WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2268/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2268/15 BEFORE: I.R. Mackenzie : Vice-Chair E. Tracey : Member Representative of Employers D. Besner : Member Representative of Workers HEARING: October 21, 2015 at Toronto Oral Post-hearing activity completed on February 11, 2016 DATE OF DECISION: June 9, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1521 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated April 22, 2013 APPEARANCES: For the worker: For the employer: Interpreter: B. Dust and L. Herron, Office of the Worker Adviser 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. 2268/15 REASONS (i) Introduction [1] After the oral hearing of this appeal, the Panel determined that there was medical information missing from the case record. The information missing consisted of clinical notes of the family doctor between May 10, 2007 and December The worker testified that she was seeing her family doctor during this time period. Accordingly, the Panel requested that these clinical notes be obtained, prior to reaching a decision. [2] At the hearing, the worker was represented by Bruce Dust. The written submissions provided post-hearing were prepared by Leslie Herron. (ii) Issues [3] The issue in this appeal is entitlement for a right shoulder supraspinatus tendon tear and subsequent surgical repair. [4] The worker also requested Loss of Earnings (LOE) benefits for the surgery in the notice of appeal form. The worker s representative was advised by the Tribunal prior to the hearing that should entitlement be granted for the tear and subsequent surgery, it would be left to the discretion of the Panel as to whether it would determine the benefits flowing from entitlement, including type, level and duration. We have addressed this issue in the analysis section of the decision. (iii) Context of the appeal [5] The now 57-year old worker was working in the paint department of a factory when, on May 21, 2010, she pulled a muscle in the right shoulder while performing her regular duties. She also mentioned pain when she reached for her lunch pail. [6] Entitlement was granted by the WSIB Eligibility Adjudicator (EA) for right supraspinatus tendinopathy on July 9, The worker had no lost time and entitlement was limited to health care benefits. [7] The worker underwent surgical repair of her right shoulder on March 23, [8] On June 18, 2011, the WSIB Case Manager (CM) concluded that the worker had returned to her pre-accident state with no evidence of a permanent impairment and that the supraspinatus tear was not compatible with the accident history. The CM therefore denied entitlement for the surgery. [9] The ARO determined that the worker s right shoulder supraspinatus tendon tear was not compatible with the job duties identified or the reaching for a lunch pail and denied the appeal. [10] The worker had a subsequent claim for a repetitive strain injury to her back arising from her work. The back pain began in September of The worker was on short-term disability through her employer from September 25, 2012 until January 13, Entitlement was denied by the WSIB EA on April 10, The worker s back injury is not part of this appeal. (iv) Law and policy [11] The Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal.

3 Page: 2 Decision No. 2268/15 [12] The Workplace Safety and Insurance Board (WSIB or the Board ) stated that the following policy packages would apply to the subject matter of this appeal: Recurrences; Health Care Benefits; Initial Entitlement; Aggravation Basis; and Decision Making/Benefit of Doubt/Merits and Justice. We have considered these policies as necessary in deciding the issues in this appeal. (v) Summary of the evidence [13] The worker started working with the accident employer in July of 2008 on a line painting parts. Her job title was dandori. Prior to working for the accident employer she worked as a residential and office cleaner and as a personal support worker. [14] The worker worked on the paint line. The physical demands analysis for the paint line prepared in August of 2008 sets out the following description of the work duties of dandori: Collect trays of parts from the small injection racks, return foam trays to racks as available and needed. Individual parts are negligible in weight, with a single tray weighing less than 2 pounds, and measuring 61.5 x 39 x 5 cm. Team member works on an approximately 15 minute cycle, taking an empty wheeled rack to the front of the plant to collect approximately 40 trays of parts, return to the paint line and repeat the process for either the same or different parts. The number of parts in a tray varies by part as well as by customer demand. [15] The demands analysis noted the following functional movements: The racks require a working reach range of 8.3 to 67.6 inches. Often an over extended reach up to arm s length is needed. The vertical reach range on the racks ranges between 21 and 170 cm. Overall bilateral light gripping is needed on an occasional basis Lifting and lowering is needed on an occasional basis falling in the light strength category Pushing/pulling is needed on a frequent-constant basis Unilateral shoulder abduction up to 90 degrees and bilateral shoulder flexion up to 120 degrees was observed, both combined with full forearm pronation and elbow flexion 0-90 degrees. Unilateral shoulder extension up to 30 degrees with full elbow extension and forearm supination may be assumed [16] The worker testified that she had additional duties of stacking empty trays. She also had to grab jigs that were behind her and send them down the paint line. The jigs weighed between five and 10 pounds. She described the pace as a constant back and forth. She worked with thousands of parts per eight-hour shift. She worked overtime of one or two hours a day, four days a week. On Fridays, she often worked an additional four hours. [17] The worker testified that prior to the workplace accident she did not have any shoulder injuries. She had a back injury when she worked as a personal support worker. [18] The worker was diagnosed with right supraspinatus tendonopathy by her family doctor, Dr. M. Kam, on June 3, He stated in the Health Professional s Report (Form 8) that the

4 Page: 3 Decision No. 2268/15 injury occurred as a result of repetitive use of the right arm in lifting and flipping of parts, with repetitive reaching. He also described the injury as a repetitive strain injury. [19] The worker reported the injury of her right shoulder to her employer on June 3, In her Report to the WSIB (Form 6) she stated that the pain first started on May 20, She wrote that at first she thought it was just a pulled muscle. The employer report of injury (Form 7) stated that the worker reported first noticing pain two weeks prior to June 3, On June 3, 2010, she reported intense pain when she reached to pick up her lunch bag. In testimony, the worker described the pain as sharp and intense. She testified that she did not report the sore shoulder immediately because she thought it was just a pulled muscle and that it would heal itself. [20] She had an ultrasound of her right shoulder on June 21, 2010 which showed tenosynovitis around the biceps tendon, subacromial subdeltoid bursitis and a possible previous partial thickness tear of the distal anterior fibers of the supraspinatus tendon. [21] The WSIB Eligibility Adjudicator (EA) spoke to the worker on July 9, The worker told the EA that since the injury she had been working modified duties involving work at waist level. The EA granted initial entitlement for right supraspinatus tendonopathy on a disablement basis. She found that the mechanics of the job duties were considered repetitive and involved at and above right shoulder reach and constant pushing and pulling. She found that this was compatible with a diagnosis of right supraspinatus tendonopathy. [22] The worker was on a leave of absence, not related to her shoulder, from June until August of The worker returned to work in August of She reported increased pain in the right shoulder to Dr. Kam on August 12, He noted that her range of motion for abduction was 90 degrees and normal for adduction. The impingement test for the right shoulder was painful and she was tender over the supraspinatus. In a Health Professional s Report (Form 8), Dr. Kam noted that the worker re-injured her right shoulder while lifting and having her arm outstretched. He also noted that the worker was supposed to be on modified duty but had been put on regular duties, which was the cause of the re-injury. The worker testified that she never returned to her full range of duties, although she sometimes did work above her shoulders. [23] In August, the employer offered her modified duties as a cycle counter which required her to take inventory. She testified that the work was not compatible with her work restrictions as she was expected to climb ladders and do a lot of writing. [24] The worker had a multidisciplinary health care assessment by Dr. D. Taylor, orthopaedic surgeon, and Dr. C. Keil, chiropractor, on September 20, The worker was diagnosed with right shoulder rotator cuff syndrome with supraspinatus tendinosis. They recommended temporary restrictions for 12 weeks of avoiding heavy lifting and repetitive use of the right upper extremity above mid chest level or extended from torso. They concluded that the worker had partially recovered and that full recovery was anticipated over the next three months. They also noted that if symptoms had not resolved in three months, her current restrictions should be reviewed with her family physician. [25] The worker was seen by Dr. Kam on November 17, She reported to him that her right shoulder was getting worse and that the pain was almost constant. She reported intermittent spasms with bouts of intense pain. She told Dr. Kam that she was still on modified duties but still

5 Page: 4 Decision No. 2268/15 was frequently reaching at or near shoulder level. Dr. Kam noted pain on supraspinatus testing with some tenderness over the biceps. He also noted some impingement with crossover. [26] The worker was seen by Dr. C. Petervein on November 19, Dr. Petervein reported an aggravation of a right rotator cuff tear and recommended that the worker be off work from November 19 to 21, 2010, until such time as she could be examined by Dr. Kam. [27] The worker went to the emergency department on November 23, 2010 because of right shoulder pain and was prescribed pain medication. An ultrasound was done, noting a partial thickness, intermediate grade tear of the supraspinatus tendon along the articular surface. The worker advised Dr. Kam the following day that she had stopped doing work at or near shoulder level. [28] The worker was examined at the WSIB Upper Limb Specialty Clinic in early February of 2011 by Dr. J. Roth, an Orthopaedic Surgeon. He noted findings of supraspinatus tendinopathy with a possible tear of her right shoulder. He noted that she was unable to work at jobs requiring repetitive activities or heavy lifting, gripping or pinching with the right hand, and use of her right hand outstretched in front of her above shoulder level. The worker was referred for an MRI. [29] The worker had an MRI in February of The MRI showed a full thickness complete tear of the supraspinatus. It also showed tendinosis of the biceps. Dr. Roth examined the worker on March 16, He noted the findings of the MRI. He also observed that although the worker had improved, she continued to have pain and decreased range of motion. He referred the worker to Dr. G. Athwal, Orthopaedic Surgeon, to explore surgical options. [30] Dr. Herrick, a WSIB medical consultant, reviewed the worker s medical file on June 6, Dr. Herrick concluded that the medical evidence suggested that the supraspinatus tear in all of its stages is not the result of the accident history but it does suggest that in the past this has been a problem and that it has worsened over time after the workplace injury. [31] Dr. Athwal performed rotator cuff tear surgery on May 24, The post-operative diagnosis was right full-thickness delaminated supraspinatus tear and degenerative biceps tendon tear. [32] Dr. Athwal provided a letter to the worker s representative on March 22, He provided the following opinion: the first imaging examination she underwent of her right shoulder was an ultrasound dated November 23, This ultrasound demonstrated a partial thickness rotator cuff tear. It is well known that an ultrasound examination is a good screening test for rotator cuff tears, however, it is difficult to discern a high grade partial from a small, fullthickness tear. The definitive examination is an MRI. Her diagnosis of rotator cuff tendinitis prior to this imaging examination, without other rotator cuff imaging, is purely speculation based on clinical symptoms. If no other imaging, in the form of an ultrasound or an MRI, exists between May 21, 2010 (time of injury) to the ultrasound dated November 23, 2010, I believe more likely than not, her rotator cuff tear pain is a work place injury. Should imaging be available within this time period which demonstrates an intact rotator cuff with only tendinitis, then, more likely than not, [the worker] sustained her tear at another occasion other than May 21, [33] The worker testified that she was off work for approximately eight weeks because of her back in She testified that her back was an ongoing issue and that she was now working part-time.

6 Page: 5 Decision No. 2268/15 (vi) Submissions [34] At the hearing, the worker s representative submitted that the worker s injury was compatible with her work duties. He also submitted that the WSIB CM assumed that the worker had reached full recovery, without the evidence to support that conclusion. The worker s symptoms remained constant until her surgery. [35] The representative submitted that the opinions of Dr. Athwal should be given considerable weight by the Panel. As well, he submitted that the opinions of the physiotherapist and of Dr. Kam should be given considerable weight. He submitted that the conclusions of the multidisciplinary health evaluation should be given less weight. The representative referred us to Decision No. 558/02 and Decision No. 1624/14 on the weighing of medical evidence. He concluded that the preponderance of evidence showed that the injury was as a result of the worker s duties. [36] In written submissions the representative noted that the clinical notes confirmed that the worker had not sought medical attention for her right shoulder prior to her workplace accident. (vii) Analysis [37] The appeal is allowed in part for the reasons set out in this section. The Panel has determined that the worker has entitlement for the right shoulder supraspinatus and the surgery for the right shoulder. We have determined that the issue of LOE benefits should be returned to the WSIB for determination. [38] An accident is defined in section 2(1) of the WSIA to include disablement arising out of and in the course of employment. Board policy on the definition of an accident (Operational Policy Manual ( OPM ) Document No ) states that disablement includes a condition that emerges gradually over time and an unexpected result of working duties. [39] Board policy on adjudication of initial entitlement (OPM Document No ) states that an allowable claim must satisfy five requirements: an employer, a worker, personal workrelated injury, proof of accident, and compatibility of diagnosis to the accident history. [40] Tribunal jurisprudence applies the test of significant or material contribution to questions of causation. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. [41] The Tribunal Discussion Paper on Shoulder Injury and Disability (prepared by Dr. Hans K. Uhthoff) discusses tears. Discussion papers do not necessarily represent the views of the Tribunal. A Panel may consider and rely on the medical information provided in a discussion paper but is not bound by an opinion expressed in the paper. Every decision is based on the facts of the particular appeal. [42] Dr. Uhthoff notes:... 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). since most partial and complete tears occur in the middle aged and older person, preexisting degenerative changes causing a weakness in tension of the tendon must have contributed. As already stated, certain repetitive movements required by work can

7 Page: 6 Decision No. 2268/15 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. [43] There is no medical evidence that the worker had a pre-existing right shoulder problem. We also agree with the WSIB EA that the mechanics of the job duties are repetitive and involved at and above right shoulder reach and constant pushing and pulling. These duties are compatible with a diagnosis of right supraspinatus tendonopathy. In our view, the duties are also compatible with a right shoulder supraspinatus tear. [44] The WSIB medical consultant did not examine the worker nor discuss the worker s duties with her. Furthermore, he did not explain his conclusion that the supraspinatus tear was not the result of the accident history. [45] The multidisciplinary health care assessment in September of 2010 provided a provisional assessment and noted that if symptoms had not resolved in three months, her restrictions should be reviewed with her family physician. Clearly, the worker s symptoms did not improve. [46] Dr. Athwal, the orthopaedic surgeon who performed the rotator cuff tear surgery, concluded that it was more likely than not that the rotator cuff tear was a work place injury. Based on the medical evidence in the Case Record, we agree that, on a balance of probabilities, that the worker s duties were a significant contribution to the tear. As a result, we find that the worker has entitlement for the right supraspinatus tendon tear and the subsequent repair surgery of May 24, [47] The worker has requested that the Panel also determined LOE benefits for the period of the surgery and following. In this case, the Panel declines to exercise its discretion to address this issue. There is not sufficient information in the record before us for us to make a determination on appropriate LOE benefits. The matter of LOE benefits flowing from entitlement for the right shoulder surgery will be returned to the WSIB for adjudication, subject to the usual appeal rights.

8 Page: 7 Decision No. 2268/15 DISPOSITION [48] The appeal is allowed in part as follows: 1. The worker has entitlement for a right shoulder supraspinatus tendon tear. 2. The worker has entitlement for the surgical repair of the right shoulder supraspinatus tear on May 24, [49] 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: June 9, 2016 SIGNED: I.R. Mackenzie, E. Tracey, D. Besner