WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2718/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2718/15 BEFORE: S. Netten: Vice-Chair HEARING: December 14, 2015 at Toronto Written DATE OF DECISION: December 23, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2955 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated March 26, 2014 APPEARANCES: For the worker: For the employer: Interpreter: K. Jeffery, Paralegal E. Kosmidis, Lawyer None 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. 2718/15 REASONS (i) Issue [1] The issue under appeal is the recognition of a permanent impairment, and corresponding entitlement to a non-economic loss (NEL) evaluation, for the right shoulder. (ii) Overview [2] The worker received health care and loss of earnings benefits in relation to a right shoulder injury sustained when she was pushed by a student on May 15, Rotator cuff surgery was allowed in the claim and performed in July 2011, followed by physiotherapy. In July 2012 the worker had residual rotator cuff dysfunction, with minimal restriction of range of motion, good strength, mild impingement, and no reproducible crepitus. Following requests in November 2012, February 2013 and June 2013, the Board declined to recognize a compensable permanent impairment, on the basis that ongoing symptoms were not consistent with the original injury. [3] The worker s objection to this determination was denied at the appeals level of the Board. The worker now appeals to the Tribunal. [4] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In written submissions dated May 15, 2015, the worker s representative refers to two medical opinions obtained by the Board regarding compatibility of diagnosis, and submits that the benefit of the doubt must be given to the worker in these circumstances. In written submissions dated June 1, 2015, the employer s representative relies upon the medical opinion on the issue of permanent impairment, as well as generic information found in the Tribunal s Medical Discussion Paper, to support a denial of a permanent impairment. (iii) Legal framework [5] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [6] Pursuant to section 46, a worker is entitled to compensation for non-economic loss if his or her injury results in permanent impairment. As defined in section 2(1), a permanent impairment includes a physical or functional abnormality or loss which continues to exist after maximum medical recovery. [7] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Evidence [8] In a Worker s Report of Injury dated May 26, 2008, the worker reported a re-injury to her right shoulder on May 15, 2008 when pushed by a student. The Employer s Report of Injury, dated May 18, 2008, stated that the worker intervened between students who were fighting, while on yard duty, and was pushed on arms by student. The worker had previously been diagnosed with a rotator cuff strain, in March 2008.

3 Page: 2 Decision No. 2718/15 [9] The initial Claims Adjudicator does not appear to have spoken with the worker, and did not issue an entitlement decision, though physiotherapy and LOE benefits were allowed following the injury. Correspondence from the Case Manager dated October 8, 2009 confirmed that the claim had been allowed for a right shoulder sprain/strain, and a transfer memo of October 16, 2008 indicates right rotator cuff strain as the area of entitlement. A September 2009 aggravation of the compensable right shoulder/upper arm strain was allowed on November 19, [10] Family physician Dr. S. Perlin had diagnosed acute/chronic bursitis and tendonitis in October In February 2009 the worker s physiatrist, Dr. L. Becker, had noted pain on abduction, flexion and internal rotation, tenderness to palpation over the biceps tendon, lateral acromion and upper trapezius, and positive rotator cuff impingement signs. She treated subacute bursitis with cortisone injections. The worker s condition had worsened by July Dr. Perlin ordered further investigations: an October 2009 ultrasound showed degenerative changes in the bilateral rotator cuff regions, and a January 2010 right shoulder MRI found calcific tendonitis within the supraspinatus and partial tearing of the supraspinatus and fraying of the infraspinatus. [11] The worker was assessed by orthopedic surgeon Dr. R. Holtby and physiotherapist A. Kamino, at the Shoulder and Elbow Specialty Clinic, on April 29, They noted reduced range of motion, preserved strength, pain on impingement testing, mild crepitus, and imaging of a significant calcium deposit in the supraspinatus with an anterior acromial spur causing impingement with no major tears. They concluded that the worker had calcific tendinitis, and recommended arthroscopic rotator cuff decompression with excision of the calcium deposit. [12] The Case Manager sought a medical opinion on May 28, 2010, prior to receiving the Specialty Clinic report: Noting that I/W s accident history describes a right shoulder strain sustained due to a child pulling on her arm, pls advise if the current findings can be attributed to the work related injury. [13] Medical Consultant Dr. Germansky responded, on June 7, 2010: An MRI Rt shoulder done Jan. 8/10 showed evidence of Rt calcific RC tendonitis with bursal and articular surfacing tearing supraspinatus and fraying infraspinatus tendons. OPINION 1) The findings on MRI could be secondary to chronic RC inflammation due to tendonitis/bursitis related to the initial injury under this claim if there is continuity. If there is continuity re Rt shoulder problems the ongoing Rt shoulder condition would appear related under this claim. [14] Dr. Germansky did not have access to the Specialty Clinic report, and he did not respond to the Case Manager s question of whether shoulder surgery would be compensable. No formal Board decision was issued following Dr. Germansky s opinion, but benefit entitlement continued. [15] The worker s surgery was eventually scheduled for July On May 11, 2011, a recurrence Case Manager granted entitlement for the surgery, stating the medical information confirms that the surgery is compatible with the allowed right rotator cuff injury. In her memorandum of the previous day, she noted continuity as well as compatibility with the accepted Dx [diagnosis] in this case.

4 Page: 3 Decision No. 2718/15 [16] Dr. Holtby performed arthroscopic surgery on July 4, 2011, with a diagnosis of calcific tendinitis right shoulder. The surgery included debridement of the rotator cuff and labrum, resection of the bursa and lateral end of the clavicle, acromioplasty, and as much of the calcium material removed as possible. [17] At the conclusion of post-surgical physiotherapy and work hardening, the Final Assessment Report of December 5, 2011 outlined improved but still reduced range of motion and strength, tenderness of the right acromion and lateral clavicle, pain with cross chest adduction, negative testing including for impingement, and functional abilities within the limited-light range. On examination by Dr. Holtby on January 12, 2012 the worker had good range of motion and strength, and negative impingement signs, following the surgery for calcific tendonitis. Dr. Holtby anticipated that restrictions would not be necessary beyond a further three months. However, a subsequent detailed report of July 19, 2012 provided permanent restrictions on repetitive and strenuous use of the arm at or above shoulder level. The worker had minimal restriction of range of motion, good strength, mild pain with impingement testing, and no reproducible crepitus. Dr. Holtby concluded that there was residual rotator cuff dysfunction related to her impingement and calcific tendinitis which have been improved, but not completely relieved with surgery. [18] The Case Manager referred the matter for a physician file review in August 2013, noting right shoulder rotator cuff injury as the allowed injury, and asking about the relationship, if any between her ongoing right shoulder complaints and the accepted accident history. On September 8, 2013, Dr. P. Tepperman described the accident history as being pushed on the arms, with force into abduction and external rotation, noted the Specialty Clinic findings as well as Dr. Germansky s prior opinion, and concluded: There is no objective evidence of an ongoing accident related impairment. The mechanism of injury is consistent with a subscapularis strain, which would resolve within 4-6 weeks. She has functional range of motion, good strength in her rotator cuff and only mild signs of impingement. The impingement testing would not be consistent with the original injury. [19] A medical discussion paper on Shoulder Injury and Disability, written by orthopedic surgeon Dr. H. Uhthoff in October 2010, was included in the case materials for this appeal. The Tribunal s medical discussion papers are written by independent experts who are recognized in their fields of specialization. They are designed to provide parties and representatives with a general overview of medical topics; it is open to the parties to rely upon a discussion paper, or to distinguish or challenge it with other evidence. Dr. Uhthoff s discussion paper has not been disputed in this appeal. With respect to tendinitis and calcific tendinitis, Dr. Uhthoff states: Tendonitis-Tendinitis, a disorder In the strict sense of the word, it means an inflammation of a tendon. However, microscopic examination of a biopsy sample rarely shows the presence of inflammatory cells. The process is rather characterised by other, usually degenerative, tendinous changes that lead to a thickening of the tendon. Often the diagnosis of tendinitis is based on a clinical examination. All too often, additional testing later on reveals an incomplete tear of a cuff tendon. It is therefore my opinion, that the diagnosis tendinitis should only be provisional; more detailed examinations (ultrasound, MRI or even a diagnostic arthroscopy) should be done to exclude partial tears.

5 Page: 4 Decision No. 2718/15 Calcific Tendinitis, also known as Calcifying Tendinitis This condition is neither caused by work nor aggravated by any particular activity. It affects females more often. Calcific deposits in the opposite shoulder occur in up to 40% of patients. Calcific tendinitis cannot be attributed to factors associated with work. The thickening of the tendon caused by the calcific deposit often leads to an impingement syndrome. (v) Discussion [20] Whereas Dr. Tepperman felt that the worker s strain ought to have resolved within six weeks of the injury, Dr. Germansky thought that the MRI findings in 2010 could have been secondary to inflammation associated with the compensable injury. The latter opinion was issued without review of Dr. Holtby s assessment and opinion, and was based upon the MRI report which included partial tearing of the supraspinatus, fraying of the infraspinatus, and calcific tendonitis within the supraspinatus. I do not interpret Dr. Germansky s opinion as suggesting that calcific tendinitis (as opposed to the rotator cuff tearing/fraying) was secondary to the injury. This is consistent with the fact that the Board at no time extended the worker s entitlement beyond a rotator cuff injury to include calcific tendinitis, and consistent with the commentary on calcific tendinitis found in the medical discussion paper. I find that the worker s entitlement in this appeal was limited to the rotator cuff strain/sprain accepted as resulting from the events of May 15, 2008, and, since the Board accepted Dr. Germansky s opinion, to secondary partial tearing and fraying of the rotator cuff tendons. [21] No medical opinion was solicited on the compatibility of the surgery in 2011, and it appears that the recurrence Case Manager may have relied upon Dr. Germansky s opinion without realizing that he had no details with respect to the proposed surgery at that time. The surgery itself did address the rotator cuff tearing/fraying through debridement, while also performing resections and removing the calcium deposit. However, given Dr. Holtby s focus upon calcific tendinitis when recommending surgery, in the Operative Report (as the sole diagnosis), and when describing the surgery afterwards, it appears that his primary concern both before and after the surgery was the calcific tendinitis. [22] Similarly, Dr. Holtby attributes the residual shoulder dysfunction to impingement and calcific tendinitis. Dr. Tepperman asserts that impingement is not consistent with the original injury, and I note that an impingement syndrome was not identified soon after the compensable accident. Mild impingement seems to have resurfaced at some point between January and July 2012, after impingement signs were absent in December 2011 and January While the worker s representative requests the benefit of the doubt, there is no favourable opinion from Dr. Germansky (or any other health professional) on the question of whether the worker s residual impairment is compatible with her entitlement in this claim. On the evidence before me, I find it more likely than not that the worker s ongoing shoulder impairment is associated with non-compensable calcific tendinitis, and is not a result of the compensable rotator cuff injury. [23] As such, the worker does not have a compensable permanent impairment in this claim, and there is no entitlement to a NEL assessment for the right shoulder.

6 Page: 5 Decision No. 2718/15 DISPOSITION [24] The appeal is denied. DATED: December 23, 2015 SIGNED: S. Netten