WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1144/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1144/15 BEFORE: N. Perryman: Vice-Chair HEARING: May 20, 2015 at Toronto Written DATE OF DECISION: June 29, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1429 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated June 10, 2014 APPEARANCES: For the worker: For the employer: Interpreter: J. Vieira, Paralegal Not participating 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. 1144/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker does not have entitlement to a non-economic loss (NEL) award for his right shoulder. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [2] The only issue before the Tribunal is recognition of a permanent impairment for and entitlement to a NEL assessment for a compensable right shoulder injury. (iii) Background [3] The now 53-year-old worker started with the accident employer on July 7, On July 22, 2003 the worker fell after attempting to pull a lock off a garbage corral door with vise grips. The worker hit the wall first before falling to the ground. The worker was employed with the accident employer as a restaurant manager at the time. The worker is no longer employed with the accident employer. [4] The worker was granted initial entitlement for a right shoulder strain and left elbow laceration. In addition, the worker eventually received entitlement for his right elbow as a result of the accident and a NEL award for the same body part. The worker did not initially miss any time from work. The worker s family physician, Dr. S. Traplin, recommended that the worker be restricted to performing light duties. A complete recovery was expected by Dr. Traplin and the worker s physiotherapist, Mr. M. Suvernpatki. [5] The worker continued to experience pain in relation to his right shoulder after the accident. An MRI, dated October 22, 2003, of the worker s right shoulder and elbow showed that the worker had intermediate to high T2 signals in both the supraspinatus and the infraspinatus tendons consistent with a combination of tendinosis and partial tears and a full thickness tear in the supraspinatus tendon with the defect measuring approximately 12 mm x 10 mm x 8 mm. The MRI also showed that there were degenerative changes at the acromioclavicular joint scalloping the superior fibres of the supraspinatus tendon. A subsequent ultrasound dated November 17, 2003 confirmed that there was a full thickness tear measuring 0.5 cm x 1.94 cm in its sagittal and transverse diameter respectively at approximately 1.9 cm from the bicipital tendon. The tendons of the long head of biceps, subscapularis and infraspinatus were reported to be of normal size and configuration with normal echotexture and no evidence of a tear. [6] Dr. G. Stamp, an orthopedic surgeon, noted on December 5, 2003 that the worker opted to have surgery on the right shoulder to repair the tendon. The worker was scheduled for a right shoulder arthroscopic/open rotator cuff repair on February 19, Dr. Stamp performed the arthroscopic procedure on February 19, Dr. Stamp was hopeful that the surgery would resolve the worker s symptoms in his right shoulder. The worker returned to modified duties and hours on April 5, He returned to full-time hours on June 16, 2004.

3 Page: 2 Decision No. 1144/15 [7] The worker was off work from April 30, 2004 to May 30, 2004 due to pain in his right elbow. Entitlement for the right elbow was subsequently granted in relation to the July 22, 2003 compensable accident. The worker was granted a 5% NEL for the right elbow on October 5, The worker returned to work on modified duties and hours again on May 31, [8] The accident employer requested a review of the Second Injury Enhancement Fund cost relief. SIEF relief was granted at 75% on December 9, The Board determined that the worker s injury was minor in nature and that he had a pre-existing condition. [9] On June 5, 2013, the worker requested recognition of a permanent impairment and NEL assessment for the right shoulder. The initial decision of June 18, 2013 denying recognition of a permanent impairment and a NEL assessment for the right shoulder was eventually appealed to the ARO. It is this decision that is now before the Tribunal. (iv) Law and policy [10] Since the worker was injured in 2003, 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. [11] Section 46(1) of the WSIA states that a worker is entitled to compensation for his or her non-economic loss if the worker s injury results in a permanent impairment. Impairment and permanent impairment are defined in section 2(1) of the WSIA as follows: impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss; permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [12] Pursuant to section 126 of the WSIA, the Tribunal is required to apply any applicable Board policy when making a decision. The policies identified by the Board as relevant to this claim are contained in Addendum 1 of the record. [13] I have considered these policies as necessary in deciding the issue in this appeal, in particular: Operational Policy Manual (OPM) Document No , NEL Entitlement; and OPM Document No , Determining the Degree of Permanent Impairment. (v) Submissions [14] The worker s representative submits that the worker s right shoulder never fully recovered following the February 19, 2004 surgery. She submits that there is no medical documentation to suggest that the worker s right shoulder had completely recovered. The worker s representative submits that the majority of the clinical notes in the record refer to the worker having ongoing pain in the right shoulder. In particular, she points to a clinical note by Dr. Traplin dated August 18, 2006 which concludes that a complete recovery is not expected and as a result the worker has permanent restrictions including no heavy lifting, pushing or pulling with the right arm.

4 Page: 3 Decision No. 1144/15 (vi) Analysis [15] The appeal is allowed. The worker has a permanent impairment in his right shoulder as a result of the compensable workplace accident and is therefore, entitled to a NEL assessment. In coming to this conclusion, I have reviewed all of the information contained in the record and particularly the medical findings of the worker s family physician and the specialists reports, part of which are detailed below. [16] I accept that the worker experienced pain in his right shoulder from July 22, 2003 to February 19, 2004, the date of the surgery. The surgery performed by Dr. Stamp was successful in repairing the worker s rotator cuff tear in the right shoulder. The surgery included an arthroscopic acromioplasty in addition to the rotator cuff tendon repair. [17] Following the surgery, I find that the worker s symptoms in his right shoulder improved. The worker returned to work on April 5, The Functional Abilities Form (FAF) completed by Dr. Traplin, dated March 2, 2004, indicated that a complete recovery was expected. Further, FAFs completed by Dr. Traplin on March 16, 2004 and Mr. Suvernpatki on April 30, 2004 both indicated that the worker was expected to make a full recovery with respect to the right shoulder. The worker was off work from April 30, 2004 to May 30, However, this was solely due to pain in the worker s right elbow. [18] Dr. Stamp, in a letter addressed to Dr. Traplin dated May 28, 2004 indicated that the worker demonstrated full range of motion of the shoulder, however, he noted that the worker had a catching sensation in his shoulder likely related to weakness in the right shoulder. Between May 28, 2004 and June 27, 2006, there is no evidence of continuing complaint of pain in the right shoulder as there are no medical records provided for this period. [19] The worker begins complaining of shoulder pain again in June Dr. Traplin s clinical note of June 27, 2006 states that the worker had an onset of right shoulder pain similar to the pain the worker experienced two years prior. [20] Dr. Traplin s clinical notes show the following: The worker had an x-ray of his cervical spine on November 20, The x-ray of the cervical spine showed minimal spurring at C5 and C6. It was suspected that this was evidence of the early signs of Degenerative Disc Disease (DDD). On December 19, 2006, the worker complained of pain radiating down his right arm. Dr. Traplin opined that the worker had cervical degenerative disc disease and recommended cervical traction. The worker was referred to a neurologist, Dr. R. Singh. Dr. Singh s report of January 3, 2007 indicated that EMG and nerve conduction studies were performed on the right upper limb. Dr. Singh concluded that these studies showed evidence of a right CS radiculopathy which is correlated to the x-ray of the cervical spine. Dr. Singh confirmed Dr. Traplin s clinical diagnosis. Dr. Singh concluded that the worker s symptoms will likely improve with physiotherapy. However, it is noteworthy that Dr. Singh noted that there was evidence of the previous surgery on the right shoulder. A MRI of the worker s cervical spine on May 5, 2007 confirmed cervical disc disease at C6-C7.

5 Page: 4 Decision No. 1144/15 Dr. Traplin referred the worker to Dr. K. Reddy, a neurologist. In Dr. Traplin s referral letter of February 13, 2007 he states that he feels that the worker is suffering from cervical disc disease and was requesting an opinion on whether the worker is an appropriate candidate for surgery. Dr. Reddy, in a report dated August 20, 2007, noted that examination of the cervical spine revealed decreased range of motion in all directions and painful at the extremes. Dr. Reddy also noted that the worker presented with a history of neck and right upper limb pain since Shoulder movements were actually quite normal on both sides, however; Dr. Reddy did acknowledge that the worker has some residual pain in the right shoulder in relation to the right rotator cuff injury. The worker saw an anesthesiologist, Dr. K. Billings, who provided the worker s family physician with reports on January 23, 2008 and March 4, Dr. Billings diagnosis included the following: chronic pain syndrome, cervical disc disease, radiculopathic pain in the right arm, myofascial pain in both shoulders, osteoarthritis of the cervical spine. Dr. Billings observed that the worker had severe tenderness in the right shoulder compared with moderate tenderness in the left shoulder. The worker also had decreased range of motion with pain at the end range. [21] Finally, Dr. M. Herman, the worker s chiropractor stated in a report dated March 6, 2014 that the chronic ongoing degeneration of the cervical spine (with loss of range of motion and radicular involvement) is significantly impairing the resolution of the shoulder and contributing to the loss of ROM and power. Dr. Herman diagnosed the worker with chronic capsulitis in the right shoulder. [22] The medical reports highlighted above show that the worker is likely also now suffering from chronic pain and cervical disc degeneration disease. The issue of entitlement for chronic pain and cervical disc degeneration disease is not before me. It also shows that the worker s symptoms in the upper right extremity presented as more severe than the left side. Given the history of the compensable surgery on the right shoulder, including an acromioplasty, it is reasonable to conclude that the right shoulder did not completely resolve after the surgery despite the worker demonstrating full range of motion and that the worker has a permanent impairment. [23] In reaching this conclusion, I note that the Board has developed a Permanent Impairment (NEL) Rating guideline for Acromioplasty as an Adjudicative Advice document, dated March This document establishes a practice of granting a discretionary rating for acromioplasty under section 3.1j, Other Musculoskeletal System Defects. The Adjudicative Advice document states the following: 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 (pg. 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.

6 Page: 5 Decision No. 1144/15 [24] While the Tribunal is required to apply Board policy when making its decisions pursuant to section 126 of the WSIA, Adjudicative Advice documents are not Board policy. Consequently, these documents are not binding on the Tribunal. However, there are a number of Tribunal decisions that have exercised this discretion with respect to the granting of benefits for workers who have undergone an acromioplasty such as Decision No. 1067/14. [25] In summary, based on the Board s Adjudicative Advice document and considering the worker s compensable surgery, including an acromioplasty, I find that the worker has a permanent impairment resulting from the compensable accident for the right shoulder. Therefore, the worker s request for a permanent impairment and NEL assessment for the right shoulder arising from the July 22, 2003 workplace accident is allowed. I will leave it up to the Board to determine the NEL quantum, subject to all of the usual rights of appeal.

7 Page: 6 Decision No. 1144/15 DISPOSITION [26] The appeal is allowed. The worker has a permanent impairment in his right shoulder and is therefore entitled to a NEL assessment. DATED: June 29, 2015 SIGNED: N. Perryman