Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle Appeals Tribunal et de l’assurance contre les accidents du travail
505 University Avenue 7th Floor 505, avenue University, 7e étage
Toronto ON M5G 2P2 Toronto ON M5G 2P2
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:
Page: 3 Decision No. 1224/09
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.
Page: 4 Decision No. 1224/09
[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.
Page: 5 Decision No. 1224/09
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).
Page: 6 Decision No. 1224/09
[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.
Page: 7 Decision No. 1224/09
(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.
Page: 8 Decision No. 1224/09
(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.
Page: 9 Decision No. 1224/09
[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.”
Page: 10 Decision No. 1224/09
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.”
Page: 11 Decision No. 1224/09
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.
Page: 12 Decision No. 1224/09
[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:
Page: 13 Decision No. 1224/09
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
Page: 14 Decision No. 1224/09
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.
Page: 15 Decision No. 1224/09
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.
Page: 16 Decision No. 1224/09
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.
Page: 17 Decision No. 1224/09
(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:
Page: 18 Decision No. 1224/09
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
Page: 19 Decision No. 1224/09
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.
Page: 20 Decision No. 1224/09
[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
Page: 21 Decision No. 1224/09
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
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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
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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
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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.
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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