WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090008
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker
HEARING DATE: August 25, 2009
ATTENDEES: Worker, Worker Representative and Employer
ISSUE
The worker objects to the denial of entitlement to a Non-Economic Loss (NEL) re-determination.
HOW THE ISSUE ARISES
In 1996, the worker reported a gradual onset of left wrist problems, attributed to the job of School Secretary. She was diagnosed with left carpal tunnel syndrome. Entitlement was granted and benefits were paid in accordance with the medical evidence received. The worker underwent a NEL assessment in October, 2003 following which she was granted a 5% NEL award.
Her representative requested a NEL re-determination in 2007, however, following review by a WSIB Medical Consultant, the request was denied in a letter of January 25, 2008. The worker objected to the adverse decision made and the file was referred to the Appeals Branch for consideration.
AUTHORITY
18-05-09 – Re-determinations and Recalculations
ASSESSMENT OF THE EVIDENCE
Since October, 2003, the left lower arm has changed as there are sharp stabbing pains going up the arm with increasing frequency over longer periods of time. Sometimes the pains last all day and this did not occur before. The pain is centred around the wrist up towards the elbow. This is the same area of pain in October, 2003. The size of the stabbing pain has increased since 2003 to the point of radiating up the arm and up the shoulder. This affects everyday life including showering and housework. As a result of the pain, there are impediments and she gets help from her husband for what she cannot do herself. Since October, 2003, medications include pain killers (Tylenol 3 once a day) and muscle relaxants and there has been an increase since 2003. Her family doctor on record has been her family doctor for over 20 years. She was referred to a neurologist in 2007 and she was referred as there was increased pain and stiffness in her hand, as well as trigger fingers. The fingers lock practically every day especially when she wakes up in the morning. Further surgery has been recommended but she is trying to put it off as she knows people who have had it done without improvement. There are no further investigations or referrals pending. Since the time of the NEL assessment in October, 2003, the numbness present at the time is still there, as is pain in the thumb to the elbow and shoulder. The pain is however more at this time. She grips but her hand is weak and she usually drops things, such as a cup of coffee. This has affected her emotionally as she can no longer do what she used to do and she is limited with respect to household tasks.
The trigger finger symptoms have been evident since approximately 2000. She saw a specialist for this condition in September 2003 who recommended cortisone injection. She never followed up and never pursued cortisone injections for her fingers. She saw a neurologist in 2007 and has not had any other visits with a neurologist. The difference in her condition now since 2007 is that her fingers lock to the point where the pain wakes her up at night. She also finds that her hand is weaker than it was. She has not gone for further specialist opinion, but she has seen a massage therapist and chiropractor but she sees these treating practitioners for other unrelated conditions, as well.
Closing Statements:
In closing, the worker’s representative argued that the three issues most prevalent in this case are that the worker testified the pain is increasing and is no longer as it was in October, 2003. The worker’s doctor was concerned enough to refer her to a neurologist and the worker has also stated she is taking further medications. He maintained the cumulative assessment of this worker shows that the injuries have increased and have lasted longer. She has been referred to a neurologist and has had to increase her medication and this is sufficient to warrant a NEL re-determination due to the deterioration in her NEL permanent impairment.
The employer’s representative on the other hand argued that the grounds referred to by the worker’s representative do not form the grounds for a NEL re-determination. Referral to a specialist is not the issue; rather the issue is ‘What are the objective clinical findings and has there been a deterioration’? He referenced policy 18-05-09 and noted that mere deterioration is not sufficient or adequate to grant the worker’s appeal; rather the deterioration must be significant. He noted that the important thing to bear in mind in looking at the totality of the evidence shows that at the beginning, the condition was not shown to be severe, but rather mild. Even in 1997, following the surgery, the left CTS was categorized as mild. He noted in 1999, there was no evidence of residual left CTS other than some pain and an aching sensation. He noted the worker left active employment in June 1999 and she has not been exposed to the work which was felt to be an aggravating factor since that time and questions deterioration of the condition on this basis, as well. He argued there are no measurable clinical changes. He compared the findings provided at the time of the initial NEL report with the most recent medical findings in May, 2007 to support his argument that there has not been significant deterioration in this worker’s condition. He in fact noted that the numbness and tingling has improved. He also noted that pain up to the shoulder was noted intermittently in 2003 with radiation to the shoulder. Sharp pain was also noted to be evident in 2003. In 2007, he commented on the fact that at most the pain complaints are the same. In fact, he noted there is no arm pain and the pain in the wrist is characterized as soreness which he maintains was less than at the time of the NEL assessment in 2003. The issue with respect to grip was noted in 2003 but there is no objective evidence of measurable change in 2007. He noted the worker has always had the trigger finger and this is not a new condition. The worker has never sought to follow up on the recommended treatment and there is nothing new here. At most, he argued that even if there has been a change in the trigger finger, he still argues that there has not been a measurable change in the trigger finger and even if the trigger finger has slightly deteriorated, there is so much improvement in other aspects, that there is no grounds to deem there has been a marked deterioration. The neurologist recommends only conservative measures in 2007 and on the totality of the evidence, he argues that there is no support for a claim for a NEL re-determination, as concluded by the WSIB Medical Consultant. For all these reasons, he requested that the claims decision be upheld and the worker’s request for a NEL re-determination be denied.
In response, the worker’s representative noted the reference to a mild carpal tunnel is a misnomer. It is significant enough to have warranted a 5% NEL award. The fact that the worker has been out of the work force since 1999 is not relevant. She has had to continue to use her wrist. The issue at hand is based on whether or not there are grounds for a NEL re-determination. He noted that the history, activities of daily living, physical findings and need for treatment need to be considered and on this basis, in addition to the viva voce evidence of the worker, a NEL re-determination should be granted.
Decision:
Where an initial NEL award has been granted, a NEL re-determination can be granted if it has been at least one year since the last NEL determination and the medical documentation confirms evidence of a significant deterioration. In this case, although the worker claims that the condition has worsened, the medical evidence does not corroborate a worsening of the worker’s condition.
At the time of the initial NEL assessment, it was noted the worker had numbness in the 4th and 5th fingers with pain in the thumb. There was also weakness when gripping and difficulty with pinch grasping, as well as night numbness. Pain radiated up the arm. The most recent medical documentation dated May 21, 2007 notes that there is no numbness or tingling with mildly weak and reduced grip strength. It is noted the worker has difficulty opening jars and bottles and has pain at the first MC joint. When comparing the totality of theobjective evidence which reports on this worker’s condition, I find no evidence of a significant deterioration which would warrant consideration of a NEL re-determination. The WSIB Medical Consultant also reviewed the file and was of this opinion. Even in considering the worker’s testimony, I am still not convinced of a significant deterioration in this worker’s condition.
CONCLUSION
Based on the evidence outlined in this decision, I am confirming the denial of entitlement to a NEL re-determination.
The worker’s objection is denied.
DATED August 26, 2009
S. Marangoni
Appeals Resolution Officer
Appeals Branch