WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2002 ONWSIAT 1155 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 654/02 [1] This appeal was heard in Windsor on May 1, 2002 by Tribunal Vice-Chair A.V.G. Silipo. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer Ms. Brenda Patlik, (the ARO) dated April 14, That decision concluded that the worker was not entitled to either benefits for a nodule in his neck or loss of earnings benefits beyond September 17, 1998 arising from a compensable accident that he sustained on January 23, [3] The worker appeared and was represented by Mr. David Wylupek, Barrister and Solicitor. The accident employer was notified but chose not to attend. [4] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. However, pursuant to section 102 of the WSIA, the Workers' Compensation Act continues to apply to pre-1998 injuries. Thus the pre-1997 Act applies in this appeal, as amended by the WSIA. Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and I have considered these policies as necessary in deciding this appeal. THE RECORD [5] I considered the following materials: Exhibit #1: the Case Record; Exhibit #2: Addendum No. 1; and Exhibit #3: the Hearing Ready Letter. [6] I also heard and considered the worker s testimony as well as Mr. Wylupek s submissions. THE ISSUES [7] I have to determine whether, as a result of a compensable accident on January 23, 1997, the worker is entitled to benefits for: a nodule in his neck; benefits beyond September 17, [8] The worker s solicitor requested that I also consider the worker s entitlement to a permanent impairment. Since I find that the ARO decision denying loss of earnings benefits beyond

2 Page: 2 Decision No. 654/02 September 17, 1998 implicitly denied both ongoing entitlement and any permanent impairment benefits, I am satisfied that I have jurisdiction to consider those entitlements. THE REASONS (i) Background [9] The worker, who was born in Poland and came to Canada in 1985, was employed as a truck driver with the accident employer since 1994 driving a 12 foot cube van. His prior work had also been as a truck driver. [10] On January 23, 1997 he was involved in a work-related motor vehicle accident in which the truck flipped over. He was diagnosed with soft tissue injury, whiplash injury, soft tissue injury left chest and left shoulder, minor head injury. He underwent conservative treatment. [11] The Board accepted entitlement for the worker s neck injury and paid the worker full temporary benefits until September 17, 1998 at which time it considered that his injury had resolved. In June 1998 the Board also concluded that a nodule that was present in the worker s neck was not work-related. [12] The worker testified that prior to the injury he had no neck pain, and no nodule or mass in his neck, was in perfect health and had not missed even one day of work. [13] The worker stated that since the accident he has had pain in the left side of his neck radiating down to the middle of his back which he describes as 6 to 8 on a scale of 1 to 10. He indicated that the pain in not as strong in the morning but gets worse during the day. The pain is not as severe if he is watching TV but worsens with activity. He has had therapy, most recently in August 2001, but it has not helped his condition. He does exercises and applies a hot towel to the neck. The worker testified that the nodule in his neck is visible at times and no doctor had ever indicated to him that it was cancerous. [14] The worker testified that he returned to his pre-accident job in the fall of 1998 but had to stop working again after a few weeks because of the pain in his neck. He stayed off work until April 1999 and then resumed his pre-accident job. He left work in January 2000 as he could not continue due to the pain. He has not worked since. (ii) The Medical Information [15] On April 16, 1997 Dr. Durnin, a specialist in physical medicine and rehabilitation, first assessed the worker and reported: His neck pain is felt behind the ear. He describes it as a squeezing loosening sensation somewhat like throbbing but not really related to his heart beat. The pain may then go down the left side of the neck to the trapezius area. The pain is intermittent but more frequent. He complains of a tired sensation in the neck but there are no neurological symptoms. He may have associated frontal headaches. He also tells about two or three times a day he gets light headed. This may come on if he is extending his head at times and at other times if he is bent down to tie his shoe laces. There may be also short periods of confusion. The patient denies however having a concussion at the time of the accident. His neck pain seems to be brought on or aggravated by a quick turn. As noted

3 Page: 3 Decision No. 654/02 a deep breath may aggravate his pain and he does have increased discomfort with prolonged sitting but generally speaking the pain seems to come on spontaneously. He gets relief with Advil and lying down and he feels better first thing in the morning.... On examination of his neck he has about half rotation to the right with pain felt at the upper part of the neck. Rotation to the left is also somewhat limited but not painful He does show a somewhat enlarged occipital protruberance but this is a normal variant. He does apparently have a fair amount of suboccipital tenderness and tenderness in the upper facets on the left side It appears, I think, that this gentleman has had an injury to the upper part of the neck. [16] On April 24, 1997 Dr. Durnin reassessed the worker and reported: Today he pointed out a nodule in the left upper part of his neck. I had not noticed this before but when I put my finger on it, it certainly felt like a rounded nodule. It does not quite feel like a muscle spasm. This area is tender as well as his upper facets. I am not sure what this nodule is. It seems to be mobile. I cannot see it being traumatic but I suppose that it is always a possibility. I still think he probably has some upper facet injury and I will try and get some blocks with that and I have asked for ultrasound studies to see if this nodule can be defined and see if it has any significance. [17] An ultrasound of the worker s neck done on May 9, 1997 showed a 1.6 x.6 cm mass within the subcutaneous tissue consistent with a small lymph node. [18] On May 20, 1997 Dr. Durnin noted the ultrasound report and stated that: lymph nodes should not be tender and the patient reports this seems to vary in size. Unfortunately the only way of knowing what this is for sure is to do a biopsy and he is not willing to have a biopsy. [19] On June 12, 1997 neurosurgeon Dr. Anita G.E. North of the Hotel-Dieu Grace Hospital in Windsor assessed the worker and reported: My clinical impression is that [the worker] has sustained a soft tissue injury to his cervical spine but there is certainly no surgical intervention that would be warranted, and I would not recommend any further intervention. [20] On May 27, 1997 the worker was assessed at the Board s Acute Injuries Rehabilitation and Evaluation Centre. Dr. S. Bartol reported that on examination the worker had some tenderness over the upper left trapezius muscle and range of motion of the neck was reduced to 60% of normal. His prognosis was that the worker would make a full recovery over the following few months. He recommended restrictions during that time and a graduated return to work program. [21] On April 2, 1998 Dr. North reported that at the time of her initial assessment: [H]e had significant diffuse musculoskeletal pain but as time has progressed his pain has become localized to a specific area at the base of his skull. Today, [the worker] points to an area that is approximately 3 cm in size and is along the border of the trapezius muscle as it inserts onto the occiput. There is a palpable lesion just in the subcutaneous tissues and with palpation it is quite painful. Similarly, if he lies on this area, he can feel the discomfort.

4 Page: 4 Decision No. 654/02 [The worker] reassures me that he does not think that this lump is increasing in size but it has certainly become more localized over the last several months. The MRI scan shows a high intensity lesion that appears to be in the muscle layer and could represent hemangioma according to his MRI report. [22] On May 9, 1998 otolaryngologist Dr. H.B. Lampe of the St. Joseph s Health Centre responded to an enquiry from a Board Claims Adjudicator regarding his assessment of the worker on March 9 and 31, 1998: I am unable to relate the history I obtained from the patient or the clinical findings or the differential diagnosis to any Workers Compensation related problem. [23] On September 24, 1998 Dr. Durnin reassessed the worker and reported: On direct examination of his neck he has some limitation by about 20 degrees of rotation to the left with pain felt mainly on the right side of the neck. Cervical compression test is only slightly positive on the left. On direct palpation there does seem to be some discomfort with pressure on the spinous processes and paraspinal area around the C6 level. There was no upper trapezius discomfort. He does have some occipital tenderness but no sensory change over the occiput. It appears this man has two problems. The first appears probably related to some degenerative disc changes in his neck. The other appears related to what sounds like neuralgia or neuritis. It is the same sort of thing when one gets a tick dolorosa or a clausteropharangeal neuralgia. He still has that nodule in the mid part of the neck but it does not seem to have grown. It is however still tender. [24] On October 2, 1998 Dr. Durnin reported: He is having some sort of confrontation with the WSIB who is ascribing all his neck pain to the tender nodule in his neck which would not be related to his accident. However I do not think that this is of much pertinence in his neck problems. The occipital pain is higher than the nodule and he does have pain in the paraspinal area with pressure on the spinous processes. However his most recent X-ray is negative. He still has discomfort and it certainly can be possible that he had some small joint injury in the upper neck and some disc injury as well. However there is no evidence of any nerve root damage and no indication for further imaging studies. [25] On October 7, 1998 Dr. Lampe again wrote to the Claims Adjudicator: This is in response to a meeting I had with [the worker] today at his request. There seems to have been a misunderstanding about my assessment of [the worker]. I would like to make it clear that when [the worker] was referred to me in February 1998, he was referred specifically for comment on a lesion that was found at the time of an MRI scan. I was not asked to assess him regarding a Worker s Compensation claim. I do not have any expertise in musculoskeletal lesions arising following injuries, and I would not have ventured to assess a patient for that. [The worker] was eventually was investigated and I reviewed the MRI as I dictated in my letter to you. It was the opinion of the expert who reviewed it that this represented either a hemangioma or lymphangioma. This lesion is likely congenital and has been present for many years. I cannot comment as I have no way of knowing whether this lesion was somehow injured and is contributing to his problem following the accident. The patient is quite emphatic that he did not have pain prior to the accident and clearly, in his mind, the pain he has developed postdates the accident.

5 Page: 5 Decision No. 654/02 I think I must date clearly that I do not believe the lesion found on the MRI is directly related to the accident but I cannot rule out the possibility that the accident contributed to some damage to this likely previously present lesion. I hope this is some help to you in clarifying this unfortunate gentleman's ongoing problems. [26] On October 16, 1998 Dr. North reviewed the worker and reported: My clinical impression is that we are very likely dealing with a post traumatic lesion that is due to direct injury to the muscle when this gentleman rolled his transport. Post traumatic fibromas and lipomas can quite commonly occur in injured muscle. This gentleman did not have this lesion prior to his accident and it only appeared after his injury. I do not agree with the assessment to date that it is not related to his accident and in any event it was not symptomatic until he sustained a flexion-extension injury to his cervical spine. If one reviews his past contact with the medical profession, he did not have a history of chronic neck pain. At this time [the worker] is going to return to work despite his significant discomfort because all of his benefits have been discontinued. [27] On January 14, 1999 Dr. Abe Reinhardz of the Occupational Health Clinics for Ontario Workers Inc. reported: The worker as had this intractable left sided neck pain and this could be due to a variety of factors. I wonder whether or not he may have had a subtle compression fracture at the time of the injury. He may have some segmental instability there. The pain may also be myofascial in nature and secondary to occipital entrapment. The lump in the left side of the neck I think might represent an old hematoma which has resolved and this is why it would appear like a lymph node. [28] On February 8, 1999 neurologist Dr. G. R. Ganapathy assessed the worker and reported: Clinical Impression: This 42 years gentleman has localized swelling at the posterior aspect of the left side of the neck with mild tenderness. The exact nature of this swelling is not known. He however does not have any clinical evidences of any neurological deficits. I had detailed discussions with him and suggested that no medication will have to reduce the swelling in the neck or relieve such a pain. In case the pain and local tenderness persists interfering with his daily life, the only best approach would be to have it surgically removed. It would help to identify the etiology and also to produce a permanent cure. [29] On March 1, 1999 Dr. Abe Reinhardz reported: The worker has regional myofascial pain syndrome affecting the paracervical muscles of the cervical spine. This is all secondary to the motor vehicle accident which he sustained. (iii) The Vice Chair s Reasoning [30] The Tribunal s Medical Liaison Office reviewed the Case Record and recommended that a neurosurgeon with an interest in trauma be asked to review the case materials and provide further information as to the nature and aetiology of the worker s neck mass. [31] The worker s solicitor submits that the worker s accident either caused the nodule or neck mass in his neck or it aggravated and rendered symptomatic a pre-existing and previously asymptomatic condition. Mr. Wylupek argues that in either circumstance the worker has

6 Page: 6 Decision No. 654/02 entitlement for the consequences of that injury and therefore it is not necessary to refer the matter to an assessor. [32] Having assessed the evidence, I have arrived at the conclusion that a referral to a medical assessor is not necessary. There are in the case materials opinions from three specialists: a neurosurgeon (Dr. North), a specialist in physical medicine and rehabilitation (Dr. Lampe) and an otolaryngologist (Dr. Durnin). Those opinions offer as thorough a canvassing of the medical opinions on this issue as I am likely to get. Moreover, as Mr. Wylupek has pointed out, I do not necessarily have to find that the worker s accident caused the nodule in his neck in order to allow the worker entitlement. Therefore any further expert medical opinion with respect to the nature and aetiology of the worker s neck mass is not essential to my ability to adjudicate this matter. [33] The ARO denied the worker entitlement on the basis of her conclusion that: Overall, I find myself agreeing with the Board s Adjudicator and the Board medical advisors and for that matter the majority of the attending physicians. The preponderance of medical evidence points to the nodule being non-work accident related. [34] In my view, the ARO misinterpreted the medical evidence. As I read it, the preponderance of medical evidence does not rule out a connection between the worker s nodule and his work-related accident. This is particularly true when one considers entitlement on an aggravation basis, which the ARO, it appears, did not consider. [35] The opinions from the three specialists who assessed and/or treated the worker are certainly varied. Of the three, Dr. North, in her October 1998 report, provides the strongest opinion that the worker s accident caused the nodule to develop, categorizing it as a post traumatic lesion that is due to direct injury to the muscle when this gentleman rolled his transport. Dr. North also points out that, in any event, the worker s lesion was not symptomatic until he sustained the injury to his cervical spine. On the other hand, Dr. Durnin, who was the first specialist to report the nodule, in April 1997, offers the clearest opinion that it is not traumatic, or accident-related, but even he adds that it is always a possibility. In his subsequent reports of September and October 1998 Dr. Durnin reiterates his view that the worker s nodule is not related to his accident but also indicates that the worker s neck pain exists independently of the nodule and may be caused by both degenerative changes and some disc injury. Finally, Dr. Lampe, in his October 1998 report, indicates that the worker s nodule was not caused by the accident but was likely congenital and has been present for many years prior. He also points out that he cannot rule out the possibility that the accident contributed to some damage of that previously present lesion. [36] Even with their various opinions, there is a common thread that weaves through the opinions of the three specialists. They all support the worker s contention that prior to the accident he had no indication of any muscle mass or any neck problems. None off the medical information provides a clear alternative diagnosis or possible cause of the worker s nodule that is unrelated to the accident, except to some extent Dr. Durnin with his reference to degenerative changes. All of the opinions indicate that the worker s injury at a minimum aggravated the worker s pre-existing condition. The medical information also clearly shows that the worker s neck problems have continued well past September 1998 when the Board cut off benefits and indeed, have continued to date.

7 Page: 7 Decision No. 654/02 [37] Based on the medical information I cannot say with sufficient certainty that the worker s accident caused the nodule or mass in his neck. I accept the worker s testimony, confirmed by the medical information, that he was not aware of any nodule nor had any neck problems prior to the accident. The preponderance of the medical evidence therefore supports the conclusion that the worker s muscle condition was present but not symptomatic prior to the accident and that the worker s accident aggravated that pre-existing condition, rendering it symptomatic. I also accept that the worker s aggravation has persisted to date and so can and should be considered to be a permanent aggravation of a pre-existing condition. [38] Consequently, the worker is entitled to benefits beyond September In particular he is entitled to temporary disability benefits and to an assessment of future economic loss (FEL) benefits as well as to a non-economic loss (NEL) assessment. Since the evidence in the hearing before me focused on entitlement, I did not hear sufficiently detailed evidence regarding the nature and extent of the worker s condition and his ability to work beyond September Therefore I leave the determination of the exact nature of those benefits to the Board, as it will be able to obtain the details of the worker s employment and other activities after September That determination will include the worker s entitlement to temporary disability benefits and FEL benefits as well as the establishment of the date of the worker s maximum medical rehabilitation and consequent NEL assessment. In addition, it is obvious that the worker requires assistance in returning to work and I direct the Board to provide the worker with labour market re-entry (LMR) services, beginning with an LMR assessment to determine what work he may be capable of doing. THE DECISION [39] The appeal is allowed. [40] The worker s accident did not cause the nodule or mass in his neck. However, the worker s accident permanently aggravated a pre-existing condition in his neck. [41] The worker is entitled to benefits beyond September The Board is directed to: determine the worker s MMR date and carry out a NEL assessment; determine the worker s entitlement to temporary disability benefits and FEL benefits; provide the worker with LMR services, beginning with an LMR assessment, in order to determine what work he may be capable of doing and to assist the worker in returning to suitable work. DATED: May 14, 2002 SIGNED: A.V.G. Silipo

8 2002 ONWSIAT 1155