WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 801/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 801/15 BEFORE: R. Nairn: Vice-Chair HEARING: April 20, 2015 at Toronto Written DATE OF DECISION: July 28, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1680 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated October 30, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate Mr. A. Southworth, Paralegal Not applicable 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. 801/15 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a lead hand/warehouse shipper in the accident employer s processing and packaging business. Born in 1952, the worker started with the employer in [2] On February 7, 2011, the worker injured his left shoulder when he slipped and fell at work. In his Report of Injury/Disease (Form 6) the worker described the mechanics of the accident as: Bent down to pick up a piece of packing tape lying on the ground. Did not notice the other end of the tape under the snow which I was standing on. Slipped and fell backwards, breaking the fall with my left arm. [3] In their Report of Injury/Disease (Form 7) the employer described the incident as: [The worker] was bending down to pick up a piece of packaging tape laying on the snow covered ground. He did not notice he was standing on the other end of the tape when he slipped, falling backward breaking the fall with his left arm. [The worker] did not seek medical attention immediately, however his shoulder has been bothering him since that time which has prompted him to seek medical attention at this time. [4] The worker sought medical attention and the Health Professional s Report (Form 8) completed by Dr. J. Colquhoun provided a diagnosis of L rotator cuff strain. [5] The worker had an x-ray of his shoulders performed on April 18, The results were interpreted to reveal: No fracture or dislocation is demonstrated on either side. There is mild narrowing of the subacromial spaces on both sides, suggestive of chronic rotator cuff tears. There are mild osteoarthritic changes in the left acromioclavicular joint. Both glenohumeral joints are well maintained. No periarticular soft tissue calcifications are identified. [6] The worker had an MRI of his left shoulder performed on about June 3, 2011 and the results were interpreted to reveal: There is a relatively large full thickness tear of the supraspinatus tendon, measuring approximately 2.5 cm in transverse diameter x 2.0 cm in AP diameter. There is associated fluid in the subacromial/subdeltoid bursa. There is abnormal signal intensity in the region of the acromioclavicular joint, consistent with arthrosis here. There is also some increased T2 signal intensity in the region of the acromium process, suspicious for marrow edema here, possibly related to the history of recent trauma. There is a subacromial spur. There is 1.5 cm area of abnormal signal intensity in the subacromial bursa in the region of the supraspinatus tear, presumably representing detritus or possibly synovitis here. There are several small subcortical bone cysts in the lateral aspect of the humeral head, presumably on a degenerative basis. No other abnormalities can be identified. The long head of the biceps is in its expected location. [7] The WSIB (the Board ) recognized the worker's left shoulder injury as compensable and according to the decision on appeal, he received full loss of earnings ( LOE ) benefits from

3 Page: 2 Decision No. 801/15 October 5, 2011 to January 23, 2012 when he returned to modified work. He received partial LOE benefits from January 23, 2012 to April 2, It was determined he achieved maximum medical recovery as of April 24, [8] On October 5, 2011, the worker had surgery performed on his left shoulder by Dr. T. Wilson. Dr. Wilson performed a left shoulder scope arthroscopic rotator cuff decompression debridement, biceps release followed by mini open rotator cuff and biceps repair. The Board recognized this surgery as part of the worker's entitlement in this claim. [9] In 2012, 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 #39 of September 19, 2012, a Case Manager indicated: Accident history/severity: On February 7, 2011, [the worker], a lead hand/warehouse shipper, bent down to pick up a piece of packaging tape laying on the snow covered ground. He did not notice he was standing on the other end of the tape and when he pulled the one end he lost his balance, slipped and fell backward breaking the fall with his left arm injuring his shoulder. The accident severity is moderate noting the unexpected loss of balance, and uncontrolled slip backwards and the impact of hitting the ground with an arm outstretched a disabling injury is reasonable. Entitlement is allowed for a left rotator cuff supraspinatus tendon full thickness tear initially for health care benefits as [the worker] was offered suitable modified work. The injury required surgery which was performed on October 5, 2011, full loss of earnings benefits were accepted to January 23, 2012, when [the worker] returned to suitable modified work and partial loss of earnings were allowed January 23, 2012 to April 2, I should note that post-surgery he did struggle with frozen shoulder. The case manager determined [the worker] reached his maximum medical recovery for his compensable injury on April 24, 2012, and identified a permanent impairment which has not been rated to date. Pre-existing: ( ) I acknowledge the mild arthritic changes in the glenohumeral joint, subacromial spur, several small bone cysts of lateral humeral head. However there is no objective evidence this has enhanced or prolonged the recovery. Decision An underlying condition in and of its own is not grounds for relief There must be objective evidence that it is the underlying condition which is delaying and complicating the recovery. In this case the complicating factor was the frozen shoulder (adhesive capsulitis) and the complex nature of the injury and the subsequent surgical intervention. [10] Subsequently, the Case Manager issued a decision dated September 19, 2012 confirming that the employer was not entitled to SIEF relief. [11] In November 2012 the worker was granted a 7.5% Non-Economic Loss ( NEL ) award for his compensable left shoulder condition diagnosed as large acute on chronic rotator cuff tear with severe biceps tendonosis & type 2 superior labral lesion. In a decision dated November 2, 2012, the NEL Clinical Specialist indicated in part: When calculating NEL benefits for workers who have a pre-existing permanent impairment, WSIB Policy (Effect of a Pre-existing Impairment) does allow us to adjust an award by an appropriate amount to reflect the extent of the pre-existing impairment. Pre-existing impairments include both work related and non-work related

4 Page: 3 Decision No. 801/15 impairments. If the pre-existing impairment is not measurable, the WSIB reduces the NEL rating by 25% or 50% according to the medical significance (moderate or severe) of the pre-existing impairment. No reduction is applied when the medical significance of the pre-existing condition is considered minor. In your case, the clinical findings indicate that you have a pre-existing condition that is considered moderate in nature. As this condition pre-existed your injury and is a contributing factor affecting the degree of your work related impairment, a 25 % reduction was applied to your NEL benefit. [12] As noted in the NEL calculation documents, a 25% reduction was made to the NEL award to reflect pre-existing degenerative changes identified in the operative report. [13] The employer did not agree with the Board s decision to deny SIEF relief and in the course of considering the employer's objection, the operating level requested a medical opinion. In a memo dated February 13, 2013, Dr. Wentzell of the Board concluded: As related to the worker's left shoulder, the most significant finding described in the medical reports, and for which surgery was carried out, was the large, full-thickness rotator cuff tear. It is noted that entitlement in this claim was for the rotator cuff tear, and there was no known history of pre-injury left shoulder symptoms or treatment. The operative report described some fraying of various structures, but indicated that there was no arthritis in the glenohumeral joint itself (contrary to what had been suspected preoperatively). Apart from the large rotator cuff tear, the operative report also described a large hook of the acromion, calcification of the coracoacromial ligament, and significant AC joint arthritis. Although these latter findings would not appear to be the main pathology or pain generators in this particular case, Dr. Wilson did feel that a distal clavicle excision was required as part of the operative intervention. Overall, therefore, in consideration of the details provided in the available medical reports, there appears to be a minor pre-existing condition which likely impacted recovery related to the left shoulder injury on 07 Feb (Memo #45 from the Case Manager explains different policies and why the "level" of pre-existing condition described in a NEL rating report cannot be simply translated to a SIEF decision.) [14] As noted in Memo #47 of February 14, 2013, after reviewing the comments provided by Dr. Wentzell, the Board granted the employer 25% SIEF relief to reflect the combination of an accident of moderate severity and a pre-existing condition of minor medical significance. [15] The employer objected to the quantum of SIEF relief granted and the Board agreed to reconsider the issue. In Memo #52 of May 10, 2013, a Case Manager noted: Policy document Effect of a Pre-existing Impairment provides its own definition and guidance for the treatment of pre-existing impairments when calculating NEL benefits. Specifically it makes reference to the American Medical Association s Guides to the Evaluation of Permanent Impairment, Third Edition Revised (AMA Guides). The WSIB is legally bound to use this version of the AMA Guides when evaluating work-related impairments. The application of this policy is intended to ensure we are compensating workers for their work related impairment. The intent is to maintain a consistent and fair approach to offset that portion of an impairment that clearly predated the work injury. The applications of the two policies are different. Policy document Second Injury and Enhancement Fund (SIEF) considers the accident severity and the pre-existing/underlying condition. SIEF is applied if it is determined that a prior condition/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.

5 Page: 4 Decision No. 801/15 The "level" (minor, moderate or major), of pre-existing condition described in a NEL rating report cannot be easily translated to a rating under the SIEF policy. As the representative has not provided any new information for reconsideration, the decision dated February 14, 2013 remains unchanged. [16] The employer continued to object to the quantum of SIEF relief granted 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 accident, the ARO concluded: On February 7, 2011 the worker slipped and fell backwards breaking the fall with his left arm. In considering the components of the accident history, I conclude it is moderate in nature as I would expect breaking a fall with one's arm would cause a disabling injury. [17] With respect to the matter of the medical significance of the pre-existing condition, the ARO concluded: A WSIB medical consultant reviewed the medical reports on file including the results of the medical investigations and operative report and opined the medical significance of the pre existing condition is of a minor severity. On the other hand, a WSIB NEL Clinical Specialist opined the medical significance of the pre-existing condition was of a moderate severity and applied a 25% reduction to the worker's NEL benefit. Considering there is no known history of pre-injury left shoulder symptoms or treatment and no evidence the worker's employment was disrupted because of left shoulder problems prior to the work accident of February 2011, I accept the WSIB medical consultant's opinion that the severity of the pre-existing condition is of a minor severity. (ii) Issue on appeal [18] The issue to be determined in this case is whether the 25% SIEF relief granted in this worker's claim was correct. (iii) Submissions of the employer's representative [19] The employer agreed to have this appeal considered by means of written submissions. Mr. Southworth has provided submissions dated March 2, 2015, which have been reviewed and are included in Addendum No. 3. The employer has requested it be granted 50% SIEF relief based on the combination of an accident of moderate severity and a pre-existing condition of moderate medical significance. [20] The employer agrees with the Board s characterization of the accident severity as moderate but with respect to the matter of the medical significance of the pre-existing condition, Mr. Southworth indicated in part: In our interpretation of [the worker s] medical documentation, there is no disputing that[the worker] has a pre-existing condition and that can be seen as early as the April 18, 2011 x-ray (pg. 145 of the Case Record) wherein there is reference made to the "mild narrowing of the subacromial spaces on both sides, suggestive of chronic rotator cuff tears. There are mild osteoarthritic changes in the left acromioclavicular joint. However, it is not until the Operative Report, (dated October 5, 2011, pgs of the Case Record) that one can clearly see that there were other issues (non-compensable) in [the worker s] left shoulder. The report states The AC joint elbow, although is nontender was extremely arthritic and prominent with large inferior osteophytes." When the Operative Report was reviewed by the W.S.I.B. Medical Consultant in the memorandum, dated February 13, 2013, (pg. 40), despite having looked at the O.R. report, and

6 Page: 5 Decision No. 801/15 mentioning quite specifically, the significant AC joint arthritis, the Medical Consultant concluded that, "Overall, therefore, inconsideration of the details provided in the available medical reports, there appears to be a minor pre-existing condition which likely impacted recovery related to the left shoulder injury of 07 Feb 201l. The Medical Consultant's opinion appears to focus only on the compensable fullthickness rotator cuff tear and not the shoulder joint as a whole, with respect to his opinion on the minor pre-existing condition. However, there is a non-compensable portion to this particular injury which is the fact that Dr. Wilson had to perform distal clavicle excision which was required as part of the Operative Intervention. Our interpretation of this would be that, from a layperson's perspective, a shoulder is a shoulder. Even though one injured area of the shoulder may be compensable, and one injured area of the shoulder may not be compensable, the fact still remains that the shoulder operates as a whole. The weakened, non-compensable aspect of the shoulder would have a negative effect on the functioning of the compensable aspect of the shoulder. We submit from a whole person perspective, that the "extremely arthritic" components of the shoulder should increase the significance/severity of the pre-existing condition to moderate versus minor. ( ) As you will note in our submission (pg. 173, second paragraph), we commented that, "noting the severity of the pre-existing condition, including extreme arthritis, osteophytes and impingement from calcification and bone formation, we wonder whether [the worker] would have suffered from as severe an injury from his fall if not for the preexisting conditions. Insofar as the W.S.I.B. Non-Economic Loss (N.E.L.) rating, we must comment upon what the W.S.I.B. N.E.L. Clinical Specialist stated in her N.E.L. evaluation. We understand that the N.E.L. Clinical Specialist found that the pre-existing degenerative changes identified in the operative report under policy would be grounds for application of a moderate pre-existing condition with a 25% reduction in [the worker s] N.E.L. We stress that the W.S.I.A.T. must take into account the "whole person" approach in this particular appeal and when we review the W.S.I.B. N.E.L. Clinical Specialist's decision to [the worker], of November 2, 2012, the Specialist states in part, on pg. 1, paragraph 3, (pg. 267 of the Case Record), "No reduction is applied when the medical significance of the pre-existing condition is considered minor. In your case, the clinical findings indicate that you have a pre-existing condition that is considered moderate in nature. As this condition pre-existed your injury and is a contributing factor affecting the degree of your work related impairment, a.25% reduction was applied to your N.E.L. benefit. We realize that the 25% reduction relieved the employer of some of the N.E.L. costs. However, it is the whole person approach which we suggest you take into account in this particular appeal wherein the N.E.L. Clinical Specialist suggests that the pre-existing condition is moderate, based on her clinical findings, while the Medical Consultant's (M.C.) opinion suggests the preexisting condition is minor, based on his findings. Although, we must point out that the M.C. did not appear to make any comments on the N.E.L. Clinical Specialist's decision of November 2, 2012 (pg. 263) nor the correspondence from the N.E.L. Clinical Specialist, dated November 2, 2012, (pg. 267). ( ) In referring back to W.S.I.B. Policy Document , under the section entitled, "Notes," it states, "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. We should remind you, that according to the x-ray report of April 18, 2011, there was a suggestion on the part of the radiologist, of "chronic rotator

7 Page: 6 Decision No. 801/15 cuff tears," not only to the left shoulder, but to the right shoulder as well. Both shoulders are again mentioned on pg. 139 of the Case Record, in Dr. Wilson's report of September 7, 2011, pg. 2, paragraph 2 and 5. It bears mentioning that it would seem reasonable that an x-ray showing a ''suggestion of chronic rotator cuff tears," in both shoulders, taken only 2 months post injury, would suggest a predisposition to this type of injury, as there is no history of the right shoulder having been involved in the initial accident (February 4, 2011). Based on our review of all of the medical reports, it is our submission that [the worker] had a moderate underlying rotator cuff tear (left shoulder). The damage to the other portion of the shoulder (distal clavicle), caused him to develop a disability of greater severity than a normal person. In closing therefore, we respectfully request 50% S.I.E.F. cost relief based on a Moderate Accident and Moderate Pre-existing Condition. (iv) Analysis [21] Since this worker was injured in 2011, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [22] 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 to 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. 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

8 Page: 7 Decision No. 801/15 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. [23] As the above-mentioned policy provides, deciding upon the appropriate quantum of SIEF relief to be granted in a particular case involves determining both the accident severity and the medical significance of any pre-existing condition. [24] 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 accident severity is also to be evaluated in terms of the accident history components such as mechanics, position and environment. [25] In this case, the Board determined that the accident ought to be characterized as one of moderate severity and the employer does not disagree with that conclusion. Having reviewed the mechanics of the accident which involve the worker suddenly slipping and falling backwards and breaking his fall with an extended left arm, I would agree with the conclusions of the Board and

9 Page: 8 Decision No. 801/15 am satisfied that this type of incident would reasonably be expected to cause a disabling injury. As such, the accident severity was appropriately characterized as moderate. [26] With respect to the medical significance of the pre-existing condition, Board policy requires that it too be characterized as either minor, moderate or major. The policy does not define these terms and indicates only that the medical significance of a 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. These provisions of Board policy were interpreted as follows in Decision No. 1582/07: I interpret the policy to mean that the medical significance of a pre-existing condition should be considered to be minor if it made the worker slightly more liable to develop a disability of greater severity than a normal person, and that it should be considered major if it made the worker extremely liable to develop a disability of greater severity than a normal person. If the extent to which the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person was more than slight, but less than extreme, the medical significance of the pre-existing condition could be considered moderate. [27] Having had the opportunity to review all the evidence before me, I find, on a balance of probabilities, that the medical significance of the pre-existing conditions in this case ought to have been characterized as moderate rather than minor. As Mr. Southworth indicated in his submissions, the medical reporting reveals a number of pre-existing left shoulder conditions, which, in my view, made the worker more likely to develop a disability of greater severity than a normal person. These include: The x-ray report of April 18, 2011, noted there is mild narrowing of the subacromial spaces on both sides, suggestive of chronic rotator cuff tears. There are mild osteoarthritic changes in the left acromioclavicular joint. In a report dated September 7, 2011, Dr. Wilson indicated: X-rays of both shoulders were reviewed. There was left greater than right proximal migration of the humeral head with mild glenohumeral arthritis and AC arthrosis with a hooked acromion. MRI of the left shoulder reveals a 2.5 x 2cm full thickness rotator cuff tear, starting at the rotator interval with involvement of the biceps tendon and perhaps biceps tendon subluxation. There is mild glenohumeral arthritis. In the operative report of October 5, 2011, Dr. Wilson indicated in part: ( ) The undersurface of the cuff was found be grossly frayed. This was debrided. ( ) The AC joint elbow although was non tender was extremely arthritic and prominent with large inferior osteophytes. ( ) As noted in the operative report of October 5, 2011, in addition to addressing the rotator cuff issue, Dr. Wilson also decided to perform a distal clavicle excision. Medical literature provided by Mr. Southworth provides that: If your collar bone (clavicle) and shoulder tip (acromion) has excessive cartilage degeneration or arthritis at the acromioclavicular joint, you may be a candidate for distal clavicle excision surgery. This procedure removes a small piece from the end of your collar bone where the worn joint surface becomes increasingly arthritic and painful. Scar tissue grows in place of your bone that allows the acromioclavicular (AC) joint to move more fluidly and relatively painlessly.

10 Page: 9 Decision No. 801/15 The Board s decision to characterize the medical significance of the pre-existing condition as minor was based in large part on the opinion provided by Dr. Wentzell. Dr. Wentzell concluded that there was a minor pre-existing condition although he acknowledged some fraying of various structures ( ) a large hook of the acromion, calcification of the coracoacromial ligament, and significant AC joint arthritis. Dr. Wentzell does not provide any explanation as to why this combination of pre-existing degenerative conditions would be considered to be of only minor medical significance. Before Dr. Wentzell provided his opinion, the NEL Clinical Specialist had decided to reduce the worker's NEL award by 25% to reflect the pre-existing degenerative changes noted in the worker's operative report. While I appreciate that there are different policies involved in NEL and SIEF matters, the NEL Clinical Specialist, in deciding to reduce the worker's NEL award, was satisfied that the condition was something more than minor. [28] In my view, when one considers the totality of the evidence in this case and takes into account the combination of the pre-existing degenerative conditions present in this worker's left shoulder, the extent to which those conditions made him more likely to develop a disability of greater severity than a normal person was more than slight but less than extreme. As such, I find that the medical significance of the pre-existing conditions ought to have been characterized as moderate. [29] According to Board policy, the combination of an accident of moderate severity and a pre-existing condition of moderate medical significance entitles an employer to 50% SIEF relief.

11 Page: 10 Decision No. 801/15 DISPOSITION [30] The employer's appeal is allowed. [31] The employer is granted 50% SIEF relief from the costs of this worker's claim. DATED: July 28, 2015 SIGNED: R. Nairn