WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1185/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1185/15 BEFORE: S. Netten: Vice-Chair HEARING: June 4, 2015 at Toronto Written DATE OF DECISION: September 14, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2006 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated February 18, 2014 APPEARANCES: For the worker: For the employer: Interpreter: G. Majesky, Union representative J. Hudson, 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. 1185/15 REASONS (i) Issue [1] The issue under appeal is the recognition of a permanent impairment, and corresponding entitlement to a non-economic loss (NEL) award, for the right shoulder. (ii) Overview [2] The worker, then a journeyman electrician, sustained a right shoulder injury after cutting piping with a hacksaw on April 11, He returned to work from May 4 to September 11, 2012 at an electrician s job within his restrictions, and was then laid off for unrelated reasons. The worker underwent compensable shoulder surgery on December 7, The Board determined on September 23, 2013 that the worker was fit to perform the essential duties of his pre-accident job effective August 19, 2013 (thus ending his entitlement to loss of earnings benefits), and that he had recovered with no residual permanent impairment. [3] The worker objected to the denial of a permanent impairment. An Appeals Resolution Officer concluded that the worker was not entitled to a NEL award for permanent impairment, in February 2014, on the basis that the worker had no functional abnormality or loss. [4] The worker now appeals to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In written submissions dated February 15, 2015, the worker s representative argues that the worker suffered a physical loss as a result of the surgical procedure. He submits that the worker is entitled to a 24% NEL award for acromioplasty, pursuant to Table 19 of the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) ( the AMA Guides ) or, in the alternative, to a minimum 10% NEL award pursuant to the Board s practice for acromioplasty ratings. In responding submissions dated February 24 and 27, 2015, the employer s representative asserts that the acromioplasty did not constitute a physical or functional abnormality or loss, and that the impingement requiring the acromioplasty was in any case caused solely by his pre-existing Type 2 acromion. The employer s representative did not provide reply submissions with respect to the NEL quantum in the event of a compensable 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 (MMR).

3 Page: 2 Decision No. 1185/15 [7] Section 47 stipulates that the degree of impairment is expressed as a percentage of total permanent impairment, and must be determined in accordance with the prescribed rating schedule (or, if the schedule does not provide for the impairment, the prescribed criteria). Section 18 of Ontario Regulation 175/98 prescribes the rating schedule and criteria: 18. (1) The American Medical Association Guides to the Evaluation of Permanent Impairment (third edition revised) as it read on January 14, 1991 is prescribed as the rating schedule for the purposes of subsection 47 (2) of the Act. (2) The criteria prescribed for the purposes of subsection 47(2), for impairments not provided for in the rating schedule, are the criteria in the listings in the rating schedule for those body parts, systems or functions which are most analogous to the conditions of the worker. [8] 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) (a) Recognition of a permanent impairment Medical evidence [9] The worker s family doctor, Dr. E. Sochocka, initially diagnosed a muscle strain with inflammation, on April 11, Following an MRI of July 6, 2012, she added the diagnoses of tendinopathy and supraspinatus tendon tear. The Board referred the worker to its upper extremity specialty clinic on July 16, 2012, requesting comment on diagnosis, prognosis, treatment, restrictions and any contribution of pre-existing or non-compensable concerns. Orthopedic surgeon Dr. S. Gallay and physiotherapist J. Grossman reported as follows, on August 15, 2012: On the 11 th of April 2012 he was using a hacksaw and started feeling an intense burning pain in his right shoulder He has tried anti-inflammatory medication with some benefit He has had no previous right shoulder problems but has had a left shoulder decompression for impingement Examination revealed that right shoulder supraspinatus was painful on testing with some weakness in infraspinatus subscap intact. Impingement signs reproduced his pain The patient has had an MRI of the right shoulder showing a 5 mm partial thickness supraspinatus tendon tear, a narrow subacromial space Type 2 acromion and otherwise no significant changes with the exception of some mild AC joint changes. Diagnosis: Right shoulder rotator cuff strain repetitive overuse in a brief period of time with development of subacromial impingement bursitis and MRI findings consistent with a 5 mm partial thickness supraspinatus tendon tear at its insertion. [10] Although Dr. Gallay recommended a cortisone injection and rehabilitation, the worker went to his previous shoulder surgeon, Dr. M. Bischoff, on October 15, Dr. Bischoff s impression was also a right shoulder partial thickness supraspinatus tear and subacromial impingement, and a surgical plan was agreed upon. In follow-up at the specialty clinic on November 14, 2012, Dr. Gallay noted residual impingement and stated that the proposed right shoulder decompression was a reasonable plan. On December 7, 2012, Dr. Bischoff

4 Page: 3 Decision No. 1185/15 performed arthroscopic surgery including debridement, bursectomy, and acromioplasty converting [the Type 2 acromion] to a Type 1 acromion. The diagnoses were rotator tendonitis, impingement syndrome and possible rotator cuff tear, but no tears were identified during the surgery. [11] On February 28, 2013, Board Medical Consultant Dr. A. Kanalec recommended allowance for the surgery as related to the claim history, because of recalcitrant shoulder pain despite conservative measures, noting Dr. Gallay s and Dr. Bischoff s diagnoses, the operative procedure, and Dr. Gallay s opinion that surgery was appropriate. A Case Manager s decision letter of the same date granted benefits associated with the surgery, on the basis that the surgery was related to the work injury. (b) Were the impingement and acromioplasty work-related? [12] The employer s representative correctly states that an ongoing impairment must be a result of the work-related injury in order to be compensable. She submits that the worker s impingement syndrome and the corresponding acromioplasty were not related to the workplace injury, but rather were caused by a pre-existing condition, being the Type 2 acromion. [13] The scope of the worker s right shoulder entitlement is not formally delineated by the Board: a case manager summarized Dr. Gallay s diagnosis without reference to the impingement aspect, but did not limit the extent of entitlement, in a letter of September 4, 2012; another case manager allowed the surgery done on December 7, 2012 in a letter of February 28, 2013, without qualification. [14] A medical discussion paper on Shoulder Injury and Disability, written by orthopedic surgeon Dr. H. Uhthoff in November 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. [15] Dr. Uhthoff explains that impingement syndrome is a set of symptoms rather than a free-standing diagnosis, and is caused by a squeezing of the contents of the space bordered on one side by the coraco-acromial arch and the other side by the humeral head. This is similar to the definition provided by the employer s representative. Dr. Uhthoff further states that there are two causes of such impingement: 1. A thickening of the contents, a swelling of the tendon (tendonitis) and/or a swelling of the bursa (bursitis). 2. A decrease of the space, mostly caused by bony outgrowths, such as acromial spurs, osteophytes of the acromio-clavicular joint and/or osteophytes of the humeral head. [16] While it may be the case, as the employer s representative asserts, that there is less space available with a Type 2 (curved) or 3 (hooked) acromion thus increasing the risk of impingement, I find no basis to conclude that such morphology is causative in and of itself. Dr. Uhthoff does not include these anatomical variants as possible causes of impingement. Individuals with Type 2 or 3 acromia are not in a lifelong state of impingement, nor did the worker in this appeal suffer from impingement prior to the accident despite having a Type 2 acromion. Moreover, orthopedic surgeon Dr. Gallay opined that the worker s subacromial impingement developed following the rotator cuff strain (which itself was associated with the

5 Page: 4 Decision No. 1185/15 brief period of repetitive overuse), and he did not identify any pre-existing or non-compensable conditions. In consideration of Dr. Gallay s diagnosis and support for surgery, Dr. Kanalec recommended allowance of the surgery, and that surgery, including the acromioplasty, was allowed without limitation. I find, therefore, that the worker s entitlement in this claim extends to the symptoms of and treatment for subacromial impingement, which resulted from the compensable rotator cuff strain. I thus reject the employer s representative s submission that permanent impairment be denied on the basis that the impingement was caused solely by a pre-existing condition and was unrelated to the workplace injury. (c) Was there a permanent impairment? [17] The employer s representative also submits that the acromioplasty did not leave the worker with a physical or functional abnormality or loss, but improved his shoulder morphology such that he regained full range of motion. [18] The Board determined that MMR was reached by July 25, Based upon a June 13, 2013 six-month follow-up, Dr. Bischoff reported on August 28, 2013 that the worker had some aching, full range of motion, and slight global weakness. In the final report on file, dated September 5, 2013, Dr. Bischoff advised the Board that the worker had full range of motion, 90% strength, and was otherwise normal. [19] While the Board routinely grants NEL benefits for acromioplasty in accordance with its Adjudicative Advice document (set out below), that document refers to surgery ratings but does not explain whether the recommended rating arises from physical or functional loss, or both. The AMA Guides (also set out below) provide ratings for arthroplasty based upon resulting loss of function. I need not determine in this appeal whether a surgically-rendered physical change (from a naturally curved acromion to a flat acromion), which resolves symptoms, specifically constitutes a physical loss. On the medical evidence before me, I am satisfied that the worker had a functional loss of strength, if minor, after his surgery and continuing beyond MMR. As such, I conclude that the worker sustained a compensable permanent right shoulder impairment as a result of his compensable injury and associated surgery. [20] I turn, therefore, to the rating of that impairment. (v) NEL award following acromioplasty [21] The AMA Guides establish shoulder ratings based on amputation or restricted range of motion (section 3.1g); impairment due to peripheral nervous system disorders (section 3.1h); impairment due to vascular disorders (section 3.1i); and impairment due to other disorders (section 3.1j). There is no evidentiary basis in this appeal for ratings for restricted ranged of motion or for peripheral nervous system or vascular disorders. Section 3.1j, Impairment Due to Other Disorders of the Upper Extremity, is to be used when other factors have not adequately rated the extent of impairment, and further allows for discretionary impairment ratings. [22] Within section 3.1j, Tables 17 and 19 include ratings for arthroplasty of specific bones and joints: Table 17 shows relative impairment values for loss of function of the digits, hand, wrist, elbow, and shoulder due to the conditions described below and impairment values for the larger units. This table differs from Figures 2 and 3 (p.15), which show values for amputation at these levels.

6 Page: 5 Decision No. 1185/15 Table 17. Impairment Values for Digits, Hand, Upper Extremity, and Whole Person for Certain Disorders of Specific Joints. % Impairment of Units and Joints Unit Hand Upper Extremity SHOULDER Glenohumeral ELBOW Entire elbow Ulnohumeral... Arthroplasty Whole Person Simple resection arthroplasty is given 40% impairment of the joint value due to loss of function; implant arthroplasty is given 50% impairment of the joint value due to loss of function. Table 19 provides impairment ratings for the upper extremity for arthroplasty of specific joints, based on these values. Table 19. Impairments of Upper Extremity Following Arthroplasty of Specific Bones or Joints. Level of Arthroplasty % Impairment of Upper Extremity Resection Arthroplasty Shoulder Total elbow Implant Arthroplasty [23] The Board has developed a Permanent Impairment (NEL) Rating guideline for Acromioplasty, dated March This is an Adjudicative Advice document, and does not constitute formal policy binding upon the Tribunal. The document establishes a practice of granting a discretionary rating for acromioplasty under section 3.1j, on the basis that the Table 19 rating applies to arthroplasty of the glenohumeral joint and not to acromio-clavicular joint surgeries: The AMA guides do not provide a percentage value for the rating of surgeries to the acromio-clavicular (AC) joint. While the gleno-humeral (GH) joint is in close proximity anatomically to the AC joint, it is a much larger joint and surgery to that joint is much more invasive than the surgeries to the AC joint. For this reason, using the GH joint as an analogy to the AC joint would not be appropriate, as the percentage rating does not reflect the extent of the surgery. A review of Tables 17 and 19, (pp. 48 & 50) from the AMA guides show that there is really no close analogy to other upper extremity surgeries. Dr. B. Heckadon, Associate Medical Director reviewed the relevant authorities and determined in light of the challenge of appropriately rating these cases that a guideline was required. The Claims Quality Loop has endorsed this guideline and directs it be used by all decision-makers.

7 Page: 6 Decision No. 1185/15 Practice guideline The AMA Guides do allow for a discretionary rating where the severity of the clinical findings does not correspond to the true extent of the musculoskeletal defect (p. 52). In absence of a closer analogy for rating AC joint surgeries, the following practice is directed: Acromioplasty Using a discretionary rating, an acromioplasty, including distal clavicle resection, will be rated at 10% upper extremity. This would be combined with other impairment values, such as range of motion loss and would then be reduced to whole person as per AMA guide calculation. [24] Rather than this lower rating, the worker s representative requests a 24% upper extremity rating pursuant to Table 19 of the AMA Guides, relying upon Tribunal Decisions No. 1624/05 and 451/08. However, I prefer and adopt the succeeding analysis, found in Decision No. 2476/09 (followed in Decision No. 1828/10): The worker s primary position relies upon an interpretation of Table 19 that shoulder refers not to a single joint but to any joint involving the shoulder, an interpretation previously accepted by the Tribunal. In contrast, the Board, through its Adjudicative Advice document, asserts that Table 19 refers only to the GH joint as the shoulder joint for which a rating is given. The Vice-Chairs in Decision Nos. 1624/05 and 451/08 held that Table 19 does not distinguish between arthroplasty of the GH joint and arthroplasty of the AC joint, and accordingly ought to apply to both With respect, I disagree with these conclusions. In my view, the wording of the AMA Guides does suggest that the 24% rating for shoulder resection arthroplasty applies only to GH joint arthroplasty. An interpretation of the rating provisions for arthroplasty in section 3.1j of the AMA Guides requires consideration of the text, together with Tables 17 and 19. Table 19 does not exist in isolation. The subsection entitled Arthroplasty (quoted above) establishes a rating formula, granting 40% of the joint value for a simple resection arthroplasty and 50% of the joint value for an implant arthroplasty. The joint values are listed in Table 17 and include, for the shoulder, the GH joint only (valued at 60%). The AC joint is not listed. Table 19 does not create an independent set of ratings, but rather dispenses with the need for calculations by providing the relevant multiple derived from the formula in the text applied to the joint values in Table 17. The results for shoulder in Table 19 are impairment values of 24% for a resection arthroplasty and 30% for an implant arthroplasty; these values are, as the formula requires, 40% and 50% respectively of the GH joint value of 60%. The correspondence between Tables 17 and 19 is thwarted if shoulder in Table 19 is extended to include all joints of the shoulder. Furthermore, the Table 19 ratings are for arthroplasty of specific joints, thus supporting an interpretation of the term shoulder therein as referring not to the entire shoulder area but to the shoulder joint. As noted in section (vii) above, the term shoulder joint is medically synonymous with GH joint, and does not, by definition, include the AC or sternoclavicular joints. Dr. Heckadon, Associate Medical Director at the Board and presumably adopting a medical perspective, also read the relevant provisions and Tables as applying only to GH arthroplasties. To the extent that this may differ from the earlier opinion of another Board physician, Dr. Kanalec, I place substantially greater weight on the opinion of Dr. Heckadon. Dr. Heckadon, with Board oversight and approval, developed a practice for Board-wide rating of all claims involving acromioplasty, whereas Dr. Kanalec addressed a single fact situation of which we have few details. Dr. Heckadon interpreted

8 Page: 7 Decision No. 1185/15 the AMA Guides, referring to both Tables 17 and 19, and considered alternative approaches; it is unclear whether Dr. Kanalec proposed the 24% rating based on an interpretation that Table 19 applied to acromioplasty or based on analogy. The absence of a specific rating for acromioplasty as an arthroplasty under section 3.1j need not mean that the AMA Guides don t provide for the impairment. As noted in section 3.1j, impairment related to upper extremity disorders are generally rated by other parameters, particularly reduced range of motion. An additional rating is required only when other factors have not adequately rated the extent of impairment. Section 3.1j then identifies specific bone and joint deformities, musculotendinous impairments, and other defects for which additional ratings may be made, at the discretion of the examiner. The third category ( Other Musculoskeletal System Defects ) permits an additional, unspecified rating in rare cases when the clinical findings, such as range of motion, do not sufficiently rate the severity of the impairment. The Board has selected a practice consistent with this interpretation of section 3.1j. An acromioplasty (or an arthroplasty of the AC joint), is not specifically rated, but is given a discretionary rating as another defect for which reduced mobility inadequately reflects the impairment. In this appeal, I respectfully disagree with the line of Tribunal decisions which consider Table 19 to be applicable to all arthroplasties involving the shoulder. I give deference to the Board s established Rating guideline for Acromioplasty based on what I consider to be a reasonable interpretation of the AMA Guides: AC joint surgeries are not included in the arthroplasty ratings of section 3.1j (which apply to GH arthroplasties only), but may be rated pursuant to the discretionary provision for other defects therein. In this way, the AMA Guides do provide for the impairment, and the need for consideration of analogous criteria is avoided. The use of a rating guideline to ensure consistent application of this discretionary provision is reasonable and desirable. [25] As such, I conclude that the worker is entitled to a NEL award for the right shoulder in accordance with the Board s Permanent Impairment (NEL) Rating guideline for Acromioplasty. I accept the worker s representative s alternative submission that the worker s condition be rated at 10% combined with other impairment values; however, as noted above, the worker had full range of shoulder motion at MMR, and no other impairment values within the AMA Guides apply. The worker s permanent impairment is therefore rated as a 10% upper extremity impairment. This must be converted to a 6% whole person impairment pursuant to Table 3 of the AMA Guides, Relationship of Impairment of the Upper Extremity to Impairment of the Whole Person. (vi) Conclusions [26] The worker sustained a compensable permanent impairment of the right shoulder, resulting from his workplace injury and the associated surgery, including the acromioplasty. [27] Impairment associated with acromioplasty is appropriately given a discretionary rating pursuant to the Board s Permanent Impairment (NEL) Rating guideline for Acromioplasty and section 3.1j of the AMA Guides, rather than the higher value established for glenohumeral arthroplasty by Tables 17 and 19 of section 3.1j of the AMA Guides. [28] The worker is entitled to a NEL award of 6% for the right shoulder, accordingly.

9 Page: 8 Decision No. 1185/15 DISPOSITION [29] The appeal is allowed in part. The worker has a compensable permanent impairment of his right shoulder. He is entitled to a 6% NEL award. DATED: September 14, 2015 SIGNED: S. Netten