WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 436/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 436/15 BEFORE: R. Nairn: Vice-Chair HEARING: February 23, 2015 at Toronto Written DATE OF DECISION: June 17, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1345 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated October 30, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate Ms. D. Brooks, Paralegal N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 436/15 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a fire proofing applicator in the accident employer s fireproofing installation business. Born in 1963, the worker's started with the employer in [2] On August 16, 2011, the worker was injured when he fell from a ladder at work. In their Report of Injury/Disease (Form 7) the employer described the incident as follows: He was masking ( ) steel to the column that was getting intumescent coating when the ladder slipped from beneath him. He was four steps up from ground. He landed arms first on ladder. [3] In his Report of Injury/Disease (Form 6), when asked to described the mechanics of the accident, the worker indicated had pain in right shoulder prior to fall but arm movement was not restricted. Now arm movement restricted in both. [4] The worker sought medical attention and the Initial Assessment Report Program of Care for Upper Extremity Injuries provided a diagnosis of rotator cuff injury. [5] The WSIB (the Board ) recognized the worker's bilateral shoulder condition as compensable and he was granted loss of earnings ( LOE ) benefits. [6] On March 22, 2012, the worker had an MRI of his shoulders performed and the results were interpreted to reveal: Impression: Right Shoulder 1. Extensive full thickness tear of the supraspinatus tendon and significant tear of most of the subscapularis tendon. 2. Medial dislocation of the biceps tendon. 3. Bursal and joint effusion. Left Shoulder 1. Complete tear of the subscapularis tendon with muscular atrophy. 2. Medial dislocation of the long head of the biceps tendon. 3. Tendinosis and small partial tear of the supraspinatus tendon. 4. Osteoarthritis of the acromioclavicular joint. 5. Glenohumeral effusion. [7] On August 30, 2012, the worker was examined at the Board s Surgical Specialty Program and in the Comprehensive Assessment Report which followed that assessment, Dr. J. Theodoropoulos (orthopaedic surgeon ) indicated in part: Diagnostics Diagnostics completed/reviewed today demonstrated: I have some radiographs to review today. On the left side, the x-rays are pretty good with minimal osteoarthritis to the AC joint that we could see on the MRI. On the right side, it is a little bit more concerning. He has this very large cyst and a small bony outgrowth laterally. There is no significant arthrosis on either radiograph. [8] On October 25, 2012, the worker had surgery performed on his left shoulder by Dr. Theodoropoulos who performed the following procedures 1. Left shoulder arthroscopy;

3 Page: 2 Decision No. 436/15 2. Left shoulder debridement; 3. Left shoulder subscapularis repair, open; 4. Left shoulder biceps tendon repair, proximal, open; 5. Left shoulder arthroscopic supraspinatus tear, double row; 6. Left shoulder subacromial decompression and bursectomy; 7. Left shoulder distal clavicle excision. The post-operative diagnosis was 1. Left shoulder supraspinatus tear; 2. Left shoulder subscapularis tear; 3. Left shoulder biceps tendon tear; 4. Left shoulder external impingement; 5. Left shoulder AC joint arthrosis. The worker's left shoulder surgery was recognized as part of his entitlement in this claim. [9] On July 11, 2013, the worker had another MRI of his right shoulder performed and the results were interpreted to reveal: Summary: Near complete full width, full thickness subscapularis and supraspinatus tendon tear with associated subluxation of the biceps tendon. Extensive subscapularis and early supraspinatus fatty atrophy reflecting chronic injuries. Mild chondrosis of the glenohumeral joint. [10] On September 19, 2013, the worker had surgery on his right shoulder performed by Dr. Theodoropoulos. The surgeon performed the following procedures 1. Right shoulder arthroscopy; 2. Right shoulder double roll rotator cuff repair, partial repair of infraspinatus using 2 medium and 2 lateral suture anchors, supraspinatus, irreparable; 3. Biceps tenotomy; 4. Subacromial decompression; 5. Distal clavicle excision; 6. Debridement, superior fibers, subscapularis. The post-operative diagnosis was 1. Right shoulder supraspinatus and infraspinatus tear, massive; 2. Right shoulder subscapularis tear; 3. Right shoulder biceps tear; 4. Right shoulder external impingement; 5. Right shoulder distal AC joint arthrosis. The Board recognized this surgery as part of the worker's entitlement in this claim. [11] According to the decision on appeal, the worker initially performed modified duties following the work accident of October 16, 2011 and then stopped working when he had left shoulder surgery on October 23, He received full LOE benefits from October 23, 2012 to December 18, 2012 and then resumed modified work. Following his right shoulder surgery on September 18, 2013, the LOE benefits were reinstated. [12] In 2013 the Board considered the issue of the employer's entitlement to Second Injury and Enhancement Fund ( SIEF ) relief from the costs of this worker's claim. In Memo #52 of March 14, 2013, a Board Case Manager indicated in part: Accident history/severity On 16 Aug 2011the then 48 year old fireproofing applicator was standing on a ladder doing over head work doing a spray application when the ladder started to slip from under him and he fell a distance of about four feet onto the ground. He landed on both of his elbows that were in a 90 degree flexed position at the time. The entitlement was accepted as a chance event for bilateral tears to the shoulders. Based on the forceful impact of falling from a height and landing on a hard surface I am accepting that the accident history is of a moderate severity as it is likely expected to cause a disabling injury. ( ) Duration FLOE benefits 23 0ct Dec 2012 Not at MMR

4 Page: 3 Decision No. 436/15 Decision Although there is evidence of some degenerative changes the significant factor in this claim is the workplace injury and the treatment associated with the workplace accident. I am satisfied that the pre-existing condition has not enhanced the injury or had an impact on recovery. Based on this information I am unable to process entitlement to cost relief under SIEF. [13] Subsequently, the Case Manager issued a decision dated March 15, 2013, confirming that the employer was not entitled to SIEF relief. [14] The employer objected to the conclusions of the Case Manager and the matter was eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated October 30, 2013, the ARO denied the employer's appeal. With respect to the severity of the compensable accident, the ARO concluded: I find the severity of the August 16, 2011 accident history is moderate because I would expect falling off a ladder onto one's elbows would result in a disabling injury. The medical evidence indicates as a result of this work accident, the worker suffered significant injuries to the shoulders and entitlement has been accepted for tears in the shoulders and the related surgeries of October 2012 and September [15] With respect to the medical significance of any pre-existing condition, the ARO concluded: ( ) Although there is medical evidence the worker has minor degenerative changes in the shoulders, there is no known history of pre-injury bilateral shoulder symptoms or treatment and no evidence the worker's employment was disrupted because of bilateral shoulder problems prior to the work accident of August ( ) Considering there is no known history of pre-injury bilateral shoulder symptoms or treatment and the significance of these work related shoulder injuries and related surgeries, I am not satisfied there is sufficient objective evidence indicating the minor degenerative changes in the shoulders has delayed or complicated treatment and recovery in this claim. (ii) Issue on appeal [16] The issue to be determined in this case is whether the employer is entitled to SIEF relief with respect to the costs of this worker's claim. (iii) Submissions of the employer's representative [17] The employer agreed to have this appeal considered by means of written submissions. The employer was provided with an opportunity to provide written submissions in support of its appeal, however in a letter dated January 14, 2015, a Tribunal Senior Legal Worker confirmed that it was Ms. Brooks intention not to provide any further written submissions and that the Tribunal could render a decision based on the materials and submissions already on file. [18] In a letter dated February 25, 2013, addressed to the Case Manager, Ms. Brooks had indicated: Upon review of our file, we note a letter dated December 15, 2011.

5 Page: 4 Decision No. 436/15 This letter states that based on the REC (Regional Evaluation Clinic) assessment completed November 29, 2011, the following is noted; The worker has bilateral shoulder tendinopathy along with underlying osteoarthritis in both shoulders The prognosis is for full recovery for the tendinopathy The underlying osteoarthritis will continue to improve in time but will not fully recover The osteoarthritis is not part of the entitlement in this claim as this is a preexisting condition that occurs due to aging and from normal wear and tear Given these findings, full recovery for the workplace injury and return to full pre-injury duties is anticipated by February 22, 2012 Since this letter, the worker has had surgery on one shoulder and will have surgery on the other shoulder in a couple of months. We strongly question the ongoing entitlement in this claim and the entitlement for the surgery in light of the fact that we have not been provided with information to support that the surgery is for the compensable condition. This is especially questionable as the compensable condition was expected to fully recover in February The underlying osteoarthritis on the other hand, was said to be permanent. In light of this conflicting information, we wish to pursue an objection to the ongoing entitlement and entitlement for shoulder surgeries. [19] In their Board Appeal Readiness Form the employer provided the following submission with respect to their appeal for SIEF relief: As per letter Feb 25/13 & memo 52 confirms mild degenerative changes both shoulders. Accident severity moderate [request] 25% SIEF. (iv) Analysis [20] Since this worker was injured in 2011, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [21] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies in this appeal is Operational Policy Manual ( OPM ) Document No entitled Second Injury and Enhancement Fund. This policy provides in part: Policy If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Both physical and psychological disabilities are included. Guidelines There is no provision in the Act for the Fund to apply to Schedule II employers. In situations where alcoholism plays a role in the causation of an accident, it is not considered to be a pre-existing condition with regard to the application of SIEF relief.

6 Page: 5 Decision No. 436/15 The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. ( ) SIEF-application to employer costs Medical significance of pre-existing condition* Minor Moderate Major Severity of accident** Minor Moderate Major Minor Moderate Major Minor Moderate Major Percentage of cost transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% NOTES * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (lift, push, pull, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident Minor: expected to cause non-disabling or minor disabling injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF.

7 Page: 6 Decision No. 436/15 [22] As the above-mentioned policy provides, determining the appropriate quantum of SIEF relief to be granted in a particular case involves determining both the severity of the compensable accident and the medical significance of any pre-existing condition. [23] With respect to the accident severity, Board policy requires that it be characterized as either minor (expected to cause non-disabling or minor disabling injury); moderate (expected to cause disabling injury) or major (expected to cause serious disability probable permanent disability). The policy also requires that the severity of the accident be evaluated in terms of the various accident history components such as mechanics (lift, push, pull, fall, blow, etc.); position (kneeling, standing, sitting, squatting, bending, etc.) and environment (lighting, temperature, weather conditions, terrain, etc.). It is generally accepted in Tribunal case law that in determining the severity of an accident, one does not take into account what eventually transpired in a particular claim. Rather, one reviews the mechanics of the incident and decides what outcome would most reasonably be expected. [24] In this case, there does not appear to be any significant dispute about the mechanics of this accident. As the Case Manager noted in Memo #52, the worker was standing on a ladder doing overhead spray work when the ladder slipped from beneath him and he fell a distance of about four feet to the ground landing on his elbows that were in a 90º flexed position at the time. In my view, the forceful impact of falling from a height and landing on one s elbows on a hard surface could reasonably be expected to cause a serious disability and therefore I would characterize its severity as major. [25] With respect to the medical significance of any pre-existing condition, Board policy also requires that this be characterized as either minor, moderate or major. The policy does not define these terms and indicates that the medical significance of a pre-existing condition is to be assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. [26] As Ms. Brooks noted in her submissions and the Board Adjudicators appear to have acknowledged, there are references in the case materials to the existence of degenerative findings in the worker's shoulders. For example: An August 25, 2011 x-ray of the left shoulder revealed, among other things, mild degenerative changes at the acromioclavicular joint. An x-ray of the right shoulder on the same day revealed, among other things mild degenerative changes and sclerosis at the greater tuberosity, which is non-specific. The MRI of the worker's right shoulder on March 22, 2012, revealed moderate osteoarthritic changes of the acromioclavicular joint. The MRI of the left shoulder revealed moderate to severe osteoarthritis of the acromioclavicular joint. On August 30, 2012, x-ray of the worker's left shoulder revealed minor degenerative change at the left shoulder and ACJ. [27] Accepting for the moment that these degenerative conditions pre-existed the compensable accident, a pre-existing degenerative condition is not, in and of itself, grounds for granting SIEF relief. The employer bears the evidentiary burden of establishing, on a balance of probabilities, that the pre-existing condition made the worker more likely to develop a disability of greater severity than a normal person. The Tribunal has generally refused to rule in favour of

8 Page: 7 Decision No. 436/15 speculative arguments about the existence or severity of pre-existing conditions without medical evidence in support of a representative s assertions (see for example Decision Nos. 1549/08; 1305/08 and 1759/08). Medical evidence is necessary to establish that the worker's condition was prolonged or enhanced by a pre-existing condition. This finding cannot be made based only on the assertions of the employer's representative (see for example Decision No. 585/08). In this case, I was not referred to medical evidence of any significance offering an opinion on the role played by these pre-existing degenerative conditions in enhancing or prolonging the worker's claim. [28] As the ARO noted, there was no suggestion that even with the pre-existing degenerative conditions, the worker had any problem performing his duties prior to the accident in This is consistent with the employer's indication, on their Form 7, that they were not aware of any prior or similar related problem, injury or condition. After reviewing all of the evidence before me, I find, as did the ARO, that it was the mechanics of the accident on August 16, 2011, the significant injuries sustained in that accident and the extensive medical treatment required thereafter that led to the period of recovery in this claim. Given the facts in this case, any preexisting degenerative condition that may have been present did not play a significant role in enhancing or prolonging the worker's recovery.

9 Page: 8 Decision No. 436/15 DISPOSITION [29] The employer's appeal is denied. DATED: June 17, 2015 SIGNED: R. Nairn