared with the findings from Dr. Brown s NEL assessment in September 1992, in which he noted a significant reduction of extension and flexion, the findings by Dr. Kesmarsky and Dr. Mason do not support a significant deterioration, if any, in that regard. Dr. Kesmarky s review of the x-ray results from November 29, 1990, also does not demonstrate a permanent worsening. The results from these x-rays relate to a period prior to the NEL assessment, and which had already been considered at the time of the worker s assessment at the Regional Evaluation Centre ( REC ) in May [23] As well, while Dr. Kesmarky notes increased pain to right elbow while gripping, the worker s reports of pain, in my view, are largely subjective in nature and do not demonstrate a significant deterioration from the NEL rating in September It should be noted that the REC assessment in May 1991 had also noted reduced grip strength. Dr. Mason indicated on April 21, 1997, that the worker had reported pain on both sides of the elbow, with pain most often in the medial part of the elbow. Since the diagnosis provided of the worker s compensable

6 Page: 5 Decision No. 84/07 injury was that of right lateral epicondylitis, in my view, the worker complaints of pain to the medial portion of the right elbow are attributable to non-compensable medical conditions. [24] In Dr. Mason s report of June 11, 1997, he reviews on the neurological findings obtained from the nerve conduction and EMG testing. Although results from these diagnostic tests suggested findings of general peripheral neuropathy, it was Dr. Mason s view that these findings were likely secondary to the worker s non-compensable diabetic condition. As well, Dr. Mason reported that delay in motor and sensory latencies for the right median nerve was due in part to carpal tunnel syndrome, which in my view, are attributable to the worker s non-compensable neck and related impairments. The balance of Dr. Mason s findings in his latest report, as well as the subsequent reports of Dr. Barrettara contained in the Case Record, also relate almost exclusively to the worker s non-compensable conditions, with little reference to the worker s right elbow injury. [25] More recently, in Dr. Newall s report dated May 2, 2006, having reviewed the results from nerve conduction and EMG testing undertaken a month earlier, Dr. Newall was unable to find any evidence of cervical radiculopathy. As well, Dr. Newall indicated that the worker demonstrated only moderate carpal tunnel syndrome and moderate ulnar neuropathy at the right elbow, both of which, in his opinion, were asymptomatic. Although Dr. Newall stated that the worker s main problem was chronic pain attributable to his elbow injury, I find that these complaints, as addressed earlier, are predominantly subjective in nature and are not supported by medical findings to indicate a permanent worsening. [26] For all of the above reasons, I am of the view that the worker has failed to demonstrate that he has sustained a significant deterioration of his right elbow injury since his initial NEL assessment in September In coming to this conclusion, I have considered all of the medical and other evidence submitted in this appeal, although note that the medical evidence predominantly relates to the worker s various non-compensable conditions. [27] Accordingly, I conclude that the worker is not entitled to a NEL redetermination.

7 Page: 6 Decision No. 84/07 DISPOSITION [28] The appeal is denied. DATED: January 12, 2007 SIGNED: A. Suissa