WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2005 ONWSIAT 2274 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1839/05 [1] This appeal was heard in Sudbury on October 3, 2005, by Tribunal Vice-Chair B.L. Cook. THE APPEAL PROCEEDINGS [2] The worker appeals a decision of Appeals Resolution Officer K. Boland, dated July 18, That decision concluded that the worker was not entitled to benefits for depression or thoracic outlet syndrome. [3] The worker appeared and was represented by Ray Guilbeault, a consultant. THE RECORD [4] The Case Record, three Addenda, a hearing ready letter dated March 21, 2005, and a package of materials that the Mr. Guilbeault brought to the hearing were marked as exhibits. The latter documents were medical records that the Tribunal had asked Mr. Guilbeault to obtain but which were submitted to the Tribunal less than three weeks before the hearing. The worker testified and Mr. Guilbeault made submissions. [5] After the hearing Mr. Guilbeault sent a letter to the Tribunal that I accepted on a post-hearing basis. In the letter, Mr. Guilbeaut attempted to clarify a point in the worker s evidence. THE ISSUES [6] The worker suffered a serious accident at work on January 31, 1998, when he fell off a ladder. The Board has accepted that the worker suffered a permanent right ankle impairment as a result of the accident but did not accept that thoracic outlet syndrome, which was diagnosed about one year after the accident, was the result of the accident. The Appeals Resolution Officer concluded that the work-related injuries aggravated a pre-existing depression but only to a minor extent. She found that the worker was entitled to health care benefits only for this condition. [7] The issues in this case are whether the thoracic outlet syndrome and depression resulted from the work-related injury. THE REASONS (i) Background [8] The worker is now 40 years of age. Prior to the accident of January 31, 1998, the worker had been employed as cable installer for about four years. Before that he had worked in Toronto as a construction worker. The employer was a sub-contractor and the worker installed and disconnected cable television equipment.

2 Page: 2 Decision No. 1839/05 [9] The worker experienced some pain in his left arm in the summer of He was concerned about the possibility of a heart condition as this is common in his family. However, EMG testing did not suggest any problems. Dr. Mike Franklyn is the worker s family doctor. He has provided copies of his clinical notes for the period prior to the 1998 accident. These indicate that he felt that the worker s complaints of left arm pain were due to carrying a ladder on his left shoulder. [10] On August 15, 1996, Dr. Sam Cheung did nerve conduction studies. He recorded the following history: This patient is 31 years old. He works for cable T.V. In January 1995, he says that he injured himself when he was stuck on some ice and had to push and pull his truck [at work]. He developed pain in the left arm. Now he does not have any pain but rather there is numbness and tingling in the left arm from the shoulder down diffusely into all the fingers. This occurs every morning lasting for minutes. He feels weak as a result. Secondly he has numbness of lesser intensity in the left leg from the knee down to the toes which occurs every day but mildly. He denies any neck pain. On examination there is no wasting or fasciculation and there is no deformity. Tinel and Phalen s signs are negative at the wrists. Reflexes are normal. There is no motor or sensory deficit. Hand grip is strong bilaterally. Range of movement of the neck is full. [11] Dr. Cheung reported that the tests were all normal and the worker testified that these arm symptoms gradually resolved completely. [12] The worker suffered a work-related left knee injury on January 7, This was diagnosed as a moderate soft tissue contusion of the left medial knee. He attended physiotherapy and returned to his regular job by approximately mid-february [13] In August 1997, the worker experienced what Dr. Franklyn referred to as a breakdown. In his testimony, the worker related this to a combination of stressors. He noted that there were four tragic but unrelated deaths in his family at the time. The two that affected him the most were the death by drowning of a young cousin and the death of another young cousin from brain cancer at age 11. These events were very stressful for the worker. He mentioned that he seemed to be carrying caskets in the morning and installing cable in the afternoons. The worker testified that he was also under a tremendous amount of pressure at work as he was being asked to do a great deal of work in a short period of time and he was working six days a week almost all the time. As well, there was confusion as to who his supervisor was. There appeared to be five people directing him at the same time. [14] The worker saw Dr. Franklyn on August 25, 1997, who referred him to Dr. Kumar, a psychiatrist. Dr. Kumar saw him on August 28, 1997, who diagnosed major depressive disorder. From Dr. Franklyn s notes, it appears that this episode was quite serious as the worker had both suicidal and possibly homicidal ideation, and an inability to cope with other people. However, it appears that the worker improved with medication. By October 6, 1997, Dr. Franklyn recorded that the worker was doing quite well. The worker returned to work in late October. He testified that he had recovered from the episode by the time that he returned to work and was not taking any medication. He also testified that he had not previously suffered from depression and had not seen a psychiatrist before August Dr. Franklyn s notes do not include any entry after October 6, 1997 until after the work-related injury of January 31, 1998.

3 Page: 3 Decision No. 1839/05 (ii) The January 31, 1998 accident [15] On January 31, 1998, the worker was at work. He was working at an apartment building. The cable connections were on the wall of the building. The worker climbed his ladder to a small roof. He was going to stand on the roof to get to the connection box. He testified that the roof had snow and ice on it. As he stepped onto the roof, his foot slipped and he fell to the ground. He testified that he bounced on the ladder as he fell and landed partly on the ground and partly on some stairs. He believes that he was unconscious for a few seconds. An ambulance was called. The worker testified that he was placed on a striker board with a neck brace, suggesting that there was concern about a spinal or neck injury. [16] The Emergency Room Nursing notes indicate: In by ambulance. Boarded and collared. Fell 10 feet off roof.? LOC [loss of consciousness]. Hit ladder with right lower leg on way down. [complains of] pain in that area. Numbness to right foot. Good pedal pulse. [complains of] thoracic pain. [17] The physician s notes refer to complaints of right knee pain and low back pain. The note indicates mild neck tender and references right chest tenderness. X-rays were taken of the worker s cervical and lumbar spine and his right knee and were reported to be normal. [18] Dr. Franklyn completed a Functional Abilities Form for Timely Return to Work Form on February 25, It indicated that the area of injury was right leg and right ankle. An x- ray was taken of the worker s ankle and was reported to be normal. The worker was referred for physiotherapy for his right ankle. [19] The worker continued to experience considerable ankle problems and he was referred to a Regional Evaluation Centre (REC) where he was assessed by Dr. A.D. Graham, a physical medicine and rehabilitation specialist, on April 15, Dr. Graham felt that the worker had sustained a severe injury of the tendo-achilles. He indicated that the recovery period will be prolonged. [20] Dr. Graham arranged a consult with Dr. J. Cisa, an orthopaedic surgeon, who agreed with the diagnosis. I note that although the worker could not recall using crutches after the injury, Dr. Cisa reported that the worker was not weight bearing and used crutches after the accident and that he was using crutches with only partial weight bearing at the time of his assessment. [21] It appears that Dr. Graham felt that the worker should not continue with physiotherapy until the diagnosis was confirmed. There was then some question as to whether the Board would authorize further therapy. The worker did eventually undergo an intensive 12 week program that was completed in October The physiotherapist reported that the worker s ankle had improved but that he would require permanent work restrictions. [22] The worker testified that throughout the period after the accident, he had continuing left shoulder pain. He testified that he initially had a large bruise on his left shoulder. He then had a sensation of weakness. He believes that he probably mentioned this to Dr. Franklyn but that he also probably told Dr. Franklyn that it did not seem to be a serious problem. However, Dr. Franklyn must have understood that there was some problem because he referred the worker

4 Page: 4 Decision No. 1839/05 to see Dr. Cheung for nerve conduction studies and electromyography. Dr. Cheung saw the worker on January 18, This was approximately one year after the accident. [23] Dr. Cheung recorded the following history: This patient is 34 years old. For the past 6 7 months, he has been having discomfort in both hands, worse in the left. All the fingers may become numb and tingly. However, it is worse in the long, ring and small fingers. It may radiate to the elbow and shoulder but it does not affect the neck. There is sling pain. He feels slightly weak. The discomfort is worse at night. It is almost every day. There is no history of any trauma, injury. [24] Dr. Cheung indicated that the diagnosis was not clear. The studies were normal and he felt that there was no evidence to suggest cervical radiculopathy or thoracic outlet syndrome. However, in a later report, following a reassessment (which was also negative), Dr. Cheung indicated that EMG testing is not particularly helpful in establishing positively for thoracic outlet syndrome. [25] In September 2000, the worker was assessed by Dr. John Fenton. He sent the worker for a Thoracic Outlet Study and reported that the results were in keeping with arterial thoracic outlet compression on the left side. In a report dated November 6, 2000, Dr. Fenton indicated that the worker had been having problems with his left upper extremity for about 2 to 3 years and that it had been getting progressively worse. Dr. Fenton recommended surgery and on December 6, 2000, he performed a Left transaxillary first rib resection. In the Operative Report, Dr. Fenton indicated that the rib was freed up but that it was extremely deep and difficult to get at so that it was not possible to reach all of it. [26] This procedure helped reduce the worker s symptoms but did not resolve them completely. The worker was assessed by Dr. David Ewing-Bui, a thoracic surgeon. On December 14, 2001, Dr. Ewing-Bui reported: He fell four years ago and hit his Left shoulder against the roof and then fell forward onto the concrete floor. The patient did not have Left arm problems until eight or nine months later. He was seen by Dr. Fenton and had a Left axillary first rib resection on December 6/2000. He does have some improvement with decreasing numbness of episodes since then. However, he continues to have a persistent paresthesia with increasing sharpness of the pain especially in his Left fourth and fifth fingers. He presently has significant paresthesia of the arm, especially with lifting or with lying on his Left side. The patient still has poor sleep due to this pain. [27] Based on the history and examination, Dr. Ewing-Bui indicated that he was convinced that he does have neurogenic thoracic outlet syndrome. However, he added that the worker had more diffuse pain than the usual classic neurogenic TOS. He accordingly felt that the worker might also have suffered a brachial plexus injury as well at the time of the accident. He noted that further surgery was an option but that the chance of a full cure was very low. [28] The worker advised that he eventually agreed to further surgery in February 2003, but the records related to the procedure are not part of the case materials. He indicated that this procedure did not resolve the problem and that he is considering further surgery. However, he has been advised that he needs to seek treatment from a specialist in Toronto or London and he has not been able to afford the travel for an assessment.

5 Page: 5 Decision No. 1839/05 [29] In addition to the thoracic outlet syndrome and ankle problems, the worker also developed psychological problems after the accident. He was referred back to Dr. Kumar, the psychiatrist. In a report dated December 17, 2000, Dr. Kumar indicated that he had been treating the worker since March 2000 for anxiety and depression which Dr. Kumar related to the worker s pain and physical limitations. He indicated that the worker was not responding well to medication. [30] The worker testified that he is still suffering from depression. He noted that he has been under particular stress in the past few months in anticipation of his Tribunal hearing. He has separated from his common law wife for a few years and this is difficult for him. He has been in receipt of disability benefits from the Ontario Disability Assistance Plan. He is apparently not eligible for benefits from the Canada Pension Plan because he did not have enough contributions. [31] The worker was provided with a labour market re-entry program in After it was determined that there was no suitable work available with the employer, he was provided with a labour market re-entry plan and sponsored in a retraining program. However, the worker was unable to continue in the plan beyond December 2000 due to his thoracic outlet syndrome and depression. [32] The Board considered whether the worker was entitled to benefits for the thoracic outlet syndrome and depression. The matter was reviewed by Dr. Achar, a Board medical consultant, on July 16, Dr. Achar felt that the worker s thoracic outlet syndrome was not related to the original accident because he understood that there had been no injury to the left shoulder and because he understood that the worker did not have any shoulder symptoms until approximately late With regards to the worker s depression, Dr. Achar concluded that the worker s depression was not compatible with the accident history. He noted that the worker had been treated for depression before the accident and suggested that it was possible that the accident temporarily aggravated the pre-existing condition. [33] Dr. Achar reviewed the file again in January 2002 and came to the same conclusions. The Claims Adjudicator asked for a new medical opinion, and the claim was reviewed by Dr. Brian Kelly, the Associate Medical Director. He commented: As far as his left thoracic outlet syndrome is concerned, it seems that he does have a thoracic outlet syndrome, perhaps that is not the only cause of his symptoms as the last thoracic surgeon has indicated. However, the surgery has been partially successful although not completely. It may well be that he has a thoracic outlet syndrome but to relate this to this claim is not pathophysiologically correct. Number one, the mechanism of injury certainly does not support the thoracic outlet syndrome but it would possibly support a direct brachial plexus injury or a traction brachial plexus injury. The mechanism of injury as described on file does not support this but it is possible that it is not described very well as most of the attention was paid to the ankle. That being the case, the man would have symptoms almost immediately and he did not have symptoms for a good time afterwards. The delay in the accident and the onset of symptoms was the sticking point here and it just would not happen that there would be that delay if his left arm problems were related to this fall. [34] This opinion was accepted by the Claims Adjudicator and by the Appeals Resolution Officer and the worker has now appealed to the Tribunal.

6 Page: 6 Decision No. 1839/05 (iii) Conclusions on the thoracic outlet syndrome issue [35] It appears to me that the first issue in regards to the thoracic outlet syndrome is whether the development of the condition is compatible with the accident that the worker sustained. Dr. Kelly felt that thoracic outlet syndrome was not compatible with the mechanics of the accident. However, he did not indicate in his memo what he thought the mechanics of the accident were. Previously, Dr. Achar had indicated that the worker had not injured his shoulder in the accident. [36] In the accident, the worker fell about ten feet from a roof. He struck the ladder on the way down and landed face down on the ground. In my view, the evidence indicates that it is more probable than not that the worker did suffer a shoulder injury at the time of the accident. It also seems that he likely suffered a neck injury. As discussed earlier in this decision, the Emergency Room report appears confirms that the worker was complaining of pain in various parts of his body, including his chest, neck and thoracic area. The worker s evidence, which I accept, is that he had a large bruise on his left shoulder area. [37] In my view, the mechanics of the accident are such that the worker very likely sustained an injury to his shoulder and neck area. [38] A second issue raised by Dr. Kelly concerns the fact that it appears that the symptoms that were eventually diagnosed as thoracic outlet syndrome did not become manifest for some time after the accident. The evidence suggests that the symptoms became manifest some months after the accident. The worker testified that he thought that the symptoms started to become significant at about the time that the physiotherapy for his ankle was first discontinued, which was approximately in April 1998, about three months after the accident. When he was seen by Dr. Cheung for the nerve conduction studies in January 1999, he gave a history of discomfort for the previous six or seven months, which would be about May or June Dr. Ewing-Bui indicated that the worker started having symptoms eight or nine months after the accident. [39] It is clear that the primary focus of the medical treatment after the accident was the worker s ankle injury. It seems that the actual nature of this injury was not appreciated for some time and that he may not have received the appropriate physiotherapy in a timely way which resulted in greater ankle disability. As suggested by the worker and Mr. Guilbeault, the focus on the worker s ankle may have contributed to the fact that his shoulder symptoms were not apparent earlier. [40] I have reviewed other Tribunal decisions about thoracic outlet syndrome cases, and in particular with regards to the significance of a delay in symptom onset. This matter was considered by the Vice-Chair in Decision No. 1683/99. The Vice-Chair in that case accepted the opinion of Dr. Cina, a vascular surgeon, who was involved in the treatment of the worker in that case. Dr. Cina indicated: The vast majority of patients who suffer thoracic outlet syndrome have an accident or a trauma in their past history. This may be a trauma of the shoulder but also a trauma that

7 Page: 7 Decision No. 1839/05 appears to be far away from the area, for example, a fall on their back or a whiplash injury. [I]t is interesting to notice that the syndrome usually occurs weeks and sometimes months after the injurious event has occurred. There are two main reasons why this happens. One is that the injury cause fibrous retroaction and scarring of the soft tissue of the thoracic inlet and this, in turn, may entrap the nerve roots, particularly the C7, T1 root. The second possibility is that a chronic spasm of the muscles of the thoracic inlet, including the scalenus anticus and medius, cause hypertrophy of the same muscles and thus, in turn, compression of the nerve roots. Whatever the true pathogenesis is, the empirical and rather consistent observation is widely reported in the literature that a trauma exists in patients with thoracic outlet syndrome [which] may precede the full-blown picture [by] months. The observation that the patient did not complain of pain in the left shoulder and arm immediately after the accident does not exclude the cause/effect relation between the accident and the thoracic outlet syndrome. Contrary wise, it may reinforce it since this patient had no reason to complain of pain in the left arm, months after the accident when no triggering event had occurred between the accident and when the patient developed the full blown syndrome. The lag between the fall and the full manifestation of the syndrome is very consistent with the pathophysiology of the syndrome itself. [41] Since Dr. Cina is a vascular surgeon, I accept his opinion, as stated in Decision No. 1683/99, that a delay in the onset of thoracic outlet syndrome following trauma is common. The delay in the instant case appears to fit with the time frames mentioned by Dr. Cina. I note that Dr. Fleming, who has treated the worker s thoracic outlet syndrome, feels that the condition likely resulted from the accident. [42] The Tribunal Discussion Paper on Thoracic Outlet Syndrome (Dr. Fleming, January 2000), notes that thoracic outlet syndrome can be difficult to diagnose and difficult to treat. The Paper does not say anything about the causes of the condition other than to identify the physiology involved. The Paper comments that treatment by removal of the first rib can cause complications, including damage to the brachial plexus and a high incidence of failure to relieve

8 Page: 8 Decision No. 1839/05 symptoms. A number of doctors in this case have noted that the worker may have brachial plexus problems as well as thoracic outlet syndrome. It is not possible to know at this point where these problems could have resulted from the accident itself (as Dr. Kelly suggested) or as a result of treatment. However, it appears that they are part of the worker s overall symptom complex at this point and more probably than not result either directly from the accident and/or as a sequelae to the accident. [43] In considering the available evidence, and in particular, the mechanics of the accident, the opinion of Dr. Fleming and the fact that the time frames appear to correlate with the time frame indicated by Dr. Cina, I conclude that it is more probable than not that the worker s thoracic outlet syndrome results from the work-related accident. (iv) Conclusions on the worker s entitlement to benefits for depression [44] It is clear that the worker had an episode of psychological problems before the accident. He required active treatment and time off work with relatively significant symptoms. He had only been back at work for a few months before he suffered the work-related accident that is the subject of this appeal. [45] From the medical evidence and the worker s evidence, it is clear that the difficulties in 1997 occurred in the context of a series of family tragedies that were unusual and obviously difficult for the worker. This combined with stress at work caused a breakdown. The worker s evidence, which seems to be supported by Dr. Kumar, is that he recovered from this and then had no psychological symptoms until after the work-related accident. [46] The Board concluded that the worker was not entitled to benefits for his depression because of this prior episode. I note that the fact that the worker has a pre-existing condition or even a pre-existing disability is not a reason in and of itself to deny benefits. It is necessary to consider whether the work-related injury aggravated the pre-existing condition. [47] In this case, there were particular circumstances surrounding the worker s difficulties in He then recovered and returned to work. The accident was serious and resulted in an immediate ankle problem that was unfortunately seemingly not properly diagnosed or properly treated. His then disabled shoulder problem was diagnosed as thoracic outlet syndrome and possibly brachial plexus problems. This led to major surgery with a continuing significant disability. In considering these factors, I conclude that it is more probable than not that the accident of January 31, 1998 and its sequelae were factors that contributed significantly to the depression that the worker suffered after the accident. [48] The Board s psychotraumatic disability policy is set out at Operational Policy Manual Document No It provides that workers are entitled to benefits for psychological disability if the disability results from either the accident or the subsequent prolonged disability and treatment, or where the psychological disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury. [49] In my view, the worker is entitled to benefits for depression under the Board s psychotraumatic disability policy.

9 Page: 9 Decision No. 1839/05 THE DECISION [50] The appeal is allowed. [51] The worker is entitled to benefits for thoracic outlet syndrome and brachial plexus problems. [52] The worker is also entitled to benefits for depression under the Board s psychotraumatic disability policy. DATED: This 18 th day of October, SIGNED: B.L. Cook