WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190093
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (not participating)
HEARING: Hearing in Writing
HEARD by: A. Chow, Appeals Resolution Officer
DATED: February 4, 2019
ISSUE
The worker is objecting to the Case Manager’s October 19, 2017 decision which denied entitlement to additional areas of injuries.
BACKGROUND
The worker began his employment with xxx, as a roofer in September 2006.
According to the Worker’s Report of Injury, on December 8, 2006, at age 36, the worker slipped off the ladder, fell from 4 to 5 feet to the ground and sustained a broken leg injury. The worker stated that he fell into a super-structural area with metal beams, metal spikes and other objects. He did not land on these objects which might lead to other injuries. The worker reported injuring his left lower leg only.
Entitlement was accepted for the diagnosed fractured left tibia and fibula. Subsequently, entitlement was extended to accept for Post Traumatic Stress Disorder (PTSD). The worker was granted a total of 21% Non-Economic Loss (NEL) award for the residual left leg impairment and PTSD in June 2009.
The Case Manager’s October 19, 2017 decision outlined that in February 2017 and September 2017, the worker requested a review of entitlement to additional areas of injuries. Based on the review of the medical documentation, entitlement to the neck, left shoulder, chest, right ankle, low back with sciatica, both hands as well as head/brain injury, right shoulder, left knee and right hip injuries were denied.
AUTHORITY
Operational Policies:
11-01-01 Adjudicative Process
15-05-01 Secondary Conditions Resulting from Work-Related Disability/Impairment
ANALYSIS
I have reviewed the record including the worker’s objection and considered the matter. I find that the worker has no entitlement to injuries to his neck, left shoulder, right shoulder, chest, thoracic back, low back with sciatica, bilateral hand, right ankle, head/brain, left knee and right hip. In reaching my conclusion, I considered the relevant policies and legislation.
The Case Manager’s October 19, 2017 decision outlined that the worker representative requested a review of entitlement to the neck, left shoulder, chest, left foot numbness, low back with sciatica, thoracic back, both hands, right ankle as a secondary condition. Although the representative did not request a review of entitlement for the head/brain injury, right shoulder, left knee and right hip, the medical information provided some mentions of these areas and the Case Manager made a ruling on these areas as well. Based on the review of the medical documentation, entitlement to all these areas of injuries was denied.
On behalf of the worker, the representative submitted that the Case Manager misinterpreted the December 2006 Ambulance Report as it was made as a front line type of triage report. The report only noted the most obvious injuries, the secondary and subsequent injuries would be addressed at a later time. The representative argued that the original accident was a serious one involving a fall from a significant height but the various symptoms were minimized by the Case Manager. Entitlement to other areas of injuries was denied by the Case Manager. The representative made reference to the various reports and requested all of the injuries be accepted as related to the original December 2006 injury or sequelae of it.
I note that the Ambulance Call Report of December 8, 2006 indicated that there was no head trauma, neck pain, loss of consciousness or other physical issues upon physical examination.
Entitlement to the different areas of injuries are reviewed as follows:
Neck
The worker’s first mention of neck complaints were noted on July 16, 2008 when he reported excruciating neck pain to his doctor. The Case Manager indicated that the worker had returned to administrative duties, two hours per day on July 7, 2008. There was no reporting of any new incident in causing his neck pain.
The representative submitted that Dr. Perry’s May 2, 2016 report stated the worker had chronic pain since the December 8, 2006 work-related accident. Diagnosis for neck pain was degenerative disc disease between C4-C7 and the prognosis was guarded.
Policy 11-01-01 states in part:
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system".
An allowable claim must have the following five points
- an employer
- a worker
- personal work-related injury
- proof of accident, and
- compatibility of diagnosis to accident or disablement history.
I have thoroughly reviewed the medical documentation on record, the worker did not report any neck pain on the date of injury. He initially received treatment for his left leg at Toronto East General Hospital. I note that there is no indication of any neck issue in any of the clinic notes from Dr. Weller such as the reports dated December 14, 2006 and February 22, 2007. Dr. Perry’s, family physician, Health Professional’s Progress Report, Form 26, dated June 15, 2007 provided the diagnoses of healing left tibia/fibula fracture and post traumatic anxiety. There was no mention of any neck issue. The Psychological Trauma Program (PTP) report dated July 24, 2007 noted that the worker’s complaints were his leg pain. The diagnoses included Anxiety Disorder and left tibia/fibula fracture. There was again no mention of any neck issue.
I note that there is no reporting of any neck injury in the Worker’s Report of Injury dated January 1, 2007 and there is no indication of any neck injury from December 8, 2006, date of injury, to July 2008, approximately one and a half years post-injury. Noting the significant delay in the first mention of neck pain, the diagnosis of neck pain with degenerative disc disease and the lack of reporting of any work-related new incident around July 2008, I find that there is no compatibility of diagnosis to accident, the five point check criteria under policy 11-01-01 are not met in this case and the decision to deny initial entitlement to a neck injury is appropriate.
Left Shoulder & Right Shoulder
The Case Manager outlined that the worker first mentioned his left shoulder and right shoulder complaints on October 15, 2008 when he attended the Functional Restoration Program (FRP). The report noted that the worker demonstrated range of motion within functional limits of his bilateral upper extremities. He reported general body aching in his back and shoulders. The Case Manager noted that it was indicated later that the right shoulder pain was related to the use of a cane for walking. The Case Manager noted that there was no medical information on record recommending the use of a cane. Furthermore, the worker’s gait analysis was reportedly within normal limits on June 18, 2010. Noting there was almost two years’ delay in the complaints of bilateral shoulder pain, entitlement to bilateral shoulder injuries was denied.
The FRP initial assessment report dated October 15, 2008 completed by Dr. Levy, Clinical Associate and Dr. Murray, Psychologist, noted that the worker cited continued independence with his self-care routine at a slow pace. During the functional portion of the assessment, the worker demonstrated range of motion within functional limits in his cervical spine, bilateral upper extremities and lumbar spine. He reported some general body aching in his back and shoulders. There were non-organic signs present during the testing which indicated that the worker was experiencing a heightened awareness of symptoms including grimacing and sighing. The diagnostic impression provided by the assessing team included Pain Disorder, Anxiety Disorder and Adjustment Disorder with Depressed Mood.
I have thoroughly reviewed the medical documentation on record, the worker did not report any bilateral shoulder pain on the date of injury and there was no indication of any shoulder issue in the clinic notes from Dr. Weller from December 2006 to 2007. Dr. Perry’s Form 26 dated
June 15, 2007 and the PTP report dated July 24, 2007 provided the diagnoses of healing left tibia/fibula fracture and Anxiety Disorder, there was no mention of any bilateral shoulder issue.
I note that the October 2008 FRP report was the first mention of the worker’s complaints of general body aching in his back and shoulders. I note that there is no indication of any organic diagnosis for the bilateral shoulder ache. Furthermore, there were non-organic signs present during the assessment. The worker was diagnosed with Pain Disorder. All these findings weigh against the worker’s claim.
The treating physician’s May 2, 2016 letter to the worker representative suggested a diagnosis of chronic strain for the left shoulder. However, there was no explanation for the significant gap of two years between the date of injury and the initial mention of left shoulder ache in 2008. The Case Manager noted that there was mention of the right shoulder pain as related to the use of a cane. Nevertheless, I note that there was no organic diagnosis for the right shoulder.
Taking into consideration the above as well as the almost two years’ delay in the complaints of bilateral shoulder pain, the assessed range of motion within functional limits with no organic diagnosis in October 2008, I find that there is no compatibility of diagnosis to accident, the five point check criteria under policy 11-01-01 are not met in this case. The decision to deny initial entitlement to bilateral shoulder injury is appropriate.
Chest/ Thoracic Back
The Case Manager outlined that the first mention of chest issue was on October 4, 2010 when the chest and left rib X-ray showed normal findings. Subsequently, a Toronto Pain Specialist noted on November 17, 2016 that the worker complained of symptoms of unevenness of his chest wall and pelvis. The worker first mentioned some thoracic back issue between July 2012 and November 17, 2016.
Dr. Martinez’s, Toronto Pain Specialist, November 17, 2016 report indicated that the worker complained of symptoms of unevenness of his chest wall and pelvis. The worker has a history of degenerative disc disease of the lumbar spine which was significantly treated in the past. The multiple treatments included lumbar epidural steroid injections, lumbar facet injections and myofascial pain blocks of the paravertebral muscles of the lumbar spine. He was seen by Dr. Valiante who found that at L4-5, there was neural foraminal narrowing and impingement of the L4 nerve root. The worker underwent a micro-discectomy at that level in November 2014. He underwent a second micro-discectomy due to a residual fragment at the same level in March 2015. The worker reported significant improvement of the radiating pain radiating after the surgery.
Dr. Martinez noted that the worker asked why his thoracic area/rib cage was different from one side to the other and he had some residual pain all over his body. Dr. Martinez noted that the worker has a history of spinal scoliosis which is known to him since his youth. The clinical impression was myofascial pain syndrome of the lumbar spine and scoliosis. The worker has spinal scoliosis which is not amenable. The major concern is the change in height due to a left leg discrepancy, pelvic and thoracolumbar scoliosis. A three quarter inch heel lift was recommended to correct the symptoms.
I note that the worker complained of symptoms of unevenness of his chest wall / thoracic area. The clinical impression provided by Dr. Martinez was myofascial pain syndrome of the lumbar spine. I note that there is no indication of any organic diagnosis for the chest wall / thoracic back area in Dr. Martinez’s report.
Nevertheless, Dr. Perry’s May 2, 2016 letter to the worker representative suggested that the worker has chronic strain of the thoracic spine from the time of the accident. Additional diagnoses included thoracic scoliosis and multilevel degenerative joint disease of the thoracic spine. I note that there was no explanation for the significant gap of almost four years between the date of injury and the initial mention of an X-ray for the chest.
Taking into consideration the significant delay in the complaints of the chest wall / thoracic back area, the lack of any organic diagnosis for the chest wall / thoracic back area in Dr. Martinez’s November 2016 report, I find that there is no compatibility of diagnosis to accident, the five point check criteria under policy 11-01-01 are not met in this case. The decision to deny initial entitlement to the chest / thoracic back is appropriate.
Left Foot Numbness
The Case Manager noted that the left foot numbness is a condition associated with Complex Regional Pain Syndrome (CRPS). A previous Appeals Resolution Officer’s April 12, 2012 decision confirmed the denial of entitlement for CRPS. The Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated June 24, 2014 concluded that the worker does not have entitlement for CRPS. As such, the Case Manager indicated that a final ruling had already been made at the WSIAT level and the Case Manager did not have jurisdiction to address it.
The WSIAT decision concluded that the preponderance of evidence did not support entitlement for CRPS as either a distinct organic condition or as a feature of Chronic Pain Disability.
Noting the above, I have no jurisdiction to address the left foot numbness associated with CRPS. This is not an issue appropriately before me in this appeal.
Low Back with Sciatica
The Case Manager indicated that the low back with sciatica of the right leg was first mentioned on July 24, 2007. The October 30, 2007 WSIB Foot and Ankle Specialty Program noted that the lumbar spine range of motion was within normal limits. On April 11, 2008, the worker was displaying a mild, left-sided antalgic gait. The June 18, 2010 report revealed the angle of the gait was within normal limits. The worker underwent two back surgeries in November 2014 and March 2015. The Case Manager noted that the worker had non-work-related conditions in relation to his low back with sciatica and compatibility could not be established in this case.
I note that the October 30, 2007 Specialty Clinic Report recorded lumbar spine range of motion within normal limits. Dr. Shulman’s October 22, 2012 report outlined that the worker reported worsening of his low back pain. It was worse after he tried to help his friends in cleaning, he did not bend over but got down on his knees. Dr. Shulman indicated that there was a good explanation for the increased back pain and there was no red flag. The impression was mechanical low back pain, chronic pain syndrome with sleep disorder and mood alteration.
Dr. Martinez’s November 17, 2016 report indicated that the worker has a history of degenerative disc disease of the lumbar spine which was significantly treated in the past. He was seen by Dr. Valiante who found that at L4-5, there was neural foraminal narrowing and impingement of the L4 nerve root. The worker underwent a micro-discectomy at that level in November 2014 and a second micro-discectomy at the same level in March 2015. The worker reported significant improvement of the pain radiating down his legs after the surgery. Dr. Martinez noted that the worker has a history of spinal scoliosis which is known to him since his youth. The clinical impression was myofascial pain syndrome of the lumbar spine and scoliosis.
I note that there is no reporting of any low back injury in the Worker’s Report of Injury dated January 1, 2007 and there is no indication of any low back pain from December 8, 2006, date of injury, to July 2007. The October 30, 2007 Specialty Clinic Report recorded lumbar spine range of motion within normal limits. The worker has a history of degenerative disc disease of the lumbar spine. Further medical investigations in 2014 suggested that there was neural foraminal narrowing and impingement.
Noting the delay in the first mention of low back pain, the history of degenerative disc disease and the findings of neural foraminal narrowing, I find that there are other non-work-related conditions in relation to the worker’s low back complaints. I find that there is no compatibility of diagnosis to accident, the five point check criteria under policy 11-01-01 are not met in this case and the decision to deny initial entitlement to a low back injury with sciatica is appropriate.
Bilateral Hand
The Case Manager noted that the first mention of the hands’ problem was on May 2, 2016. Dr. Perry’s letter provided the diagnosis of sensory neuropathy of both hands.
Dr. Perry’s May 2, 2016 letter to the worker’s representative outlined that the worker described a chronic numbness of both hands, left worse than right.
I note that there is no reporting of bilateral hand injury in the Worker’s Report of Injury dated January 1, 2007 and there is no indication of any bilateral hand injury from December 8, 2006, date of injury, to May 2016, almost ten years post-injury. Noting the significant delay in the first mention of the bilateral hand pain and the lack of explanation of a relationship between a left leg injury and numbness in both hands, I find that there is no compatibility of diagnosis to accident, the five point check criteria under policy 11-01-01 are not met in this case. The decision to deny initial entitlement to bilateral hand injury is appropriate.
Right Ankle
The Case Manager indicated that the worker requested entitlement to the right ankle due to overcompensating for the left ankle.
Policy 15-05-01 states in part:
Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee, is an example.
The Case Manager outlined that on January 16, 2008, medical noted the worker reported some weakness in his right leg due to compensating for the left leg. Dr. Zitney’s June 2, 2009 report noted that the worker’s right leg had recently developed the same characteristics as his left side.
I note that the worker attended the FRP in 2008. The FRP Interdisciplinary Initial Assessment Report dated October 15, 2008 outlined that the worker presented with persistent pain primarily in the left ankle. He demonstrated pain behaviours and non-organic signs. The diagnostic impression provided by the assessing team was Pain Disorder, Anxiety Disorder and Adjustment Disorder.
The worker attended the Rothbart Centre for Pain Care on November 15, 2010. Dr. Shulman’s Consultation Report indicated that the worker’s main complaints were left foot, ankle, left calf pain, left knee, left hip, left thigh, right ankle to right thigh pain. The worker reported that he was always feeling exhausted. Dr. Shulman provided the impression of CRPS of left leg, chronic pain syndrome with sleep disturbance and depression.
Dr. Perry’s May 2, 2016 letter noted that the worker developed pain in the right ankle which he suspected as related to putting too much weight on the right ankle due to his original left ankle problem. The pain was described as a numbing kind of fatiguing pain in both ankles.
I recognize that the worker sustained a left tibia/fibula fracture as a result of the December 2006 accident and he reported some weakness in his right leg in January 2008. In October 2008, the worker underwent a comprehensive assessment at FRP and demonstrated non-organic signs and pain behaviours. He was diagnosed with Pain Disorder. Dr. Shulman’s November 2010 report also provided the impression of chronic pain syndrome. In 2016, the pain was described as fatiguing pain in both ankles. Noting the medical documentation on record, I find that there is no indication of any specific organic diagnosis for the right ankle. I find that there is no entitlement to any secondary organic condition in the right ankle.
Other areas of injuries
Although the representative initially did not request a review of entitlement for the head/brain injury, left knee, right hip and right shoulder, the Case Manager made a ruling on these areas as well. The right shoulder injury was analysed in the earlier portion of this decision. My review for other areas of injuries are as follows.
Head/brain injury
The Case Manager indicated that the first mention of a head/brain injury with a diagnosis of post concussive syndrome was on November 5, 2008. Dr. Summer’s July 21, 2009 report provided the diagnoses of chronic pain and persistent post concussive syndrome. Dr. Perry completed the medical report for Disability on September 20, 2011 and provided the diagnoses of left foot injury and post concussive syndrome. Noting the delay of almost two years in the first mention of head/brain injury, entitlement for head/brain was denied.
On behalf of the worker, the representative submitted that it would not be surprising that symptoms of mild brain injury would manifest 10 months after the accident. These symptoms are known to be subtle and hard to detect. The symptoms are almost always associated with the victim having no recollection of the incident.
I note that the Ambulance Call Report of December 8, 2006 indicated that there was no head trauma or loss of consciousness. The worker was seen at the Toronto East General Hospital and did not reveal any suspected head/brain injury to the doctor. There is no indication of any head/brain issue in any of the clinic notes in late 2006 and early 2007. The family physician’s June 15, 2007 progress report noted post traumatic anxiety. There is no indication of any head/brain injury. The PTP report of July 2007 provided the diagnoses of Anxiety Disorder and left tibia/fibula fracture. The FRP Initial Assessment Report of October 15, 2008 provided a Comprehensive Interdisciplinary Assessment for the worker. The report was prepared by a team consisting of a Physician, Psychologist, Occupational Therapist and Physiotherapist. There is no indication of any post concussive syndrome. The worker was diagnosed with Pain Disorder and Adjustment Disorder with Depressed Mood.
Taking into consideration the significant delay of almost two years in the first mention of a
post concussive syndrome in the medical report, I find that more significant weight of medical evidence would be given to the more comprehensive interdisciplinary assessments for the worker in the 2007 PTP program and 2008 FRP program. I find that there is no compatibility of diagnosis to accident, the five point check criteria under policy 11-01-01 are not met in this case. The decision to deny initial entitlement to head/brain injury is appropriate.
Left Knee and Right Hip
The Case Manager noted that the worker’s left knee was first mentioned on October 15, 2008. The worker reported increased pain in his left leg from prolonged standing. On June 2, 2009, the worker described a shooting pain from the left ankle radiating to the left knee. He developed left knee pain as a result of his abnormal gait.
The Case Manager noted that on December 14, 2012, the doctor noted the worker reported right hip pain. The pain started in the right buttock region and radiated to his right foot.
I note that the worker attended the Rothbart Centre for Pain Care on November 15, 2010. Dr. Shulman’s Consultation Report indicated that the worker’s main complaints were left foot, ankle, left calf pain, left knee, left hip, left thigh, right ankle to right thigh pain. The worker reported that he was always feeling exhausted. Dr. Shulman provided the impression of CRPS of left leg, chronic pain syndrome with sleep disturbance and depression.
I recognise that the worker mentioned pain in his left knee around October 2008, June 2009 and November 2010. The diagnosis was chronic pain syndrome in November 2010. There is no indication of any left knee or right hip injuries in Dr. Perry’s May 2, 2016 letter.
Noting the significant delay in the first mention of the left knee and right hip problems, no indication of any specific organic diagnoses for the left knee and the right hip, I find that there is no compatibility of diagnosis to accident, the five point check criteria under policy 11-01-01 are not met in this case. The decision to deny initial entitlement to left knee and right hip injuries is appropriate.
CONCLUSION
I conclude that the worker has no entitlement to the following areas of injuries:
Neck, left shoulder, right shoulder, chest, thoracic back, low back with sciatica, bilateral hand, right ankle, head/brain, left knee and right hip.
I have no jurisdiction to address the left foot numbness issue. This is not an issue appropriately before me in this appeal.
The worker’s objection is denied.
DATED: February 4, 2019
A. Chow
Appeals Resolution Officer Appeals Services Division