Decision #10/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 9, 2003, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on January 9, 2003.

Issue

Whether or not the claimant has recovered from the effects of the compensable injury; and

Whether or not the claimant is entitled to preventive vocational rehabilitation.

Decision

That the claimant has not recovered from the effects of the compensable injury.

That the claimant is not entitled to preventive vocational rehabilitation given that the claimant has not recovered from the effects of the compensable injury.

Decision: Unanimous

Background

On August 7, 2000, the claimant submitted an application for compensation benefits for difficulties she developed with her vocal chords/tonsils and which she related to her speaking/yelling loudly during the course of her employment as a swimming instructor/guard.

In a June 19, 2000 report, an ear, nose and throat (ENT) surgeon indicated that the claimant complained of tonsillar hypertrophy, popping of the ears and a gruff voice for the past few months. He noted that the claimant used her voice excessively as a swimming pool attendant. Treatment recommendations included a tonsillectomy and microlaryngoscopy. On September 28, 2000, the claimant underwent excision of vocal nodules and a tonsillectomy.

On October 18, 2000, the Workers Compensation Board (WCB) accepted the claim based on a diagnosis of vocal cord nodules. On November 3, 2000, the claimant returned to modified duties with her employer and then back to her regular duties on January 16, 2001.

In a further communication dated October 11, 2001, the ENT specialist noted that the claimant had attended his office on July 11, 2001 claiming problems with her voice due to her using it over and above the noise level within the enclosed pool area. Examination revealed that the claimant had mild hoarseness. There were no vocal nodules present but rather mild vocal cord edema, which would be consistent with vocal overuse. It was recommended to the claimant that she take occasional sips of water when using her voice. The specialist also advised that the claimant had been seen by an allergist who ruled out asthma and that recommendations included voice amplification with the use of a portable system.

The specialist further noted that the claimant was seen in follow-up on September 4, 2001 with similar findings of hoarseness. She claimed that she had not been able to obtain the voice amplification system at her workplace. In summary, the specialist noted that the claimant's job entailed the use of her voice causing vocal strain and thereby giving rise to findings of vocal cord edema. "If this persists it will lead to formation of vocal nodules and eventually the dysphonia becomes irreversible. Measures to treat the patient would require voice conservation or at least amplification devices to conserve her voice. There are no medical or surgical measures planned at present."

On October 29, 2001, a WCB medical advisor recorded the following comments in a memorandum to file:
File reviewed - Note of duties, attendance to ENT surgeon of record. Claimant at risk of developing recurrence of nodules. Requires preventative voice restrictions: no shouting, yelling, screaming, singing, voice at conversational level only. No voice amplification available or suitable for her type of work - but I question why claimant cannot utilize a megaphone as required for occasional use during her teaching duties. In a letter dated October 31, 2001, the claimant was advised by primary adjudication that updated medical information had been received and reviewed in consultation with a WCB healthcare advisor. As a result of this review, it determined that the claimant had recovered from the effects of her compensable injury. Primary adjudication agreed with the claimant's ENT specialist that the nodules may reappear and that preventative workplace restrictions were appropriate. The restrictions were not considered compensable or to be as a direct result of compensable injury but rather to prevent future workplace injuries. The case was then referred to the Preventive Vocational Rehabilitation (PVR) Committee for consideration of eligibility for benefits under the PVR policy.
In a letter dated October 31, 2001, the claimant was advised by primary adjudication that updated medical information had been received and reviewed in consultation with a WCB healthcare advisor. As a result of this review, it determined that the claimant had recovered from the effects of her compensable injury. Primary adjudication agreed with the claimant's ENT specialist that the nodules may reappear and that preventative workplace restrictions were appropriate. The restrictions were not considered compensable or to be as a direct result of compensable injury but rather to prevent future workplace injuries. The case was then referred to the Preventive Vocational Rehabilitation (PVR) Committee for consideration of eligibility for benefits under the PVR policy.

On February 5, 2002, primary adjudication advised the claimant that her case did not meet the criteria for further PVR consideration. "The committee noted that there is an absence of a clear pattern of risk for further re-injury. In addition, the committee noted that there are potential remedies that could be undertaken to assist in a return to your regular work place activities (i.e. voice amplification device). As a result, further PVR consideration will not be given."

On August 16, 2002, Review Office took into consideration submissions received from the claimant dated June 11, 2002 and from her employer dated July 12, 2002. Review Office ultimately determined the following:
  1. That the claimant had recovered from the effects of her compensable injury.

    Review Office commented that the medical information on file suggested that the claimant should be able to use her voice at normal conversation levels without difficulty. Anything beyond that level on a prolonged or repetitive basis, could lead to the onset of further vocal difficulties. Review Office said the WCB considered that the possibility of further difficulties was due to the claimant's pre-existing physiology, and was not to any residual effects of her August 2000 problems or her subsequent surgery. Review Office was of the opinion that the weight of evidence supported this position.

  2. That the claimant was not entitled to preventative vocational rehabilitation.

    Review Office concurred with primary adjudication's decision that the criteria providing preventative vocational rehabilitation to the claimant had not been met. Reference was to made to WCB policy 43.10.60, Preventive Vocational Rehabilitation, in this regard.
On October 28, 2002, the claimant appealed the Review Office decisions and requested that an oral hearing be arranged. An oral hearing later took place on January 9, 2003.

Reasons

As the background notes indicate, the claimant developed a throat condition in July 2000 while working in her capacity as a swim instructor for and on behalf of the employer. We accept the WCB medical advisor’s evidence that there is a direct relationship between the claimant’s developing vocal cord nodules and her excessive overuse of voice while at work. We note, in particular, the treating otolaryngologist’s recommendations with respect to the claimant’s condition: “The above named has been recommended to avoid vocal strain or vocal use except for conversation. She should avoid work environment where she has to use voice louder than in conversation.” We find based on the preponderance of evidence that the claimant’s job duties involving lifeguarding and instructing are consistent with her developing a vocal cord overuse injury/condition. Additionally, we further find that the claimant suffered a recurrence of her vocal difficulties when she returned to full lifeguarding and teaching duties in September 2001. In our view, this recurrence is, on a balance of probabilities, related to the claimant’s original compensable injury.

The treating otolaryngologist provided the WCB with the following report, which outlined the claimant’s condition.

“[The claimant] returned to my office on July 11th, 2001 claiming to have had problems with her voice during the spring. She had been working at an indoor swimming pool and claimed she had to use her voice over and above the noise within the enclosed pool area.

On examination at that time she had mild hoarseness. There were no vocal nodules but there was the presence of mild vocal cord edema which would be consistent with vocal overuse.

I recommended to [the claimant] that she conserve her voice and take sips of water when using her voice.

A follow-up appointment for September 4th, 2001 revealed similar findings of hoarseness. She claimed at that time that she had not been able to obtain the voice amplification system at her workplace.

In summary, [the claimant’s] job entails the use of her voice causing vocal strain and thereby giving rise to findings of vocal cord edema. If this persists it will lead to formation of vocal nodules and eventually the dysphonia becomes irreversible.”

It is our considered opinion that the claimant has not recovered from the effects of her compensable injury. The weight of medical evidence suggests that the claimant continued to suffer from vocal cord edema of a more or less chronic nature from September 2001 onward. This continuing condition has prevented her from returning to her full pre-accident duties of lifeguarding and instructing. As a further consequence of her condition, the claimant has experienced a loss of earning capacity since that time.

Inasmuch as we have determined that the claimant has not recovered from the effects of her compensable injury, the second issue with respect to the entitlement to preventive vocational rehabilitation becomes moot.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of January, 2003

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