WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2134/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2134/16 BEFORE: S. Peckover: Vice-Chair HEARING: August 24, 2016 at Toronto Written DATE OF DECISION: September 21, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2482 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated June 30, 2015 APPEARANCES: For the worker: For the employer: Interpreter: Not participating M.B. of the accident employer Not required 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. 2134/16 REASONS (i) Introduction [1] The employer appeals a decision of the ARO dated June 30, 2015, which concluded that that it was entitled to 50% cost relief under the second injury and enhancement fund (SIEF). [2] The worker, a nutrition aid born in 1954, suffered an injury to her right shoulder on December 4, 2012 when she lifted a tray containing 20 glasses from the top of an oven. Her right arm gave way, and she immediately felt pain in the shoulder. Entitlement was allowed for a right shoulder strain, and was later expanded to include a full-thickness tear of the supraspinatus tendon, which was repaired surgically on February 18, [3] In a letter dated March 20, 2014, the employer requested that the file be reviewed with respect to cost relief under the SIEF. In a decision letter dated June 5, 2014, the Case Manager granted 50% SIEF relief, based on a minor accident and a minor pre-existing condition. The employer objected to the quantum of the award. A reconsideration decision letter dated October 24, 2014 confirmed relief at 50%. [4] At the Appeals Services Division, in a decision dated June 30, 2015, the ARO confirmed that 50% SIEF relief was appropriate. [5] The employer appeals from this decision. (ii) Issue [6] The issue before me is the quantum of SIEF relief in this claim. Specifically, the employer seeks an increase from 50% to at least 75% based on a minor accident and a moderate to major pre-existing condition. (iii) Law and policy [7] Since the worker was injured in 2012, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [8] WSIB s (the Board) authority to establish the SIEF derives from section 98 of the WSIA, which states: 98 (1) The Board may establish a special reserve fund to meet losses that may arise from a disaster or other circumstance that, in the opinion of the Board, would unfairly burden the employers in any class. [9] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [10] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package # 181 NEER Adjustments DOA as of January 1, 2008 Package # 247 SIEF Package # 299 Decision Making/Merits and Justice

3 Page: 2 Decision No. 2134/16 [11] I have considered these policies as necessary in deciding the issues in this appeal, including 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 pre-existing 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 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.

4 Page: 3 Decision No. 2134/16 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. (iv) Analysis [12] In this case, initial entitlement to SIEF relief is not in issue; only the quantum of SIEF relief is at stake. [13] M.B. of the employer argues that the worker has three pre-existing conditions: tendinosis, a Type III acromion, and moderate AC joint osteoarthritis. In combination, he submits, this amounts to a moderate-to-major pre-existing condition. [14] The medical evidence with respect to a pre-existing condition is as follows: An x-ray of the right shoulder dated December 5, 2012 revealed the following: Normal glenohumeral and acromioclavicular alignment on the right. No definite rotator cuff mineralization. Mild hypertrophic changes at the AC joint. [Emphasis added] An ultrasound of the right shoulder dated December 12, 2012 found as follows: The long head of the biceps is intact. The subscapularis tendon is intact. There is mild supraspinatus tendinosis. There is mild subacromial/subdeltoid bursal thickening. In the insertion of the supraspinatus tendon at its mid aspect, there is a partial thickness tear measuring 1 cm in mediolateral dimension and 7 mm in AP dimension. This has an articular sided component. A convincing bursal sided component is not demonstrated but cannot be excluded. Infraspinatus tendon is intact. Visualized posterior labrum region is normal. Spinoglenoid notch is normal. There are some AC joint degenerative changes seen. Subacromial impingement of the subacromial/subdeltoid bursa is noted. SUMMARY: There is subacromial bursal impingement in association with a small sized partial thickness articular sided tear near the insertion of the supraspinatus tendon. A convincing bursal sided component to suggest a full thickness tear is not seen. [Emphasis added]

5 Page: 4 Decision No. 2134/16 An MRI dated August 17, 2013 revealed the following: Supraspinatus tendon: There is some insertional tear measuring 16 mm in mediolateral dimension and 11 mm in AP dimension. This reaches the articular and bursal sides suggestive of a full-thickness tear. Infraspinatus tendon: Marked tendinosis region with an articular sided tear measuring 15 mm. in mediolateral dimension. Subscapularis tendon: Insertional tendinosis noted. Long head of the biceps: Intact Muscle bulk in the shoulder: No significant fatty infiltration. Mild atrophy of the supraspinatus. Acromion and AC joint: Type III acromion. Moderate AC joint osteoarthritis. No os acromiale. SASD bursitis: Mild bursitis noted. Labrum: No chondrolabral detachment noted. Bony glenoid: Morphology is within normal limits. Hill-Sachs lesion: None Bony irregularity in the tuberosities: Mild cortical irregularity in the superior and middle facets of the greater tuberosity noted. Bone marrow: No significant bone marrow edema in the glenohumeral joint. Articular cartilage: Glenoid cartilage is intact. Suprascapular notch and spinoglenoid notch: Normal. Intra-articular bodies: None identified. Other findings: There is some effacement of the fat in the rotator interval suggesting some rotator interval synovitis. OPINION: There is a full-thickness insertional supraspinatus tendon tear measuring 16 x 11 mm. Other features as noted above. [Emphasis added] An MRI Arthrogram dated September 19, 2013 confirmed a full-thickness insertional tear of the anterior supraspinatus tendon measuring approximately 13 mm mediolateral by 16 mm AP; a low-grade partial thickness articular-sided tear of the infraspinatus tendon measuring 9 mm mediolateral by 5 mm AP; and a Type III acromion. There were moderate acromioclavicular joint degenerative changes with some mass effect on the supraspinatus musculotendinous junction noted. In all other respects, the worker s shoulder was within normal limits. [15] Thus, the worker s medical investigations reveal that she had a Type III acromion; there was tendinosis in some of the tendons; and there was osteoarthritis in the AC joint. (a) The Type III acromion [16] With regard to the worker s Type III acromion, I note that there are three types, or shapes, of acromia: Type I, which is flat, and is considered normal ; Type II, which is more curved and downward-sloping; and Type III, which has more pronounced curve and downward slope. In Decision Nos. 197/12, 142/15, 247/15, and 736/15, a Type II acromion was found to be

6 Page: 5 Decision No. 2134/16 a normal anatomical variant, for which SIEF relief was not available. Decision No. 197/12 contains the following analysis with respect to the Type II acromion: [44] The employer's representative emphasized that the worker had a Type 2 acromion as outlined in the surgical report. In this regard, the employer's representative produced a medical article entitled, Management of Shoulder Impingement Syndrome and Rotator Cuff Tears. 5 [5 Am Fam Physician Feb 15; 57(4): ] That article includes the following background information: Functional Anatomy Understanding the functional anatomy of the rotator cuff assists in understanding its disorders. The rotator cuff is the dynamic stabilizer of the glenohumeral joint. The static stabilizers are the capsule and the labrum complex, including the glenohumeral ligaments. Although the rotator cuff muscles generate torque, they also depress the humeral head. The deltoid abducts the shoulder. Without an intact rotator cuff, particularly during the first 60 degrees of humeral elevation, the unopposed deltoid would cause cephalad migration of the humeral head, with resulting subacromial impingement of the rotator cuff. In patients with large rotator cuff tears, the humeral head is poorly depressed and can migrate cephalad during active elevation of the arm. This migration is sometimes evidenced even on plain radiographs. Etiology of Rotator Cuff Dysfunction The space between the undersurface of the acromion and the superior aspect of the humeral head is called the impingement interval. This space is normally narrow and is maximally narrow when the arm is abducted. Any condition that further narrows this space can cause impingement. Impingement can result from extrinsic compression or loss of competency of the rotator cuff. [45] The article goes on to list the possible causes of shoulder impingement, which include Type 2 and 3 acromions. The employer's representative focuses on the following passage from the article: Normal anatomic variants can cause compression. Three distinct types of acromion [ ] can readily be seen on radiographs, especially on the angled outlet Y view. The type I acromion, which is flat, is the normal acromion. The type II acromion is more curved and downward dipping and the type III acromion and downward dipping, obstructing the outlet for the supraspinatus tendon. Cadaveric studies have shown an increased incidence of rotator cuff tears in persons with type II and type III acromions. [46] The article submitted by the employer describes Type II and III acromions as normal anatomic variants. The Tribunal has consistently held that so-called normal conditions, such as degenerative change consistent with a worker s age, do not constitute pre-existing conditions for the purposes of SIEF relief. [17] Thus, a Type II acromion is a normal anatomic variant, for which SIEF relief is not available. A Type III acromion is similar to a Type II acromion, but with more pronounced features. This analysis therefore applies equally to a Type III acromion. SIEF relief therefore is not available for this normal anatomic variant. (b) Tendinosis [18] The worker had tendinosis in the supraspinatus tendon, as well as in the infraspinatus and subscapularis tendons. The Tribunal s Medical Discussion Paper entitled Shoulder Injury and Disability, written by orthopaedic surgeon Dr. Uhthoff and last revised in October 2010, indicates as follows with respect to tendonitis:

7 Page: 6 Decision No. 2134/16 B 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 characterized 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. [19] This would appear to be what occurred in the worker s case. That is, the December 12, 2012 ultrasound revealed that the worker had a partial tear of the supraspinatus tendon, as well as tendinosis in that tendon. The August 2013 MRI revealed a marked tendinosis region in the infraspinatus tendon, with an articular-sided tear measuring 15 mm in the mediolateral dimension. There was also some insertional tendinosis noted in the subscapularis tendon. While the tendinosis in the infraspinatus tendon and in the supraspinatus tendon appear to be related to partial or full tears in those tendons, there was no tear in the subscapular tendon. It therefore is likely that at least some of the tendinosis was pre-existing. [20] SIEF relief therefore is available with respect to the worker s tendinosis. (c) Osteoarthritis in the AC joint [21] With respect to the worker s osteoarthritis in the AC joint, Dr. Uhthoff had the following to say in the Tribunal s Medical Discussion Paper entitled Shoulder Injury and Disability : i. Arthritis The most common form is degenerative osteoarthritis seen in the middle aged and older population. It is often attributed to wear and tear. Although inflammation of a joint is sometimes stated as a cause, an actual inflammatory process is most uncommon except for rheumatoid arthritis. Deformation or incongruity of opposing joint surfaces as may result from fractures (injury) extending into the joint, can also lead to arthritis. Such a condition is known as post-traumatic osteoarthritis, a disorder related to the original injury. Degenerative osteoarthritis is usually age-related, and may be associated with familial generalized OA; it may, however, be an activity-related disorder (overhead work, use of vibrating tools). [22] Thus, the osteoarthritis in the worker s AC joint is degenerative, or age-related, in nature. Decision No. 1568/11 considered whether degenerative change consistent with a worker s age, could, in itself, be construed as a pre-existing condition within the meaning of the SIEF policy. The Vice-Chair cited the Tribunal Discussion Paper on Back Pain prepared by Drs. Harris, Fleming and Gertzbein which states that degenerative disc disease is not really a disease but normal aging change. The SIEF policy also notes that 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. Several Tribunal decisions have held that evidence of degenerative changes typical of a worker s age does not in and of itself represent a pre-existing condition for the purposes of the Board s policy (see, for example, Decisions No. 14/11, 1528/05, 701/01 and 238/89).

8 Page: 7 Decision No. 2134/16 [23] The Vice-Chair in Decision No. 1743/13 qualified Decision No. 1568/11, by emphasizing it remains open to a Vice-Chair to determine that pre-existing degenerative changes or osteoarthritis are contributing to the extent of the injury if there is specific evidence of that impact. [24] There is nothing before me to indicate that the arthritic changes in the worker s AC joint were out of keeping with what would be expected for a woman in her late fifties or early sixties. I therefore find that SIEF relief is not available with respect to the osteoarthritic changes. [25] Thus, the only condition for which SIEF relief is available to the employer in this worker s claim is the tendinosis. Given that the majority of it is related to tears in the tendons, I find that the pre-existing portion of this condition is minor in severity. [26] I also agree with the employer and the ARO that the accident is minor in severity, as one would not expect the lifting of a tray holding 20 glasses to have more than a minor disabling effect on a person without the worker s pre-existing condition. [27] I therefore confirm 50% SIEF relief in this case.

9 Page: 8 Decision No. 2134/16 DISPOSITION [28] The appeal is denied. DATED: September 21, 2016 SIGNED: S. Peckover