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Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle Appeals Tribunal et de l’assurance contre les accidents du travail

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WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 1224/09

BEFORE: R. McCutcheon : Vice-Chair

HEARING: June 9, 2009, at St. Catharines

Oral

Post-hearing activity completed on December 2, 2010

DATE OF DECISION: March 28, 2011

NEUTRAL CITATION: 2011 ONWSIAT 734

DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) S. Marangoni dated

November 15, 2007

APPEARANCES: For the worker: Ms. M. Zare, Paralegal/Mr. P. Barrafato, Lawyer

For the employer: Mr. M. Orrico, Paralegal

Decision No. 1224/09

REASONS

(i) Introduction to the issues

[1] The worker appeals a decision of the ARO, which was based upon the written record

without an oral hearing. The decision under appeal concluded that:

1. The worker did not have entitlement for a “vestibular condition” under either of two

workplace neck injuries with accident dates of January 29, 1999 and June 1, 2000.

2. The worker was not entitled to a redetermination of her 16% non-economic loss (NEL)

award for her compensable neck injury with an accident date of June 1, 2000.

[2] The worker takes the position that her vestibular symptoms of dizziness, vertigo, nausea,

and headaches are related to neck injuries she sustained in the course of her employment. For

the reasons set out in this decision, I find as follows:

1. The worker does not have entitlement for vestibular symptoms of vertigo, dizziness, and

nausea.

2. The worker has entitlement for headaches as a secondary condition to her neck injury of

June 1, 20001.

3. The worker is entitled to a NEL redetermination.

[3] The worker testified under oath at the Tribunal hearing and the representatives made

submissions. For the reasons set out in an interim decision (Decision No. 1224/09I (November 20, 2009), I found that it was appropriate to obtain the opinion of an independent

health professional (medical assessor) before rendering a decision in this appeal. The interim

decision set out the factual background to the appeal, findings of fact, a summary of the medical

evidence, and relevant Tribunal decisions. That information is reproduced in this decision for

reference.

[4] In the interim decision, the Tribunal Counsel Office was also directed to obtain records

from the worker‟s family physician for the period from January 1996 to December 2000.

Following the receipt of that information, the matter was referred to a medical assessor to answer

questions set out in the interim decision. Dr. J. Rutka was chosen as the medical assessor and

provided a report dated October 21, 2010. The parties then had an opportunity to make written

submissions.

(ii) Background

[5] The worker was born in 1954 and was hired by the accident employer, a school board, in

September 1991.

[6] There are two claims at issue in this appeal. These injuries occurred during the course of

the worker‟s employment as a school secretary. The worker also held the position of full-time

payroll clerk, from 1993 to 1998.

[7] On January 29, 1999, the worker reached across her desk for a tissue for a student, when

her left foot became caught in the wires of her computer and she fell (“Claim #1”). The worker

Page: 2 Decision No. 1224/09

described tripping and falling on her right knee and twisting her left ankle. The worker stated

that she landed on her left shoulder and wrenched her neck, leaving her with a bad headache.

The diagnosis was acute cervicodorsal strain. The worker received chiropractic and massage

therapy treatment following this injury, but it was a “no lost time” claim.

[8] On June 1, 2000, the worker reported a gradual onset of upper back, neck and head pain

(“Claim #2”). The worker described the onset of the condition as follows in the Worker‟s Report

of Injury (Form 6):

I work on a computer and at a desk. The motion of going from my desk top to the

computer causes discomfort in my upper back, neck and head. If I am on the computer or

have my head down doing work for a long period of time (2 hours +), I will get a bad

headache, dizziness and nauseous.

[9] In describing when she first noticed the pain, the worker stated as follows:

I first noticed the pain several years ago when working in payroll I had strict deadline to

meet and would work on the computer too long without a break.

[10] The worker stated that she put in a report for this injury with her supervisor between 1996

and 1998. The worker noted that she had had the same problem for the last five years but it was

never reported to the Board, although she said that she thought it was from working on the

computer. In the Employer‟s Report of Injury (Form 7), the employer acknowledged that the

injury was caused by “working at an improper workstation over several years,” leading to “neck

and upper back and headaches.”

[11] The WSIB accepted that the worker‟s neck strain was compatible with the poor

ergonomics of her workstation and granted initial entitlement. The problems were attributed to

the set-up of the workstation, particularly with the computer monitor set very low and a keyboard

that was not adjustable. In addition, the worker‟s job also required her to be on the telephone

frequently, and she was cradling the phone between her shoulder and neck.

[12] In 2003, the WSIB accepted that the worker had a permanent impairment of the neck

with permanent medical precautions of avoiding repetitive neck movement and above shoulder

and overhead activity. In December 2003, the worker underwent a non-economic loss (NEL)

assessment and was granted a 16% NEL award for chronic neck strain.

[13] The worker received treatment for neck pain, as well as symptoms of dizziness and

headaches. In a decision of March 30, 2004, the Claims Adjudicator denied entitlement for

vestibular therapy, finding that the worker‟s dizziness was not related to her compensable neck

injury under Claim #2.

[14] The worker‟s representative filed written submissions in December 2004, arguing that the

worker‟s dizziness was related to her compensable neck injury. The worker's representative

relied upon an October 2004 report from Dr. D. Robertson, a specialist in otology, neurotology,

and otolaryngology. In that report, Dr. Robertson reviewed the worker‟s test results and

commented as follows:


Subsequent to her last visit we undertook several investigations. Her evoked responses

including electrocochleography were normal. Her VOR studies revealed no abnormal

VOR gains or bias.

[The worker] tells me she is seeing Dr. Forest in the near future for some nerve block

injections for her neck. She has seen chiropractors, acupuncturists, physiotherapists, and

massage therapists for her neck. These are short duration benefits before her symptoms

recur. She has applied for long term disability as well as Canada Pension. She went back

to work for about three days but was off again for three weeks. Her chronic neck pain

seems to be the biggest of her difficulties. She also has some issues with visual

stimulation in optokinetic environments. These types of circumstances also seem to

provoke her dizziness.

At the present time I am unable to identify any ongoing 8th

nerve pathology. I would

suspect that some of [the worker‟s] ongoing dizziness likely relates to her neck. We do

know the equilibrium system uses input from the vestibular system, visual system and the

proprioreceptive system which includes cervical receptors…

[15] In a decision dated February 11, 2005, the Claims Adjudicator relied upon the opinion of

a WSIB medical consultant to confirm the denial of entitlement for a vestibular condition as well

as the request for a NEL reassessment. The worker set out a detailed account of treatments she

sought in an e-mail message dated February 15, 2005.

[16] The worker was involved in ongoing return-to-work attempts with the employer during

this time period. The suitability of the work offered is not an issue before the Tribunal in this

appeal.

[17] Based upon medical opinions from WSIB physicians, the WSIB denied entitlement for

these symptoms, either under the gradual onset claim or the claim for the fall at work. The ARO

also denied entitlement to a redetermination of the 16% NEL award for neck strain. Although

medical reporting of August 2006 demonstrated a deterioration in the worker‟s condition, the

ARO found that this was likely related to an aggravation caused by a motor vehicle accident on

August 23, 2006.

[18] The worker appeals to the Tribunal.

(iii) Law and policy

[19] 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.

[20] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages,

Revision #7, would apply to the subject matter of this appeal:

#1 – Initial Entitlement;

#31 – Secondary or Non-Compensable Conditions;

#62 – NEL Quantum;

#107 – Aggravation Basis/SIEF;

#300 – Decision Making/Benefit of Doubt/Merits and Justice.


[21] Section 13 of the WSIA provides that a worker is entitled to benefits for personal injury

by accident arising out of and in the course of employment. The definition of “accident,”

contained in section 2 of the WSIA, includes a chance event, disablement, or wilful and

intentional act, not being the act of the worker. Subsection 124(2) of the WSIA provides the

issue shall be resolved in favour of claimant if it the evidence for or against the claim is

approximately equal in weight.

[22] Document No. 15-05-01 of the Operational Policy Manual (OPM), “Resulting from

Work-Related Disability,” provides that workers sustaining secondary conditions that are

causally linked to the work-related injury will derive benefits to compensate for the further

aggravation of the work-related impairment or for new injuries. This policy applies to the

worker‟s claim that her conditions of headache, dizziness, nausea and vertigo and related to her

compensable neck injury.

[23] Section 47 of the WSIA governs entitlement to and calculation of NEL awards.

(iv) Tribunal decisions

[24] The standard of proof for establishing causation has been reviewed extensively in the

Tribunal‟s jurisprudence. The Tribunal recently reviewed the law of causation in Decision No. 1472/05R (April 8, 2010). In that decision, the Vice-Chair noted that the result of the “but-for”

test of causation and the “significant contribution” test will usually be the same, except in narrow

circumstances. According to Decision No. 1472/05R, in the workplace insurance context, “The

question is only whether the worker‟s carrying out of the work-related task was a cause of the

injury: i.e. whether the doing of the task was a significant contributing factor in the injury, and/or

whether the injury would have occurred „but for‟ the fact that the worker did this task.”

[25] In other words, in order to be a “significant” contributing factor, the workplace must have

made a necessary contribution to the development of the worker‟s condition. The workplace

need not be the only cause, but it should be a necessary cause. For example, see

Decision No. 600/97 (2003), 66 WSIATR 1, a leading case about the implications of

epidemiological evidence for compensation claims. That decision discussed that, in order to find

that the workplace made a significant contribution, it should be shown that it was a necessary

factor in causing the condition to arise when it did (see in particular paragraphs. 112-115, 135).

[26] The Tribunal has addressed claims for dizziness and vertigo related to workplace injuries

in several decisions. In particular, I note the following:

Decision No. 1356/03 (July 25, 2003): The Board granted the worker entitlement for neck

and upper arm disablement resulting from heavy work using a sledgehammer. The worker

appealed a decision of the Appeals Resolution Officer denying entitlement for vertigo,

which the worker related to the neck injury. Considering the medical evidence including

the opinions of treating and examining specialists, the Vice-Chair found insufficient

evidence to support a relationship between the worker's vertigo and his compensable

injuries.


Decision No. 87/01 (February 27, 2003): The Vice-Chair relied upon the opinion of a

Tribunal medical assessor to conclude that the worker‟s benign positional vertigo was

related to a workplace fall in 1982, and was aggravated in a fall in 1993.

Decision No. 1027/00 (June 13, 2000): The worker fell backwards when opening a door

that was stuck, sustaining injuries to the back and shoulder. Based upon the available

medical evidence, the Panel granted entitlement for tinnitus and vertigo in relation to this

accident.

(v) Findings of fact

[27] The following findings of fact were set out in the interim decision for the medical

assessor to consider in answering the questions about this appeal.

(a) The mechanics of the worker’s fall on January 29, 1999

[28] The most notable point of dispute between the parties is the mechanics of the injury on

January 29, 1999.

[29] In her sworn testimony, the worker stated that she was at her desk when a student came in

with a nose bleed. She ran back to her desk to get a tissue, and she caught her foot and fell. The

worker testified that she hurt her knee and shoulder and wrenched her neck against a cabinet.

The following medical reports provide a similar description, based upon information provided by

the worker: Dr. Gilani, August 31, 2006; Dr. R. J. Duke, February 2006; Dr. E.B.M. Jeney,

December 5, 2002. Dr. Jeney also noted that the worker had not mentioned the fall at work to

her previously, which is also a factor to consider in evaluating the significance of this event.

[30] On the actual mechanics of the January 1999 fall, however, I accept the worker‟s sworn

description of her accident on January 29, 1999, for the reasons set out below.

[31] During closing submissions, the employer's representative asserted that the worker‟s

description of the accident had changed over time and that later medical opinions were based

upon an inaccurate history of the accident. The employer's representative failed to put these

questions to the worker during her testimony, as I pointed out to him at the hearing. Therefore, I

would give limited weight to this submission. The employer had the opportunity to question the

worker about her accidents and her health issues over the years. The worker described the

January 1999 accident in her sworn testimony in a manner that was consistent with the later

medical reports to which the employer's representative referred. As a general principle,

witnesses have the right to have questions put to them concerning any imputations as to the truth

of their testimony. It has long been the right of a witness to respond to allegations to credibility.

This is essential to dealing fairly with witnesses.1

[32] The worker testified in a credible and forthright manner and was not prone to

exaggeration in her testimony. In the absence of any contradictory evidence being properly put

to her during her testimony, I accept her description of the accident of January 29, 1999.

1 See, for example, Decision Nos. 717/88 (August 19, 1992) and 2614/06 (April 16, 2007).


[33] Furthermore, upon consideration of the worker‟s testimony and careful review of the

documentary record, I am satisfied that there is no substantive discrepancy that would cause me

to reject the worker‟s sworn testimony. Later descriptions of the accident may have provided

more detail, but the worker has generally been consistent in describing the January 1999

accident.

[34] The worker testified that she was at her desk when a student came in with a nose bleed.

She ran back to her desk to get a tissue, and she caught her foot and fell. The worker testified

that she hurt her knee and shoulder and wrenched her neck against a cabinet. The worker

described the accident as follows in the Form 6, dated February 18, 1999:

I was getting a tissue for a student. I reached across my desk and got my left foot caught

in the wires hanging down from my computer. I tripped and fell on my right knee,

twisting my left ankle and landing on my left shoulder and wrenched my neck, leaving

me with a bad headache that got worse over the weekend.

[35] The worker did not include the detail about the filing cabinet in the Form 6, but the

description is otherwise consistent with her testimony. The worker‟s initial report also omits the

detail that she was retrieving a tissue for a student with a nosebleed, which gives a better

understanding of the urgency of the situation. However, it has not been disputed that the worker

was getting a tissue for a student with a nosebleed, simply because that detail was not included in

the Form 6. Therefore, I find that the omission of a reference to the filing cabinet in the Form 6

does not undermine the reliability of the worker‟s sworn testimony and the descriptions she

provided to her treating specialists.

[36] In the Form 7, dated February 2, 1999, the employer described the accident and affected

body parts as follows:

Tripped and fell due to computer wires. Left ankle, right knee, left shoulder and neck.

[37] There is nothing in the Form 7 to contradict the worker‟s testimony and the employer did

not adduce any independent evidence in this regard.

[38] The only additional detail provided by the worker‟s testimony (as well as descriptions in

some medical reports) is that she wrenched her neck against a cabinet. However, the worker has

consistently described from the outset that she “wrenched” her neck in the fall. The verb

“wrench” is defined in part as follows:2

intransitive verb 1 : to move with a violent twist; also : to undergo twisting

2 : to pull or strain at something with violent twisting

transitive verb 1 : to twist violently

2 : to injure or disable by a violent twisting or straining <wrenched her back>

[39] Thus, the worker‟s use of the term “wrench” in the Form 6 implied a violent twist or pull

to her neck, which is consistent with her testimony that she wrenched her neck against the filing

cabinet in the fall.

2 From the Merriam-Webster Online Dictionary, at http://www.merriam-webster.com/dictionary/wrench.

http://www.merriam-webster.com/dictionary/wrench


(b) The worker’s symptoms and treatment after the January 1999 fall

[40] The worker did not lose time from work after the fall in January 1999. She continued

working until filing the subsequent claim in June 2000. Several of the medical reports document

that the worker felt that her condition deteriorated after the fall.

[41] The employer's representative argued that there was no change in the worker‟s treatment

after the January 1999 fall. The employer's representative argued that the worker had been

receiving massage therapy treatment before the fall and there was no change in the frequency of

treatment after the fall.

[42] Upon review of the evidence, I find that there was an increase in the frequency of the

worker‟s treatment. The worker testified that she had sought chiropractic treatment prior to the

January 1999 fall. The worker testified that it was not uncommon to seek such treatment for

what she called “computer neck.”

[43] Nellie Versluis, registered massage therapist, stated in a letter of April 7, 2004 that the

worker sought massage treatment after a fall at work.

[44] The file contains a document of handwritten clinical notations indicating dates of visits

by the worker. The employer's representative submitted that this document represented dates of

massage treatments, but the dates do not correspond with the dates listed in the massage

therapist‟s letter of April 2004. It is more likely that these notes represent the worker‟s

chiropractic treatments, although that is not entirely clear. In any event, the notes do reflect an

increase in treatment in February, March and April 1999. Whereas the worker received eight

treatments for the entire year in 1998 and one treatment in January 1999, she received 10

treatments in February 1999, seven treatments in March 1999, and five treatments in April 1999.

After April 1999, the worker‟s level of treatment reverts to a pattern which is more comparable

to the treatments in 1998.

[45] I accept the worker‟s description of her course of treatment after the fall. The worker

testified that she received massage treatment and chiropractic treatment for one and half years

after the fall. She returned to work at her regular job after the fall, and did not lose time, other

than for bad headaches. The worker testified that, by April 2000, she was nauseous all the time

and became more nauseous as the day went on. She felt seasick and was throwing up every day.

She was normally off in the summer, but she had to catch up that summer because she had gotten

behind due to her symptoms. She felt dizzy and had attacks of vertigo. She could not return to

work in August because she felt too sick. She could not read any more, because she could not

focus on words. The worker found that the more time she spent looking down, doing attendance,

for example, the more she would experience nausea and dizziness. Work on the computer had

the same effect. Her neck was very sore and she felt like there was a knife in the left side of her

neck all the time. She then received physiotherapy and acupuncture. She also did stretches and

applied heat a few times per day.

[46] The worker also provided a detailed description of her treatment and symptoms in an e-

mail to the Ministry of Labour, dated February 15, 2005. The details of the worker‟s written

statement were not contradicted by any other evidence, and I accept this statement as accurate.


(c) Onset of dizziness/vertigo symptoms

[47] In the Worker‟s Report of Injury, the worker indicated that she first noticed the pain

several years before when working in payroll. The worker stated that she had a strict deadline to

meet and would work on the computer too long without a break. As noted above, the worker

wrote on the form that she had said to the employer that she thought the problem was from

working on the computer. The employer acknowledged in its report of injury that the worker

had been working at an improper workstation over several years, causing neck and upper back

pain and headaches.

[48] The worker testified that she first experienced vertigo in 1996 while working on payroll.

The worker stated that there was a report that she did once a month for benefits. She was on the

computer and looking at two different books to complete this report. She was looking at a book

on her lap, a book on the side and at the computer. The worker testified that doing this report

caused vertigo, not headache. The worker testified that she experienced vertigo only once per

month on this job in 1996, then she did not experience it again until her fall in 1999. She did not

experience dizziness until April 2000.

[49] Dr. Falco-Kazemi noted that the worker had a prior similar problem in 1997, with neck

pain due to strain at work.

[50] In her testimony, the worker described her understanding of the distinction between

vertigo and dizziness. The worker testified that she felt that dizziness was the feeling that the

room is moving, things move a bit, and she feels like she is going to fall down. The experience

of dizziness goes away if she lies down.

[51] The worker felt that vertigo was the sensation of the room spinning, which was still bad

while lying down, but worse when walking. If she has vertigo, she is down and out for the day.

She feels that vertigo affects her balance and she cannot walk. The worker stated that, at the

time of the hearing, she had not experienced an attack of vertigo for approximately a year, since

she had a rhizotomy.

[52] The worker testified that she did not find her job stressful. She was required to get the

job done, but she was good at her job and did not feel a lot of stress in it.

[53] Therefore, in evaluating the causal role of the January 1999 fall in the worker‟s vestibular

symptoms, it must be noted that the worker had experienced previous attacks of vertigo in 1996,

as described above.

(d) Pre-existing and co-existing conditions

[54] The documents on file indicate that the worker experienced TMJ. The worker stated that

approximately 20 years earlier, her jaw locked one morning. An attempt was made to

manipulate it open, then she went to surgery. A piece was inserted to help her jaw to slide, but

her body rejected the piece and it was removed. After that, her jaw was fine. She was told that it

was due to grinding her teeth, and then she was given a night guard. The worker testified that

she no longer uses a night guard. She dealt with the issue by taking relaxation courses.


[55] The medical reports also refer to a diagnosis of spondylitis. The worker testified that she

was diagnosed with ankylosing spondylitis in the early 1980s. She stated that it affects her low

back and hips. Swimming regularly was an important factor in dealing with this condition. The

worker stated that she did stretches for this every evening and made sure not to overdo certain

activities such as walking. When she was diagnosed, the doctor told her what to do to control the

condition. The worker testified that this condition is generally under control and is not an issue.

She avoids activities that would cause it to flare up.

[56] I accept the worker‟s testimony regarding her pre-existing and co-existing conditions,

which is generally consistent with the descriptions in the medical reports.

[57] The worker was involved in a motor vehicle accident in August 2006. The worker

complained of right-sided neck pain and aggravation of her left-sided neck pain. She also had

new complaints of right shoulder and hip pain. She attended physiotherapy and massage therapy

for the injuries from the MVA. The worker testified that there was no lawsuit or monetary

settlement. Her insurance company paid for the physiotherapy and osteopath treatments that she

received for the MVA.

[58] The worker‟s attention was drawn to Dr. Robertson‟s comment in a 2002 report that the

worker had fluctuating hearing loss.3 The worker testified that she did not have hearing loss but

she did feel pressure in the left ear. The worker stated that she understood that her hearing tests

were normal.

(vi) Relevant medical evidence

[59] The following is a summary of the medical evidence. The medical reporting on file is

extensive, and will not be reviewed at length here. The medical assessor had access to the full

medical record.

[60] On May 7, 2002, Dr. Robertson reported on the results of diagnostic testing. ENG

revealed a relatively symmetric caloric functioning but did suggest abnormal smooth pursue. An

audiogram was relatively normal apart from a modest 1000-hertz dip on the left hand side.

Electrocochleography revealed an elevated SPAP ratio on the left hand side of 0.65. Vestibulo-

ocular reflex testing revealed normal horizontal gains but abnormal horizontal phase leads

consistent with a peripheral vestibular abnormality. Horizontal eye asymmetry was within

normal limits. Posturography was globally normal. Dr. Robertson stated that the test results and

complaints of dizziness, disequilibrium and fluctuating hearing loss and pressure in the left ear,

couples with an abnormal electrocochleogram on the left, was highly suggestive of

Endolymphatic Hydrops in the left ear.

[61] In the July 2004 report, Dr. Robertson noted that, at that time, the worker did not describe

any hydrops type of pathology and he wondered whether the changes seen two years previously

3 Dr. Falco-Kazemi‟s records, provided after the interim decision, included a report from the Haldimand-Norfolk

Hearing Clinic dated May 29, 2000. That report indicated that the worker reported that she sometimes needed things

repeated and the television volume increased. The results of the hearing tests showed “normal to borderline hearing

levels.”


had regressed. Accordingly, Dr. Robertson arranged to repeat VOR and electrocochleographic

studies.

[62] Dr. Robertson reported on the results of the studies in a letter dated October 13, 2004.

Dr. Robertson reported that the worker‟s evoked responses, including electrocochleography,

were normal and her VOR studies revealed no abnormal VOR gains or bias. Dr. Robertson

noted that the worker‟s chronic neck pain seemed to be the biggest of the worker‟s difficulties.

She also had some issues with visual stimulation in optokinetic environments. These types of

circumstances also seemed to provoke her dizziness.

[63] The following excerpts provide an overview of the opinions that have been given about

the worker‟s condition:

Dr. E.V.M. Jeney, otolaryngology, head and neck surgery, December 5, 2002:

“I really am not qualified to comment on how much neck mobility or disability she has.

We certainly do know that things like whiplash can aggravate and cause balance problems

in themselves.”

I am wondering if [the worker] has an underlying atypical vestibular hydrops problem that

then was definitely aggravated first of all by the fall and trip at work back in 1999 and then

secondly aggravated further by the repetitive poorly ergonomically planned work station

that she had to work at. “…It is well recognized that neck strain problems can aggravate

balance conditions or start balance conditions of their own, and I think this is all I can say.”

Dr. Jeney, January 22, 2004:

“…what makes me wonder if this is work related is the fact that she gets some injections by

Dr. Magee in Fenwick. It is a nerve block and interestingly enough her balance reverts to

normal for approximately eight weeks after the nerve block is done….Again, the fact that

she improves with nerve blocks to her neck makes me wonder if her repetitive injury and

neck strain is a large part of this.”

Dr. Robertson, July 22, 2004:

“Our equilibrium system involves interactions between our proprioreceptive systems

including our neck as well as our visual system and vestibular systems. It is certainly a

very likely possibility that her neck problem is a significantly co-morbid factor in her

complaints of dizziness. I cannot relate the previous vestibular abnormalities to a

workplace injury that she suffered. As I understand it, she did have an episode where she

tripped over some computer cords at work, bumped her head, fell to her knees and twisted

her neck…I simply can‟t extrapolate that incident to the vestibular findings we currently

have.”

Dr. Robertson, October 13, 2004:

“I would suspect that some of [the worker‟s] ongoing dizziness likely relates to her neck.

We do know the equilibrium system uses input from the vestibular system, visual system

and the proprioreceptive system which includes cervical receptors. Her sensitivity to

optokinetic type stimulation may be a byproduct of the equilibrium disorder that she has.”


Dr. J. B. Forrest, specialist in pain medicine, May 27, 2005:

“She continues to have fairly severe ataxia and dizziness which may be related to the

structural changes that are present in her neck.”

Dr. M. Bridge, WSIB Medical Consultant, December 20, 2005

“There is no substantial basis or evidence provided to support that the vestibular condition

is within the scope of this claim.”

Dr. Jeney, February 21, 2006:

[The worker] has been feeling worse. She is now actually having acute spinning spells.

She is known to have an E-COCHG that was abnormal in the left ear. Dr. Robertson

thought it was an atypical vestibular hydrops. She wasn‟t having acute vertiginous

episodes but I think we can now make a more formal diagnosis of what some people call

recurrent vestibulopathy and other people call Meniere‟s disease but without hearing being

affected.”

Dr. A. A. Gilani, neurologist, October 10, 2007:

The worker saw Dr. Gilani for repeat Botox treatment for cervical torticollis that developed

since her work-related accident. Dr. Gilani noted: “[The worker] was very happy to report

that she has not had a significant attack of vertigo since the Botox treatment began.”

(vii) Information obtained from the family physician

[64] Pursuant to the interim decision, the Tribunal Counsel Office obtained records from

Dr. Falco-Kazemi, the worker‟s family physician, particularly for the period from January 1996

to December 2000. The worker has been a patient of Dr. Falco-Kazemi‟s practice from 1993 to

March 2009.

[65] In a letter dated January 7, 2010, Dr. Falco-Kazemi summarized the worker‟s treatment

for neck pain, dizziness, vertigo and headaches during this period as follows:

June 1996: The worker complained of back and neck pain and headache from lifting a file

at work. She was treated with massage and NSAIDs for muscle spasm.

October 1997: The worker presented with persistent vertigo associated with nausea and

vomiting. She stated this was the third episode in the past six weeks. She was diagnosed

with benign positional vertigo.

November 1997 – February 1998: The worker continued to complain of vertigo, nausea

and vomiting with occipital headache. The diagnosis of peripheral vertigo was made.

Dyazide, Gravol and Antivert were used with minimal results.

April 1998: The worker presented with recurrent bouts of mid back pain for one week.

She was diagnosed with recurrent chronic pain due to ankylosing spondylosis.

April 2000: Vertigo treated again with Antivert.

June 2000: The worker presented with increased headache, neck pain and vertigo related to

head movement and computer work. Referrals to ENT specialist and neurologist Dr. Lo

were arranged. During this period, the worker‟s work attendance was irregular and she

required Tylenol 3 and NSAIDs for limited pain relief.


[66] These records were available to the medical assessor for his review.

(viii) The assessor’s report

[67] Dr. J. Rutka was selected as the Tribunal medical assessor for this appeal and provided a

report dated October 21, 2010. Dr. Rutka is a professor of otolaryngology at the University of

Toronto. His active staff appointment is at the University Health Network where he has a

subspecialty interest in matters of otology/neurotology. He is the Co-director of the UHN Centre

for Advanced Hearing and Balance Testing and the UHN Multi-disciplinary Neurotology Clinic.

His curriculum vitae outlines his extensive accomplishments and numerous published works. I

accept that Dr. Rutka has the credentials to express an expert opinion on matters pertaining to

otology and neurotology (disorders of dizziness, imbalance, and hearing loss).

[68] Dr. Rutka‟s detailed report includes a summary of the medical documentation on file and

a general discussion regarding the evidence. In a discussion of the evidence, Dr. Rutka observed

in part:

There is documented evidence that [the worker] experienced recurrent bouts of episodic

vertigo prior to her first WSIB claim from a work related injury on January 29, 1999.

The dizziness apparently first occurred in 1996 and was documented initially by

Dr. Falco-Kazemi on October 30, 1997. Dr. Falco-Kazemi diagnosed [the worker] to

have peripheral (inner ear related) vertigo that was treated with Diazide, Gravol and

Antivert with limited success. She questioned whether [the worker] might have benign

positional vertigo (BPV) additionally.

[The worker] seemed to go into remission and there had been no further reports of her

experiencing any vertigo subsequent to June 18, 1998. Her attacks of dizziness then

returned and were documented again in April 2000 by Dr. Falco-Kazemi following her

WSIB Claim #1.

Drs. Lo, Jeney, and Robertson all concluded that [the worker] had a peripheral (inner ear)

related cause for her symptoms. Investigation performed under the supervision of

Dr. Robertson in May 2002 demonstrated [the worker] to have increased SP/AP ratios on

electrocochleography in her left ear highly suggestive for the phenomena of

endolymphatic hydrops (the pathophysiologic basis for Meniere‟s Disease). An

abnormal high frequency rotational chair test was thought to be compatible with a

horizontal semicircular canal abnormality suggestive for an inner ear localization. Repeat

inner ear testing in September of 2004 had returned to normal which included [the

worker] having a normal electrocochleogram and normal high frequency vestibular

ocular reflex (VOR) chair test.

From the documentation reviewed over the course of [the worker‟s] medical presentation

there appears to have been general agreement by her treating physicians that she has

experienced symptoms related to inner ear peripheral vestibular dysfunction. At varying

times she has been diagnosed to have a peripheral vestibular disorder, a recurrent

vestibulopathy (RV), the entity of benign positional vertigo (BPV) and atypical left

vestibular hydrops. As her symptoms of vertigo, nausea, and disequilibrium seemed to

worsen following neck extension and at times from neck physiotherapy this seemed to

imply some association with her cervical spine. Symptomatic improvement seemed to

occur following Botox injections to the cervical spine and radio-frequency C2-C4 facet

denervation. One is still left with the impression, however, that she continues to have

some residual dizziness.

[69] Dr. Rutka goes on to discuss general background information about BPV in the context

of the worker‟s symptoms and treatment:


One can reasonably postulate that [the worker] may have benign positional vertigo (BPV)

based on the complaints of dizziness that seemed to occur with neck extension and lying

down/rolling over in bed. Overall BPV is the most common inner ear disorder seen in

neurotology. It is thought to arise when particulate matter (probably related to displaced

otoconia) (small stones) from the otolithic organs of the utricle and saccule) migrate into

the endolympathic circulation of the posterior semicircular canal (the most gravity

dependent semicircular canal). Movements of the head in the plane of the posterior canal

(i.e. that would occur if one were to look up, bend over, went to lie down, roll over in

bed, etc.) cause the particulate debris to shift within the posterior canal and in the process

abnormally stimulates the endorgan receptor. This gives rise to short lived attacks of

vertigo lasting approximately 5-30 seconds when the provocative head movement occurs.

[…]

While the majority of individuals develop BPV on a spontaneous basis it is well known

to follow head injury and cervical flexion-hyper-extension type injuries as seen in the

colloquial “whiplash” type setting. Compared to the spontaneous variety post traumatic

BPV tends to more often than not be bilateral, appears less likely to respond to physical

therapy maneuvers, is less likely to go into spontaneous remission and more likely to

require definitive surgical intervention should the attacks prove incapacitating for the

involved individual. As an observation, most patients who experience post traumatic

BPV do so shortly after the accident and for it to develop months later following trauma

would be somewhat unusual. BPV can also co-exist in 15% of individuals with other

inner ear disorders (i.e., Meniere‟s Disease).

The diagnosis of [the worker] having a recurrent vestibulopathy (RV) type picture was

based on the initial presenting history to Dr. Jeney of vertiginous attacks lasting minutes-

hours that were not associated with hearing loss or tinnitus. She did however, have

complaints of aural fullness and pressure predominantly in her left ear. Recurrent

vestibulopathy is the second most common inner ear disorder seen in neurotology.

Although the precise nature of its genesis remains unclear, longitudinal studies from the

University of Toronto over two decades ago demonstrated that over an 8 ½ year follow

up approximately 60 % of patients with RV went into spontaneous remission and 10%

continued to have active attacks. Approximately 20% of individuals evolved into class

Meniere‟s Disease (an inner ear disorder typically associated with fluctuant sensorineural

hearing loss in the involved ear, a sense of aural pressure, tinnitus and unwanted head

noise and episodic attacks of vertigo lasting minutes-hours) and 10% in classic BPV.

[70] Dr. Rutka addressed the existence of cervical induced vertigo and migraine associated

vertigo as follows:

Within the fields of neurology and neurotology there is still controversy and debate

concerning the existence of cervical induced vertigo and migraine (headache) associated

vertigo. Many of these associations depend on the specialists who assess patients within

their areas of expertise. Chiropractic and Orthopedic specialists for example are more

likely to invoke concern that an individual‟s vertigo may have arisen from a cervical

spine disorder related to a whiplash type injury for example. Neurologists additionally

may invoke a Meniere‟s [sic: migraine?] cause for an individual‟s vertigo if there seems

to be a temporal association between headaches and the onset of vertiginous attacks. The

claim that these entities exist primarily revolves around the improvement in an

individual‟s symptoms following successful treatment (i.e. physiotherapy type

maneuvers, specific treatments to the cervical spine, etc. and in the case of migraine

associated vertigo whether an individual improves following migraine treatment).

Controversies continue to-date as there does not appear to be any unique demonstrable

pathologic change that can be identified in the inner ear due to cervical proprioreceptive


injury and/or from migraine as one might see in Meniere‟s Disease with its classic

findings of endolymphatic hydrops at necropsy. There are also no specific physical signs

clinically unique to both conditions compared to BPV and Meniere‟s for example.

Cervical proprioreceptors however, do form the basis of what is called the cervical ocular

reflex. In certain animals this is an extremely important reflex that primarily allows head

movement to occur relative to body movement especially in afoveate animals (pigeons,

rabbits etc.) In humans however, there appear to be only rudimentary connections to the

central vestibular nuclei in the brainstem. The majority of afferent vestibular information

appears to come from the inner ear via the angular acceleration receptors of the

semicircular canals and the macular otolithic organs of the utricle and saccule. The

association of dizziness in patients with neck trauma and migraines becomes somewhat

contentious in that not all individuals with neck injuries will develop “dizziness” nor will

those who have classic migraine. Because of the commonality of both conditions and the

extremely common presentation of dizziness in society it is quite conceivable and not

surprising there may be some overlap. A well written summary paper concerning the

controversies of cervical disorders by Drs. Adolfo Bronstein and Thomas Brant is

enclosed to provide further information…4

[71] Dr. Rutka responded to specific questions as follows:

1. The worker described experiencing vertigo once a month in approximately 1996 in relation to performing a specific task as a payroll clerk as described in the interim decision. Are you able to comment upon the likely cause or causes of the worker’s

symptoms at that time?

The attacks of vertigo that were described by [the worker] would be diagnosed as being

compatible with peripheral (inner ear) localization for her symptoms. Attacks of vertigo

lasting minutes-hours would be best diagnosed under the umbrella diagnosis of a

recurrent vestibulopathy. If there were positional associated dizzy attacks then this could

be reasonably explained by the condition of benign positional vertigo (BPV). Both these

conditions seemed to resolve in 1998 and [the worker] had no further bouts of dizziness

that were at least documented at the level of the family physician until after her January

29, 1999 work related injury. This forms the basis of WSIB Claim #1. In my opinion, it

is unlikely the tasks of her employment would have caused these symptoms. I am left

with the impression that they initially occurred spontaneously and in fact did settle for

some time many years after she had begun working as a payroll clerk.

2. In your view, is it likely that the worker’s gradual onset neck injury made a significant contribution to the development of her symptoms of vertigo, dizziness and nausea? Please explain.

In my opinion, her neck injury could have certainly worsened not only her neck pain but

also the headaches that she had experienced. Individuals with headaches causing

significant somatic pain certainly can generate nausea as a response. It is also possible

she may have had some non-specific dizziness (but not true vertigo) from her headaches.

I think it unlikely however, that the gradual onset neck injury would have caused her

vertigo (described as an illusion of movement either of oneself or of the environment.).

One suspects that there is an inner ear localization for her vertigo although to-date the

diagnosis has not been clearly defined. The most likely diagnostic entities that would

explain [the worker‟s] vertigo would include a recurrent vestibulopathy and/or

accompanying benign positional vertigo (BPV).

4 T Brandt, A M Bronstein. “Cervical vertigo.” J Neurol Neurosurg Psychiatry 2001; 71:8-12.


3. In your view, is it likely that the worker’s fall on January 29, 1999 as a described in the interim decision, made a significant contribution to the development of symptoms of vertigo, dizziness, and nausea? Please explain.

While there is a temporal relationship with the injury the eventual development of further

of vertigo by definition seemed to occur in a delayed fashion. In general terms post

traumatic benign positional vertigo (BPV) would have been expected to occur at the time

of her injury or shortly thereafter (usually within a week to a month or two at the

longest). If her neck injury had also aggravated a pre-existent inner ear disorder then this

too should have occurred sooner rather than later. For this reason, I find it somewhat

difficult to believe that the injury she sustained on January 29, 1999 from the history

provided would have accounted for the ongoing symptoms she currently experiences.

4. Is it likely that either of the two workplace injuries aggravated or triggered an underlying vestibular condition? Please explain.

Please see the answer to question #3.

While the entity of post traumatic endolymphatic hydrops has been mentioned in the

world literature prior this is extremely uncommon and again generally would require

closer association temporally to the onset of her symptoms from the two traumas that she

sustained in her claim injuries at the level of the WSIB. In the absence of hearing loss

one can say that the inner ear was definitely not significantly injured as far as its cochlear

function (hearing) was concerned.

5. To the extent that this was not addressed in response to the previous questions, please review the reports and results of diagnostic investigations that have taken place (particularly the electrocochleography testing in 2002 and 2004) and explain their significance in this appeal.

In the past, [the worker] has had normal audiometry. She also had normal

electronystagmography (ENG). Both tests are considered to be the most important tests

in the general work up of an individual with dizziness.

The presence of an abnormal electrocochleogram with increased left SP/AP ratios 0.65

found in Dr. Robertson‟s laboratory is highly suggestive for the pathology of

endolymphatic hydrops. This is the pathophysiologic correlate for Meniere‟s Disease.

While suggestive for an inner ear localization a classic diagnosis of Meniere‟s Disease

could not be made in the absence of other symptoms. High frequency sinusoidal

rotational chair testing in 2002 also seemed to demonstrate a phase delay in eye

movements. This was interpreted to represent a further abnormality involving the

horizontal semi-circular canal(s) of the inner ear(s). Despite a normal ENG there

appeared to be some further evidence for an inner ear localization for [the worker‟s]

symptoms. By 2004, both the high frequency sinusoidal rotational chair test and

electrocochleography had returned to normal. If the phenomena of endolymphatic

hydrops had been present then it appeared to have resolved spontaneously.

According to the seminal work of Thomas and Harrison (physicians from the United

Kingdom) over 95% of patients with Meniere‟s Disease present with all three symptoms

required for disease diagnosis (fluctuant sensorineural hearing loss, episodic vertigo

lasting minutes-hours and tinnitus) generally within a five year time frame. To-date, [the

worker] has not evolved towards nor can she be determined to have classic Meniere‟s

Disease.

6. What is the medical significance, if any, of the findings noted at the time of the Electronystagmography (ENG) in 2001?

The ENG on November 21, 2001 demonstrated [the worker] to have equal and symmetric

caloric activity bilaterally. This implies inner ear function could be extrapolated to be

normal. This however, is somewhat a gross overstatement of how the inner ear functions.


There is no evidence of her having failure of fixation suppression (FSS) which could

typically imply a central nervous system abnormality at the level of the vestibular

cerebellum (one of the reigning influences that control the ultimate movement of the eyes

relative to head movement). No abnormalities were noted in the Dix Hallpike‟s

maneuver (the test used to detect benign positional vertigo). No post headshaking

nystagmus was also seen which is indirect evidence that [the worker] did not have any

significant difference in inner function between one side versus the other nor did she have

an abnormality conceivably in an amorphous group of neurons within the central nervous

system known as the central velocities storage mechanism. Absence of a CNS cause was

also confirmed by MRI findings at a later date. The presence of abnormal smooth pursuit

however, could be a non-specific central nervous system (CNS) finding. Nevertheless

pursuit could also be abnormal if she had taken certain drugs such as anti-depressants,

sedatives, alcohol, etc., if she had not paid attention during this portion of the test itself.

At no other point in time does an abnormality of smooth pursuit ever seem to be

recognized or documented.

7. In your view, are the worker’s headaches related to her symptoms of vertigo, dizziness, or nausea, or do the headaches represent a separate problem? Please explain.

My opinion is that [the worker‟s] headaches could have conceivably been caused by the

neck injury that she sustained. It is also conceivable that if she were to have a severe

headache it might account for some generalized unsteadiness/dizziness and nausea.

Nevertheless, I don‟t believe her symptoms of true vertigo would be necessarily related to

her neck injuries or her headaches for reasons that have been previously mentioned

above.

8. Please provide any comments which you feel would be useful to the Tribunal and the parties in understanding the nature and etiology of the worker’s condition.

The association of cervical vertigo and migraine associated vertigo continues to remain

controversial with no clear pathological or unique clinical evidence that would support an

inner localization for this. Any association (if it exists) rests with the first claim (Claim

#1) that resulted from her January 29, 1999 injury. The apparent worsening of her

symptoms seemed to occur over the next year and a half leading to a second WSIB claim

(Claim #2).

It is important to remember that [the worker] had had complaints of dizziness that pre-

dated her January 29, 1999 injury and had features suspicious for both a recurrent

vestibulopathy and benign positional vertigo. While BPV can certainly appear as a result

of trauma or if present can be worsened by the trauma itself, we don‟t get a clear history

that seems to document this from the medical information reviewed. The diagnosis for

hydropic change in [the worker‟s] left inner ear was primarily based on her description of

vertigo that lasted minutes-hours in the presence of increased left SP/AP ratios on

electrocochleography in 2002. She was diagnosed to have atypical vestibular hydrops as

repeat electrocochleography had returned to normal in 2004. To date [the worker] has

also not evolved into classic Meniere‟s Disease. Perhaps the strongest association of her

dizziness from cervical related causes comes from the alleged improvement following the

introduction of cervical nerve blocks with local anesthesia, Botox injections and radio-

frequency C2-C4 facet denervation. The results appeared to have been short-lived,

however, and [the worker] was apparently scheduled for further RF facet denervation in

future.

(ix) Conclusions and analysis

[72] The appeal is allowed in part. For the reasons set out below, the worker‟s claim for

vertigo, nausea, and dizziness are denied. The worker‟s claim for headaches as related to the

neck injury is allowed. I also find that the worker is entitled to a NEL redetermination.


(a) Denial of entitlement for vertigo, dizziness and nausea

[73] In considering the worker‟s claims for vertigo, dizziness, and nausea, I have accepted

Dr. Rutka‟s thorough, balanced, and well-reasoned opinions. Dr. Rutka is a recognized expert

in his field with extensive clinical and academic accomplishments, as demonstrated through his

curriculum vitae. Neither party took issue with Dr. Rutka‟s expertise or the content of his report.

The parties differ, however, in their suggested interpretations of the report.

[74] I will begin by addressing the basis for denying entitlement for vertigo, and associated

nausea and dizziness. There are two main grounds for this conclusion. First, the preponderance

of the credible medical evidence indicates that cervical vertigo is a controversial entity which is

not accepted in the mainstream of medical opinion. Secondly, even if I were to accept the notion

that a neck injury may cause vertigo, the particular circumstances of this case are not persuasive

in supporting a conclusion the worker‟s vertigo is in fact related to either of her compensable

neck injuries. I will also separately consider entitlement for dizziness and nausea, based upon

the comments in Dr. Rutka‟s report and the other evidence on file.

(1) Cervical induced vertigo

[75] The first basis for denying the worker‟s claim for vertigo is the evidence that diagnosis of

cervical induced vertigo is controversial and not widely accepted in the mainstream medical

community. Dr. Rutka‟s review of the controversy within the fields of neurology and

neurotology concerning the existence of cervical induced vertigo is reproduced in the preceding

section of this decision. Dr. Rutka also enclosed a journal article in this regard. I note

Dr. Rutka‟s summary of the controversy:

The association of cervical vertigo and migraine associated vertigo remains contentious

in the field of Otology/Neurotology. They are reported but the clinical evidence remains

somewhat scant and not well supported looking at evidence based medicine criteria. It is

certainly conceivable that individuals with headache and somatic pain from the neck

could experience some non-specific dizziness and nausea. It however, would be

somewhat unusual for both entities to cause benign positional vertigo (BPV) or episodic

unprovoked attacks of vertigo lasting minutes to hours without significant change noted

in the inner ear.

[76] I accept Dr. Rutka‟s explanation of the mainstream view of “cervical induced vertigo.”

The worker's representative, however, submitted that “the Tribunal adjudicates many cases

where there is scant medical evidence and diagnoses that are contentious in the medical

community”, for example, environmental hypersensitivity and fibromyalgia. Although it is well-

established that scientific certainty is not required to establish causation, the view of mainstream

medical experts is relevant to determining causation. I accept the approach the Panel adopted in

Decision No. 1678/04 (April 25, 2006):

Based on these findings, we turn to the question of which of these different theories was

the likely cause of his illness. We find that that the second and third theories are more

likely than the first and fourth theories.

With respect to the first theory, we are not satisfied that we have sufficient evidence to be

confident that that theory, of an “organic” multiple environmental sensitivity, is correct.

We note that the mainstream medical community has not accepted this diagnosis, even as

a recognized “syndrome”. The medical community has in the past recognized

“syndromes” for which there is no full scientific or biological explanation of symptoms:


for instance, it has recognized chronic pain disorder, chronic fatigue syndrome, and

fibromyalgia. However, we understand from the assessors‟ reports that the most

reputable medical authorities have not recognized multiple environmental sensitivity

even on this basis.

We consider this an important concern. Tribunal adjudicators are not medical experts

and are not acting in the role of medical experts. In considering an issue of medical

causation, we must rely on medical evidence. Also, in considering the medical evidence

before us we must give weight to the comparative qualifications of the different experts

and to their standing in the medical community. Therefore the fact that this diagnosis has

not been accepted in the mainstream medical community is an important factor.

We must distinguish this case from the facts considered, for instance, in Decision No. 915

(which addressed chronic pain disability) and Decision No. 434/89A (which addressed the

threshold at which the Board recognized entitlement for noise-induced hearing loss). In

those leading cases, Tribunal Panels accepted entitlement for impairments that were not

at that time recognized by the Board. However, the Tribunal Panels relied on evidence

that the impairments were recognized in the mainstream medical community. The Panel

in Decision No. 915 stated:

The Board is not obligated to be a pioneer in the recognition and acceptance of

new medical concepts as far as compensation entitlement is concerned. Indeed, the

Board may be seen to have a duty to maintain its compensation decisions in

conformity generally with the mainstream of medical evidence.

We agree with this statement of the Panel in Decision No. 915. We also recognize the

distinction, as pointed out in Decision Nos. 545/96 and 548/04, that the medical

community may be, at least in some contexts, addressing issues of medical diagnosis

based on a standard of scientific certainty. Tribunal Panels must address the issue on the

basis of the balance of probabilities. However, in our view, this difference does not mean

that a Tribunal Panel is in a position to determine probabilities based on its own view of

the medical facts or on less reliable or “non-mainstream” evidence. Rather, the result of

this distinction is that it may be necessary for the Panel to obtain specific expert evidence

that addresses probabilities, rather than scientific proof. That medical opinion may

usefully be obtained in the context of the specific facts that the Panel has found apply to

the case.

In this case, we have obtained the reports of two assessors, in addition to the report of

Dr. Molot, on this issue. In our view the medical evidence is not sufficient to support the

diagnosis of multiple chemical sensitivity. We read both the report of Dr. Kravik and the

report of Dr. Lange to indicate that these assessors consider it unlikely that the worker‟s

symptoms are due to an organic chemical reaction. We note that we put the question to

Dr. Kravik specifically in terms of probabilities, and not scientific certainty.

[77] I agree with and adopt the foregoing approach to weighing medical evidence. In

considering the medical evidence, the Tribunal must assign appropriate weight to the

comparative qualifications of the different experts and to their standing in the medical

community. Accordingly, the fact that the diagnosis of cervical induced vertigo has not been

accepted in the mainstream medical community is highly relevant to the analysis. Dr. Rutka is a

recognized expert in his field, and I accept his explanation of the controversy and the fact that the

diagnosis is not well-supported by evidence based medicine criteria. The worker's representative

cited the example of fibromyalgia, which is clearly distinguishable from the present case, since

fibromyalgia is specifically addressed in Board policy on Chronic Pain Disability.

[78] Some of the worker‟s treating specialists, such as Dr. Robertson and Dr. Jeney, raised the

possibility that there was a link between the worker‟s neck pain and her vestibular symptoms. I


prefer Dr. Rutka‟s opinion, however, as he provided a detailed explanation and also reviewed the

literature on the subject. The opinions of the treating specialists did not address the literature on

the subject.

(2) The facts of this worker’s case are not persuasive in establishing

causation

[79] I will turn then to the second ground for denying the worker‟s claims for vertigo and

associated nausea and dizziness. Even if I were to accept the controversial diagnosis of cervical

induced vertigo as valid basis for allowing the claim, I would find that the individual facts of this

case do not support that the worker‟s vertigo is related to either of her compensable neck

injuries. Dr. Falco-Kazemi‟s summary of the worker‟s complaints, contained in correspondence

of January 7, 2010, was instructive in this regard. Dr. Falco-Kazemi noted the following:

June 1996: The worker complained of back and neck pain and headache from lifting a file

at work. She was treated with massage and NSAIDs for muscle spasm.

October 1997: The worker presented with persistent vertigo associated with nausea and

vomiting. She stated this was the third episode in the past six weeks. She was diagnosed

with benign positional vertigo.

November 1997 – February 1998: The worker continued to complain of vertigo, nausea

and vomiting with occipital headache. The diagnosis of peripheral vertigo was made.

Dyazide, Gravol and Antivert were used with minimal results.

April 1998: The worker presented with recurrent bouts of mid back pain for one week.

She was diagnosed with recurrent chronic pain due to ankylosing spondylosis.

April 2000: Vertigo treated again with Antivert.

June 2000: The worker presented with increased headache, neck pain and vertigo related to

head movement and computer work. Referrals to ENT specialist and neurologist Dr. Lo

were arranged. During this period, the worker‟s work attendance was irregular and she

required Tylenol 3 and NSAIDs for limited pain relief.

[80] As Dr. Rutka noted, the worker had complaints of vertigo prior to the workplace injuries

of 1999 and 2000. The worker complained of vertigo in October 1997 and had ongoing

complaints from November 1997 to February 1998. Although the worker testified that she felt

this was work-related, she did not file a claim. The worker‟s prior symptoms are considered to

be non-compensable for the purposes of this appeal. Dr. Falco-Kazemi noted that the worker

complained of back and neck pain due to lifting a file at work in June 1996, but the worker did

not file a claim for this incident. Even if this incident were accepted as compensable, the vertigo

complaints did not arise until over a year later in October 1997, making it highly improbable that

there was a causal relationship between the earlier lifting incident and the vertigo complaints.

There is no indication in Dr. Falco-Kazemi‟s notes that the worker‟s vertigo complaints from

1997 to 1998 were attributed to a workplace cause. Based upon Dr. Falco-Kazemi‟s report of

January 2010, it appears that the vertigo complaints in April 2000 were treated with the same

medication as had been prescribed for previous episodes, and there was no reference to a

workplace attribution. The workplace injuries were not cited as a potential causal factor until

June 2000.


[81] While I accepted that the worker had “wrenched” her neck in the injury of January 1999,

the history of the worker‟s symptoms after the injury do not support a finding that her vertigo

was caused by the accident under Claim #1. The worker did not miss any time from work

following the January 1999 injury.

[82] There was a significant delay between the reporting of an exacerbation of vertigo and the

workplace injury of January 1999. The worker did not complain of vertigo until April 2000, well

over a year after the accident. As noted above, Dr. Jeney also reported in December 2002 that

the worker had not mentioned the fall at work to her previously, which is also a factor to

consider in evaluating the significance of this event in the evolution of the worker‟s symptoms of

vertigo. The initial reports from Dr. Lo (September 2000), Dr. Jeney (October 2001), and

Dr. Robertson (February 2002) did not refer to the January 1999 accident as a potential factor in

the worker‟s vertigo and dizziness. Dr. Roberton‟s report noted that the worker complained of

dizziness associated with being in a grocery store, while looking up or down, and while working

at a computer. These reports indicate that the worker apparently did not attribute her vertigo and

dizziness complaints to the January 1999 fall in her initial appointments with these specialists.

This adds to the unlikelihood of a causal connection between the worker‟s vestibular symptoms

and the January 1999 workplace accident.

[83] Dr. Rutka noted that BPV may be known to follow whiplash type injuries. Dr. Rutka

opined that any work-related association would rest with the January 1999 accident. The

January 1999 involved a fall, and therefore had the potential for causing a whiplash type of

injury. In Dr. Rutka‟s clinical opinion, however, patients who experience post traumatic BPV do

so shortly after the accident and for it to develop months later following trauma would be

somewhat unusual.

[84] Dr. Rutka addressed the suggestions that the treatment of the worker‟s neck injury

appeared to result in subjective improvement of her vertigo symptoms. Dr. Rutka noted that the

results were short-lived following such treatment. Dr. Rutka also noted that the worker had

previous episodes of vertigo that had spontaneously gone into remission. Dr. Lo in fact reported

in November 2000 that the worker‟s vertigo had subsided completely at that time with

desensitization exercises. Accordingly, I find that the anecdotal reports that the worker‟s vertigo

improved with treatment of her neck condition, such as Botox injections, are not persuasive.

Previous desensitization treatment had resulted in resolution of her vertigo in November 2000.

[85] Dr. Rutka summarized his opinion as follows:

The association of cervical vertigo and migraine associated vertigo continues to remain

controversial with no clear pathologic or unique clinical evidence that would support an

inner ear localization for this. Any association (if it exists) rests with the first claim

(Claim #1) that resulted from her January 29, 1999 injury. The apparent worsening of

her symptoms seemed to occur over the next year and a half leading to a second WSIB

claim (Claim #2) in June 2000.

It is important to remember that [the worker] had had complaints of dizziness that pre-

dated her January 29, 1999 injury and had features suspicious for both a recurrent

vestibulopathy and benign positional vertigo. While BPV can certainly appear as a result

of trauma or if present can be worsened by the trauma itself we don‟t get a clear history

that seems to document this from the medical information reviewed. The diagnosis for


hydropic change in [the worker‟s] left inner ear was primarily based on her description of

vertigo that lasted minutes-hours in the presence of increase left SP/AP ratios an

electrocochleography in 2002. She was diagnosed to have atypical vestibular hydrops as

repeat electrocochleography had returned to normal in 2004. To-date [the worker] has

also not evolved into classic Meniere‟s Disease. Perhaps the strongest association of her

dizziness from cervical related causes comes from alleged improvement following the

introduction of cervical nerve blocks with local anesthesia, Botox injections and radio-

frequency C2-C4 facet denervation. The results appeared to have been short-lived

however, and [the worker] was apparently scheduled for further RF facet denervation in

the future.

[86] The worker's representative correctly noted that the benefit of the doubt is not a substitute

for evidence. The benefit of the doubt applies where the evidence for and against the claim is

approximately equal in weight. I find that the evidence in this appeal strongly supports that it is

more probable than not that the worker‟s vestibular symptoms are not related to her compensable

injuries.

[87] In summary, cervical induced vertigo is a controversial diagnosis in the mainstream

medical community. Furthermore, and perhaps more importantly, the chronology of events in

this case do not support a causal relationship between either of the workplace injuries and the

worker‟s development of vertigo. The worker had previous non-compensable episodes of

vertigo and there was a significant delay between the January 1999 fall and the exacerbation of

her vertigo complaints.

(3) Symptoms of nausea and dizziness, as distinguished from vertigo

[88] The worker's representative relied upon Dr. Rutka‟s statement that “It is also conceivable

that if she were to have a severe headache, it might account for some generalized

unsteadiness/dizziness and nausea.” The worker's representative filed submissions which

reviewed the law of causation at length. I appreciate that the legal standard of causation does not

require medical certainty. The worker's representative submitted that, despite the lack of medical

certainty, when legal principles of reasonable probability rather than medical certainty are

applied, the worker should be entitled to dizziness, vertigo, nausea and headaches as being

related to the compensable injury of January 29, 1999, where she sustained a wrenching of her

neck.

[89] It is important to be precise in identifying the meaning of Dr. Rutka‟s statement quoted

by the worker's representative. I note that Dr. Rutka clearly opined that it was unlikely that the

worker‟s vertigo (as distinguished from dizziness) was related to her neck injury, as he went on

to state: “Nevertheless, I don‟t believe her symptoms of true vertigo would be necessarily

related to her neck injuries or her headaches for reasons that have been previously mentioned

above.”

[90] The passage from Dr. Rutka‟s report cited by the worker's representative allows for the

theoretical possibility that some of the worker‟s dizziness and nausea (not vertigo) could be

independently related to severe headache; nonetheless, Dr. Rutka does not opine that such a

causal relationship is likely.

[91] Upon review of the totality of the clinical evidence, I find that the worker‟s nausea and

dizziness were associated with her episodes of vertigo, rather than headaches. For example, in


Dr. Falco-Kazemi‟s 2010 summary, she reported that in October 1997, the worker presented with

persistent vertigo associated with nausea and vomiting. This demonstrates that the nausea and

vomiting symptoms were associated with the previous attacks of vertigo. In addition, I rely upon

the report of Dr. R. Lo, neurologist, who reviewed the worker‟s condition in September 2000.

Dr. Lo reported that the worker complained of vertigo associated with nausea. Dr. Lo concluded

that the dizziness and nausea related to positional changes were likely due to benign positional

vertigo or inner malfunction. Dr. Lo distinguished these symptoms from the headache

complaints. With regard to the headache, he surmised: “She likely has muscular tension

headache at the base of the neck, which could be related to ankylosing spondylosis.” Thus,

Dr. Lo‟s report also indicates that the worker‟s dizziness and nausea are related to her vertigo,

rather than headaches.

[92] The medical evidence in the file clearly demonstrates that the worker‟s nausea and

dizziness were associated with vertigo, which is not related to either of the compensable injuries.

Although Dr. Rutka indicated that it was possible that there was a connection between the

worker‟s headaches and nausea and dizziness, he did not give the opinion that it was likely.

(b ) Entitlement for headaches as a secondary condition

[93] I find that the medical evidence supports that the worker‟s headaches are likely related to

the compensable neck strain injury under Claim #2. In this claim, the worker has entitlement for

mechanical neck pain, which was superimposed on pre-existing degenerative changes

demonstrated on CT scan of March 2006. In finding that the worker has entitlement for

headaches as a secondary condition, I note in particular the following:

The worker did not have an extensive documented pre-existing headache condition.

Although she did complain of headaches in June 1996, that complaint appears to have been

isolated. There is no documented evidence of ongoing headache.

Dr. R.J. Duke, neurologist, noted in March 2006 that he believed that the worker had

cervicogenic headache.

In November 2000, Dr. Lo gave the opinion that the worker‟s occipital headache was due

to muscle spasm causing entrapment of the left greater occipital nerve. Dr. Lo suggested

stretching exercises to relax the muscle. In his first report of September 2000, Dr. Lo

speculated that the worker‟s muscular tension headache at the base of the neck could be

related to ankylosing spondylosis, but it was later confirmed that the worker‟s spondylosis

does not affect her neck. A multidisciplinary health care report of December 6, 2000

reviewed available radiographs and confirmed that “there were no findings of spondylitis

of the cervical spine.”

Dr. Rutka noted that the worker‟s neck injury could certainly have worsened not only her

neck pain but also the headaches that she had experienced.

[94] It is not controversial to conclude that neck strain may lead to tension headaches, as

Dr. Lo noted in his first report of September 2000. Dr. Bridge, the WSIB medical consultant,

appears to have concluded that the worker‟s headaches were attributed to underlying cervical

disc disease, but this reasoning is inconsistent with the WSIB‟s conclusion that the worker in fact

had a permanent impairment of the neck due to the workplace strain injury. Based upon the


preponderance of the evidence, I find that the worker has entitlement for headaches secondary to

her neck strain injury of June 1, 2000.

(c) Entitlement to a NEL redetermination

[95] Subsection 47(9) of the WSIA provides that if the worker has a permanent impairment

greater than zero and the worker suffers a significant deterioration in his or her condition, the

worker may request that the Board redetermine the degree of the worker‟s permanent

impairment.

[96] Board Operational Policy Manual Document No. 18-05-09, “Redeterminations and

Recalculations”, defines the term “significant deterioration” as follows:

A “significant deterioration” is a permanent worsening of the medical condition

occurring after the most recent NEL medical assessment. It must be demonstrated by a

substantial change in medical findings.

[97] The policy provides that workers applying for a NEL redetermination must be examined

by their treating physician. The treating physician‟s report may include information about:

Changes in the worker‟s range of motion;

Complications in the worker‟s medical condition;

Evidence of neurological dysfunction;

An increase in the worker‟s medical treatment; and

Information about lost time from work.

[98] The employer did not oppose the worker‟s request for a NEL redetermination of the 15%

NEL granted for her neck injury. The ARO denied a NEL redetermination on the basis that the

deterioration in the worker‟s neck condition was related to a temporary exacerbation associated

with a motor vehicle accident in August 2006. The worker's representative submitted that the

deterioration in the worker‟s neck condition was documented prior to the motor vehicle accident

of August 2006. In a report of May 2005, Dr. Falco-Kazemi documented the following range of

motion findings:

5 degrees flexion;

10 degrees extension

5 degrees right lateral bend

10 degrees left lateral bend

5 degrees rotation

[99] Dr. Falco-Kazemi‟s findings in May 2005 demonstrate a significant deterioration from

the NEL report of December 2003, which showed:

Flexion 20 degrees

Extension 50 degrees


Left lateral flexion 15 degrees

Right lateral flexion 30 degrees

Left rotation 40 degrees

Right rotation 40 degrees.

[100] In addition, Dr. Falco-Kazemi‟s report refers to new treatment being proposed for the

worker‟s condition, another factor to consider under Board policy. The worker had been referred

to Dr. Forrest for pain management and epidural steroid injections were also being considered at

that time.

[101] Accordingly, I find that the worker is entitled to a NEL redetermination with respect to

her compensable neck injury.


DISPOSITION

[102] The appeal is allowed in part as follows:

1. The worker does not have entitlement for vestibular symptoms of vertigo, dizziness, and

nausea.

2. The worker has entitlement for headaches as a secondary condition to her compensable

neck injury of June 1, 2000.

3. The worker is entitled to a redetermination of the NEL award for her compensable neck

injury of June 1, 2000.

[103] The nature and duration of any additional benefits flowing from this decision will be

returned to the WSIB for further adjudication, subject to the usual rights of appeal.

DATED: March 28, 2011

SIGNED: R. McCutcheon

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