SUMMARY DECISION NO. 553/01 Continuity (of symptoms). DECIDED BY: Moore DATE: 20/03/2001 NUMBER OF PAGES: 8 pages ACT: WCA
2001 ONWSIAT 836 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 553/01 [1] This appeal was heard in Sudbury on February 16, 2001, by Tribunal Vice-Chair J.P. Moore. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer ( ARO ) S. Siqueira, dated June 29, 1999. [3] The worker appeared and was represented by E. Abitbol, a consultant. The employer was notified of the appeal but did not participate. THE RECORD [4] The Case Record (in two volumes) prepared by the Tribunal Counsel Office was marked as Exhibit #1. Case Record Addendum #1 was marked as Exhibit #2. [5] The worker testified under oath. Submissions were made at the hearing by Mr. Abitbol. THE ISSUE [6] The issue in this appeal is whether the worker is entitled to ongoing benefits for a recurrence, in December 1997, of a work-related neck injury sustained in June 1992. THE REASONS (i) The evidence [7] On June 29, 1992 the worker was involved in a work-related motor vehicle accident that resulted in injuries to his neck and chest. At the time of the accident, the worker was 31 years of age and employed as a truck driver. [8] The worker was initially treated by his family physician, Dr. S. McCarthy, for a whiplash injury to his neck. [9] On the date of his accident, the worker underwent an x-ray examination. The x-ray assessment was essentially normal, revealing only some reversal of the normal curve of the cervical spine. [10] Over the subsequent months, the worker continued to experience neck pain and headaches. On November 25 and November 30, 1992, the worker underwent assessment at a Regional Evaluation Centre. One of the assessors was a physiotherapist who, in a report dated December 8, 1992, noted the worker was experiencing pain in his neck and left upper quadrant. According to the report of the Regional Evaluation Centre physiotherapist, the level at which the
Page: 2 Decision No. 553/01 disc injury occurred was the C6-7 level. The physiotherapist concluded, after examining the worker, that he had clinical findings suggestive of: C6-7 disc derangement with a left nerve root impingement and vertebral artery signs. [11] In a Multi-Disciplinary Health Care Assessment Summary Report prepared by Dr. D. Harding, the orthopaedic surgeon who assessed the worker at the Regional Evaluation Centre, the following diagnosis was made: Disc injury neck nerve root irritation improvement possible. [12] In late 1993, the worker moved to British Columbia where he obtained employment as a mechanic. The worker testified that he continued to experience neck pain, as well as pain and numbness in his left hand. He testified that, when he injured his right wrist in November 1994, he began seeing a family physician in British Columbia, Dr. D. Behroozi. The materials before me contain clinical notes from Dr. Behroozi that cover the period from November 1994 to November 1995. Those reports indicate that the worker complained of neck pain on five occasions in 1995. [13] The worker testified that, while he was in British Columbia, he obtained part-time work as a bus driver. In June 1998, a Board Investigator contacted a representative of the bus company and was told that the worker complained of ongoing continual pain in his neck while working for them. [14] The worker testified that he moved to Quebec in late 1995. According to the worker, he continued to experience pain in his neck and left hand while living in Quebec. He stated that he did not find a family physician in Quebec and saw his former family physician in Ontario on one or two occasions. The record did not contain any medical documentation from that time. [15] In December 1997, the worker experienced a worsening of his neck and left arm pain. The worker stated that, when the problem did not resolve, he sought medical attention. [16] On March 9, 1998, the worker was seen by a family physician, Dr. C. Gervais. Dr. Gervais referred the worker to a hospital for assessment. On March 20, 1998, the worker underwent a CT scan and a myelogram. Both tests revealed the presence of a herniated disc at the C6-C7 level of the worker s spine. The herniation was associated with as osteophyte. The reported impression from the CT scan reads as follows: The left anterolatera l extradural compression at C6-C7 is consistent with a disco-osteophytic problem or phenomenon. [17] Surgery was recommended, and performed on May 14, 1998. During this time, the worker contacted the Board and sought reinstatement of compensation benefits for his neck injury. The Board denied the claim. [18] In doing so, the Board relied on the opinions of two Board Unit Medical Advisors. On August 5, 1998, Dr. I. de Domenico wrote a memorandum that reads as follows:
Page: 3 Decision No. 553/01 This worker was diagnosed as having a mechanical neck pain subsequent to his injury with the last report of January 20, 1993 indicating a restriction in the range of motion. At this time his x-ray films of the cervical spine were normal. There is an absence of ongoing complaints for his neck until October 24, 1995 when he had seen his physician because of neck pain. There is no further follow up subsequent to this time nor was there any further examination done in reference to his neck, nor are there any x-ray films to indicate whether this worker had disco-degeneration subsequent to the injury therefore one cannot establish that the presence of this disco-hernia diagnosed in 1998 on the left side at C6-C7 resulted from the initial motor vehicle accident. [19] On March 17, 1999, a Board Manager reviewed the file and noted the reference, in the December 1992 Regional Evaluation Centre report to a disc problem at the C6-C7 level. The Manager requested a further review by a Medical Consultant. [20] On March 26, 1999, Dr. J. Kelly wrote a response: The physiotherapy report mentions the accident as well. There is also some mention of a disc herniation or degenerative changes at C6-7 which certainly would not be uncommon in a worker or anyone else over the years. In summary there is insufficient evidence in the most recent reporting to alter the medical advice previously given. [21] The recent reporting to which Dr. Kelly referred consists of medical reports from family physicians who treated the worker in early 1998. [22] In a report dated September 25, 1998, Dr. D. Carrier, wrote the following: [The worker] had an [sic] vehicle accident on 29 June 1992. Since this accident, he didn t have any other accident. In fact, I think that the accident of 1992 may be related to the cervical hernia that he had developed [sic]. [23] On January 1, 1999, Dr. Gervais wrote a letter to whom it may concern, which stated, in part: I think that there is a possible relation between the accident and the cervical hernia. [24] The policy that was in effect at the time of the Board s decision regarding the worker s claim for continuing benefits was Document #02-04-02 from the Board s Operational Policy Manual. I note the following excerpts from that document: Recurrences give rise to rights to benefits under the Workers Compensation Act because they result from a personal injury arising out of and in the course of employment. Decision-makers compare the worker s medical condition following the initial accident to the most recent problems. Similar medical conditions suggest that the subsequent problems may be a result of the original injury.
Page: 4 Decision No. 553/01 (ii) To assess the similarity of medical conditions, decision-makers look to the nature and degree to which the two conditions affect the same or related body parts or functions. Further entitlement in the claim as a recurrence is in order when medical compatibility and continuity of complaint are confirmed, provided that there has been no new accident. Findings and conclusions [25] In the present case, the worker sustained an injury to his neck, in June 1992, that was diagnosed as a whiplash injury. Approximately six months later, in December 1992, the worker was assessed at a Regional Evaluation Centre. The resulting diagnosis was disc injury neck, nerve root irritation. The prognosis was that improvement was possible. [26] The worker was granted initial entitlement for this injury on the basis of the following opinion from a Board Medical Advisor, Dr. Arvisais, on December 18, 1992: Compatibility is in order between current neck and left upper radicular extremity problems and the 24 June work-related accident. [27] Hence, as of December 1992, there was persuasive evidence that the worker had sustained a cervical disc injury that had the potential to cause continuing symptoms. [28] The worker testified that he had continuing symptoms. The documentary evidence does not fully establish continuity of complaint, largely because the documentary evidence is incomplete. [29] However, in periods during which we have medical evidence, there is indication of ongoing complaint by the worker of neck pain, including five separate complaints to physicians in British Columbia in 1995, and ongoing complaints to an employer in British Columbia, in 1995. [30] The condition giving rise to the worker s disability in early 1998 was diagnosed as a herniated disc associated with an osteophyte. The disc herniation is found at the C6-7 level, the same level at which disc derangement was diagnosed in December 1992. [31] I also note that the myelogram that diagnosed the herniated disc in March 1998 described the other discs in the worker s neck as normal. [32] Having reviewed the foregoing evidence, I am persuaded of the following, on a balance of probabilities: Prior to June 1992, the worker had no problem with his neck. In June 1992, the worker injured his neck in the course of a work-related motor vehicle accident. The injury to his neck was diagnosed as whiplash and a disc injury to the C6- C7 level.
Page: 5 Decision No. 553/01 In testimony that I find credible the worker stated that he experienced continuing symptoms of neck and left arm pain. Where records of medical treatment are available, they confirm continuity of complaint. The worker experienced a worsening of neck pain, in December 1997, that was diagnosed as a significant disc herniation. The disc herniation appeared at the same level at which the original injury likely occurred. There was no evidence of any degeneration at any other level of the worker s neck. [33] In my opinion, the only logical inference to be drawn from the foregoing facts is that the disc herniation found in March 1998 was a result of the original compensable injury in June 1992. [34] Board policy stipulates that, to assess the similarity of medical conditions, it is necessary to look to the nature and degree to which the two conditions affect the same or related body parts or functions. [35] My interpretation of the medical evidence is that the original injury and the subsequent disc herniation both affected the same level of the cervical spine, C6-7. I also note that the original injury was diagnosed as a disc injury. [36] The two are, therefore, in my view, medically compatible. [37] I note, in this regard, the following excerpt from a letter prepared by Dr. S. Gertzbein, an orthopaedics specialist, in a general information letter to the Tribunal s Medical Liaison Officer, dated November 21, 1989. In that letter, Dr. Gertzbein discussed the mechanisms by which disc herniation can occur and noted that the conditions giving rise to a disc herniation generally have a gradual onset. Dr. Gertzbein stated that disc fibres can develop microscopic tears as a result of relatively normal activity. He then went on to state: The annulus fibrosis during this process sets up the nucleus pulposus for a path of least resistance under certain circumstances. During increased pressures in the disc which occur normally with activity such as bending, lifting and twisting, the nucleus pulposus is subjected to great pressures and may tend to move in a direction of least resistance, In answer to the first question, the significant trauma superimposed on these underlying conditions can produce a disc protrusion. However, in many cases a major injury is not determined but a simple activity such as bending, twisting or lifting may generate sufficient forces within the disc to cause it to protrude through a path of least resistance, namely the microscopic injuries to the annulus fibrosis.
Page: 6 Decision No. 553/01 [38] In arriving at her contrary conclusion, the ARO cited and relied on the opinions of Board Medical Consultants. The ARO stated, regarding those opinions: I have accepted the Board Medical Consultants opinion because it is based on a comprehensive review of past and present medical reporting. [39] With respect, I do not agree with that interpretation of the opinions of the Board Consultants. Neither Dr. de Domenico nor Dr. Kelly make any reference to the original diagnosis of a disc injury at the C6-C7 level. Dr. Kelly, in particular, was specifically asked to address that fact, and did not do so, but suggested that the disc herniation noted in 1998 was likely the result of degenerative changes over the years. Dr. Kelly does not offer an opinion as to the likelihood that degenerative change leading to the disc herniation at the C6-C7 level could have resulted from the disc injury at that level six years earlier. [40] Dr. de Domenico appears to have based his opinion primarily on the absence of continuity of complaint. [41] I note, first of all, that Dr. de Domenico appears to be wrong in stating that the worker complained to a physician of neck pain on only one occasion. In my view, there is evidence of greater complaint than was noted by Dr. de Domenico. [42] I also note that, according to Board policy, if medical compatibility is established, continuity enquiries are not required. Policy Document #02-04-02, cited above, states in this regard: Continuity inquiries are used to establish entitlement for a recurrence when compatibility is not a reliable indicator of the relationship between the original condition and the subsequent problems. [43] Hence, in my view, Dr. de Domenico failed to consider the likelihood of medical compatibility and focused on continuity, contrary to the Board policy. [44] Consequently, I am persuaded, on a balance of probabilities, that the disc herniation diagnosed in March 1998 was a recurrence of the disc injury sustained by the worker in 1992. The worker is, therefore, entitled to continuing compensation benefits, subsequent to the date he stopped work because of worsening neck pain. A Board memorandum, describing a conversation between the worker and a Board representative on March 24, 1998, states that the worker gave a work stoppage date of December 17, 1997. The worker is, therefore, entitled to compensation benefits subsequent to that date. [45] I leave to the Board the determination of the nature, duration and extent of the worker s entitlement to benefits subsequent to that date, without prejudice to the parties usual rights of appeal.
Page: 7 Decision No. 553/01 THE DECISION [46] The worker s appeal is allowed. The worker is entitled to compensation benefits, subsequent to December 17, 1997, for a recurrence of a neck injury that occurred in June 1992. The disability for which the worker is entitled to benefits is a herniated disc in the worker s neck. I leave to the Board the determination of the nature, duration and extent of the worker s entitlement, without prejudice to the parties usual rights of appeal. DATED: March 20, 2001 SIGNED: J.P. Moore.