WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1510/09

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1510/09 BEFORE: R. McClellan : Vice-Chair HEARING: August 11, 2009 at Toronto Written No post-hearing activity DATE OF DECISION: August 18, 2009 NEUTRAL CITATION: 2009 ONWSIAT 1927 DECISION(S) UNDER APPEAL: WSIB ARO decision dated November 30, 2006 APPEARANCES: For the worker: For the employer: Not participating Mr. Robert Cronish, Lawyer 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. 1510/09 REASONS (i) The appeal [1] The employer appeals the decision of the Appeals Resolution Officer, Ms Cerone, dated November 30, That decision concluded that the employer did not have entitlement to an increase in the quantum of Second Injury and Enhancement Fund (SIEF) from 50% to 75%, under the accident claim dated December 20, [2] The issue before the Vice-Chair is whether the employer has entitlement to an increase in the quantum of Second Injury and Enhancement Fund (SIEF) from 50% to 75%, under the accident claim dated December 20, (ii) Background [3] The appellant employer operates a steel mill. On December 20, 2002, a worker employed as a millwright by the employer sustained a high-pressure injection injury to the left forearm when, in the course of performing a valve change on a compressor, the valve cover blew off striking the worker in the left forearm. The accident caused an injection injury with tattooing. The force of the blow knocked the worker to the ground, and also injured his left knee and upper back. [4] A complete summary of the medical record is contained in Tribunal Decision Nos. 768/07I and 768/07. [5] Initial x-rays of the left wrist taken at the company medical department on December 23, 2002, and again the St. Joseph s Hospital on January 6, 2003 reported that there was no fracture of the left wrist. The December 23 rd x-rays showed a small ossicle in the ulnar styloid, suggestive of a possible previous injury to the triangular fibrocartilage. [6] The worker continued to have pain and swelling in the left forearm, and on July 28, 2003, a bone scan suggested left de Quervain s tenosynovitis as well as degenerative changes in the small joints of the hands bilaterally, as well as the left elbow. [7] On March 10, 2003, the company medical physician reported left shoulder pain likely relating to the lower arm symptoms with ongoing weakness and pain in the lower arm. An x-ray of the left shoulder taken on December 2, 2003, was normal. [8] An ultrasound of the left shoulder taken in January 2004 at St. Joseph's Healthcare showed supraspinatus tendinosis and thickening of the sub-acromial bursa. Left shoulder impingement syndrome was diagnosed in January 2005 by Dr. Moro and surgery was performed by Dr. Moro, in June [9] In Board Memo #39, dated July 18, 2005, and again in Memo #40 dated August 11, 2005, Senior Medical Consultant Dr. Kanalec advised that the worker s left arm trauma had involved only the left wrist and forearm and the worker s left shoulder condition was not related.

3 Page: 2 Decision No. 1510/09 [10] Entitlement for the left shoulder impairment was denied at the operations level and the denial was confirmed by an ARO s decision dated August 11, In Decision No. 768/07, the Tribunal upheld the decision to deny entitlement for the left shoulder impairment. This Decision made important findings of fact which are applicable to this appeal, and are discussed below. [11] On November 13, 2008, the worker was assessed for a permanent impairment in the left upper extremity and was awarded a 16% NEL award. [12] The worker was subsequently found to be entitled to compensation for post-traumatic stress disorder under the December 20, 2002 accident claim. (iii) Submissions of the employer's representative [13] In a written submission to the Tribunal, dated May 8, 2009, the employer s representative, Mr. Cronish, submitted that the employer should be entitled to 75% SIEF cost relief, based on a moderate pre-existing condition, combined with a minor accident. [14] Mr. Cronish identified the moderate pre-existing condition accepted by the Board as a corticated ossicle in the left ulnar styloid. (This condition is identified in the x-ray taken on December 23, 2002, found at page 498 of the Case Record, and the condition is in the left forearm, not in the right forearm as stated in Board Memo #48). [15] Mr. Cronish submitted that the accident constituted a minor blow to the left forearm causing a contusion and should be considered a minor accident. He also asserted the presence of pre-existing degenerative disc disease in the cervical spine at C6, C7 and C8, which may be the actual cause of the worker s ongoing complaints. [16] This reference is to Dr. Bowler s report dated January 5, 2006, which stated the following: Needle study demonstrates reduced interference patterns throughout the left upper extremity muscles in the C6, C7 and C8 nerve root pattern including the flexor carpi ulnaris, flexor digitorum, indicis and abductor digiti minimi. I think the pattern that we are seeing is compatible with disuse phenomenon. [17] Mr. Cronish also argued that there had been no fracture at the time of the accident in December 2002; that the worker s alcohol use had contributed to prolonging his recovery; and that the worker had a history of sports-related injuries, as well as a motor vehicle accident in He also cited Dr. Lachowski's clinical notes dated January 1, 2003, which identified the injury as being to the left wrist and forearm, but not to the shoulder. [18] The employer's submission also referred the Tribunal to his submission prepared for the ARO s appeal dated May 11, 2006, again stressing his contention that the left shoulder condition was significantly affected by pre-existing degenerative disease in that shoulder, and noting the diagnosis of reflex sympathetic dystrophy diagnosed by Dr. Bowler on December 14, (vi) Law and policy [19] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect and applies to this case.

4 Page: 3 Decision No. 1510/09 [20] Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal. In particular, we have considered Operational Policy Manual ( OPM ) Document # , Second Injury Enhancement Fund (SIEF). The policy states the following: 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. [21] The following chart applies: SEVERITY OF PRE- EXISTING CONDITION SEVERITY OF ACCIDENT % OF RELIEF TO EMPLOYER 50% 25% 0% 75% 50% 25% % 75% 50% (v) Conclusions [22] The questions to be addressed in this appeal focus upon the medical significance of the worker s pre-existing condition in the left upper extremity and upon the degree of severity of the accident of December 20, In dealing with these questions, I am required to take into consideration the findings of fact made in Tribunal Decision No. 768/07. The Panel in Decision No. 768/07, which constitutes a final decision of the Tribunal, found as follows: (par.4ff.) 1. The worker was employed as a millwright, and the demands of his job included lifting, bending, sitting, standing, climbing, pushing, pulling, walking and reaching. 2. The worker had no prior history of problems with his left forearm or shoulder. 3. The worker was injured in a workplace accident on December 20, 2002, when a valve cover blew off, under a pressure of 100 psi. His left forearm received most of the impact,

5 Page: 4 Decision No. 1510/09 and he was knocked back to the ground some 10 to 30 feet from where he had been working. 4. The impact was forceful enough to leave a tattoo mark of the valve cover on the worker s left forearm. 5. At the hospital, the worker reported having injured several body parts in the blast, including his arm, the mid-thoracic back, and between his shoulder blades. 6. The initial diagnosis by Dr. Hall at the employer s medical care office was injection injury and the hospital report of the injury indicates blast injury left arm. 7. The worker continued to experience pain and swelling, tenderness and sensitivity, as well as a change in sensation in his left lower arm. The worker s grip on the left side was greatly diminished. 8. The worker received physiotherapy for range of motion problems with his left wrist. 9. According to Dr. Gwardjan, on July 28, 2003, a bone scan revealed findings suggestive of left de Quervain s tenosynovitis as well as degenerative changes involving multiple small joints of both hands, as well as the left elbow. 10. On September 26, 2003, the worker complained to Dr. Parachin regarding shoulder pain for the preceding few weeks. Dr. Parachin found that the worker s shoulder range of motion was close to full, except IR-HBB only to belt line with pain tender throughout the RC and pain with supraspinatus biceps resisted and with impingement. She stated tendonitis and impingement. [23] With respect to the issue before it on appeal, left shoulder entitlement, the Panel, in Decision No. 768/07, made the following conclusions. [24] First, the Panel cited the advice obtained from the Medical Assessor, with respect to the relationship between the accident of December 2002 and the worker's left shoulder condition. It is my opinion that the shoulder condition which is rotator cuff tendonitis and impingement is not directly related to that injury. It is theoretically possible that the abnormal use of the arm caused by his chronic pain could have placed an abnormal strain on the rotator cuff causing it to develop tendonitis, but I do not fee this is likely. [25] Finally, in response to the invitation to provide any other medical information which he feels would be useful to the Tribunal, he stated: In this regard, I would only say that having reviewed this chart it seems clear that [the worker] is significantly disabled by the chronic pain problem which does appear to be related to his injury to the left forearm. His shoulder problem on the other hand appears to have been relatively mild and has responded to appropriate surgical treatment. The shoulder pathology which was diagnosed does not lead to permanent dysfunction of the shoulder and would not be expected to be a cause of future pain, dysfunction, or deterioration of the shoulder joint. [26] Decision No. 768/07 concluded as follows: Given our finding that the worker did not experience left shoulder pain until a few weeks prior to September 26, 2003, and given the opinion of Dr. Holtby that this history of later pain is not consistent with a relationship between the accident and the worker s rotator

6 Page: 5 Decision No. 1510/09 cuff tendonitis and impingement syndrome, and given the opinion of Dr. Holtby that tendonitis and impingement syndrome are only rarely secondary to a specific injury, and given the opinion of impingement syndrome are only rarely secondary to a specific injury, and given the opinion of Dr. Kanalec that based on a reasonable degree of medical probability there is no specific left shoulder P.I. as related to the compensable accident, and given the opinion of Dr. Holtby that it is unlikely that the worker s shoulder tendonitis is a result of abnormal use of his arm, we find that on a balance of probabilities, the worker s left shoulder condition is not causally related to his workplace accident of December 2, Accordingly, we do not find that there is entitlement for the worker s left shoulder condition. [27] Given this finding of fact that the worker's left shoulder condition is unrelated to his compensable left upper extremity impairment, the employer s arguments with respect to preexisting conditions in the left shoulder are not relevant. The relevant question is the severity of pre-existing conditions in the worker s forearm, wrist, and hand. The only objective medical evidence of a pre-existing condition consists of the x-ray taken on December 23, 2002, by Dr. Romeo, indicating the presence of a small well-corticated ossicle adjacent through the ulnar styloid, together with later bone scan evidence of arthritis. I regard the employer s conjectures respecting the possible role of alcohol use and previous injuries, as being too speculative to be probative. [28] SIEF cost relief was predicated on a finding by Board decision makers that the worker s pre-existing medical condition was moderate in severity. This decision was based on the advice from Dr. Steinnagel in Board Memo #48, dated June 1, 2006, following his review of the medical information on file. Dr. Steinnagel advised that the ossicle at the ulnar styloid together with evidence of arthritic change from a bone scan taken in October 2004 represented a moderate pre-existing condition. I see no objective medical evidence before me to challenge that conclusion. [29] With respect to the severity of the accident, I am unable to agree with the employer's representative that the accident was of minor severity. The Panel in Decision No. 768/07 made a finding of fact that a valve cover blew off, under pressure of 100 psi, striking the worker with sufficient force to leave a tattoo mark of the valve cover on the worker s left forearm. The Panel also found on the evidence that the worker had been knocked by the force of the blow some 10 to 30 feet from where he had been working. Given the facts with respect to the force of the impact when the valve exploded, it is entirely reasonable to describe the accident as being of moderate severity, which is defined in Board s OPM Document # as an accident "expected to cause disabling injury." [30] On evidence before me, I find that the employer s SIEF cost relief has been correctly calculated at 50% under the provisions of Board s OPM Document # based on the combination of a moderate pre-existing medical condition and an accident of moderate severity.

7 Page: 6 Decision No. 1510/09 DISPOSITION [31] The appeal is denied. DATED: August 18, 2009 SIGNED: R. McClellan