WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2937/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2937/07 BEFORE: J. Goldman: Vice-Chair HEARING: December 17, 2007 at Toronto Oral DATE OF DECISION: December 19, 2007 NEUTRAL CITATION: 2007 ONWSIAT 3280 DECISION(S) UNDER APPEAL: WSIB ARO decision dated March 8, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Mr. Eddy Grisolia, Consultant Not Participating, 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. 2937/07 REASONS (i) Introduction [1] The worker is appealing the decision of the Workplace Safety and Insurance Board (the Board ), dated March 8, In that decision, Mrs. M. Fragomeni, the Appeals Resolution Officer (ARO), denied the worker entitlement to a left shoulder condition. (ii) Background [2] On February 14, 2000, the then 34 year old worker, employed in high-rise restoration, felt a sudden sharp pain in his right shoulder while standing on a ten foot high scaffold, and trying to pry a 30lb block lose from a wall with an electric chipper. He continued working, carrying large blocks, when his right shoulder gave out and he dropped the block he was holding. The worker felt immediate sharp pain and a popping sensation in the right shoulder. [3] The worker was diagnosed with a torn rotator cuff. Dr. Arthur Helman, his family physician, referred him to an orthopaedic surgeon and to physiotherapy. Dr. Helman recommended light work. [4] The worker returned to the accident employer on February 15, He was assigned to work which his employer characterized as light work, and continued in that role until March 20, 2000, when his employer could no longer accommodate him. The worker returned to his employment, in a supervisory role, on May 24, 2000, and remained with his accident employer until July 31, 2000, when, the worker testified, he could no longer continue in his employment due to right shoulder pain. [5] The Board granted the worker entitlement to loss of earnings (LOE) benefits for the right shoulder on a disablement basis. [6] On January 19, 2001, the worker underwent right shoulder arthroscopic debridement, decompression and excision of the distal clavicle. This procedure was followed by physiotherapy treatments for the right shoulder from January 30, 2001, until March 13, [7] Following a medical assessment for non economic loss (NEL), which concluded that the worker had suffered a permanent right shoulder impairment, the worker was granted an eleven percent NEL award. The worker was also granted labour marker re-entry (LMR) assistance. [8] On February 2001, the worker claimed that he was suffering from impingement syndrome in his left shoulder, due to overcompensation for the lack of movement in his compensable right shoulder. The worker claimed entitlement to loss of earnings (LOE) benefits for a left shoulder condition, on the basis of a secondary condition arising from the compensable, right shoulder impairment. [9] In denying entitlement to benefits for a left shoulder condition, the ARO concluded the following: Based on the evidence before, me, I am not persuaded that because of his right shoulder impairment the worker had to overcompensate and use the left shoulder to such an extent

3 Page: 2 Decision No. 2937/07 as to cause injury to the left shoulder. It is noteworthy that the worker has osteoarthritis in the left shoulder, a degenerative condition, which would not have been caused by overcompensation, nor do I accept that this condition was aggravated by any overcompensation. (iii) The Issue [10] The issue for determination in this appeal is whether or not the worker has established entitlement to loss of earnings (LOE) benefits for a left shoulder condition, as a secondary condition arising from work-related right shoulder impairment. This issue turns on the question of whether or not the worker s left shoulder condition is causally related to his compensable right shoulder impairment. (iv) Analysis [11] Having considered the totality of the evidence, I find that the worker has established entitlement to LOE benefits for a left shoulder condition, as a secondary condition, arising from a work-related right shoulder impairment. [12] My reasons are as follows. [13] Because the worker sustained a work-related accident in February 2000, his claim for benefit is governed by The Workplace Safety Insurance Act (the WSIA ). Section 43(1) of the Act provides that a worker who has a loss of earnings as a result of an injury is entitled to LOE benefits as provided by that section. [14] The worker testified that since the mid 80 s he has worked in restoration. The work involved heavy manual labour, stretching, carrying steel and cement blocks weighing more than 60 lbs, and reaching above the shoulders to access damaged masonry. While doing his work the worker was often perched precariously and awkwardly on a swing stage, using both shoulders to chip out damaged brick work with an electric chipper, weighing some 30 lbs. [15] The worker testified that following his right shoulder injury, he returned to work immediately and began using his left shoulder in order to favour his injured right shoulder. He maintains that although his employer changed his duties, the work was not modified or light. The worker continued to carry heavy loads and perform above shoulder work. His right shoulder injury did not improve and, as a result of overcompensation in order to favour his right shoulder, he began to experience left shoulder problems as well. The worker testified that he brought his left shoulder problems to the attention of his treating physicians shortly after his right shoulder condition was diagnosed. [16] Indeed, Dr. R. Saplys, Orthopaedic Surgeon, notes in a report dated September 29, 2000, that as well as his right shoulder condition, the worker complained of let shoulder pain of several months duration, and that the worker has some subacromial crepitus and a positive impingement sign. [17] An MRI scan of the left shoulder performed on May 2, 2000, noted that the findings were consistent with impingement syndrome, but rotator cuff otherwise intact. The report noted moderate to severe osteoarthritic changes of the acromioclavicular joint.

4 Page: 3 Decision No. 2937/07 [18] A physician s Progress Report, dated May 24, 2001, and March 18, 2002, provided by Dr. Helman, the worker s treating physician, indicates left and right shoulder pain and gives the diagnosis of left and right rotator cuff syndrome. [19] On December 18, 2001, Dr. Saplys provided the following report: I was asked to see this 36 year old right-hand dominant man after right shoulder decompresive surgery performed on January of He now complains of left shoulder pain of 1 year duration. This man has similar findings on his left shoulder that he had on his right. He has rotator cuff tendinopathy and acromioclavicular osteoarthritis. I have offered him left shoulder arthroscopy, decompression and distal clavicle excision [20] I am persuaded that following his injury in February 2000, the worker continued to perform heavy manual labour, which involved carrying heavy loads, stretching and over the shoulder work involving both his shoulders, despite the medical restrictions provided by Dr. Saplys. In order to favour his injured shoulder the worker overcompensated by using his left shoulder. [21] I am satisfied that the worker began to experience left shoulder problems almost at the same time as he experienced right shoulder problems. Clearly, his right shoulder problems, given that he is right handed, were more significant and immediate in February Nevertheless, as indicated in the medical evidence, the worker complained of left shoulder problems almost immediately following his right shoulder injury. [22] In coming to my findings that the worker s left shoulder condition is causally related to his compensable right shoulder injury, I have taken into consideration the fact that prior to February 2000, the worker had not experienced either right or left shoulder difficulties. [23] I am also persuaded by the fact, as indicated by Dr. Saplys and Dr. Helman, that the findings on the worker s left shoulder are similar to those on his right. The diagnosis is left and right shoulder impingement syndrome. [24] Significantly, Dr. Helman gave as his opinion that the worker s left shoulder problem is a direct result of his overcompensating with that shoulder, and that the diagnosis of left shoulder impingement syndrome was enough to cause a great degree of pain and discomfort. [25] Board Operational Policy Manual (OPM) Document # , Secondary Conditions, provides that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries [26] The Policy contemplates just such a situation as obtains in the present case. It indicates that entitlement for a secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The Policy provides the following example: The development of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee.

5 Page: 4 Decision No. 2937/07 [27] In Decision No. 1386/03, the Panel noted that there need not be a definitive state of medical certainly in order to support a theory. What is needed, however, is a pragmatic and common sense approach. I have applied such an approach and find that there exists a causal relationship between the worker s left shoulder condition and his right shoulder impairment. The worker is, therefore entitled to benefits for a left shoulder condition, as a secondary condition arising from a work-related right shoulder impairment. [28] In his January 3, 2003, report Dr. Helman refers to MRI findings which, as well as findings consistent with left impingement syndrome, reveal moderate to severe osteoarthritic changes in the left shoulder. In her findings, the ARO refers to the worker s osteoarthritis in the left shoulder as a degenerative condition, which would not have been caused by overcompensation, nor aggravated by it. [29] It is well established in Tribunal jurisprudence that the fact that a worker has a preexisting condition is not necessarily a deterrent to entitlement to benefits. What has to be determined is whether the work-place injury made a significant contribution to the disability from which the worker suffers. [30] In the present case, I find that the worker s use of his left shoulder, in order to compensate for his right shoulder disability, resulted in left shoulder impingement syndrome. Consequently, the worker s compensable right shoulder disability made a significant contribution to the left shoulder disability from which the worker suffers.

6 Page: 5 Decision No. 2937/07 DISPOSITION [31] The appeal is allowed. [32] The worker has established entitlement to a left shoulder condition, as a secondary condition arising from a work-related right shoulder impairment. DATED: December 19, 2007 SIGNED: J. Goldman