WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1673/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1673/16 BEFORE: K. Iima: Vice-Chair HEARING: June 27, 2016 at Toronto Oral DATE OF DECISION: September 28, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2614 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated July 16, 2013 APPEARANCES: For the worker: For the employer: Interpreter: D.J. Porter, Paralegal 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. 1673/16 REASONS (i) Introduction [1] The worker appeals a decision of the Appeals Resolution Officer (ARO), which confirmed that the quantum of the non-economic loss (NEL) award for the left shoulder was correctly rated at 9.75%. The ARO also denied ongoing entitlement for the right shoulder strain, as well as entitlement for the right shoulder tear, a NEL award for the right shoulder, and additional physiotherapy treatment for both shoulders. [2] The ARO rendered a decision based upon a written record without an oral hearing. (ii) Issues [3] The issues under appeal are as follows: 1. The quantum of the NEL award for the left shoulder; 2. Whether the worker has ongoing entitlement for the right shoulder strain; 3. Whether the worker has entitlement for the right shoulder tear; 4. Whether the worker has a permanent impairment and entitlement to a NEL award for the right shoulder; and 5. Whether the worker is entitled to additional physiotherapy treatment for both shoulders. (iii) Background [4] The worker started as a forming operator with the accident employer, an electrical steel and core manufacturing company, in On May 11, 2009, he reported a gradual onset of pain in the left shoulder due to a malfunctioning conveyor belt on the forming machine he was operating. This resulted in the worker having to pull heavy cores into the machine, and to push and flip the cores out of the machine, using his left arm. [5] The Board recognised entitlement for the left shoulder and allowed health care benefits as there was no lost time from work initially. The worker returned to modified duties, using only his right arm/shoulder to set up formers. The worker is right hand dominant. [6] An MRI scan of the left shoulder conducted on August 19, 2009, revealed a full thickness tear involving the mid and posterior fibers of the supraspinatus, a Type II acromion and moderate acromioclavicular joint degenerative disease. On September 17, 2010, the worker underwent surgical repair of the torn rotator cuff in the left shoulder. [7] The worker subsequently returned to modified work on a graduated schedule starting at six hours per day as of March 14, A Functional Abilities Form (FAF) dated March 8, 2011, noted the worker had restrictions of: lifting up to five kilograms from floor to waist; no lifting from waist to shoulder; no ladder climbing; no work at or above shoulder level; no repetitive gripping or pinching with the left hand; limited pushing/pulling with the left arm; no operating motorized equipment; and avoiding exposure to vibration of the left hand/arm.

3 Page: 2 Decision No. 1673/16 [8] The worker reported experiencing an onset of pain in the right shoulder on April 14, 2011, which he attributed to his modified duties of setting up formers using his right arm only. In order to help alleviate the worker s pain, the employer had assigned him to a unicore position (i.e., working with handbuilt cores). However, after two days in the unicore position, the worker reported that he could not move his right shoulder/arm. The worker s family physician provided a diagnosis of a strain injury to the right shoulder. [9] The Board granted entitlement to health care benefits for the right shoulder strain injury as a gradual onset disablement. There was no lost time from work as the worker continued to perform modified duties in the test pack area. The worker s duties as a tester and packer consisted of lifting small cores weighing two to four pounds from table top to table top with no over the shoulder level work and minimal pushing and pulling. [10] Entitlement for the right shoulder was initially allowed under a separate claim. However, pursuant to the worker representative s request, the Workplace Safety and Insurance Board (WSIB or the Board) Eligibility Adjudicator determined, upon reconsideration, that the worker s right shoulder strain injury was directly related to his prior compensable left shoulder injury. Consequently, the right shoulder claim was amalgamated into the claim for the left shoulder, and allowed as a secondary condition arising from overuse of the right arm due to a left shoulder disability. [11] In a decision dated February 2, 2012, a Board Case Manager determined there was no further entitlement for the right shoulder. He noted that entitlement was limited to a right shoulder strain only, and the Regional Evaluation Centre (REC) report indicated that the worker had a right rotator cuff tear, which likely predated his April 14, 2011 onset of right shoulder symptoms. As a result, the Case Manager concluded that the worker s right shoulder strain would have likely resolved by the end of his physiotherapy treatment on September 19, 2011, and the worker s ongoing symptoms were likely related to his non-compensable right shoulder tear. [12] On March 29, 2012, the Board granted the worker a NEL award of 9.75%, in recognition of a permanent impairment to the left shoulder. [13] The Board also denied the worker s claim for additional physiotherapy treatment for both shoulders in a decision dated December 4, The worker s request for a reconsideration of this issue was denied on January 18, [14] In 2012, the worker was referred to physiatrist, Dr. D.A. Kumbhare, regarding his shoulder pain. Dr. Kumbhare noted restrictions of avoiding overhead work and minimizing heavy lifting and carrying for an indefinite duration. As the worker s condition remained unchanged despite conservative treatment, the physiatrist referred him to orthopaedic surgeon, Dr. M.R. Denkers. [15] On March 3, 2014, Dr. Denkers performed surgery on the worker s right shoulder, consisting of an arthroscopic subacromial decompression with acromioplasty and distal clavicle coplaning resection. The worker returned to modified duties on a graduated schedule as of April 15, 2014, as authorized by Dr. Denkers. Although the worker s initial restrictions had included no repetitive or above shoulder activity, or work requiring force greater than one kilogram, Dr. Denkers noted in a report dated June 2, 2014, that the worker had also been

4 Page: 3 Decision No. 1673/16 scanning work orders which involved repetitive movement. The worker continues to perform modified duties with the accident employer. [16] The worker s objections to the denial of ongoing entitlement for the right shoulder strain, as well as recognition of a permanent impairment to the right shoulder, and entitlement to additional physiotherapy treatment for both shoulders, were upheld at the appeals level of the Board. The ARO also concluded that the quantum of the NEL award for the left shoulder had been correctly determined and that the worker did not have entitlement for a right shoulder tear. [17] The worker now appeals these issues to the Tribunal. (iv) Law and policy [18] 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. [19] Section 46 of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. 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. [20] Legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition (revised) (the AMA Guides). [21] Section 126 requires the Tribunal to apply Board policy when making its decisions. [22] Board policy on the effect of a pre-existing impairment (Operational Policy Manual (OPM) Document No ) states: Policy When calculating NEL benefits for workers who have a pre-existing permanent impairment, the WSIB rates the area of the body affected by the new permanent impairment disregards any pre-existing permanent impairments affecting other areas of the body, and factors out pre-existing permanent impairments affecting the same area of the body. Pre-existing non work-related impairments New injury affecting the same body area If both impairments affect the same area of the body, and the pre-existing impairment is measurable, the WSIB rates the total impairment to the area

5 Page: 4 Decision No. 1673/16 determines the rating for the pre-existing impairment, and subtracts the rating for the pre-existing impairment from the total impairment rating to get the rating for the new work-related impairment. If the pre-existing impairment is not measurable, the WSIB NOTE rates the total area's impairment, and reduces this rating according to the significance of the pre-existing impairment (see pre-accident disability in , Second Injury and Enhancement Fund). o o o if minor, there is no reduction if moderate, there is a 25% reduction if major, there is a 50% reduction. A pre-existing impairment is measurable or non-measurable depending on whether it can be rated using the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition (revised). This determination is based strictly on the clinical information available at the time of the work-related injury. [23] The above-referenced policy on the Second Injury and Enhancement Fund (SIEF) (OPM Document No ), primarily addresses cost relief for employers due to a pre-existing disability or condition, but also addresses the impact on workers NEL benefits. A definition of pre-accident disability is found in the SIEF policy, where it is contrasted with pre-existing condition : 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. [24] The SIEF policy restates the impact on permanent benefits, including NEL benefits: Worker Permanent Benefits When the pre-existing condition is not measurable, but creates a pre-accident disability that enhances a residual work-related disability, the worker's benefit for work-related disability may be reduced according to the percentage of disability produced by the pre-existing condition. [25] While not mentioned in OPM Document No , a definition of pre-accident impairment is found in Board policy on aggravation basis entitlement (OPM Document No ): A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. [26] 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 [27] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2) of the WSIA, the benefit of the doubt is resolved in

6 Page: 5 Decision No. 1673/16 favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. (v) Analysis [28] The worker s appeal is allowed in part for the reasons set out below. (a) Quantum of the NEL award for the left shoulder [29] The worker s representative submitted that the specific quantum pertaining to the range of motion (ROM) measurements relied upon by the NEL Clinical Specialist was not at issue. Rather, Mr. Porter submitted that the issue was whether or not the NEL Clinical Specialist had relied upon the correct ROM measurements, given the Nurse Consultant s opinion that the worker had reached maximum medical recovery (MMR) as of June 16, [30] The NEL Evaluation of March 27, 2012 indicates an MMR date of October 4, As such, the NEL Clinical Specialist relied upon the ROM measurements set out in the Physiotherapist s Treatment Extension Request dated May 16, 2011, and the Physician s Special Report of orthopaedic surgeon, Dr. A.M. Porte, dated October 4, 2011, to calculate the worker s impairment in range of motion of the left shoulder. The MMR date of October 4, 2010 was provided in a Case Manager s memorandum of February 1, 2012, in which the Case Manager noted [i]t would appear the worker has reached MMR as per the date of the 43 oct 4, 2010 [sic]. However, in my view, the medical evidence does not demonstrate that the worker had reached MMR as of October 4, In this regard, I note that Board policy on determining maximum medical recovery (OPM Document No ) provides that: Workers reach maximum medical recovery (MMR) when they have reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment. [31] Of note, the worker had undergone compensable surgery to his left shoulder on September 17, 2010, consisting of a partial decompressive acromioplasty, debridement of the greater tuberosity, and a complex rotator cuff tear repair. Furthermore, I note that as of October 4, 2010 (i.e., approximately two weeks post surgery): the worker was still actively participating in physiotherapy treatments; the physiotherapist(s) continued to report improvements in the worker s ROM, strength, and pain level, resulting in the Board granting physiotherapy treatment extension requests up to June 16, 2011; and the worker had not yet been medically authorized to return to modified duties. Given the above, I agree with Mr. Porter that the MMR date of June 16, 2011, as determined by the Nurse Consultant, would appear to be more consistent with the worker having reached MMR in respect of the left shoulder. [32] The medical reports containing ROM measurements for the left shoulder contemporaneous to June 16, 2011 are: the Physician s Special Report of Dr. Porte dated October 4, 2011, and the Regional Evaluation Centre Report of October 31, As Dr. Porte s report provides measurements for abduction (90 degrees), external rotation (30 degrees), and internal rotation (30 degrees) only, I have used the measurements provided in the REC report for flexion (90 degrees), extension (50 degrees), and adduction (40 degrees) to 1 In Board memorandum dated May 18, 2011, the Nurse Consultant allowed the physiotherapy treatment extension request to June 16, 2011, and noted that the worker would be considered at MMR with permanent restrictions at that time. The Nurse Consultant also indicated that she had referred the matter to the Case Manager for a NEL assessment.

7 Page: 6 Decision No. 1673/16 calculate the worker s corresponding impairment in range of motion of the left shoulder after reaching MMR, as follows: Abnormal Motion Joint Movement Angle % Impairment Left shoulder Flexion 90 6% Extension 50 0% Left shoulder Abduction 90 4% Adduction 40 0% Left shoulder Internal Rotation 30 4% External Rotation 30 1% [33] Pursuant to the AMA Guides, the above impairment values for loss of each shoulder motion are added to determine the impairment of the upper extremity, as related to abnormal shoulder motions, for a total of 15%. The impairment value assigned by the NEL Clinical Specialist for other non-scheduled impairments (i.e., in this case, 10% for acromioplasty) is combined with the abnormal motion impairment value of 15% for a result of 24%. The left upper extremity impairment of 24% is then reduced to a whole person impairment of 14%. [34] While there are some variations in the worker s ROM for the left shoulder documented in subsequent medical reports, notably, the overall level of abnormal motion impairment for the left shoulder appears to have remained at 15%. This is demonstrated in the reports of Dr. Porte dated February 25, 2013, Dr. Kumbhare dated June 12, 2013, and Dr. M. Cooper dated March 28, 2014, the most recent report on file containing ROM measurements for the left shoulder. In my view, the overall consistent level of abnormal motion impairment for the left shoulder, particularly as reflected in the latter two reports of Dr. Kumbhare and Dr. Cooper, further supports the Nurse Consultant s opinion that the worker had reached MMR for the left shoulder in or about June [35] In regard to the application of Board policy on the effect of a pre-existing impairment, I accept and adopt the reasoning set out in a number of Tribunal decisions 2 which have interpreted OPM Document No to signify that a NEL award may be reduced only where a pre-existing impairment or disability is present. Thus, in accordance with the definitions set out in Board policies noted above, a pre-existing impairment exists where there have been periods of disability, impairment or illness in the past which required treatment and disrupted employment. However, a pre-existing condition (an underlying or asymptomatic condition made manifest) alone, is not sufficient to permit a reduction of NEL benefits. [36] According to the NEL Evaluation of March 2012, the NEL Clinical Specialist reduced the worker s NEL award by 25% based on moderate AC joint arthritis. While there is no dispute that an MRI of the worker s left shoulder on August 19, 2009 revealed findings of moderate acromioclavicular joint degenerative disease, there is no evidence before me that these changes had ever been symptomatic, required treatment, or interfered with the worker s ability to work prior to his left shoulder injury in May I note, however, that the medical evidence demonstrates the worker had ongoing and increased problems with his left shoulder following his workplace injury, and the worker has not since been able to return to his pre-injury job as a forming operator. 2 See for example Tribunal Decision Nos. 530/05, 204/14, 471/15, 10/15, and 73/15.

8 Page: 7 Decision No. 1673/16 [37] In my view, the medical evidence supports a finding that the degenerative changes evident in the worker s MRI were an underlying, asymptomatic, pre-existing condition: the worker had been able to perform his regular job duties without medical precautions or restrictions, and there was no indication that he had lost time from work due to his pre-existing condition. In the absence of evidence that the pre-existing condition had resulted in periods of impairment or illness requiring health care or caused a disruption in the worker s employment, I find that this condition was not a pre-existing impairment within the meaning of Board policy. Consequently, there is no basis upon which the NEL award may be reduced pursuant to OPM Document No [38] Therefore, the worker is entitled to the full NEL award of 14% for the left shoulder, as determined above, without reduction for the pre-existing condition. (b) Ongoing entitlement for the right shoulder and entitlement for the right shoulder tear [39] As discussed above, the Board allowed entitlement for the right shoulder strain as a secondary condition arising from overuse of the right arm due to the work-related left shoulder disability. Although the worker did not lose time from work, he continued to perform light duties as a tester and packer, including: visually inspecting coils and recording serial numbers; lifting small cores weighing two to four pounds; and scanning work orders. [40] In the first Health Professional s Report (Form 8) with respect to the worker s right shoulder, family physician Dr. R. Zizzo indicated that the worker could not lift with either shoulder/arm and that the lifting restriction likely should be a permanent restriction. The worker participated in physiotherapy treatment, as recommended by Dr. Zizzo, but reported ongoing issues of limited mobility and pain in his right shoulder, as documented in the medical reports on file. In this regard, I note the following medical information: The Health Professional s Report from Dr. P. Faulkner, dated October 8, 2011, noted that the worker was able to continue performing modified duties which did not involve lifting with the right arm. The REC report of October 31, 2011 documented the worker s symptoms of pain, aggravated by over the shoulder level activity, direct pressure, and throwing activities, as well as decreased ROM. The assessment team concluded that the worker was partially recovered at that time and that full recovery [was] not expected but may continue to improve for 12 weeks. An FAF completed by Dr. Zizzo on November 4, 2011 documented the worker s ongoing restrictions of lifting, pushing/pulling, bending/twisting repetitive movement, and work at or above shoulder level. In a follow-up report dated September 4, 2012, Dr. Kumbhare noted that the worker s physical examination had remained unchanged. The physiatrist referred the worker for physiotherapy and recommended work restrictions of avoiding overhead work, and minimizing heavy lifting and carrying for an indefinite duration. An FAF completed by the physiotherapist on January 7, 2013, reported decreased active ROM measurements in the worker s shoulders.

9 Page: 8 Decision No. 1673/16 On February 25, 2013, Dr. Porte reported that the worker continued to have pain and decreased ROM in both shoulders. The orthopaedic surgeon indicated that he considered the worker to have reached MMR. In a report dated June 12, 2013, Dr. Kumbhare noted the worker s symptoms of pain and decreased ROM in both shoulders. Dr. Kumbhare indicated that the worker continued to be on modified duties as he had difficulty doing any over the shoulder activities. He referred the worker to orthopaedic surgeon, Dr. Denkers, for a surgical consultation. [41] Following a physical examination of the worker and review of diagnostic imaging results, Dr. Denkers opined that the findings were consistent with a right shoulder full thickness rotator cuff tear. On March 3, 2014, Dr. Denkers performed surgery on the worker s right shoulder. Although the pre-operative diagnosis was a right shoulder rotator cuff tendon tear, full thickness to supraspinatus, the post-operative diagnosis and surgical procedures described in the operative report appear to indicate that no repair to the rotator cuff was required: POST-OPERATIVE DIAGNOSIS: Right shoulder subacromial impingement syndrome with type 2 acromion and hypertrophic distal clavicle, intact rotator cuff. TYPE OF PROCEDURE PERFORMED: Right shoulder arthroscopic subacromial decompression with acromioplasty and distal clavicle coplaning resection. [42] The operative report noted the presence of mild articular surface fraying of supraspinatus and some mild fraying and tendinopathic changes to the bursal surface of the rotator cuff, but there appeared to be no indication of a tear to the rotator cuff. Dr. Denkers reported: Diagnostic arthroscopy confirmed with probing revealed intact rotator cartilage, glenohumeral articular surfaces. Circumferential labrum was intact. There was some hyperemia at the base of the long head biceps tendon which was not torn and was well situated in the groove. Subscapularis was intact. There was mild articular surface fraying of supraspinatus which was debrided back with a 4 mm oscillating shaver to reveal less than 5% articular surface fraying. Infraspinatus was intact on subarticular surface. Arthroscope was then inserted in the subacromial space and lateral working portal created. A 4 mm oscillating shaver and ablation tip cautery wand were used to perform a subacromial decompression and bursectomy. Bursal surface of the rotator cuff was exposed. There was some mild fraying and some tendinopathic changes, but no discrete tear was identified on the bursal side. Type 2 acromion was exposed and acromioplasty performed to smooth stable undersurface with a 5 mm barrel burr. The inferior aspect of the distal clavicle was hypertrophic and impinging on the supraspinatus muscle belly and as such the distal clavicle coplaning resection was performed in a smooth and stable undersurface.. [43] The surgical procedures performed on the worker s right shoulder were confirmed in post-operative follow-up reports from Dr. Denkers, as well as in an Attending Physician s Statement for long-term disability income benefits, completed by Dr. Denkers on April 28, 2014.

10 Page: 9 Decision No. 1673/16 The worker s primary diagnosis was a right shoulder subacromial impingement syndrome and the secondary diagnosis was a hypertrophic distal clavicle. [44] In considering whether there is a causal link between the worker s right shoulder condition and his job duties, I turn to the Tribunal s Medical Discussion Paper, Shoulder Injury and Disability. 3 In response to the question of whether there is a relationship between an isolated injury to and recurrent disorders of the shoulder and impingement syndrome, Dr. H.K. Uhthoff states: I do not think that an isolated injury can induce an impingement syndrome. However, recurrent episodes and, more so, repetitive work and/or sports activities can cause an impingement (a disorder), usually secondary to wear and tear of the rotator cuff tendons. [45] As documented in Board memorandum dated June 16, 2011, the Eligibility Adjudicator accepted that the worker had strained his right shoulder/arm on April 14, 2011 as a result of repeated lifting of parts weighing 10 to 20 pounds. The Adjudicator noted that although the worker had subsequently been assigned to lighter work for a couple of days, the lighter work was more repetitive [and] did not improve the situation. The Adjudicator also noted that as of June 15, 2011, the worker was performing a job which suited his no lifting restrictions and the worker was having fewer issues. Therefore, given the repetitive nature of the worker s duties which was accepted as causally related to his right shoulder strain, I find on a balance of probabilities that the worker s job duties were more likely than not a significant contributing factor to his right shoulder subacromial impingement syndrome. While I acknowledge that the worker is right hand dominant and the operative report of Dr. Denkers confirmed mild fraying of the supraspinatus and the bursal surface of the rotator cuff, in my view, these factors do not necessarily preclude ongoing entitlement for the right shoulder. As is well established in Tribunal jurisprudence, the workplace duties need not be the sole cause of the worker s condition as long as they are a significant contributing factor. Notably, according to Dr. Uhthoff, degenerative processes inside the rotator cuff can be made worse by repeated activities with the hands at shoulder level. I also note that the medical evidence on file supports the worker s evidence that he did not have any problems of significance with his right shoulder prior to April Specifically, it does not appear that the worker required treatment for his right shoulder, or that it had interfered with his ability to work, prior to April [46] However, given the findings and surgical procedures described in Dr. Denkers operative and post-operative reports, I find there is insufficient evidence before me to conclude that the worker had a right shoulder tear. I note that in determining the worker s pre-operative diagnosis, 3 Prepared by Dr. H.K. Uhthoff, an orthopaedic surgeon and Professor Emeritus in the Department of Surgery at the University of Ottawa; revised October The Tribunal s Medical Discussion Papers deal with medical topics which frequently arise in appeals. They are written by independent experts who are recognized in their fields of specialization. The papers are not peer-reviewed publications, but are rather intended to provide parties and representatives with a broad, general overview of medical topics. A discussion paper is included in the case materials for an appeal when it appears that the paper may provide some relevant background to an issue in dispute. Medical discussion papers are also available on the Tribunal s website and in its Library. A Vice-Chair/Panel is not bound by any information or opinion expressed in a discussion paper, but may consider and rely on the general medical information provided by the paper. Every Tribunal decision must be based upon the facts of the particular appeal. It is always open to the parties to rely upon a discussion paper, or to distinguish or challenge it with alternative evidence. See Kamara v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2009] O.J. No (Ont Div Court).

11 Page: 10 Decision No. 1673/16 Dr. Denkers relied in part on the ultrasound report of the worker s right shoulder dated August 2, 2013, which indicated that the worker had a full thickness tear within the mid to posterior supraspinatus tendon. As explained in the Tribunal s Medical Discussion Paper, Symptoms in the Opposite or Uninjured Arm, 4 ultrasound imaging studies of the rotator cuff [require] a high degree of interpretive skill, and [have] significant degrees of false positive and false negative results. Thus, it would appear that although the worker was initially diagnosed with a full thickness rotator cuff tear to the supraspinatus tendon, the operative findings indicated instead the presence of mild articular surface fraying of the supraspinatus. These findings are also significant as the REC assessment team had relied upon the ultrasound report in providing a diagnosis of partial rotator cuff tear, and concluding: This rotator cuff tear may be a longstanding degenerative tear particularly without a history of traumatic origin. Regardless, the repetitive use of the right shoulder may have aggravated this chronic tear. [47] I also note that in a pre-operative MRI report of the worker s right shoulder, there appears to be no reference to a rotator cuff tear. The January 2014 report, prepared by Dr. G. Mitton, indicated: Multiple views of the right shoulder region have been obtained. The humeral head has a smooth contour and is well positioned within the glenoid fossa. The AC joint is intact. There is no significant soft tissue swelling around the AC joint. There are subtle horizontally-orientated lucencies through the lateral end of the clavicle which just may represent either artifact or trabecula. I cannot, however, totally rule out the possibility of linear fractures involving the lateral end of the clavicle. If the patient is exquisitely tender over the AC joint, then this raises the possibility that these could represent non-displaced fractures. Otherwise, they could just represent normal structures. Clinical correlation is necessary. No other findings of note were identified. There was no evidence of calcific tendonitis. [48] Therefore, for the reasons set out above, I conclude that the worker has ongoing entitlement for the right shoulder, including surgical treatment thereof. However, based on the evidence before me, I am unable to find that the worker has entitlement for a right shoulder tear. (c) Recognition of a permanent impairment and entitlement to a NEL award for the right shoulder [49] Based on the preponderance of evidence, including the medical evidence summarized above, I find on a balance of probabilities that the worker has a permanent impairment of his right shoulder as a result of his work-related left shoulder disability. In this regard, I note that the worker s right shoulder injury has resulted in permanent restrictions and continuity of complaint throughout the worker s medical record. The medical reporting from Drs. Zizzo, Faulkner, Kumbhare, and the worker s physiotherapist link the worker s right shoulder condition to his repetitive work duties. I also note that notwithstanding the REC assessors theory that the worker might have had a pre-existing rotator cuff tear, they acknowledged that the worker s repetitive use of his right shoulder might have aggravated the alleged tear. I am also satisfied that as the worker injured his right arm in 2011, and continued to be symptomatic in 2014 (i.e., the most recent medical reporting on file), the worker s impairment is permanent. Notably, 4 Prepared by the late Dr. W.R. Harris, orthopaedic surgeon, and Dr. I.J. Harrington, orthopaedic surgeon and Professor Emeritus in the Department of Surgery at the University of Toronto (September 1999); this paper was also included in the case materials.

12 Page: 11 Decision No. 1673/16 the reports from Drs. Zizzo, Kumbhare, Porte, and Blackman (REC physician) all support a finding that the worker has a permanent impairment of the right shoulder. The worker is therefore entitled to an assessment for a NEL award for the right shoulder. (d) Entitlement to additional physiotherapy treatment for both shoulders [50] Given my finding above that the worker has ongoing entitlement for the right shoulder, entitlement to additional physiotherapy treatment for the right shoulder follows from this finding. [51] I also find that the worker has entitlement to additional physiotherapy treatment for the left shoulder as recommended by Dr. Kumbhare, a specialist in physical medicine and rehabilitation. Pursuant to Dr. Kumbhare s referral for physiotherapy in September 2012, the worker participated in physiotherapy treatment for both shoulders, as demonstrated by the FAF forms completed by the physiotherapist in 2012 and 2013.

13 Page: 12 Decision No. 1673/16 DISPOSITION [52] The appeal is allowed in part as follows: 1. The worker is entitled to the full NEL award of 14% for the left shoulder, without reduction for the pre-existing condition. 2. The worker has ongoing entitlement for the right shoulder. 3. The worker does not have entitlement for a right shoulder strain. 4. The worker has entitlement to a NEL award for the right shoulder. 5. The worker has entitlement to additional physiotherapy treatment for both shoulders. [53] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: September 28, 2016 SIGNED: K. Iima