WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1047/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1047/15 BEFORE: V. Marafioti : Vice-Chair J. Blogg : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: May 19, 2015 at Hamilton Oral DATE OF DECISION: June 25, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1407 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated August 13, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented The worker's wife attended as an observer Did not participate Not applicable 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. 1047/15 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) M. Ranalli dated August 13, That decision denied the worker initial entitlement for the left shoulder as causally related to his employment duties. The worker attended and provided testimony and submissions. The worker's wife attended as an observer. (ii) The issues [2] The Panel must determine whether the worker has initial entitlement for a left shoulder causally related to his work duties. (iii) Background [3] The background information is provided in the ARO decision and on record which the Panel reviewed and considered. The Panel summarizes the background information as follows. [4] On August 16, 2011, while employed as a Cabinet Maker, the worker advised he was going to a doctor for shoulder pain but did not advise of a work-related accident. The worker had been with the accident employer for 30 years and at this particular job since [5] The initial Health Physician's Report dated August 16, 2011 indicated tendinitis of the supraspinatus tendon and identified a chronic repetitive injury. [6] On December 13, 2011 the worker reported the left shoulder injury to the employer. Essentially the worker attributes the injury to a change in job duties in 1999 when he became a Cabinet Maker. Prior to that time the worker was previously a Carver. [7] Prior to the date of accident on July 21, 2011, the worker had a left shoulder ultrasound and a full thickness tear of the anterior left supraspinatus tendon was identified. [8] The Workplace Safety and Insurance Board (WSIB or the Board) Case Manager determined that proof of a work-related accident could not be established noting the delay in reporting and the lack of an identifiable accident or a change in job duties. The worker objected and the Appeals Resolution Officer (ARO) in the decision dated August 13, 2012 was not satisfied that the work duties as a Cabinet Maker were compatible to the diagnosed left shoulder full thickness tear of the anterior supraspinatus tendon. Noting the lack of compatibility of the diagnosis to the job duties, the ARO denied the worker's request for initial entitlement for the left shoulder. (iv) Law and Board policy [9] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal.

3 Page: 2 Decision No. 1047/15 [10] The Legal Services Division of the Board confirmed that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Policy Package #1 - Initial Entitlement Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [11] The policies will not be duplicated here for practical reasons. The Panel considered the policies in the context of the legislation in arriving at its decision. As the accident date is noted to be in 2011, the WSIA applies. In particular the Panel notes section 2(1) of the Act which states the following: 2(1) In this Act, accident includes, (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) (v) disablement arising out of and in the course of employment; ( accident ) Analysis and conclusions [12] For the reasons that follow, initial entitlement for a left shoulder causally related to the worker's duties as a Cabinet Make is not granted. The Panel considered the policies, the legislation and the testimony and submissions made by the worker. In this claim the worker submitted that there was no chance event and provided 10 points on why he considered that the work duties caused his left shoulder injury. He therefore requests initial entitlement for the left shoulder as causally related to his work duties. In particular the worker indicated that he did not have a motor vehicle accident to cause the left shoulder condition as indicated on record and he went on short-term disability as he was advised by the accident employer to do so. He described his duties which in his view changed from day to day. In essence, he submitted that there was substantial defect in decisions provided by the Board. [13] The worker described his duties as a wood carver and cabinet maker and showed pictures to the Panel of the products that he produced. The worker described his work which consisted also of assembling, trimming, using a small sander, and rotating the wood furniture products he worked on. He described that he saw Dr. Modi and then subsequently saw Dr. Gladstone as Dr. Modi retired. [14] On review of the clinical notes on record, the Panel notes that there is an entry in October 1995 indicating that the worker had pain in the right as well as the left shoulder. The next entry in the clinical notes occurs in 2000 and then subsequently in The Panel notes an entry dated March 31, 2011 indicating that the worker was experiencing left shoulder pain and was prescribed medication. The Panel notes that an imaging report of the left shoulder in April 2011 indicated that the left shoulder was normal. An ultrasound completed on July 21, 2011 of the left shoulder indicated that there was a full thickness tear of the anterior left supraspinatus tendon. In addition the tear extended as a partial-thickness tear into the midsupraspinatus tendon. The Panel notes that the worker has essentially been doing the same work for a number of years before reporting the problem with his left shoulder in The Panel also acknowledges that the worker went on short-term disability benefits instead of applying for Board benefits.

4 Page: 3 Decision No. 1047/15 [15] The Panel reviewed the discussion paper prepared for the Tribunal by Dr. H. K. Uhthoff, orthopaedic surgeon, on the subject of Shoulder Injury and Disability. In particular the Panel noted that the paper indicates that in middle aged or older people, changes inside the tendon make the tendon weaker to the point where the tear may occur spontaneously with no trauma or with trivial trauma. [16] The discussion paper states: As stated before, a severe acute trauma can cause tear, particularly in younger individuals. In that instance, a piece of bone from the humeral head (greater tuberosity) is usually avulsed together with the tendon. Obviously, this must be considered as an injury. As stated above, in middle aged or older people, changes inside the tendon (degenerative changes) make the tendon weaker to a point where the tear may occur spontaneously with no trauma or with trivial trauma. In this instance we are dealing with a chronic tear, a disorder. Work requiring repetitive or prolonged use of arms above the shoulder level (either flexion or abduction) may accelerate the progress of degenerative tendinitis and thus, may predispose to tears (work-related). Small tears may not cause any symptoms. Bigger tears cause a weakness and usually cause pain, mostly on abduction. The symptoms are usually made worse when attempting to lift the arm away from the body and the weakness is felt when performing activities with the arm at shoulder level or above it. A change of work is often required. Although degenerative tears of rotator cuffs of both shoulders are not uncommon, symptoms rarely occur at the same time. Is there a relationship between isolated injury or recurrent disorders and partial or complete rotator cuff tears? There is definitively a strong relationship. However, since most partial and complete tears occur in the middle aged and older person, pre-existing degenerative changes causing a weakness in tension of the tendon must have contributed. As already stated, certain repetitive movements required by work can accelerate the development of degenerative changes. This raises the question of the importance of a pre-existing condition, which in certain workers can be activity related. Therefore, there is a strong correlation between a shoulder disorder and partial and complete tears. Even after a most successful repair of a rotator cuff tear, a complete recovery of function and strength cannot be expected in the middle aged and older worker. [17] The Panel reviewed the worker's work duties and is satisfied that the worker performed a wide range of activities including assembling, trimming, machining, essentially work in a production environment. The Panel notes that any lifting when over a certain weight was done by two people or a lift truck. [18] On review and consideration of all of the evidence in the context of the legislation and Board policy, the Panel did not find evidence of compatibility of the diagnosed left shoulder condition to the work performed. On review of the medical evidence in particular, the Panel is not satisfied that there is support for the worker's injury as being work-related.

5 Page: 4 Decision No. 1047/15 DISPOSITION [19] The worker's appeal is denied. Initial entitlement for the worker's left shoulder as causally related to his work duties is denied. DATED: June 25, 2015 SIGNED: V. Marafioti, J. Blogg, J. A. Crocker