SUMMARY DECISION NO. 2144/98. Permanent impairment [NEL]; Medical assessments (cooperation).

Transcription

1 SUMMARY DECISION NO. 2144/98 Permanent impairment [NEL]; Medical assessments (cooperation). The worker appealed a decision of the Appeals Officer denying a permanent impairment award for a shoulder condition resulting from repetitive strain. In Decision No. 2144/98I, the Vice-Chair determined that she required additional medical evidence as to the worker's condition. She directed the Medical Liaison Office to arrange for dynamic testing. The worker underwent the testing but it was a failure because the worker did not cooperate in the testing. In the circumstances, the only decision the Vice-Chair could reach was that, on the available evidence, the worker did not have a permanent impairment. The appeal was dismissed. [9 pages] DECIDED BY: Alexander DATE: 20/03/2000 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: Decision No. 826/94 (1995), 36 W.C.A.T.R. 102 consd; Decision No. 226/95 (1995), 35 W.C.A.T.R. 221 consd CROSS-REFERENCE: Decision No. 2144/98I

2 2000 ONWSIAT 696 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2144/98 [1] This appeal was heard in Toronto December 29, 1998, by Tribunal Vice-Chair J.A. Alexander. The post-hearing process was completed on February 15, THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Officer V. Escobar, dated April 22, That decision concluded that, although the worker had developed a disability that could be dated from November 14, 1991, she had recovered from her injuries by January 9, Consequently, she was not entitled to an assessment for either a Non-Economic or a Future Economic Loss award or for further benefits after that date. The same decision denied the employer s request for an increase in SIEF cost relief from 50% to 90%. [3] The worker attended the hearing with her representative, Ms. Z. Robinson of the United Food and Commercial Workers Union, Local 1000A. The employer was notified of the appeal but elected not to attend. [4] After the hearing, an interim decision (Decision No. 2144/98I (June 9, 1999)) was released, asking the Medical Liaison Office (MLO) at the Tribunal to arrange for dynamic testing and for the worker to be seen by a Tribunal assessor. The Tribunal Counsel Office circulated the report of the assessor, Dr. George Rado to the parties and the Vice-Chair. Ms. C. Chenier, also of the United Food and Commercial Workers Union, prepared the final report from the representative. At that time, I had all the information I needed to render a final decision. THE EVIDENCE [5] The interim decision contains a description of the material provided at the time of the first hearing, including Post-Hearing Addendum #1. On February 15, 2000, TCO included Dr. Rado s report, final submissions of the worker s representative, and other correspondence in Post-Hearing Addendum #2. THE ISSUES [6] The only issue considered in this decision is whether the worker has suffered a permanent impairment in her shoulders resulting from repetitive strain. The worker s disability dates from November 14, 1991, the date that the Appeals Officer set for the onset of the worker s condition. The worker is seeking continuing benefits after January 9, The Board awarded her temporary benefits between March 1994 and January [7] In January 1995, the worker returned to modified work. In January 1997, the worker claimed a recurrence of her disability. By this time, the worker s physician had diagnosed fibromyalgia, which she concluded had developed from the worker s repetitive strain injury. A Claims Adjudicator concluded,

3 Page: 2 Decision No. 2144/98 on the strength of a Board medical consultant s opinion, that fibromyalgia was more consistent with the worker s pre-existing conditions and her DDD than with her work. The interim decision reserved finding whether the job as a meat packer had simply aggravated the worker s symptoms from her DDD or caused a permanent impairment. THE REASONS [8] The worker s background and other issues are reviewed in the interim decision. The Board allowed the worker entitlement to temporary benefits until January It concluded that she had suffered no permanent impairment from her workplace accident and terminated benefits at that time. Nevertheless, the worker relates her continuing pain and repetitive strain to her compensable injury. [9] As the interim decision sets out, I asked for dynamic testing to be done to determine whether the worker s repetitive strain injury interfered with the functional use of her upper body. The interim decision also concluded that, despite the worker s diagnosed DDD, her job as a meat packer made a significant contribution to her shoulder and cervical repetitive strain injury. Given the diagnosis of DDD, the job might merely have aggravated an underlying condition. In September 1994, the employer provided the worker with modified work, modified both in the required duties and the hours, until January In 1997, the worker stopped working claiming increased pain and an inability to perform even modified work. [10] Finally, the interim decision found that the worker s headaches, dizziness and other complaints did not arise, on a balance of probabilities, from her job. The worker s complaints of headaches and dizziness appeared before the accident date of There was indication of problems even before The decision then asked for a medical assessment on whether the worker had suffered a permanent impairment from her repetitive strain condition, or just an aggravation of her pre-existing condition. This decision concerns only the results of that testing and the representative s final comments. (i) The report of Dr. Rado [11] The Tribunal appointed Dr. George Rado, a physiatrist, to assess the worker. Dr. Rado trained at the University of Paris, served his internship at Mount Sinai Hospital, Toronto, and his residency in physiatry at the University of Toronto. In addition to his medical training, Dr. Rado holds a BA in psychology. He has been a specialist in Physical Medicine and Rehabilitation and a member of the Medical Staff of Providence Centre since He has consulted with numerous agencies, including the Rehabilitation Unit of Providence Centre, the Board s Regional Evaluation Centre at York-Finch Hospital, the CPP disability plan and the Tribunal. Dr. Rado s academic interests include the application of computers in medical practice, quality assurance in the Rehabilitation Unit and in physical medicine and rehabilitation, peripheral nerve compression in a rehabilitation setting and the translation of medical articles from French to English. [12] Dr. Rado summarized the worker s history and provided a report on her physical examination. He found that the worker reported a wide array of symptoms, none of which appeared to have improved since she stopped working. In fact, he suspected that some had worsened. [13] Dr. Rado noted a marked reduction in the range of movement of the cervical and lumbar spine, the shoulders, straight leg raising from a supine position, and hip and knee flexion, on both sides. He

4 Page: 3 Decision No. 2144/98 found inconsistencies on examination, which suggested that the ranges demonstrated did not accurately reflect the worker s actual and consistent outer ranges of movement. For example, the demonstrated hip flexion was incompatible with her ability to sit normally in a chair and on the side of the examination table. Straight leg raising was inconsistent, and Dr. Rado noticed no evidence of nerve root tension phenomena. [14] Dr. Rado warned that reduction in the ranges of movement could be related to soft tissue tightness resulting from decreased activity and a lack of sufficiently consistent and intensive stretching. He also felt that the use of the cervical collar, the right-shoulder wrap and the carpal tunnel splint that the worker had with her could tend to reduce movement and to focus the worker on her symptoms. [15] The worker demonstrated decreased strength in the neck and the extremities that was inconsistent with her well-preserved muscle bulk. Upper extremity strength, as demonstrated, would not be compatible with ADL independence and with her noted capacities during the examination. Lower extremity strength, as demonstrated, would not be compatible with her noted ability to undertake transitional activities and to walk normally. [16] Dr. Rado concluded that pain apprehension and pain avoidance behaviour were modulating the worker s demonstrated motion and strength. Nevertheless, he found evidence suggestive of median nerve compression at the wrists (carpal tunnel syndrome) and of ulnar nerve sensitivity to pressure at the ulnar grooves bilaterally. The former had been confirmed electrodiagnostically four years earlier. In his opinion, the worker s splint on her right hand could aggravate median nerve compression because of its tightness and its positioning, and because of the pressure applied by the splint s metal bar. It could also cause swelling of the hand and fingers by restricting venous return and might encourage decreased use of the hand. This in turn could result in abnormal use of the right shoulder, which in turn could result in abnormal shoulder girdle mechanics and perpetuate the worker s shoulder and neck symptoms. [17] Dr. Rado also found suggestions of mild, dynamic brachial plexus neural tension at the thoracic outlets bilaterally, which might be related to posture. The hand and shoulder symptoms and the current findings at the elbows and the wrists could be related to this. The reported decrease in feeling along the entire right arm did not conform, in Dr. Rado s opinion, to any known anatomical nerve distribution pattern. [18] Dr. Rado found that the worker had pain on gentle flexion and also on medial-lateral compression of the metacarpophalangeal joints of the hands, more marked on the right side. This, along with the swelling of the hands, the pain in the upper extremity and the reduced shoulder range raised the possibility that she has a right shoulder-hand syndrome. This would not be a surprising outcome if she maintains the demonstrated decreased spontaneous movement and use of this hand. This, however, is not compatible with the muscle bulk of the right upper extremity, which is comparable to that of the left side in spite of the reported prolonged inactivity. [19] Dr. Rado concluded that he could not find consistent indications in the documentation that the worker sustained significant injuries or had suffered a repetitive stress injury. He noted that there has been no improvement in these symptoms or findings, even though the worker has not worked for at least two years. This would be unusual if her symptoms were related to work activity. In his view, the persistence of the worker s symptoms is not consistent with the known processes of tissue healing. As

5 Page: 4 Decision No. 2144/98 well, on the current examination, the worker demonstrated ranges of motion and strength capacities far lower than those noted in previous assessments. Dr. Rado found this more compatible with deconditioning than with the worker s accident. He concluded, a component of voluntary modulation of performance cannot be excluded. [20] Dr. Rado found no overt disturbances of anatomy or physiology during the examination. Nor were there findings that would suggest a significant underlying bony abnormality, although this tightness in the spine and shoulders would be superimposed on age-related degenerative changes. The worker also has some findings suggestive of thoracic outlet compression bilaterally. This would be encouraged by her posture and the neck and shoulder girdle muscle tightness. The tenderness of flexion and medial-lateral compression of the metacarpophalangeal joints along with the reduction in shoulder ranges of motion raises the possibility that she could be developing or may have already developed a mild shoulder hand syndrome. Certainly, the carpal tunnel splint, as currently used, as well as the shoulder wrap, would tend to encourage the development of such a problem in the right upper extremity. Abnormal use of the right upper extremity would affect the left upper extremity as well. [21] Based on the history and documentation, Dr. Rado found that the worker s approach to her symptoms has been, at least since 1997, based on the avoidance of activity and rest to excess. There was nothing in the history to suggest that this approach has been beneficial in terms of improving function. He did not expect this approach to be more beneficial in the future than it has been in the past. There was no consistent evidence of substantial disturbances of anatomy or physiology. No consistent substantial impairments of function were evident. In Dr. Rado s opinion, the demonstrated restrictions of range and strength are mainly related to self-limitation of activity, as opposed to eventual substantial underlying anatomical or physiological abnormalities. [22] Dr. Rado found that the worker focused on her symptoms to excess and exhibited unreasonable pain avoidance. He also saw a significant depressive component to her condition. In his view, these factors play a larger role in her overall status than her underlying physical abnormalities. He found that any eventual underlying impairments would be aggravated by her reluctance to pursue any consistent activity and can be expected to continue and to worsen if she continues to engage in her passive approach to her symptoms based on activity avoidance and rest to excess. He concluded that the worker should be encouraged to progressively resume all of her pre-accident activities and her normal lifestyle. It should be kept in mind that she is now five years older than she was at the time of the 1994 incident and her maximal capacities would be less now than they were at that time in keeping with the progressive decline of function with age. Dr. Rado provided several suggestions for the management of the worker s condition. [23] Finally, Dr. Rado reviewed the worker s Functional Capacities Evaluation carried out by Physiogenic Rehabilitation Services on November 19, This evaluation found that the worker demonstrated significant deficiencies in her physical mobility and strength. The only activity she was not limited in was sustained sitting. During the evaluation the worker demonstrated pain behaviour by inappropriately extreme reactions to stimuli. Nevertheless girth measurements of the upper extremities exhibited no atrophy. Examples of inconsistencies in the worker s behaviour included fluid neck movement during the interview but severely restricted neck movement during direct testing. She declined to participate to the maximum in the testing of voluntary effort, except for the pinch grip. The

6 Page: 5 Decision No. 2144/98 worker stated that she could not hold a handgrip weighing two pounds or a gauge weighing five pounds. Her resting pulse was 68 beats per minute. Her maximum pulse rate was 73 beats per minute, not an increase that would represent maximum effort. Dr. Rado concluded that the results of the test were not valid because the worker had not made an effort to participate in the test. [24] According to Nurse Lebi s report, the worker refused to kneel or crouch, reach above shoulder height with either arm, or perform most of the lifting tests. The worker managed to walk 600 feet in just under five minutes, but had to once lean against the wall for a rest. She complained of dizziness and fatigue during this exercise, and Nurse Lebi noticed that she had poor balance and appeared to weave at times. The worker complained frequently of dizziness and fatigue throughout the test. [25] Dr. Rado concluded that both the Functional Capacities Evaluation and his own assessment during his interview demonstrated inconsistencies between the worker s actual capacities and findings she demonstrated during formal testing procedures. On his assessment, the worker has the physical capacity to undertake physical activities at a sedentary to light level on a consistent basis. Nevertheless, because the results of the Functional Capacity Evaluation are invalid, he was not prepared to provide a more detailed opinion, [26] In Dr. Rado s view, both his assessment and the physical testing identified significant pain focus and self-limiting behaviour. These are primary determining factors in the worker s perception of her capacities, and are at least as responsible for the worker s lack of readiness to undertake activities as her underlying physical abnormalities. (ii) The worker s representative s submissions [27] Ms. Chenier s first point was that the Tribunal appointed Dr. Rado to assess the worker. Consequently, their relationship not that of doctor and patient. Later in her submissions, Ms. Chenier faults the assessor for not conveying his findings to the worker. She used as examples Dr. Rado s doubts about the efficacy of the splint the worker wore and the looseness of the cervical collar she used. Ms. Chenier summarizes the report as saying that: for all intents and purposes no results are available, but then goes on to develop the reasons [Dr. Rado] alleged the tests were not conclusive. These reasons are not objective. [28] Ms. Chenier defines physiatry as the branch of medicine that deals with the diagnosis, treatment and prevention of disease with the aid of physical agents such as heat, cold, water and electricity, and other physical apparatus. In addition, Dr. Rado has no credentials in psychiatry. She then wonders rhetorically how Dr. Rado can pose innuendoes as to the Worker s state of mind. [29] Ms. Chenier objects to Dr. Rado s noting that a cervical ruff was apparently recommended by the occupational health nurse. Ms. Chenier interprets this language as a question about the worker s credibility, concluding that: very simply put Dr. Rado at some point took objection to [the worker s] inability to perform the tests and to her detriment became entrenched in that state of mind. The balance of the arguments are used to shore up that state of mind. [30] Ms. Chenier summarizes her submissions by asking the Tribunal to take the whole person approach to the worker s claim. She asked how, realistically, it is possible to separate an injury from its

7 Page: 6 Decision No. 2144/98 accompanying pain. In her view, the worker has an injury that arose in and out of the course of her employment and her pain is an integral part of her injury. The worker has never recovered from her workplace injury and now has a permanent impairment. She also asked that the benefit of the doubt be invoked in this case. [31] Ms. Chenier attached the summary of Decision No. 826/94 (October 13, 1995) and referred to Decision No.226/95 (June 15, 1995) in her submission. In her view, these two decisions throw light on separating the issue of depression from a worker s injury. She noted that Decision No. 826/94 sets out the thin skull doctrine and both decisions examine the issue of vulnerability. [32] Decision No. 826/94 considered the case of a worker who suffered a low back injury while pushing a heavy cart. He received a 10% pension, later increased to 25%. The worker appealed a decision of the Hearings Officer denying entitlement for psychotraumatic disability. No psychological or emotional symptoms manifested themselves before the accident and no other events or circumstances in the worker s life provided a plausible alternative cause for the worker s problems. On the other hand, the psychological damage was an extreme reaction and arose quickly after a relatively minor accident. The Panel considered whether it could conclude that a common back injury followed so quickly by a serious psychological impairment demonstrated an unusually fragile psyche. It then considered whether the fragile psyche, and not the back injury, might have caused the impairment. Finally, it considered how to apply the reasonable person test in a chronic stress case. [33] The majority of the Panel found that it was reasonable to infer that the worker s mental problems would not have developed as a result of the back injury had there not been a highly unusual psychological vulnerability. It then concluded that the average worker test for chronic stress should not be extended to cases where an accident has already been found to have occurred and the question is the extent of the resulting disability. In the circumstances, the majority found that the worker s physical injury was a significant contributing factor to the development of the psychological condition. The majority increased the worker s pension to 40%. The Employer Member, dissenting, found that the worker s special vulnerability was so extreme that the role of the workplace injury was insignificant as a cause of the non-organic disability. [34] In the case considered in Decision No. 226/95, a worker appealed a decision reducing his temporary disability benefits to the 50% level from January 1991 to January He had injured his back at work in The Board found that the worker was only partially disabled by his compensable back injuries and that any additional disability resulted from a non-compensable psychiatric disability. The worker argued that the so-called psychiatric disability was a magnified pain reaction to his injury that totally disabled him. [35] The worker s file contained a report, prepared by a registered psychologist, describing a noncompensable motor vehicle accident. It stated that the worker had characteristics that would impede his ability to recover from a physical injury. In the Panel s opinion, the Hearings Officer wrongly concluded that this report described a pre-existing psychological disability for which the worker would require treatment during the period under appeal. The Panel s view was that the report actually described a pre-existing vulnerability that could both inhibit the worker s ability to recover and prolong his recovery. The Panel, in allowing the appeal, noted that Board policy recognizes entitlement for

8 Page: 7 Decision No. 2144/98 psychotraumatic disability occurring as an indirect result of a physical injury, in the form of an emotional reaction to the accident or injury. (iii) Conclusions [36] In my earlier decision, I concluded that the Board might not have had sufficient information to conclude that the worker was not permanently impaired. I also concluded that I did not have sufficient information on which to decide if the worker has a permanent impairment. I then asked the MLO at the Tribunal to refer the worker to an appropriate centre for dynamic testing and for a determination of the worker s permanent impairment, if any. [37] Thus the only issue before me is whether the worker has demonstrated a permanent impairment. According to Dr. Rado, the worker did not demonstrate a permanent impairment resulting from her repetitive strain injury, in large part because she did not co-operate in the testing. The worker s representative agrees with this interpretation. Consequently, the only decision I can reach in this case is that, on the evidence before me, the worker does not have a permanent impairment arising from her repetitive strain injury. [38] Ms. Chenier submitted no gloss on the two decisions she cited as providing direction on this case. Both considered a worker s entitlement to benefits for psychiatric conditions. As is quite clear from the interim decision, this worker does not have entitlement for a psychiatric condition, nor is such entitlement an issue. [39] I see Ms. Chenier s comments on Dr. Rado s lack of credentials in psychiatry as entirely ad hominem. They do not deserve further discussion. In my view, Dr. Rado made the comments that he made simply to help explain why the worker was not co-operating in her testing. In my view, Dr. Rado, in the comments he made about the worker s presentation both at his interview and at the physical test, did no more than discharge his obligations as an assessor. His use of the word apparent is, in my opinion, innocuous. The word is used in common speech to indicate that knowledge has not been acquired at first hand. In this case, the worker conveyed to the doctor that certain other professionals had given her devices. I agree that this information is in the file, but even that documentary evidence is not information that Dr. Rado obtained at first hand. Consequently, his use of apparently denotes exactly what he meant and connotes nothing. [40] In addition, I do not believe that Ms. Chenier s definition of physiatry captures the full flavour of the specialty. Dr. Rado gave his specialty as Physical Medicine and Rehabilitation. In my view this captures the multidisciplinary nature of his work. Undoubtedly he works with physical therapists and psychologists. In this case, Dr. Rado described seeing the worker, with a translator, for an initial interview that lasted almost three hours. During this time, he reviewed the file with her and took her history. He then saw the worker a second time to conduct a physical examination. In addition, the worker participated in a Functional Capacities Evaluation carried out by Physiogenic Rehabilitation Services. The professional who performed the testing was Mrs. G. Lebi, a registered nurse and physiotherapist. I conclude that the worker s condition has received a thorough review by a multidisciplinary team. [41] In my view, the attempt to see how the worker performed under dynamic conditions, and if repetitive motions exacerbated her symptoms, was a failure. The worker refused to co-operate. If she

9 Page: 8 Decision No. 2144/98 had co-operated, the tests might have shown adverse reactions, such as swelling or increased heat in the shoulder or other observable physical signs of damage. I do not believe that we need to call this anything else but a failure. It is not evidence of the worker s lower pain threshold, her more exquisite vulnerability (although Ms. Chenier does not specify to what), or her depression. The worker quite frankly refused to perform certain parts of the test. The objective signs noted in the physiotherapist s report (such as the worker s measured heart rate) suggest that the worker made no effort. [42] In addition to the test results, Dr. Rado noted that the apparent deterioration in the worker s condition is inconsistent with the theory that the repetitive strain caused by her work is at the root of her problems. The worker has not been employed since Repetitive strain clears up once the source of the irritant is removed. There is no explanation in this case for the worker s condition to worsen, unless one invokes her degenerative disc disease and the inexorable passage of time. But neither of these causes can be linked to her work in the meat packing plant. THE DECISION [43] In the interim decision, I concluded that I had insufficient evidence to conclude that the worker has a permanent disability. The test results provided no further useful evidence. Board policy takes account of a worker s co-operation in rehabilitation. In this case, I conclude that the lack of useful information is a direct result of the worker s lack of co-operation in the testing and assessment. I still have insufficient evidence to find the worker has a permanent disability, and that lack can be traced directly to the worker s lack of co-operation. Consequently, I must conclude, on the evidence before me, that the worker does not have a permanent disability that resulted from her work as a meat packer. DATED: March 20, 2000 SIGNED: J.A. Alexander