WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 604/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 604/15 BEFORE: R. Nairn : Vice-Chair HEARING: March 14, 2016 at London Written DATE OF DECISION: June 15, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1575 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated June 9, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate K. Verrall, 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. 604/15 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a tractor trailer driver in the accident employer s trucking business. Born in 1955, the worker started with the employer in about February [2] On October 15, 2012 the worker experienced an onset of pain in his right shoulder while at work. In his Report of Injury/Disease (Form 6) the worker described the mechanics of the accident as jammed right shoulder while cranking up landing gear on trailer. In their Report of Injury/Disease (Form 7) the employer described the accident as follows: Driver was cranking up landing gear on a trailer as he was cranking the gear up it suddenly stopped, causing the handle to slip from his hand jamming his right shoulder at the same time. At the time there was no weight on the gearing as it was already hooked to the tractor. [3] As noted in Memo No. 2 dated November 1, 2012, the worker sought medical attention on about October 20, 2012 and lost time from work beginning October 22, As indicated in Memo No. 2, the WSIB (the Board ) recognized the worker s right shoulder injury as compensable and, according to the decision on appeal, he was granted Loss of Earnings ( LOE ) benefits from October 22, 2012 to November 19, 2012 when the employer offered modified duties. [4] With the worker continuing to complain of right shoulder discomfort into 2013, the Board made arrangements for him to be assessed at their Shoulder and Elbow Specialty Clinic on January 16, In the report which followed that assessment, Dr. M. McKee (orthopaedic surgeon) indicated in part: Review of investigations: An MRI shows a significant acromioclavicular joint arthritic change, an acromial spur, subacromial bursitis, probable full thickness tear of the anterior supraspinatus and longhead of biceps rupture. Clinical impression: I explained to [the worker] that the longhead of biceps rupture is usually an innocuous injury that most people recover quite well from. There is obviously a cosmetic deformity, which is troublesome to certain individuals but I don t think it is a major issue for [the worker]. I do think that his residual symptomatology in his shoulder is some ongoing rotator impingement and/or distal clavicular arthritic change. I think this is probably longstanding radiographically but only symptomatic after his most recent injury. Diagnosis: Significant acromioclavicular joint arthritic change, an acromial spur, subacromial bursitis and probable full thickness tear of the anterior supraspinatus and longhead of biceps rupture. Prognosis: Partially recovered now, full recovery anticipated pending successful surgical results. [5] As noted in Memo No. 33 of February 11, 2013, after reviewing the report provided by Dr. McKee, the Board Adjudicator indicated Rt. rotator cuff decompression and repair accepted as responsibility of this case.

3 Page: 2 Decision No. 604/15 [6] On April 16, 2013, the worker had surgery performed on his right shoulder by Dr. McKee. Dr. McKee performed: 1. Excision of arthritic right distal clavicle 2. Right anterior acromioplasty with resection of CA ligament 3. Right subacromial bursectomy 4. Repair of 2.0 cm rotator cuff tear in the trough of bone. [7] The post-operative diagnosis was: 1. Right distal clavicle arthritis 2. Right shoulder impingement syndrome with acromial spur 3. Right subacromial bursitis 4. Right rotator cuff tear. [8] Dr. McKee s operative report indicated in part: We isolated the AC joint. It was grossly arthritic the joint was debrided of some fairly exuberant fibrous tissue and synovitic tissue. We then turned our attention to the anterior acromion. A large acromial spur was felt. We performed a generous anterior acromioplasty with a microsagittal saw. The CA ligament was excised with the acromial piece. We then turned our attention to the rotator cuff. There was a 2 cm rotator cuff tear. We entered the joint through this tear. There was no sign of any biceps tendon consistent with his previous longhead of biceps rupture [9] In Memo No. 59 of May 14, 2013, a Board Case Manager requested a medical opinion and referring to the comments from Dr. McKee in his operative report asked does this information change your opinion on injuries to the right shoulder resultant from the accident of 15-Oct-12, could the rotator cuff tear have been caused by the accident of 15-Oct-12?. [10] In a memo dated May 24, 2013, Dr. M. Catrey of the Board, after reviewing the medical information on file, concluded: Upon review of the medical documentation provided, it is this assessors opinion, and in agreement with the other medical professionals on file, that the worker had pre-existing, longstanding evidence of non-compensable, degenerative changes in the right shoulder involving the AC joint and the rotator cuff tendons. Upon reviewing the operative report, it does not appear that there was a longhead biceps rupture. It is my opinion that the right shoulder degenerative changes became symptomatic following the work-related injury. [11] In a decision dated July 10, 2013, the Case Manager advised the worker that he would not be entitled to a Non-Economic Loss ( NEL ) award for his right shoulder injury and indicated: Both Dr. Remus (report dated November 26, 2013) and Dr. McKee s (report dated January 15, 2013) noted: you had preexisting degenerative shoulder changes that became symptomatic following the accident on October 15, The surgery of April 16, 2013 repaired longstanding pre-existing degenerative changes. Dr. McKee s (report dated May 22, 2013) indicated you would be able to resume driving short periods of time three weeks from the date of the appointment and you should return to fully duties four weeks later. You started a new job on July 1, 2013 driving for a new employer.

4 Page: 3 Decision No. 604/15 Therefore I conclude that you are not experiencing physical or functional limitations to the right shoulder as a result of the incident of October 15, 2012 and there is no entitlement to a permanent impairment. [12] According to the decision on appeal, the worker received full LOE benefits from April 11, 2013 to June 28, [13] In 2013 the Board considered the issue of the employer s entitlement to a Second Injury and Enhancement Fund ( SIEF ) relief from the costs of this worker s claim. In Memo No. 87 of July 31, 2013, a Case Manager indicated in part: Accident history/severity: Entitlement was accepted for a subacute right shoulder longhead biceps tendon rupture with subscapularis tendon involvement that occurred on October 15, 2012 when this worker was cranking up landing gear that stopped suddenly and caused him to jar his shoulder. Based on this information, and noting the sudden jarring, I am accepting the accident history is of a moderate severity as it would reasonably be expected to cause a disabling injury. Pre-existing condition: I have reviewed the information on file and note the worker reports no prior right shoulder problems. The worker does not have any prior WSIB claims. The ultrasound dated October 29, 2012 shows a small calcification just above the AC joint, otherwise soft tissues are unremarkable. MRI dated December 4, 2012 shows moderate-to-severe acromioclavicular joint space arthropathy, circumferential degenerative tearing of the labrum is noted, small paralabral cysts are seen posteriorly. This report indicates the findings are in keeping with a subscapularis tendon tear. There is tearing of the anterior insertion of the supraspinatus tendon. In reviewing the Sunnybrook Shoulder and Elbow Specialty Clinic reports, it is indicated the worker had not had prior shoulder problems. The operative report dated April 16, 2013 gives a diagnosis of right distal clavicle arthritis, right shoulder impingement syndrome with acromial spur, right subacromial bursitis and right rotator cuff tear. Duration: LOE benefits were allowed from October 22, 2012 to November 19, 2012 and from April 11, 2013 to June 29, It was determined the worker reached a full recovery with no permanent impairment. Recommendation: Based on the above information and noting the claim was accepted for a biceps tendon tear as a direct result of the work accident; I am unable to grant entitlement to SIEF. The claim was accepted for the surgery and subsequent recovery. Although I recognize the existence of degenerative changes in his shoulder, the claim was the result of a specific accident and not caused by the pre-existing condition. The recovery period accepted in this claim is in keeping with the nature and extent of the work-related injury. [14] Subsequently, the Case Manager issued a decision dated August 1, 2013, confirming that the employer was not entitled to SIEF relief. [15] In Memo No. 91 of October 17, 2013, the Case Manager agreed to reconsider the issue of SIEF relief and concluded: Having findings of a pre-existing nature does not automatically warrant SIEF. It is expected that a worker will have degenerative changes as this is the normal aging process in this worker who was 57 years old at the time of accident.

5 Page: 4 Decision No. 604/15 The claim was not allowed on the basis the worker s pre-existing degenerative changes were aggravated by the work injury. Therefore, I cannot determine that this portion of the SIEF policy would apply. Conclusion: Based on the above information, I am unable to change the denial of SIEF. As indicated in my previous decision, this claim was allowed on its own merit and the recovery period is in keeping with the nature and extent of the injury accepted as entitlement in the claim. [16] The Case Manager issued a decision dated October 18, 2013, confirming the denial of SIEF relief. [17] The employer objected to the Board s denial of SIEF relief as well as the decision that the right shoulder surgery performed on April 16, 2013, was the responsibility of this claim. These issues were eventually forwarded to an Appeals Resolution Officer ( ARO ) and in a decision dated June 9, 2014 the ARO granted the employer s appeal in part. While the ARO confirmed that the worker retained his entitlement for the April 2013 surgery, the ARO granted the employer SIEF relief and indicated in part: Dr. Weinberg indicated that an injury of this nature in a healthy.shoulder would result-in temporary pain and stiffness that would gradually resolve in a number of weeks. He indicated that a strain the shoulder should recover in six to eight weeks and rupture of the long tendon of the biceps due to underlying degenerative change would usually recover reasonably well within two to three months. It was his opinion on that if the pre-existing problems of rotator cuff degenerative change, AC arthritis and subacromial spur were not present, the injury would most likely have resulted in nothing more than a strain with recovery in two to three months at most. 'He indicated that these conditions enhanced the effect of.the injury and prolonged the recovery ultimately.ending with surgical intervention. I accept Dr. Weinberg's opinion. I conclude that the pre-existing degenerative changes in the worker's shoulder were moderate in significance. These changes predisposed the worker to injury, and prolonged the recovery. I do not find that these pre-existing changes had a major impact on the worker's recovery as a permanent impairment was not accepted in this claim. It was determined that the worker recovered from the surgery with no physical or functional impairment. I conclude that the accident history was moderately severe. Dr. Remus, orthopedic surgeon, described the injury as an acute tractional strain to the shoulder. Dr. Weinberg indicated it would be expected to cause a strain injury in an otherwise healthy shoulder. I am satisfied that this accident history would be expected to cause a disabling injury. Policy directs that a moderately severe accident history combined with a moderate preexisting condition entitles the employer to 50 percent SIEF relief. (ii) Issue on appeal [18] The issue to be determined in this case is whether the 50% SIEF relief granted in this claim was correct. [19] As noted in the Hearing Ready Letter of August 26, 2015, the employer is not disputing the ARO s conclusion with respect to the April 2013 surgery. The employer requested that it be granted an increase in SIEF relief to between 75% and 90%.

6 Page: 5 Decision No. 604/15 (iii) Submissions of the employer s representative [20] The employer agreed to have this appeal considered by means of written submissions. The employer s representative has provided submissions dated June 18, 2015 which have been reviewed and are included in Addendum No. 2. The representative requests that 90% SIEF relief be granted given the combination of an accident of minor severity and a pre-existing condition of major medical significance. [21] With respect to the accident severity, the employer s representative concluded: 16. We submit that the mechanics of the accident described by the Worker are no more than minor in nature, particularly noting that the trailer with which the Worker was working was already connected to the tractor and, therefore, had the effect of being 'empty' for the purposes of cranking the landing gear. We submit that in the normal course the type of injury which would be expected from the minor accident described would be one which would result in a non disabling or minor disabling injury, i.e., a sprain/strain. [22] With respect to the medical significance of the worker s pre-existing condition, the employer s representative concluded: 12. While the ARO has reasoned that the pre-existing disability is only minor in nature because there was no evidence of a permanent impairment in the claim, we submit that permanent impairment is not the standard for judging the significance of the preexisting condition. 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 [WSIB Operational Policy, 'Accident Cost Adjustments, Second Injury and Enhancement Fund (SIEF), Document No (February 20, 2006)]. 13. Dr. Weinberg referred to the Worker's pre-existing shoulder problems as "longstanding degenerative changes" [CR p. 26]. 14. Furthermore, Dr. Weinberg noted [CR p. 29]: From an orthopaedic perspective, there is no question that the pre-existing conditions including rotator cuff degenerative change and AC arthritis and subacromial spur enhanced the effect of the injury and prolonged the recovery ultimately ending with surgical intervention. 15. Dr. Weinberg noted that in the absence of the pre-existing conditions the Worker would have suffered only a strain [CR p. 29]. (iv) Analysis [23] Since this worker was injured in 2012, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [24] 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.

7 Page: 6 Decision No. 604/15 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 Medical significance of preexisting 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

8 Page: 7 Decision No. 604/15 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. [25] 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. [26] 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 provides that the severity of the accident is to be evaluated in terms of the accident history components such as mechanics, position and environment. It is now well 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. [27] In this case, there is little dispute about the mechanics of what occurred on October 15, Reviewing the initial reporting from the worker and the employer, it suggests that after the trailer had been attached to the truck, the worker was winding up the landing gear using a crank. As the worker was cranking the landing gear, the mechanism stopped suddenly and the worker experienced pain in his right shoulder. As the employer noted in its Form 7, with the trailer already having been hooked to the truck, there would have been no weight on the gear at the time. As the employer noted in their submissions, I accept that the worker would have performed this task on many prior occasions and it would be part of his regular duties. [28] In my view, this type of incident in most cases would be expected to cause, at most, a minor disabling injury. This finding is consistent with the fact that the worker continued working after the accident and did not seek medical attention until about October 20, As a result, I find that the accident severity ought to have been characterized as minor. [29] 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 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. 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. [30] Having had the opportunity to review all the evidence before me, I find myself in agreement with the employer s representative that the pre-existing degenerative conditions in

9 Page: 8 Decision No. 604/15 this worker s shoulder made him extremely more likely to develop a disability of greater severity than a normal person. In reaching that conclusion, I have taken particular note of the following: In a report dated December 19, 2012, Dr. J. Remus (orthopaedic surgeon) concluded that the patient therefore had a pre-existing rotator cuff tendonopathy of his right shoulder and his trivial injury disrupted a deteriorating rupture of the long tendon of the biceps. In a memo dated April 16, 2013, Dr. A. Balinson of the Board concluded: There is evidence of pre-existing non-compensable degenerative changes in right shoulder involving the ACJ and rotator cuff tendons. Neither Dr. Remus or Dr. McKee recommended surgical treatment of the longhead of biceps rupture. The proposed surgery would appear to be for the pre-existing degenerative changes of the ACJ and rotator cuff tendons and as such would not appear to be within the scope of this claim. In a memo dated May 24, 2013, Dr. Catre of the Board concluded; Upon review of the medical documentation provided, it is this assessor s opinion, and in agreement with the other medical professionals on file, that the worker had pre-existing, longstanding evidence of non-compensable, degenerative changes in the right shoulder involving the AC joint and the rotator cuff tendons. In his operative report of April 16, 2013, Dr. McKee commented that the worker s AC joint was grossly arthritic and advised that it was debrided of some fairly exuberant fibrous tissue and synovitic tissue. Dr. McKee also identified a large acromial spur. The postoperative diagnoses included right distal clavicle arthritis, right shoulder impingement syndrome with acromial spur and right subacromial bursitis. In support of its appeal at the Board, the employer provided an October 13, 2013, report prepared by Dr. H. Weinberg, an orthopaedic surgeon. Dr. Weinberg responded to questions posed by the employer and indicated in part: 6. What is the significance of moderate-to-severe acromioclavicular joint space arthropathy as noted in the MRI? Please explain. This would indicate a longstanding arthritic problem in the AC joint. AC joint arthritis particularly with the accompanying subacromial spur is a factor that can contribute to impingement syndrome and rotator cuff tendonopathy. Therefore, this is very significant in explaining the prolonged course following the injury. 7. What is the significance of subscapularis tendonopathy and findings in keeping with the subscapularis tear as per the MRI? Please explain. This would also be indicative of long-term degenerative change. The tear was likely a pre-existing condition that may have been aggravated to some degree as a result of the injury. 9. What is the significance of degenerative changes in the rotator cuff as noted in Dr. Remus December 19, 2012 report? Please explain. The degenerative changes would indicate longstanding wear and tear and I suspect that the arthritic change and subacromial spur noted in the imaging studies and at the time of surgery would have contributed to the rotator cuff wear and tear due to impingement. 12. If there is evidence of a pre-existing condition, was the condition longstanding? Please explain.

10 Page: 9 Decision No. 604/15 The findings in the imaging studies would indicate that the pre-existing problems were of a longstanding nature. These changes are of a chronic nature rather than an acute nature. 14. Was the surgery which the worker had related to a compensable injury or was it related to a degenerative condition? Please explain. The surgery included excision of the distal clavicle and acromioplasty to deal with the pre-existing arthritic problem and impingement problem. There was also repair of the rotator cuff which was most likely a pre-existing degenerative condition which may have been aggravated to some degree by the work injury. As such, the surgery dealt primarily with the pre-existing degenerative condition which may have been aggravated by the work injury to some degree. 15. In your opinion was there or was there not a degenerative condition which served to enhance the worker s level of disability after the October 2012 accident? Please explain. From an orthopaedic perspective, there is no question that the pre-existing conditions including rotator cuff degenerative change in AC arthritis and subacromial spur enhanced the effect of the injury and prolonged the recovery ultimately ending with surgical intervention. Had these pre-existing problems not been present, the injury as described would most likely have resulted in nothing more than a strain with recovery in 2 to 3 months at most. [31] I interpret the medical evidence outlined above to suggest that this worker had significant pre-existing degenerative conditions in his right shoulder. While none of the physicians appears to have provided a specific opinion on whether the medical significance of those pre-existing conditions would be classified as minor, moderate or major, is apparent from the medical opinions, particularly those of Dr. Remus and Dr. Weinberg that but for the minor or trivial injury sustained by the worker, he would not have had a significant recovery period nor would he have required surgery. Dr. Remus illustrated the situation of a trivial injury disrupting a deteriorating rupture and Dr. Weinberg indicated, in essence, that but for the pre-existing condition, the worker would have had a normal recovery period of 2 or 3 months. In addition, Dr. Catre of the Board referred to the worker having pre-existing longstanding evidence of noncompensable degenerative changes in his right shoulder. In my view, the significant preexisting conditions made the worker extremely more likely to develop a disability of greater severity than a normal person and as such, the medical significance ought to have been characterized as major. [32] According to Board policy, the combination of an accident of minor severity and a preexisting condition of major medical significance entitles an employer to 90% SIEF relief.

11 Page: 10 Decision No. 604/15 DISPOSITION [33] The employer's appeal is allowed. [34] The employer is entitled to 90% SIEF relief from the costs of this worker s claim. DATED: June 15, 2016 SIGNED: R. Nairn