WORKERS COMPENSATION APPEAL TRIBUNAL AND: APPELLANT WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #299

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] AND: APPELLANT WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #299 Appellant Respondent Brian Waddell, Q.C. Worker Advisor Representing the Worker Stephen Carpenter, Solicitor representing the Workers Compensation Board Place and Date of Hearing December 12, 2017 Loyalist Inn 195 Heather Moyse Drive Summerside, Prince Edward Island Date of Decision January 12, 2018

2 WCAT Decision #299 Page 2 of 9 Appeal Proceedings 1. This appeal was conducted on December 12, 2017 before the Workers Compensation Appeals Tribunal ( Tribunal ). 2. The worker brings this appeal from the decisions of the Internal Reconsideration Officer ( IRO ) IR # [PERSONAL INFORMATION] dated August 17, 2016 and IR # [PERSONAL INFORMATION] dated January 23, 2017, which denied the Appellant s claim for reopening of wage loss benefits and recurrence. Facts 3. The Appellant was employed as [PERSONAL INFORMATION] at [PERSONAL INFORMATION] and sustained a workplace injury on December 12, 2012 when she slipped and fell and injured her right hip and elbow. The Appellant did not immediately seek medical attention. [Appeal Record Tab 3] 4. On April 15, 2013 the Appellant went to see her family doctor, Dr. Nicholson and on April 16, 2013 submitted her Form 6 to the Workers Compensation Board (the Board ). [Appeal Records Tab 3, 5] 5. On April 29 th, 2013 the Board accepted the Appellant s claim with a diagnosis of right elbow contusion and low back strain. [Appeal Record Tab 11] 6. The Appellant s diagnosis was amended on October 10, 2013 by the Board s medical advisor, Dr. O Brien, to right hip, low back strain, right trochanteric bursitis and mechanical low back strain. [Appeal Record Tab 12] 7. The Appellant had surgery on her right hip, performed by Dr. Campbell, on April 3, 2014 and the post-operative diagnosis was right hip pain with chronic greater trochanter bursitis and gluteus medius tendon tear. [Appeal Record Tab 31] 8. On April 22, 2014 Dr. O Brien updated the Appellant s accepted diagnosis to full thickness tear gluteus medius tendon right hip with secondary right greater trochanteric bursitis. [Appeal Record Tab 33] 9. On June 3, 2014 Dr. Campbell reported that the Appellant was developing bursitis in her left hip and considered this to most likely be a reactive development. [Appeal Record Tab 36]

3 WCAT Decision #299 Page 3 of Dr. O Brien advised the Board on June 25, 2014 that the Appellant s left hip symptoms were reasonably related to her compensable injuries. [Appeal Record Tab 33] 11. In response to Dr. O Brien s comments, on the same date the Board updated the Appellant s diagnosis to right hip open greater trochanteric bursectomy and repair of gluteus medius tendon full thickness tear gluteus medius tenon hip with secondary greater trochanteric bursitis bilaterally. [Appeal Record Tab 39] 12. On June 4, 2015 the Appellant had surgery on her right hip performed by Dr. Wong. Dr. Wong s post-operative diagnosis was right hip labral tear with femoroacetabular impingement with marked synovitis, psoas tendonitis and early arthritis. [Appeal Record Tab 49] 13. The Appellant s accepted diagnosis was updated once again on July 31, 2015 to be full-thickness tear gluteus medius tendon right hip; repaired, with secondary greater trochanteric bursitis bilaterally; plus, right hip labral tear with labral repair. [Appeal Record Tab 53] 14. On October 8, 2015 an MR arthrogram of the Appellant s left hip revealed a labral tear. [Appeal Record Tab 58] 15. Dr. O Brien opined on November 4, 2015 that the left hip tear was unrelated to the compensable injury and in consequence, on November 6, 2015 the Board once again amended the Appellant s existing diagnosis. [Appeal Record Tab 61] 16. Between January 11 and March 4, 2016, the Appellant took part in a multidisciplinary program to deal with pain management. [Appeal Record Tabs 72, 77] 17. On February 18, 2016, post a physical demands assessment, the Appellant was deemed not to be a safe match for her former [PERSONAL INFORMATION] position. [Appeal Record Tab 71, 73] 18. The Appellant commenced an easeback program on March 7, 2016 with an expected completion date of May 2, 2016, [Appeal Record Tab 74] 19. On March 30, 2016 the Board denied the Appellant s claim in respect of her left hip labral tear.

4 WCAT Decision #299 Page 4 of The Appellant secured a position as a [PERSONAL INFORMATION], which was deemed by a Functional Job Analysis conducted on September 11, 2013 to be a safe job match. [Appeal Record Tab 88] 21. On April 25, 2016 the Appellant was assessed by physiotherapist David Evans who reported that the Appellant continued to experience pain in her right anterior and lateral hip, and had increasing levels of discomfort with standing for more than half and hour. On the same date Dr. Wong recommended that the Appellant continue physiotherapy for a further two weeks. [Appeal Record Tabs 84, 85] 22. On May 20, 2016 the Appellant s easeback program was extended until June 3, 2016 upon the recommendation of Dr. Wong. [Appeal Record Tab 81] 23. On May 24, 2016 the Board informed the Appellant that her temporary wage loss benefits would cease on June 3, 2016 but the medical aid benefits would remain open. [Appeal Record Tab 87] 24. The Appellant completed the easeback program on June 3, [Appeal Record Tab 79] 25. On July 4, 2016 the Appellant was seen by Dr. Wong who reported that the Appellant continued to have pain in her right hip in relation to the greater trochanter. A pelvic x-ray was conducted at the same time. [Appeal Record Tabs 92-93] 26. On July 5, 2016 the Appellant s request for internal reconsideration of the Board s March 30, 2016 decision was received. [Appeal Record Tab 90] 27. Dr. Nicholson put the Appellant off work again on July 26, 2016 on the basis that she continued to experience significant discomfort. [Appeal Record Tab 83] 28. On August 2, 2016 the Appellant filed a new Form 6 requesting the reopening of her temporary wage loss benefits on the basis of recurrence. The Appellant claimed that her right hip continued to cause problems for her after her second surgery and, and that she continued to have pain in her left hip. [Appeal Record Tab 95] 29. On August 11, 2016 Dr. Nicholson indicated that the Appellant was unable to work as a result of ongoing bilateral pain. [Appeal Record Tab 83]

5 WCAT Decision #299 Page 5 of On August 17, 2016 the Internal Reconsideration Officer issued a decision that denied that the Appellant s ongoing left hip symptoms were compensable under her claim. [Appeal Record Tab 97] 31. On August 24, 2016 the Board denied the Appellant s August 2, 2016 claim for recurrence. [Appeal Record Tab 99] 32. On January 23, 2017, the Appellant s request for internal reconsideration of the August 24, 2016 decision was denied. [Appeal Record Tab 1] Issues 33. There are two issues for the Tribunal to decide on in this file. Firstly, was the decision to deny the Appellant s claim to have her left hip difficulties included as an accepted diagnosis correct? And secondly, was the denial of the Appellant s claim for recurrence correct? Appellant s Argument 34. The Appellant s arguments were canvassed in the Appellant Factum and oral presentation. The Tribunal considered everything presented. 35. With regard to the first issue, the Appellant submits that her left hip injuries are an integral part of her claim. She notes that her accepted diagnosis changed numerous times over the course of the claim and specifically that her left hip was included at one point as left hip trochanteric bursitis. [Appeal Record Tab 39] 36. The Appellant points to the opinion of Dr. Campbell in his letter of January 7, 2016 where he notes the findings of the Appellant s MRI and states, it does seem her left was injured at the time of the accident given that it started to be painful at the same time as her injury it would follow that this is likely a resulting of her fall and her injury. [Appeal Record Tab 70] 37. The Appellant notes that Dr. Campbell is the treating Orthopaedic Surgeon on this file and his letter provides his opinion on causation which is based on objective medical information. The Appellant submits that the Board based their decision soles on Dr. O Brien s November 4, 2015 opinion that left hip tear was unrelated to the compensable injury.

6 WCAT Decision #299 Page 6 of With regards to the conflicting medical information as opined by Dr. Campbell and Dr. O Brien the Appellant points to Board Policy 68 Weighing of Evidence and submits that the opinion of Dr. Campbell, an Orthopaedic Surgeon with a degree of specialization, who has examined and treated the Appellant, should be given more weight than the Board medical advisor, Dr. O Brien who has not examined the patient but simply reviewed the medical file. [Appeal Factum Tab 2] 39. Furthermore, the Appellant relies in the alternative on the benefit of the doubt provisions under Section 17 of the Workers Compensation Act which provides that when the evidence for and against an issue is approximately equal in weight, the issue should be resolved in favor of the claimant. [Appeal Factum Tab 6] 40. With regards to her recurrence claim, the Appellant submits that the medical evidence indicates that she is incapable of continuing to work because of her compensable injury. 41. The Appellant points to Dr. Wong s opinion of July 4, 2016 where he noted that the Appellant s pain was over her greater trochanter which suggests it is related to her bursitis. He also notes that the Appellant s symptoms increased with her return to full time work. [Appeal Record Tab 93] 42. The Appellant also relies on the opinion of Dr. Nicholson who reported that her condition had deteriorated and that she was unable to continue to work and put her off work indefinitely for medical reasons. [Appeal Record Tabs 83, 95] 43. The Appellant notes that she had made significant efforts to return to work but describes increasing pain when she began working five to six-hour shifts, indicating that she needed to take time off every two or three days after returning to full time work. The Appellant also points to the Employer s Report (Form 7) which notes her difficulties returning to full time duties. Further, the Appellant points to her own Worker s Ease Back Journal entries which state an increase in pain symptoms as her hours increased and on consecutive work days. [Appeal Record Tabs 95,96,76] 44. With regards to the discharge report from CBI, relied upon by the Board to indicate that the Appellant met the functional demands for the [PERSONAL INFORMATION] position, the Appellant points out that her standing ability was measured at two hours while her walking ability was twenty-four minutes. The Appellant submits that these are not equivalent to the requirements of working a full shift and working consecutive days. Further the Appellant notes that she was assessed post discharge from CBI on May 12,

7 WCAT Decision #299 Page 7 of by Citadel Physiotherapy in Halifax and the report notes, at this time [PERSONAL INFORMATION] has not met her goals for discharge. [Appeal Record Tab 84] 45. Finally, the Appellant refers to the PEI Court of Appeal decision in Dowling v. Workers Compensation of Prince Edward Island 1994, CanLII 8689 which stands for the provision that the Act should be interpreted liberally to provide compensation for work related injuries to as many as can reasonably be seen to fall within its purview. [Appeal Factum Tab 7] Respondent s Argument 46. The Respondent s arguments were canvassed in the Respondent Factum and oral presentation. The Tribunal considered everything presented. 47. With regards to the left hip tear the Respondent acknowledges that the left hip was approved as an anatomical area in relation to bursitis bilaterally however the labral tear was never approved as part of the claim and did not arise until after the October 8, 2015 MRI. Subsequently Dr. O Brien opined that the labral tear was not related to the workplace accident. He relies on the textbook ODG Treatment in Workers Compensation, 2015, online version for the proposition that an asymptomatic patient has a greater than 50% chance of having a labral tear and therefore the left hip tear is more likely than not due to other factors. 48. The Respondent recognizes that Dr. Campbell has provided an opposing view to Dr. O Brien with regards to the left hip in his letter of January 7, The Respondent makes the point that Dr. Campbell was asked by the Appellant to write the letter and submits that often treating physicians take the role as advocates for their patients. The Respondent also submits that Dr. Campbell s language is not overly confident in his letter when he uses phrases such as, which she feels she injured at the same time.and. It does seem her left hip was injured at the same time of her accident. [Appeal Record Tab 70] 49. The Respondent submits that Dr. O Brien is in a better position to give an opinion on the left hip issue as he is more objective, has access to the Appellant s complete file, and distinguishes between the left hip bursitis and labral tear. 50. Turning to claim of recurrence, the Respondent takes the position that the Appellant has not sustained a recurrence as defined in Board Policy-60 Recurrence as among other things there has been no return of a disabling condition as the preponderance of objective medical evidence on record

8 WCAT Decision #299 Page 8 of 9 supports a finding that the Appellant has the functional abilities to perform the duties associated with the Combined Services Worker position. [Appeal Factum Tab 2] 51. The Respondent notes Dr. Campbell s post-surgery comments from April 16, 2014 where he indicates that he surgery went well and that it is safe for the Appellant to be as active as possible and that she has not specific limitations other than her limits due to pain. [Appeal Record 32] 52. Dr. Campbell also notes on June 3, 2014 that it is safe for the Appellant to start an easeback program. [Appeal Record Tab 36] 53. The Respondent also submits that the chiropractic reports from August and September 2014 clear the Appellant for easeback. [Appeal Record Tab 13] 54. The Respondent points out Dr. Wong s comments from June 29, 2015, following the Appellant s right hip arthroscopy where he indicates that the Appellant was doing better and had very minor pain. [Appeal Record Tab 52] Dr. Wong also notes on December 7, 2015 that the Appellant was quite happy with her progress, going back to work 3-4 hours per day, and recommended continuing physiotherapy. [Appeal Record Tab 65] 55. The Respondent notes the commentary from the CBI Pain Management Discharge report from March 2016 which notes improvements in strength and functional tolerances and recommends the Appellant participate in a traditional easeback program. [Appeal Record Tab 77] Decision 56. For reasons which are set out in this decision, the worker's appeal is allowed. 57. The Tribunal appreciates that the positions put forth by both the Appellant and Respondent are reasonable. However, with relation to the left hip issues the Tribunal finds the left hip issues are more likely than not a result of the compensable workplace accident. 58. In weighing the evidence, the Tribunal finds Dr. Campbell s opinion as the treating physician to carry more weight in this particular set of circumstances than Dr. O Brien s. Dr. Campbell does not differentiate the bursitis from the labral tear however the Tribunal agrees with the Appellant that the main issue boils down to the overall pain in her left hip and there was no evidence put forward by the Respondent to indicate that the labral tear was caused by something distinguishable than the workplace accident.

9 WCAT Decision #299 Page 9 of Taking into account the benefit of the doubt provisions of the Act, the Tribunal finds that it is more likely than not that the left hip issues were caused by the compensable workplace injury. 60. With regards to the Appellant s claim of recurrence the Tribunal accepts the evidence put forward by the Appellant which indicates that she is currently not ready to return to work on a fulltime basis. The worker has been diligent in her efforts to return to work and has undoubtedly made improvements. However, at this point in her recovery, and with regards to her bilateral hip issues, the Tribunal finds agrees that she is not yet in a position to return to work on a full-time basis. Hopefully with continued treatment and through and extended easeback program she will reach that point in the future. 61. For the above noted reasons the Worker s Appeal is allowed. 62. The Tribunal would like to thank the parties for their submissions. Dated this day of January, Gordon MacFarlane Vice Chairperson Workers Compensation Appeal Tribunal Concurred: Diana Lariviere Employer Representative Gordon Heustis Employee Representative