WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2509/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2509/16 BEFORE: K. Cooper: Vice-Chair HEARING: September 23, 2016 at Windsor Oral DATE OF DECISION: November 16, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3121 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated July 15, 2013 APPEARANCES: For the worker: For the employer: Interpreter: N. Lelyk, Office of the Worker Adviser R. D., H.R. 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. 2509/16 REASONS (i) Introduction [1] The worker appeals a decision of an Appeals Resolution Officer, dated July 15, The ARO rendered a decision based upon the written record without an oral hearing. That decision concluded that the worker was not entitled to a cortisone injection for his right shoulder or to a one-day loss of earnings (LOE) benefits for October 8, The ARO also concluded that the worker did not have a permanent impairment of the right shoulder and was therefore not entitled to a Non-Economic Loss (NEL) award. [2] The worker was an assembly operator with the accident employer. On October 7, 2009 the then 25-year old worker experienced pain in his right shoulder while putting spools each weighing about one pound into frames at waist height. The worker indicated that a production increase had meant that he was working at a faster pace than was usual. Entitlement was accepted for a right shoulder strain. [3] The worker returned to modified duties with the accident employer while undergoing conservative treatment. [4] The worker attended a multi-disciplinary assessment on August 23, The assessing orthopaedic surgeon noted his shoulders were physiologically down-sloping with a mild step deformity at the right acromioclavicular (AC) joint. The impingement test was negative, and the range of motion in the shoulder was full and largely pain free. The diagnosis was right AC joint dysfunction. [5] The worker was seen for a follow-up examination of his right shoulder, receiving a cortisone injection which provided minimal improvement. Shoulder surgery to shave the distal end of the clavicle was recommended. [6] The worker s Case Manager (CM) determined that the step deformity at the right AC joint was not related to the October 2009 workplace injury, and entitlement for the cortisone injection, the one day of lost wages, and pending surgery was denied. The CM also concluded that the worker had reached maximum medical recovery (MMR) on November 24, 2010 with no residual impairment, resulting in no entitlement to a NEL award. [7] The worker objected to these findings leading to the ARO decision appealed herein which upheld the operating area s decisions. (ii) Issues [8] The issues herein are whether the worker has entitlement to a permanent impairment of the right shoulder as a result of his compensable accident, as well as entitlement to a cortisone injection on October 7, 2010, and one day of LOE benefits for October 8, Additionally, the worker s representative requested entitlement to right shoulder surgery and LOE benefits for the recovery period from same.

3 Page: 2 Decision No. 2509/16 (iii) Background (a) Medical reports [9] A Form 8 dated October 31, 2009 diagnosed a right shoulder strain and issued restrictions on the use of upper extremities. [10] A right shoulder x-ray report dated October 26, 2009 found no abnormality. [11] An ultrasound report dated May 21, 2010 found no abnormalities of the right shoulder. [12] A Form 8 dated May 31, 2010 from the worker s physiotherapist noted a re-aggravation of the right shoulder and diagnosed a possible right AC joint strain. [13] A multi-disciplinary report dated August 23, 2010 was completed by Dr. Yovanovich and a physiotherapist. The report noted right AC joint dysfunction and issued restrictions on sustained and repetitive use of the right arm overhead, and against heavy lifting/carrying. The report also recommended a cortisone injection for the AC joint and possible surgery. [14] A report dated September 29, 2010 from Dr. Yousif, an orthopaedic surgeon, noted that upon examination he noted a small bump over the right AC joint area, and some obvious arthritic changes. He also noted a full ROM of the right shoulder, no tenderness, and no impingement. Dr. Yousif s diagnosis was of AC joint dysfunction/separation Grade 1 with OA. He recommended a cortisone injection. [15] A report dated September 29, 2010 from Dr. Naidoo, the worker s family doctor, noted that the worker had tendonitis of the right shoulder. [16] A report dated November 24, 2010 from Dr. Yousif noted that the cortisone injection had not helped the worker. He opined that the best way to treat the worker was to perform surgery by shaving the distal end of the clavicle. [17] A report dated February 23, 2010 from Dr. Yousif stated the following: I do think still that this injury is related to his work as with repetitive heavy lifting you can have a dysfunction or separation which is a Grade 1 or instability in the AC joint and that fact that there is no direct injury or impact to that joint doesn t preclude or exclude the injury itself. In the lack of any other major injuries in that shoulder in the past based on his history I do think that the two are connected. I do agree with Dr. Yovanovich s comment that it is a dysfunction and not a disruption since simply there is no acute trauma but repetitive trauma can cause laxity and dysfunction in the AC joint. This is a letter to testify that this most probably is work related than not. [18] In response to a request from the worker s then representative, Dr. Yousif issued a report on April 2, He opined that the worker s right shoulder impingement and frozen shoulder arose after the initial injury as this was a common after effect. In response to the question, Could the original accident of October 7, 2009 been a contributor or is it compatible to the step deformity at the right AC joint and the right shoulder impingement and right frozen shoulder, Dr. Yousif opined that the accident being a contributor to the right shoulder condition was highly likely or at least aggravating. He also opined that the worker had a partial impairment of the right shoulder.

4 Page: 3 Decision No. 2509/16 (b) Board memoranda [19] Memo #3B, dated June 14, 2010 noted that the worker had been granted ongoing entitlement to the right shoulder as he had tried to return to regular duties but suffered an increase in pain and had to return to modified duties. [20] Memo #16, dated February 7, 2011 noted that the worker had received a cortisone injection on October 7, 2010 and is entitled to LOE for the 8 th. The memo went on to note that the proposed surgery was not compatible with the worker s relatively minor accident and the opinions contained in the REC report. [21] Memo #19, dated March 10, 2011 contained a review by Dr. Kanalec, a Board Medical Consultant. He opined that the worker had some pre-existing OA of the right AC. (iv) Testimony [22] The worker testified that he is left-hand dominant. He stated that his pre-injury job required him to assemble seat belt fasteners. He stated that on the date of accident the production rate on his line had been increased so that the workers could have a long weekend off. The worker stated that the parts were small and the weight negligible, but that there was significant repetition in his actions. He stated that at one point he felt an electric shock in his right shoulder which did not subside as he had expected. He stated that work surface is waist high, but that there is a bit of a reach to grab the parts. He stated that it takes approximately four seconds to assemble a part. [23] The worker stated that he returned to work on modified duties. [24] The worker stated that he eventually returned to his regular duties, but found increased pain in his shoulder prevented him from performing his duties at the speed required. [25] The worker stated that the surgery did not help his shoulder very much, and that his family doctor told him his impairment was permanent. (v) Law and policy [26] Section 46 of the Workplace Safety and Insurance Act, 1997 (the WSIA) and section 42 of the pre-1997 Workers Compensation Act, as amended, provide that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [27] 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. [28] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [29] 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, 3rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions.

5 Page: 4 Decision No. 2509/16 (vi) Submissions [30] The worker s representative submitted that the worker had never had an issue with his right shoulder prior to his workplace accident, and that thereafter his shoulder had never returned to its pre-accident state. He further submitted that following the injury the worker was placed on modified duties and remained there for a considerable period of time, and that after he returned to his regular job he was only able to perform it for a brief period of time before returning to the modified work. He submitted that this evidence combined with the medical reports on file supported that the worker suffered a permanent impairment of his right shoulder as a result of his workplace accident, and should therefore be entitled to a NEL assessment and applicable LOE benefits. [31] The employer s representative submitted that the REC report had shown the worker had a step deformity of the right shoulder which led to his AC joint dysfunction. He submitted that Dr. Yousif s initial report indicated that the worker had injured himself through repetitive heavy lifting which was not the case. He also submitted that the worker eventually returned to a regular job at regular hours with no modifications and no permanent restrictions. He submitted the evidence did not establish a causal link between the worker s job duties and his AC joint dysfunction, and as such the worker s appeal should be denied. (vii) Analysis [32] As noted above, a permanent impairment exists where impairment remains after a worker has reached MMR. In this case, the Board determined that MMR had been reached as of November 24, The Board concluded that the worker did not have an ongoing impairment as a result of his workplace accident, but that his right shoulder strain had recovered, and the ongoing problems encountered by the worker were a result of pre-existing and non-compensable issues. [33] The medical evidence establishes that the worker injured his right shoulder at work. The job duties were not heavy, but they were highly repetitive. There was no work at or above shoulder height, but the worker testified that he would have to reach across his workstation with his right arm to pick up his assembly pieces. The competing arguments herein are whether the worker s ongoing problems were a result of the step deformity of his right shoulder and therefore non-compensable, or a result of his workplace injury. [34] A Form 8 dated October 31, 2009 diagnosed a right shoulder strain and issued restrictions on the use of upper extremities. A right shoulder x-ray report dated October 26, 2009 found no abnormality, nor did an ultrasound report dated May 21, [35] A Form 8 dated May 31, 2010 from the worker s physiotherapist noted a re-aggravation of the right shoulder and diagnosed a possible right AC joint strain. [36] Between the time of the original accident, and this latter Form 8 which was the first mention of a problem with the AC joint specifically, the worker had been on modified duties, had returned to his regular work, and after an increase in pain returned to modified duties. Although the worker testified that the work he was doing with sensors was not actually modified for him, it was a much lighter job at a slower pace than his regular work, and as such he was able to perform this work. This would appear to suggest that the worker s initial strain had resolved at some point, but had been re-aggravated by his return to his regular duties.

6 Page: 5 Decision No. 2509/16 [37] A multi-disciplinary report dated August 23, 2010 was completed by Dr. Yovanovich and a physiotherapist. The report noted right AC joint dysfunction and issued restrictions on sustained and repetitive use of the right arm overhead, and against heavy lifting/carrying. The report noted that the worker had a mild but obvious step deformity at the right AC joint. The report also recommended a cortisone injection for the AC joint and possible surgery. [38] A report dated September 29, 2010 from Dr. Yousif, an orthopaedic surgeon, noted that upon examination he noted a small bump over the right AC joint area, and some obvious arthritic changes. He also noted a full ROM of the right shoulder, no tenderness, and no impingement. Dr. Yousif s diagnosis was of AC joint dysfunction/separation Grade 1 with OA. He recommended a cortisone injection. [39] Thus, both the REC doctor and the treating surgeon recommended the worker have a cortisone injection to see if this would alleviate the condition. The evidence indicates that it did not. [40] A report dated November 24, 2010 from Dr. Yousif noted that the cortisone injection had not helped the worker, and that the best way to treat the worker was to perform surgery by shaving the distal end of the clavicle. It was at this date that the Board determined that the worker had reached MMR of his right shoulder strain, and that any ongoing issues after this point were related to the worker s step deformity and OA and not his workplace injury. [41] A report dated February 23, 2010 from Dr. Yousif stated the following: I do think still that this injury is related to his work as with repetitive heavy lifting you can have a dysfunction or separation which is a Grade 1 or instability in the AC joint and that fact that there is no direct injury or impact to that joint doesn t preclude or exclude the injury itself. In the lack of any other major injuries in that shoulder in the past based on his history I do think that the two are connected. I do agree with Dr. Yovanovich s comment that it is a dysfunction and not a disruption since simply there is no acute trauma but repetitive trauma can cause laxity and dysfunction in the AC joint. This is a letter to testify that this most probably is work related than not. [42] The employer s representative submitted that this opinion was largely invalid as the injuring mechanism was not repetitive heavy lifting. I agree with this submission to a point, although I note that repetitive trauma can cause laxity and dysfunction in the AC joint. Although the parts the worker handled were of negligible weight, he was required to assemble a part every four seconds which also required him to reach across the table for a part. This indicates that the worker s regular job was highly repetitive. [43] In response to a request from the worker s then representative, Dr. Yousif issued a report on April 2, In response to the question, Could the original accident of October 7, 2009 been a contributor or is it compatible to the step deformity at the right AC joint and the right shoulder impingement and right frozen shoulder, Dr. Yousif opined that the accident being a contributor to the right shoulder condition was highly likely or at least aggravating. He also opined that the worker had an ongoing partial impairment of the right shoulder. [44] Thus, the evidence suggests that the worker had a pre-existing step deformity of the right shoulder of unknown etiology, that is, it could have arisen naturally or as a result of his highly repetitive work duties. I also note that SIEF was granted in this instance, signifying a preexisting impairment. The evidence on whether or not the worker had OA in the right AC joint is also conflicting, given opinions on file that the worker had some OA, and the post-operative

7 Page: 6 Decision No. 2509/16 report of Dr. Yousif that no OA was found. Dr. Yousif did opine that it was highly likely the worker s job contributed to his right shoulder condition, or at the very least aggravated it. [45] I also note that the REC report which provided the first confirmed diagnosis of right AC dysfunction (the worker s physiotherapist had earlier speculated that this was the cause), did not opine as to the cause of this injury, but it did note that it would likely require invasive treatment to correct the worker s problem. [46] Thus, it appears to me that the total body of medical evidence herein is somewhat inconclusive, and even Dr. Yousif s last report is uncertain as to whether the worker s job contributed to the condition or aggravated an asymptomatic pre-existing condition. There does not, however, appear to be any medical evidence of significance to the contrary with respect to compatibility. Although the employer s representative submitted that Dr. Yousif s report should not be given weight as it was solicited by the worker s representative and contained inconsistencies, I do not accept this submission. The solicitation letter is on file, and the questions posed were reasonable. The simple fact that an opinion was requested by a worker does not invalidate that opinion. Dr. Yousif is an orthopaedic surgeon and a specialist in this area, and his answers appear considered and reasonable. [47] The worker was granted entitlement to a right shoulder injury which continued to bother him and required him to accept modified duties. The worker testified, and there is no medical evidence to the contrary, that his right shoulder was asymptomatic prior to his workplace accident. Thus, the worker injured his right shoulder in October 2009, and he remained under treatment for same for a considerable period of time thereafter, including surgical intervention. This surgical intervention was recommended by Dr. Yousif, although the REC report also indicated that surgical intervention would likely be necessary. Both Dr. Yousif and the REC report opined that the worker would have potential ongoing restrictions, and Dr. Yousif stated that the worker was left with a partial impairment. The worker testified that his shoulder is still bothersome, although he treats it with over the counter medication and a TENS machine. The employer s representative submitted that there is no evidence of an ongoing impairment as the worker performs a non-modified job at regular hours with no restrictions. The job the worker now performs, I note, is not the same as his pre-accident job and appears to be somewhat less repetitious. I do note that there does not appear to be any permanent restrictions on file for the worker. [48] Therefore, although the etiology of the worker s right AC joint dysfunction is uncertain, the evidence suggests that it was present prior to the worker s accident, albeit asymptomatic. I note that the employer was granted SIEF relief in recognition of the worker s pre-existing condition. I accept Dr. Yousif s opinion that the accident was highly likely to have caused, at the very least, an aggravation of the worker s right shoulder which eventually required surgery. Given that the REC report also suggested that surgery would be a likely result of the worker s injury, and that Dr. Yovanovich did not indicate that the injury was unrelated to the workplace accident, it appears that the medical evidence supports the worker s position. Adding to the medical evidence the fact that the worker s right shoulder was asymptomatic prior to the injury, and thereafter bothersome to the point of surgery, it appears at the very least that the workplace injury aggravated his pre-existing AC joint dysfunction. Also, I note that the worker required lighter duties post accident, and that after a return to his regular work he experienced increasing pain in his right shoulder that led to him returning to lighter duties, which suggests to me that the accident left him with some residual impairment. I appreciate that the worker now performs an

8 Page: 7 Decision No. 2509/16 unmodified job with no apparent restrictions, but this does not rule out a minor ongoing impairment given that the new work is less repetitive than his pre-accident job. [49] Therefore, considering the foregoing on the balance of probabilities, I find that the worker s workplace accident aggravated his pre-existing asymptomatic right AC joint dysfunction which led to surgery. Therefore, the worker is entitled to benefits for his right shoulder, including the cortisone injection of October 7, 2010, his surgery to repair his right shoulder, and LOE benefits for October 8, 2010, and his loss of earnings during recovery from his surgery. [50] The Board set MMR at November 24, 2010 after which date the worker underwent surgery, which on its face would appear to indicate a permanent impairment. This date was based on a MMR date for a right shoulder strain, however, and not for the worker s right AC joint dysfunction. As such, I find that this MMR date is no longer relevant. I have insufficient evidence before me to determine when the worker s MMR date for his right shoulder should be, and return the question of when this date should be set to the Board for further adjudication. Given the opinions of Drs. Yovanovich and Yousif regarding the likelihood that the worker would be left with permanent restrictions and/or impairment, and the worker s testimony that he has ongoing impairment, I also find that the worker should be referred for a NEL assessment of his right shoulder as an aggravation of a pre-existing asymptomatic condition.

9 Page: 8 Decision No. 2509/16 DISPOSITION [51] The appeal is allowed 1. The worker is entitled to benefits for his right shoulder, including the cortisone injection of October 7, 2010, his surgery to repair his right shoulder, and LOE benefits for October 8, 2010, and his loss of earnings during recovery from his surgery until his return to the accident employer. 2. The worker is entitled to a NEL assessment for his right shoulder as an aggravation of a pre-existing asymptomatic condition. The date of MMR is hereby returned to the Board for further adjudication. DATED: November 16, 2016 SIGNED: K. Cooper