WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1228/12 BEFORE: R. McCutcheon: Vice-Chair HEARING: June 12, 2012 at Timmins Oral DATE OF DECISION: February 5, 2013 NEUTRAL CITATION: 2013 ONWSIAT 268 DECISION(S) UNDER APPEAL: WSIB ARO decision dated January 19, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Ms. C. Lamoureux-Chaylt, Office of the Worker Adviser Ms. I. Tonkin, Paralegal N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2
Decision No. 1228/12 REASONS (i) Introduction to the appeal proceedings and the issue [1] The worker appeals the decision of Appeals Resolution Officer (ARO), which denied entitlement to a non-economic loss (NEL) award for bilateral trigger finger. This is the issue in this appeal. [2] The worker testified under oath at the hearing. The representatives for both parties made submissions. (ii) Background [3] This worker, born in 1943, began with the accident employer, a mining company, in 1995. The worker experienced an onset of bilateral wrist problems and sought medical treatment in June 2001. He was diagnosed with bilateral carpal tunnel syndrome (CTS) in October 2001. The worker reported the claim to his employer in December 2001. He felt that the conditions were related to his work as an underground scooptram operator. The WSIB initially denied the worker s claim, but it was later allowed pursuant to an ARO decision dated October 14, 2004. 1 [4] The worker was also diagnosed with bilateral trigger finger. He underwent surgery for the left trigger finger of the ring finger on June 21, 2004; surgery was carried out on the right trigger finger (ring finger) on July 11, 2005. The WSIB denied entitlement to a permanent impairment for carpal tunnel syndrome and denied initial entitlement for the bilateral trigger finger. Pursuant to Decision No. 1881/06 (February 20, 2008), the worker s appeal was allowed as follows: The worker was entitled to a NEL assessment in relation to his bilateral CTS condition. The worker was entitled to benefits for his trigger finger in his left ring finger. The nature and extent of the worker s entitlement to benefits for this condition was remitted to the WSIB for determination. The worker was entitled to further LOE benefits beyond the six weeks after his first carpal tunnel release surgery, which took place in December 2003. The Board was directed to determine the extent and duration of the LOE benefits to which the worker is entitled in that regard. The worker was entitled to further LOE benefits beyond the six weeks after his second carpal tunnel release surgery, which took place in March 2004. The Board was directed to determine the extent and duration of the LOE benefits to which the worker is entitled in that regard. [5] Subsequently, the WSIB arranged a NEL assessment for bilateral carpal tunnel syndrome and granted a 10% whole person impairment award in July 2008. The WSIB denied a NEL assessment for bilateral trigger finger. This decision was based upon the opinion of Dr. O Connor, WSIB Medical Consultant, dated May 2008. Dr. O Connor reviewed a medical report dated March 2008 and gave the opinion that this medical report suggested ongoing subjective symptoms related to the diagnosis of bilateral CTS, but no medical findings to 1 This decision allowed a reconsideration request of a previous decision denying the claim, dated April 21, 2004.
Page: 2 Decision No. 1228/12 indicate that there had been a significant loss of function or permanent impairment related to the right or left trigger fingers. [6] In the decision under appeal, the ARO found that there was a lack of objective evidence of an assessable loss of function. The worker appeals to the Tribunal. (iii) Law and Policy [7] The Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [8] Section 46 of the WSIA provides that, if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [9] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [10] Permanent impairment means impairment that continues to exist after a worker reaches maximum medical recovery (MMR). Pursuant to Document No. 11-01-05 of the Operational Policy Manual, Determining Maximum Medical Recovery (MMR), workers reach MMR when they have reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment. [11] Legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions. [12] Pursuant to the section 126 of the WSIA, the WSIB stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: (iv) #61 NEL Entitlement; #300 Decision Making/Benefit of Doubt/Merits and Justice. Testimony [13] The worker testified that his hands are weak as a result of the CTS. He has numbness and lack of power in his hand. His fingers were stuck in a bent position before the surgeries. The surgery helped him to be able to straighten his fingers, but he does feel pain in his fingers when he uses force, for example, carrying shopping bags or opening the garage. His right hand was worse because he always uses his right hand. His condition was better after treatment, but then it got worse again. His ring fingers are affected. [14] He does small exercises for his hands. The condition affects his writing. He has to write one line and then take a break. He has been taking two Arthrotec pills a day since 2005. He feels worse without it. [15] He recalled seeing Dr. Mitchell in 2008, after which he went to physiotherapy for a few weeks. The worker previously had physiotherapy for a month in June 2004 and then in
Page: 3 Decision No. 1228/12 July 2005. The worker testified that he can drive for a few minutes, but his wife drives most of the time. The surgery for the fingers did help, because previously he could not straighten the fingers, but it still clicks and he feels pain on both sides. [16] The worker is now 70 years of age and does not work or engage in sports. He testified that he goes for walks and reads. He last saw Dr. Mitchell in 2008. He continues to see his family doctor. (v) Conclusions [17] I find that the evidence establishes that the worker has an assessable permanent impairment related to bilateral trigger finger. In particular I note the following: Dr. W. M. Mitchell, physical medicine and rehabilitation specialist, saw the worker in September 2008, and noted that the worker had palpable flexor tendonitis with mild triggering in the right and left ring digits which are tender and show some crepitation, so there is no doubt that this problem is ongoing. Dr. Mitchell recommended treatment with physiotherapy in the form of ultrasound and friction massage. A Patient Visit History from the Timmins District Hospital showed that the worker visited the hospital for bilateral trigger finger on numerous occasions in October 2008. These visits were for physiotherapy treatment for the bilateral trigger finger. While there may be some overlap between the carpal tunnel symptoms and trigger finger, Dr. A. Thoma, plastic surgeon, clarified in June 2005 that these are two independent conditions. Although there was a focus on range of motion, the AMA Guides state that the methods for evaluating impairments of the upper extremity may be considered anatomic, cosmetic or functional. A combination of these methods is necessary to show an accurate profile of the patient s condition (3.1 The Hand and Upper Extremity, p. 14). The worker s limitations in carrying out tasks are relevant to the functional assessment of impairment. The worker's representative also referred to Decision No. 2251/11 in support of the proposition that range of motion findings are not necessarily determinative of whether an assessable impairment exists. [18] The employer's representative argued that there was no medical reporting from 2008 to 2012. Nonetheless, Dr. Mitchell s reporting in 2008, several years after the surgeries, indicates that the worker still had symptoms and recommended further treatment. Dr. Mitchell documented objective signs, including crepitus. The lack of active medical treatment after 2008 reflects that the worker reached maximum medical recovery, at which time further significant improvement is not expected. The worker s testimony confirmed that he continues to have symptoms, such as clicking, which is consistent with Dr. Mitchell s reference to crepitus. The employer's representative submitted that there was no evidence of treatment for flare-ups, but this is not the test for entitlement for a NEL assessment. A NEL assessment is granted where a worker has a permanent impairment after the condition has reached MMR and has stabilized.
Page: 4 Decision No. 1228/12 [19] The employer's representative also argued that the NEL examination for CTS assessed both the wrists and the hands, but Dr. Thoma s report clearly indicates that the CTS is a distinct and separate condition from the trigger finger. The NEL Evaluation form, dated July 11, 2008, also specifies that the NEL award was granted exclusively for the diagnosis of CTS.
Page: 5 Decision No. 1228/12 DISPOSITION [20] The appeal is allowed. [21] The worker is entitled to a NEL assessment for the condition of bilateral trigger finger. DATED: February 5, 2013 SIGNED: R. McCutcheon