WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1147/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1147/09 BEFORE: T. Carroll: Vice-Chair HEARING: June 4, 2009 at Toronto Written DATE OF DECISION: June 17, 2009 NEUTRAL CITATION: 2009 ONWSIAT 1457 DECISION UNDER APPEAL: WSIB ARO decision dated September 16, 2008 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate Ms. D. Snelling, Lawyer 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. 1147/09 REASONS (i) Issues [1] The Vice-Chair has to determine whether the employer is entitled to Second Injury and Enhancement Fund (SIEF) relief greater than the present 50%. (ii) Background [2] The worker, a 52-year-old truck driver, had worked with the employer since [3] On December 5, 2005 the worker climbed out of his truck and slipped on some ice and fell to the ground striking his right shoulder. The worker had had non-compensable left shoulder surgery in February [4] The worker received medical attention and the initial medical diagnosis was a right shoulder sprain. An ultrasound of February 24, 2006 showed a partial thickness tear of the supraspinatous tendon. The worker was diagnosed with a right rotator cuff tear. [5] The worker was able to return to his regular job duties as a truck driver on February 20, 2006 although he continued to complain of right shoulder pain. [6] On April 3, 2006 Dr. G. Annisette, orthopaedic surgeon, performed an acromioplasty of the worker s right rotator cuff. [7] In March 2008 the worker received a 7% Non-Economic Loss (NEL) award in consideration of his right shoulder impairment. [8] In December 2008 an ARO granted the employer 50% SIEF relief. The employer has appealed this decision. (iii) The medical opinion [9] In March 2006 the worker was examined by Dr. G. Annisette, orthopaedic surgeon. Physical findings showed rotator cuff wasting with right greater tuberosity tenderness. There was restriction in the range of motion of the shoulder. Dr. Annisette diagnosed a right rotator cuff tear. On April 3, 2006 Dr. Annisette performed an acromioplasty of the worker s right rotator cuff. In his procedure notes Dr. Annisette states that a generous acromioplasty was carried out. The worker was found to have a half centimetre complete tear at the level of the greater tuberosity and supraspinatous. Subacromial bursa was excised during repair. In a June 2006 report Dr. Annisette states that the worker had a fairly large rotator cuff tear. [10] In an April 26, 2006 memo (#15) Dr. C. Lau, Medical Consultant at the Workplace Safety and Insurance Board (the WSIB), states, in part: With bursitis of subacromial bursa and prior left shoulder surgery, mild pre-existing condition present. Mildly prolonging and enhancing recovery.

3 Page: 2 Decision No. 1147/09 [11] In a June 2006 memo, Dr. A. Karr, Medical Consultant at the WSIB, states: Medical documentation review, as well as the letter from the A/E. The argument put forth in the A/E s letter fails, as it implies that the surgery was necessary in large part due to the pre-existing condition. However, this is not the case. The tear in the rotator cuff would have occurred with or without the pre-existing condition. The only affect it will have is on the recovery time and its impact on the P.I. Opinion: pre-existing condition is minor. Memo #15 stands. [12] In May 2008 Dr. G. Jasey, orthopaedic surgeon, commented on the worker s medical condition and the application of SIEF relief. [13] It was Dr. Jasey s opinion that the worker had a rotator cuff tear, if not complete, nearly complete, at the time of the worker s slip and fall accident. [14] Dr. Jasey opined that a simple fall was unlikely to cause a tendon tear in a healthy tendon. In support of his opinion, he quoted from Dr. H. Uhtoff s Tribunal Discussion Paper entitled: Injury and Disability Involving the Shoulder, where Dr. Uhtoff states: As stated before, severe trauma can cause a tear, particularly in younger individuals. In these instances, a piece of bone from the humeral head (greater tuberosity) is usually avulsed together with the tendon. In middle aged or older people, changes inside the tendon (degenerative changes) make the tendon weaker to a point where lesser effort or a trivial trauma can cause a tear. [15] Dr. Jasey notes in his report that the worker had risk factors in developing a rotator cuff tear including his age (i.e. the worker was 54 years old at the time of the accident). He felt the worker s age predisposed him to deterioration of the tendon and he was at a higher risk for rupturing of the rotator cuff tendon with a minor event. Dr. Jasey referred to Wheeless Textbook of Orthopaedics (2008) and a statement contained therein that MRI studies have shown that 30% of patients over 40 years of age have rotator cuff tears. [16] Dr. Jasey also relied on an article by Dr. K. Yamaguchi at 80 al., In the Journal of Bone and Joint Surgery, American Edition, 2006 August; 88 (8): and the following statement: There is a high correlation between the onset of rotator cuff tears (either partial or full thickness) and increasing age. Bilateral rotator cuff disease, either symptomatic or asymptomatic is common in patients who present with unilateral symptomatic disease. As the size of a tear appears to be an important factor in the development of symptoms, we recommend surveillance at yearly intervals for patients with known rotator cuff tears that are treated non-operatively. [17] In addition, Dr. Jasey felt the existing literature supported a finding that individuals with rotator cuff tendon tears on one side (the worker had a previous rotator cuff tear on the left) are predisposed to development of rotator cuff tears on the opposite side. He also states that there was potential for overuse of the worker s right side due to the left surgery and this could have accelerated or aggravated the right sided condition.

4 Page: 3 Decision No. 1147/09 [18] In regard to organic findings, Dr. Jasey notes that a generous acromioplasty was required in regard to the worker s right shoulder. It was Dr. Jasey s opinion that this suggested that the worker had an anatomical variant that predisposed him to the development of impingement syndrome and a subsequent tearing of the rotator cuff. [19] Dr. Jasey also notes that Dr. Annisette (March 2006) stated that, upon examination, the worker had right rotator cuff wasting. Dr. Jasey opined that rotator cuff atrophy would not be explained simply by a fall and likely demonstrated a longer standing history of rotator cuff injury. Dr. Jasey ultimately concludes that the worker had a major pre-condition of the right shoulder. (iv) The WSIB s policy [20] The WSIB s Operational Policy Manual, Document No , speaks to SIEF relief. [21] The policy states that 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 preexisting condition, all or part of the compensation and healthcare costs may be transferred from an accident employer in Schedule 1 to the SIEF. [22] In the case of a permanent impairment, as in this case, the Board determines the quantum of SIEF relief, according to a grid contained in the policy. The grid states that a minor accident combined with a minor pre-existing condition results in 50% relief while a minor accident combined with a moderate pre-existing condition results in a 75% relief. A minor accident combined with a major pre-condition results in 90% SIEF relief. [23] The policy defines severity of accident as either minor (expected to cause nondisabling or minor disabling injury); moderate (expected to cause disabling injury); or major (expected to cause disability and probably a permanent disability). An adjudicator is to assess the mechanics of the accident in determining the correct category. [24] The medical significance of a pre-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. (v) The Vice-Chair s analysis [25] First, the Vice-Chair, after considering the mechanics of the accident, finds that it is minor. The worker slipped and fell on his right shoulder and side. The Vice-Chair accepts Dr. Jasey s opinion (supported by Dr. Uhtoff, as quoted) that the accident was unlikely to cause a rotator cuff tear. The accident was expected to cause a non-disabling or minor disabling injury. [26] There is a dispute between the WSIB Medical Consultants and Dr. Jasey as to the level of the worker s pre-condition. Dr. Lau assessed the pre-existing condition as minor based on the operative findings of bursitis of the subacromial bursa and the worker s prior left shoulder surgery. Dr. Karr agreed with Dr. Lau s opinion. [27] The first question the Vice-Chair must answer is: did the worker have a sufficient precondition of the rotator cuff that it predisposed him to a tear of the rotator cuff tendon from the minor accident, as described?

5 Page: 4 Decision No. 1147/09 [28] The question is answered, to a degree, in the Vice-Chair s previous finding that the mechanics of the accident was minor and was unlikely, by the medical literature, to cause a rotator cuff tear if the worker had a healthy right rotator cuff tendon. Therefore, the Vice-Chair accepts Dr. Jasey s opinion (supported by Dr. Uhtoff) that the worker did not have a healthy rotator cuff tendon at the time of the accident and his fall, superimposed on the degenerative tendon, resulted in the tear. [29] The second question to be answered is: was the underlying condition moderate or major? In answering this question, the Vice-Chair notes that many of the assumptions upon which Dr. Jasey based his conclusion that the worker had a major pre-condition are simply risk factors that apply both to the worker and the general population (i.e. age, previous opposite sided rotator cuff injury, possible overuse and the prevalence of rotator cuff disease in the general population). These risk factors provide limited evidence of the actual degree of damage to this worker s rotator cuff tendon prior to his accident. [30] The Vice-Chair accepts Dr. Jasey s opinion that a large acromioplasty indicates that the worker had a sub-acromial impingement problem that pre-disposed him to development of rotator cuff disease. [31] The Vice-Chair also accepts Dr. Jasey s finding that the worker had an atrophied right there was atrophy of the worker s rotator cuff tendon prior to his fall in December [32] The Vice-Chair finds, based on all the evidence including the pre-conditions outlined by Dr. Lau, that the worker had a pre-condition of the rotator cuff that was greater than a minor pre-condition as determined by the WSIB Medical Consultants. However, the pre-condition was not a major pre-condition based on the worker s demonstrable underlying organic tendon deterioration that existed prior to the December 2005 accident. In making this finding, the Vice- Chair notes that there is no indication that the worker had right shoulder symptoms prior to his accident while performing his strenuous job duties as a truck driver. [33] The Vice-Chair concludes that the worker s pre-condition was of a moderate nature and, based on the grid contained in Board Policy No , the employer is entitled to 75% SIEF relief.

6 Page: 5 Decision No. 1147/09 DISPOSITION [34] The employer s appeal is allowed, in part. [35] The employer is entitled to 75% SIEF relief to be applied to all costs of the worker s claim. DATED: June 17, 2009 SIGNED: T. Carroll