WORKERS COMPENSATION APPEAL TRIBUNAL WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #172

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: AND: WORKER CASE ID # [personal information] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND APPELLANT RESPONDENT DECISION #172 Appellant Worker, as represented by Maureen Peters, Worker Advisor Respondent Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing November 19, 2012 Quality Inn and Suites Downtown 150 Euston Street Charlottetown, Prince Edward Island Date of Decision January 21, 2013

2 WCAT DECISION #172 Page 1 of 11 Facts and Background 1. This is an appeal of a decision of the Internal Reconsideration Officer ( IRO ) of the Workers Compensation Board ( Board ) dated April 24, 2012, being Decision IR#[personal information] which denied the Appellant s claim for compensation. 2. The Appellant was employed as a [personal information] supervisor on March 5, 2011, when she attended the Queen Elizabeth Hospital complaining of shoulder pain which she had been experiencing for several days. An x-ray was ordered which revealed some degenerative changes at C5-C6. The discharge diagnosis was cervical spondylosis without myelopathy. [Appellant s Appeal Record Tab 4] 3. The Appellant s symptoms continued, and the Appellant returned to the Emergency Department of the Queen Elizabeth Hospital two days later on March 7, The admitting diagnosis was neck pain and the discharge diagnosis was herniated disc and the Appellant was put off work for a week. [Appellant s Appeal Record Tab 5] 4. A CT report performed on March 9, 2011, reads in part: Images were obtained from the skull base through the upper thoracic spine. The sagittal reconstructions demonstrate some degenerative changes with intervertebral disc space narrowing at C5-6, C6-7, and probably C7-T1 with some anterior osteophytes. There is also posterior osteophytes at C6-7. [Appellant s Appeal Record Tab 6] 5. The Appellant was seen by her family physician, Dr. Ken Coady, on March 24 and April 4, 2011, who referred her for physiotherapy and put her off work until May 15, [Appellant s Appeal Record Tab 7 and Tab 11]

3 WCAT DECISION #172 Page 2 of The Appellant filed a Worker s Report Form 6, and a Manual Handling - Progressive Injury Questionnaire dated March 25, 2011, and stated that her symptoms of pain as being in her left side of neck into left shoulder down the back of top left arm & front of bottom arm into the thumb & finger next to it. These symptoms were related to repetitive reaching and pulling. [Appellant s Appeal Record Tab 9] 7. On April 28, 2011, an assessment of the Appellant s work station was conducted by a Board Occupational Therapist, and in her report she stated that there was more repeated activity in the Appellant s right hand. The report states: it was noted that her [Appellant s] dominant right hand completes the majority of the work to reach for the [personal information] with occasional assistance from the left arm if the bag has to be lifted [personal information]. The [personal information] is wide and creates an awkward reach but this is at the right arm. The [personal information] work is not highly repetitive for more than a few minutes at a time as customers sporadically enter the store with some peaks at lunch time/early morning but overall appropriate biological resting appears to be present in the day as she works. The report concluded: Although the left arm assists with some of the tasks, the exposure is lower than the right and risk factors for the left arm / neck were unable to be appreciated during this assessment. [Appellant s Appeal Record Tab 15] 8. On May 5, 2011, the Board approved the Appellant for 12 physiotherapy treatments effective May 2 and ending May 30, [Appellant s Appeal Record Tab 17] 9. On May 24, 2011, the Board s Medical Advisor, Dr. Steve O Brien, provided an opinion that the Appellant s condition could not be reasonably be related to the workplace, but was more likely a result of pre-existing degenerative condition. [Appellant s Appeal Record Tab 19]

4 WCAT DECISION #172 Page 3 of By letter dated June 30, 2011, the Board s Entitlement Officer informed the Appellant that her claim was being denied. [Appellant s Appeal Record Tab 22] 11. On July 12, 2011, the Appellant requested a reconsideration of that decision, and subsequent to the Appellant s Request for Internal Reconsideration, her family doctor, Dr. Ken Coady, provided a letter dated September 21, 2011, wherein Dr. Coady claimed that the Appellant s job involved repetitive reaching and, as a result, repeated neck extension led to the development of her current problems. [Appellant s Appeal Record Tabs 23 and 27] 12. On October 3, 2011, the Appellant was examined by Dr. Brendan Kenny, a neurosurgeon. Dr. Kenny opined that the Appellant would be a candidate for anterior cervical decompression and fixation at C6-C7, and there would be a good chance such a procedure would alleviate her symptoms. 13. The Appellant s request for internal reconsideration was subsequently dismissed by the IRO by letter dated October 13, The IRO ruled that Dr. Coady s letter was not on file at the time of the case worker s decision. Therefore, the file was returned to the case worker to review the new evidence. [Appellant s Appeal Record Tab 29] 14. That evidence was returned to the Entitlement Officer for review and a decision issued on December 13, 2011, indicating that the evidence received did not change the earlier decision to deny the claim. [Appellant s Appeal Record Tab 30] 15. The Appellant submitted a second Request for Reconsideration on March 8, 2011, and the IRO s decision denying the request was issued on April 24, The IRO ruled that risk factors associated with repetitive strain injury to the left neck/shoulder were not appreciated during the work site assessment completed by the Occupational Therapist. The IRO acknowledged that a pre-existing condition was not a bar to compensation;

5 WCAT DECISION #172 Page 4 of 11 however, in order to be compensable a work related injury must have aggravated it and there was no injury which occurred in the workplace which aggravated the pre-existing condition of cervical disc disease. [Appellant s Appeal Record Tabs 31 and 1] 16. The Appellant appealed the IRO s decision to this Tribunal by Notice of Appeal dated May 23, [Appellant s Appeal Record Tab 2] Issue Did the Appellant s left neck/shoulder injury arise out of and in the course of employment? Analysis/Decision 17. This Tribunal is a creature of statute, having been created pursuant to provisions of the Workers Compensation Act, R.S. P.E.I. 1988, Cap. W-7.1 as amended (the Act ). Section 56(17) of the Act states that this Tribunal is bound by the Act and its regulations as well as the policies of the Board. 18. A worker who suffers an accident at work is entitled to benefits pursuant to the Act. In the section 1(1) of this Act, accident is defined as follows: accident means, subject to subsection (1.1) a chance event occasioned by a physical or natural cause, and includes (i) a wilful and intentional act that is not the act of the worker, (ii) any (A) event arising out of, and in the course of, employment, or (B) thing that is done and the doing of which arising out of, and in the course of, employment, and (iii) an occupational disease, and as a result of which a worker is injured.

6 WCAT DECISION #172 Page 5 of The Appellant argued that compensation is not limited to instances where there has been a specific event and that progressive injuries often result from repetitive strain. The Tribunal was directed to Policy POL-91, Repetitive Strain Injuries, which reads in part: 2. Thorough investigation to determine the causation and to establish a well-defined medical diagnosis is essential as it forms the basis of appropriate treatment. Claims will be considered when there is a probable association between the medical condition and exposure to the task risk factors. Investigations may include the following: - a comprehensive medical assessment including: clinical history, physical examination with diagnostic testing (nerve conduction studies/ x-rays); - investigation of non-occupational risk factors; - assessment of occupational risk factors by an Occupational Therapist including a worksite visit. 20. The Appellant submitted that while a Board Occupational Therapist did complete a worksite assessment on April 28, 2011, she was present only for a forty-five minute duration outside of peak time. The Appellant feels this was not sufficient time to make a true assessment of her job duties. 21. The Appellant further argued that the assessment was completed approximately two months following her initially seeking medical treatment and by that time she was limiting the use of her left arm. She also stated that during peak times she uses both arms to [personal information] so that transaction can be completed quickly. 22. The Appellant argued that, before a Board decision can be made on whether an injury arose out of, and in the course of the Worker s employment, the Board must weigh all of the evidence pursuant to Policy POL-68, Weighting of Evidence which reads in part:

7 WCAT DECISION #172 Page 6 of 11 POLICY: 1. The decisions of the Workers Compensation Board are made in accordance with the real merits and justice of the case and the Workers Compensation Board is not bound to follow strict legal precedent. In determining the merits and justice of each case the Workers Compensation Board must give consideration to: - all relevant information relating to the case in order to establish the facts and circumstances relating to the case; - relevant provisions of the Workers Compensation Act and Regulations; and - relevant Workers Compensation Board policies. 2. In making decisions related to compensation benefits, the Workers Compensation Board will examine the evidence to determine whether it is sufficiently complete to allow a decision to be made. If the Workers Compensation Board determines more information is required to make a decision, the Workers Compensation Board will work with the worker, employer, and health care providers to obtain the necessary information. The Workers Compensation Board will gather, review, and weigh all relevant evidence as part of the decision making process. However, the Workers Compensation Board will give greater weight to evidence that is factual and objective when making a decision. 3. The Workers Compensation Board will assess and weigh all relevant evidence and make decisions based on a balance of probabilities -- a degree of proof which is more probable than not. 23. The Appellant argued that there is sufficient evidence to support, on a balance of probability, that her injury is work related, and points to the following evidence: a) Family physician s report of March 24, 2011, wherein the injury is described as repetitive reaching across wide counter [at] work. Onset [left] neck shoulder arm pain. [Appellant s Appeal Record Tab 7]

8 WCAT DECISION #172 Page 7 of 11 b) The undated physiotherapist s report (received by the Board on March 28, 2011) wherein she wrote, this patient has an acute episode of [left] scalene/trapezius muscle pain [with] radiating pain into [left] arm. Working is aggravating patient s condition. [Appellant s Appeal Record Tab 8] c) The completed Worker s Report - Form 6, completed by the Appellant, which is consistent with the report of the family physician. [Appellant s Appeal Record Tab 9] d) The evidence of the Appellant that her symptoms improved when she was not at work. e) Family physician s letter of September 21, 2011, where he writes,... her current problem with cervical disc disease arises from here occupation as a clerk. Her job did involve repetitive reaching and, as a result, repeated extension that led to the development of her current problems. [Appellant s Appeal Record Tab 27] 24. Finally, the Appellant argued that although Dr. Steve O Brien s opinion was that the Appellant s symptoms were likely a result of a pre-existing condition, that is contrary to the comments of her family physician. Also, the existence of a pre-existing condition is not a bar to compensation, and therefore on the balance of probabilities the weight of the evidence is in the Appellant s favour. 25. On the other hand, the Respondent argued that the medical evidence on file does not support a connection between the workplace and the Appellant s neck and arm symptoms. He pointed to the absence of any mention of repetitive strain in the various Emergency Department reports.

9 WCAT DECISION #172 Page 8 of In particular, counsel for the Respondent noted that the x-ray report dated March 5, 2011, revealed degenerative changes between C5-6 and C6-7, and the CT scan completed on March 9, 2011, confirmed degenerative changes at C5-6, C6-7 and C7-T1. [Appellant s Appeal Record Tabs 4 and 6] 27. Also, the Respondent argued that the Board Occupational Therapist failed to find any factors which would be indicative of repetitive strain. In her report, the Occupational Therapist made the following comments: Medical literature cites known risk factors such as high repetition, high forces and extreme postures as possible contributors to the development of repetitive strain injuries to neck/shoulder. The above job was analyzed with respect to these factors and it was noted that her dominant right hand completes the majority of the work to reach for the [personal information] with occasional assistance from the left arm if the bag has to be lifted [personal information]. The [personal information] is wide and creates an awkward reach but this is at the right arm. The [personal information] work is not highly repetitive for more than a few minutes at a time as customers sporadically enter the store with some peaks at [personal information] but overall appropriate biological resting appears to be present in the day as she works. She is also placing product and facing shelves but predominately reaches with the right from these tasks as well. Although the left arm assists with some of her tasks, the exposure is lower than the right and risk factors for the left arm/neck were unable to be appreciated during this assessment. [Appellant Appeal Record Tab 15) 28. The Respondent also referred to Dr. Steven O Brien s medical opinion where he states: On a report from the Queen Elizabeth Hospital, March 5, 2011, the discharge diagnosis was cervical spondylosis without myelopathy. This diagnosis would be considered to be a degenerative arthritis change in the neck, which would take many years to develop, and

10 WCAT DECISION #172 Page 9 of 11 would not be related to the workplace activity as described in this file. [Appellant s Appeal Record Tab 19] 29. The Respondent indicated the Appellant had only been in her position for approximately nine months, and the letter from the family physician dated September 21, 2011, indicating the her symptoms were work-related represent a subjective opinion as there is no evidence to suggest he had visited the workplace or conducted an assessment. 30. The Respondent also argued that the Neurosurgery Consultation report from Dr. Brendan Kenny did not make any reference to employment or repetitive strain being a cause of the Appellant s current symptoms. 31. Finally, the Respondent directed the panel to an earlier decision of this Appeal Tribunal where it denied a worker s appeal for benefits, namely Decision #95. In that decision the panel ruled, if the task is not sufficient repetition to be deemed a repetitive strain injury as per the Board policy, and it does not appear to be a single event injury, then it is the Tribunal s position that the Appellant has failed to show that her injury was caused by an accident as defined within the Act. 32. The Respondent argued that this case currently under appeal appears to be similar to Decision #95 in that there was no single event which caused the Appellant s symptoms, nor are the potential risk factors for a repetitive strain injury present. 33. The Respondent further argued that the Occupational Therapist s report of April 28, 2011, stated that there were no risk factors associated with the Appellant s employment. On the other hand, Paragraph 3 of Board Policy 91 Repetitive Strain Injuries identifies possible non-occupational or personal risk factors, which may contribute to the development of repetitive strain injuries and include, among others, high body mass

11 WCAT DECISION #172 Page 10 of 11 index and smoking, both of which applied to the Appellant. It was noted that these factors were also referred to in Dr. Kenny s consultation. 34. As stated by counsel for both parties, a pre-existing condition is not a bar to compensation. However, in order for it to be compensable, a work related injury must have aggravated that pre-existing condition. In this case, the Respondent argued there was no evidence that the Appellant suffered a workplace accident pursuant to the Act. 35. In considering all the evidence before this Tribunal we respectively agree with the Respondent s position that on the balance of probabilities there is not sufficient evidence that a workplace injury occurred which aggravated the Appellant s pre-existing condition. 36. The Occupational Therapist s report of April 28, 2011, is extremely persuasive in that the Occupational Therapist failed to note any significant factors which would contribute to the development of a repetitive strain injury to the neck/shoulder. This evidence must be weighed against the physiotherapist s note stating work aggravated the Appellant s condition. However, it should be noted that actual physiotherapy reports of May 3, 2011, May 10, 2011, and June 1, 2011, [Appellant s Appeal Record Tabs 16, 18 and 21] stated that the Appellant noted that she developed her symptoms as a result of repetitive reaching at work, which is a subjective comment as opposed to the physiotherapist actually opining that the symptoms arose as a result of repetitive reaching at work. 37. The letter of the family physician dated September 21, 2011, [Appellant s Appeal Record Tab 27] must also be weighed against the Occupational Therapist s Report. While Dr. Coady does opine that the Appellant s repetitive reaching at work resulted in the Appellant s medical condition, it should be noted that it does not appear that Dr. Coady visited the Appellant s place of employment to view the Appellant s work activities.

12 WCAT DECISION #172 Page 11 of Therefore in reviewing all the relevant evidence before this Tribunal, we rule that on the balance of probabilities, the evidence fails to show that there was a work related injury, either a single event injury or a repetitive strain injury. In order to receive compensation the Appellant must prove on the balance of probabilities that there was an injury, as defined by the Act, which aggravated a pre-existing condition. In this case, the Appellant has failed to prove on the balance of probabilities that the Appellant s condition was caused by her employment. On the other hand, there is evidence (the report of the Occupational Therapist) of a lack of factors for the development of a repetitive strain injury. 39. Therefore, the Tribunal is unable to rule in favour of the Appellant and upholds the decision of the IRO. Appeal dismissed. Dated this 21 st day of January Wendy E. Reid, Q.C., Chair Workers Compensation Appeal Tribunal Concurred: Scott Dawson, Employer Representative Libba Mobbs, Worker Representative