2005 ONWSIAT 799 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2110/04 [1] This appeal was heard in London on December 6, 2004, by Tribunal Vice-Chair R. McCutcheon. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer N. Kissoore dated September 30, 2003. That decision concluded as follows: 1. The worker had entitlement for hearing loss affecting the right ear only as a result of a fall on August 23, 1995; 2. The worker was entitled to a non-economic loss (NEL) award for tinnitus affecting the right ear; and 3. The worker did not have entitlement for vertigo as a result of the work-related injury on August 23, 1995. [3] The worker appeared and was represented by K. Hahn, a consultant. The worker was selfemployed at the time of the accident. THE RECORD [4] The material in the Case Record prepared by the Office of the Vice-Chair Registrar (OVCR) (Exhibit #1) was considered. In addition, the following Exhibits were considered: Exhibit #2: Addendum No. 1, dated March 4, 2004; Exhibit #3: Addendum No. 3, dated May 20, 2004; Exhibit #4: Addendum No. 3, dated May 20, 2004; Exhibit #5: correspondence from the OVCR, dated May 21, 2004; Exhibit #6: summary of medical evidence, submitted by Mr. Hahn. [5] The worker testified under oath. Submissions were made by Mr. Hahn. THE ISSUES [6] The worker seeks entitlement for vertigo as a result of the August 23, 1995 accident, including entitlement for a permanent impairment.
Page: 2 Decision No. 2110/04 THE REASONS (i) Background [7] The worker was the owner of a variety store, which he established in 1978. He also worked in the store, operating the cash register, stocking the shelves, dusting, purchasing supplies from wholesalers, administrative work, and so on. On August 23, 1995, he was on a ladder, reaching up to replace a fluorescent light, when he fell, striking the right side of his head and face and the left wrist and left side of his body. Dr. E.K. O Hea, the worker s family physician, completed the Physician s First Report, dated October 19, 1995. Dr. O Hea noted the history of injury and diagnosed soft tissue injuries of the ribs and left wrist, and right ear injury, with symptoms of reduced hearing and buzzing in the right ear. Chiropractic treatment was also recommended for a cervical sprain. [8] The Board accepted initial entitlement for the accident. The Board reviewed the scope of the worker s entitlement in February 1996. There was some change in the scope of the worker s entitlement, as the file indicates that the original Form 8 completed by another doctor had been lost. Eventually, the Board accepted entitlement for the lower and upper back and cervical strain. Restrictions associated with the cervical strain were accepted. However, entitlement for hearing loss was denied. In August 2000, the claims adjudicator concluded that the worker did not have entitlement to a permanent impairment for any of the areas of injury. [9] The worker objected to the decision to deny entitlement for hearing loss and also sought entitlement for vertigo. The Appeals Resolution Officer allowed the objection in part, finding that the worker had entitlement for right-sided hearing loss and tinnitus. [10] The worker performed part-time duties following the accident. Eventually, he could no longer carry on due to his symptoms, and the business was later closed in 1999. He was able to keep the business running from 1995 to 1999 with help from his son and his wife. He worked ten to 15 hours per week on the cash register during this period. [11] The worker testified that his vertigo symptoms appeared in the days and weeks following the accident. He experienced episodes of vertigo at least once or twice a day. Currently, he experiences lightheadedness and lack of balance. When the episodes occur, he needs to lie down. He finds he has to hold on when he is on an escalator and on stairs. He no longer drives on the highway, as he feels that his ears pop when he drives at high speeds. The worker testified that his symptoms have changed over time, and are unpredictable. During major episodes, the room spins; in smaller episodes, he tries not to move his head and he sits down. He also experiences increased humming in his ears during these episodes. High-pitched sounds are unbearable and irritating to him. At times he has extreme vertigo associated with nausea, although this does not occur as frequently as it used to. The worker testified that he never had a problem with his ears or dizziness or humming in his ears prior to the August 1995 accident. The worker now uses a hearing aid, and he finds that this has affected his ability to secure employment. (ii) Law and Policy [12] Since the worker was injured in 1995, the pre-1997 Workers Compensation Act (the pre- 1997 Act ) is applicable to this appeal. All statutory references in this decision are to the pre-
Page: 3 Decision No. 2110/04 1997 Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to the appeal. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #5, would apply to the subject matter of this appeal: #1 Initial Entitlement; #31 Secondary or Non-compensable Conditions; #35 Continuing Entitlement/NEL DOA from January 2,1990 to December 31, 1997; #107 Aggravation Basis or SIEF; #300 Decision Making/Benefit of Doubt/Merits and Justice. (iii) Conclusions [14] I have carefully considered all of the testimonial and documentary evidence, and I conclude that the appeal ought to be allowed. [15] One of the key issues in the denial of this claim at the Board was the possibility that the worker s vertigo was related to non-compensable Meniere s disease, rather than the accident. I have considered the opinions of the Board s medical advisers that the condition was not compensable. [16] However, I find the opinion of Dr. J. Rutka, associate professor of the department of otolaryngology at the University of Toronto, to be persuasive. I note that Dr. Rutka is the author of the Tribunal s Discussion Paper on Hearing Loss and Tinnitus, dated February 2003. Dr. Rutka s curriculum vitae outlines his impressive credentials, including published research on dizziness and vertigo. Dr. Rutka examined the worker at the request of the Appeals Resolution Officer and provided a report in September 2003. In the September 2003 report, Dr. Rutka reviews the worker s history of accident, and described the worker s complaints of hearing loss, tinnitus, and vertigo. Dr. Rutka summarized the background information and history provided by the worker as follows: To summarize this information it would appear than in August 1995 [the worker] fell off a ladder striking his head. He was diagnosed to have the condition of right post traumatic BPV [benign positional vertigo] on the basis of a labyrinthine concussion it was postulated that the labyrinthine concussion also caused his asymmetric right sensorineural hearing loss to occur. The development of other dizzy attacks lasting minutes to hours associated with worsening of hearing in his left ear suggested that other pathologies might be present including considerations for atypical Meniere s Disease and perilymphatic fistula. From the history that I received on September 2, 2003, [the worker] confirmed that he still continues to have slight dizziness. This seems to be positional in nature and will occur for example if he rolls over in bed (primarily to the right side). It may also occur if he looks up quickly or bends over. The severe attacks of dizziness that he once experienced in the late 1990 s seem to have disappeared. He has not been aware of any
Page: 4 Decision No. 2110/04 fluctuation to hearing. He still continues to have some right sided tinnitus. There are no complaints of aural pressure. [17] Dr. Rutka described the results of otoneurological testing on the worker. All features pointed toward a cochlear origin for the hearing loss. Of particular interest in this appeal is that the results of electrocochleography, a test specifically used in the diagnosis of Meniere s Disease, appeared normal. Dr. Rutka concluded that if the worker did have Meniere s Disease or a similar type of pathology, then it appeared to be in remission and was certainly quiescent. Dr. Rutka felt that the symptoms the worker experienced in the late 1990 s, including worsening of the hearing in the left ear and the development of spontaneous attacks of vertigo lasting minutes to hours were more suggestive for the diagnosis of Meniere s disease. [18] However, Dr. Rutka did support a causal relationship between the worker s accident and his other symptoms, stating as follows: Taking into account [the worker s] history I would not be surprised if he sustained a right cohleolabyrinthine (inner ear) concussion as a result of the August 1995 injury. Post traumatic Benign Positional Vertigo is the most common of organic inner ear disorders seen following head injury. Its persistence on historical grounds is also common and I would not be surprised if [the worker] still experiences this condition from time to time. In this regard the asymmetry to hearing that was first noted in his right ear could also be reasonably attributed to his head injury. Taking all this information into consideration it would appear that [the worker] sustained a right inner ear concussion as the result of his fall that would explain the development of positional vertigo and his asymmetric right sided sensorineural hearing loss. [19] I accept Dr. Rutka s opinion that the worker s suffers from a benign positional vertigo related to his accident, although aspects of his symptoms in the late 1990 s were more likely to be caused by another pathology, such as Meniere s disease. [20] The ARO denied a NEL assessment for vertigo, on the basis that extent of the worker s symptoms did not warrant entitlement for a permanent impairment. In this regard, I must disagree. The worker testified about his symptoms and their effect on his functioning in a forthright and credible manner. He continues to have episodes of vertigo on an unpredictable basis, and this curtails his activities. The symptoms are significant enough to warrant ongoing review by Dr. L.S. Parnes, Professor of the Departments of Otolaryngology and Clinical Neurological Sciences at the University of Western Ontario. The worker testified that he saw Dr. Parnes a few weeks prior to the hearing. Dr. Parnes continues to consider the symptoms significant enough to warrant consideration of surgery, although the worker is not willing to undergo surgery, as there is no guarantee as to the outcome. I am satisfied that the worker s ongoing symptoms of benign positional vertigo are sufficient to entitlement him to a NEL assessment.
Page: 5 Decision No. 2110/04 THE DECISION [21] The appeal is allowed. The worker has entitlement for benign positional vertigo, including a non-economic loss assessment for this condition. DATED: This 7 th day of April, 2005. SIGNED: R. McCutcheon