WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 925/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 925/07 BEFORE: M. Butler: Vice-Chair HEARING: April 20, 2007 at Toronto Oral DATE OF DECISION: May 10, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1254 DECISION UNDER APPEAL: WSIB ARO Decision dated June 17, 2005 APPEARANCES: For the worker: For the employer: Interpreter: Mr. Ken Beauclerc, Consultant Ms Laura Russell, Consultant 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. 925/07 REASONS (i) Introduction [1] In a decision dated June 17, 2005, rendered without an oral hearing, the Appeals Resolution Officer (ARO) concluded that the November 1993 workplace injury did not cause or contribute to the development of acromioclavicular (AC) arthritis or the superior labrum anterior to posterior (SLAP) lesion of the right shoulder. (ii) The issues [2] The issues on appeal are: 1. Whether the worker has ongoing entitlement to a right shoulder injury. 2. Whether the worker has entitlement to right shoulder surgery, including temporary total benefits and a permanent impairment assessment. (iii) Background [3] The worker was born in She began working for the accident employer (the employer ) on October 14, She injured her right shoulder while working for the employer on November 17, 1993 as a marine chief cook. [4] The ARO succinctly set out the background facts of this case as follows: On November 17, 1993, this now 50 year old worker sustained injuries to her right elbow and shoulder when she had difficulty pulling a lever on a Hobart mixer. At the time of her injury, the worker was employed as a marine chief cook. The worker sought medical attention for the right shoulder on November 26, 1993 and later complained of persistent elbow pain. The worker was assessed and treated for both lateral epicondylitis and supraspinatus strain. In January 1995, the worker attended an orthopaedic specialist who suggested the worker's shoulder had largely resolved and that the only remaining impairment related to the elbow. The adjudicator found that the worker recovered from her shoulder injury and arranged for non-economic loss (NEL) assessment of the elbow impairment. The worker was granted a 2% NEL award in The employer objected to the allowance of benefits related to the elbow injury. In a decision dated April 14, 1997, the appeals resolution officer overturned entitlement to the elbow condition and restricted entitlement to the right shoulder condition. The worker objected further and the issues of elbow entitlement and ongoing shoulder entitlement were brought before the Workplace Safety and Insurance Appeals Tribunal (WSIAT). In a decision dated December 12, 2002 [Decision No. 779/00], WSIAT concluded that the worker had entitlement to right elbow and right shoulder injuries. The worker subsequently requested ongoing entitlement to right shoulder complaints, including surgery, lost time benefits, and a non-economic loss award. The adjudicator reviewed the worker s request and sought a medical opinion regarding compatibility of the worker s current condition with the accident history. WSIB medical consultants advised that the worker s current right shoulder osteoarthritis condition did not arise from the accident of November The adjudicator accepted this decision and denied the worker s request for ongoing entitlement. The worker has objected further to this restriction of entitlement.

3 Page: 2 Decision No. 925/07 (iv) Analysis [5] In coming to a decision to allow the worker s appeal, I considered the worker s testimony, Mr. Beauclerc s submissions, Ms. Russell's submissions and the documentary evidence before me. [6] Essentially the worker testified that: She is right hand dominant. Her duties as a second cook on the laker on which she sailed included preparing breakfasts, desserts and salads for a crew of 21 to 26 men, including officers. She looked after the captain's and mates dining room. She dried pots and put them away. On November 17, 1993 she was up at 5:00 to 5:30 AM and started working in the galley, preparing muffin mix in a mixer. When she went to lift a bowl from the mixer, it was stuck because the track had been painted the night before. She gave it a good jerk and screamed. The bowl would not move. She described the pain as excruciating. It was like she had pulled something. The pain was mainly in the right shoulder and then it moved down her right arm. Her right elbow hurt later. She thought she had torn a muscle. She continued to work until November 26, 1993 when her ship landed in Hamilton and she attended the hospital emergency department. She stated that Dr. Freeman, her family doctor, referred her to the Regional Evaluation Centre (March 1994) for right lateral epicondylitis and right rotator cuff tendinitis. Dr. Freeman prescribed Tylenol No. 3 for her, which she has taken much of the time since She now takes Percocet. She denied that there has been any time between when she returned to work and now where she has not had any pain in the right shoulder. She stated that as the months and years went on, her shoulder became much worse. She saw Dr. Freeman to get more painkillers from him. She stated that her right shoulder is not better since the surgery in She has been told that they could do more surgery on her right shoulder. Her left shoulder is fine. She stated, I never had problems with my arm until I got hurt. [7] In his submissions, Mr. Beauclerc argued that the worker's osteoarthritis is secondary and was caused by an injury to the shoulder joint. He noted that the x-rays of the right shoulder done on March 9, 1994 showed normal joint structures with no amorphus calcifications. [8] Mr. Beauclerc referred to the Tribunal Decision No. 779/00 dated December 12, 2002 wherein the Vice-Chair accepted the worker's history of accident as being related to the elbow and shoulder complaints. He noted the Vice-Chair s findings: I am satisfied, on the basis of my review of the evidence, that a preponderance of the evidence supports the conclusion that there is a link between the worker's right elbow injury and the accident of November 17, The gaps in the medical reports with respect to the right elbow, and later the right shoulder, can be explained on the basis of the predominating injury at the time, as I concluded earlier. It is reasonable that the area of the right arm/shoulder which was most painful at any given time was the focus of the treatment and

4 Page: 3 Decision No. 925/07 the resulting reports, causing gaps in the reporting. The worker has complained of pain in her right arm essentially from the time of the initial injury. The right elbow injury is compatible with the accident mechanics described by the worker. For these reasons, I am satisfied that the causal connection between the accident and the right elbow injury is made. [9] I considered Ms. Russell s submissions, which essentially are that the medical reports do not support that the worker's osteoarthritis was caused by the 1993 workplace accident. There had been no complaint of symptoms in the right shoulder between 1994 and 1997 and there had been no periodic reporting. The right shoulder had resolved and the surgical procedure is noncompensable. [10] In assessing the medical evidence before me, I considered and relied on the following reports: Dr. A. Bhardwaj, Physiatrist, and T. Rowan, Physiotherapist, conducted a multidisciplinary health care assessment of the worker on April 18, 1994 and reported to Dr. Freeman that day that examination of the neck showed normal and pain-free mobility of the cervical spine, and normal and pain-free mobility in both shoulders, elbows, wrists and finger joints. Their diagnosis was right lateral epicondylitis and right supraspinatus strain. They noted that the worker s symptoms had improved by 75%. Dr. J. T. S. Sadler, Orthopaedic Surgeon, saw the worker on referred from Dr. Freeman on November 2, 1994 and reported to Dr. Freeman that day that the worker had some restriction of movement in the right shoulder because of pain on powerful movements of the shoulder and long finger grasp was less effective of the right than the left side. Otherwise the right arm was normal. He opined that the condition was almost certainly arising in the spine producing referred pain in the right upper limb. He thought that a few sessions of chiropractic manipulation should be tried to see if it would help, failing which the remaining option would be cervical surgery. Dr. John T. Shepherd, Orthopaedic Surgeon, saw the worker for her right arm on January 23, 1995 on referral from Dr. Freeman and reported to Dr. Freeman that day. The worker advised him that her right shoulder had since settled down after the accident and that it really doesn t give her much trouble at this point. The elbow was an ongoing problem. Dr. Shepherd s diagnosis was chronic right tennis elbow. He did not think that there was enough tenderness to warrant a Cortisone injection. There was no other reference in his report to the right shoulder. In his Operative Note dated February 10, 2004, Dr. Esam M. S. Haider, Orthopaedic Surgeon, reported a post-operative diagnosis of (1) osteoarthritis right shoulder and acromioclavicular joint; (2) bursitis right acromial space; (3) Type 1 SLAP lesion right shoulder; (4) left knee medial meniscal tear; and (5) chondromalacia grade 2 medial femoral condyles and grade 3 patella. Dr. Haider debrided the SLAP lesion and reported that there was no evidence of rotator cuff tear. Dr. Margaret Bridge, Board Medical Consultant, opined in Board Memo # 75 dated June 10, 2004 that there did not appear to be a permanent impairment related to the right shoulder from the date of accident. She noted that the worker had gone on, years later, to develop osteoarthritis in her right shoulder. The recent surgery was for this condition and there was no finding of a rotator cuff tear. Dr. Bridge noted that rotator cuff tears and symptoms are frequently age-related. She concluded that the February 2004 surgery and

5 Page: 4 Decision No. 925/07 the osteoarthritis were not causally related to this claim and it was not in order under this claim. Dr. Alex P. Balinson, Board Medical Consultant, opined in Board Memo # 79 dated January 13, 2005 that there was not enough evidence in the mechanism of injury to support the symptoms or that osteoarthritis in the right shoulder was related to the original accident. He concluded that a permanent impairment was not evident for the right shoulder. [11] On the basis of all of the evidence before me, I find that the worker s right shoulder problems over the years were caused by (1) a SLAP lesion and (2) developing osteoarthritis of the right shoulder joint. [12] I do accept the Board Medical Consultants reports that the osteoarthritis was not caused by the workplace accident. In my view, the osteoarthritis is more likely than not age-related. I do note, however, that the Board Medical Consultants have not given due consideration to the diagnosis of a SLAP lesion in Dr. Haider s Operative Note. SLAP lesion [13] The medical literature describes a SLAP lesion. Injuries Injuries to the tissue rim surrounding the shoulder socket can occur from acute trauma or repetitive shoulder motion. Examples of traumatic injury include: Falling on an outstretched arm Direct blow to the shoulder Sudden pull, such as when trying to lift a heavy object Violent overhead reach, such as when trying to stop a fall or slide Throwing athletes or weightlifters can experience tears due to repetitive shoulder motion. Tears can be located either above (superior) or below (inferior) the middle of the glenoid socket. A SLAP lesion (superior labrum, anterior [front] to posterior [back]) is a tear of the rim above the middle of the socket that may also involve the biceps tendon. A tear of the rim below the middle of the glenoid socket that also involves the inferior glenohumeral ligament is called a Bankart lesion. Tears of the glenoid rim often occur with other shoulder injuries, such as a dislocated shoulder (full or partial dislocation). Signs and symptoms It is difficult to diagnose a tear in the shoulder socket rim because the symptoms are very similar to other shoulder injuries. Symptoms include Pain, usually with overhead activities Diagnosis Catching, locking, popping or grinding Occasional night pain or pain with daily activities A sense of instability in the shoulder Decreased range of motion Loss of strength If you are experiencing shoulder pain, your doctor will take a history of your injury. You may be able to remember a specific incident or you may note that the pain gradually increased. The doctor will do several physical tests to check range of motion, stability

6 Page: 5 Decision No. 925/07 and pain. In addition, the doctor will request X-rays to see if there are any other reasons for your problems. Because the rim of the shoulder socket is soft tissue, X-rays will not show damage to it. The doctor may order a computed tomography (CT) scan or magnetic resonance image (MRI). In both cases, a contrast medium may be injected to help detect tears. Ultimately, however, the diagnosis will be made with arthroscopic surgery. 1 [14] In a chapter, Soft Tissues Disorders, injuries to the glenoid labrum are discussed in Soft Tissue Rheumatology: Injuries to the glenoid labrum are an increasingly recognized cause of persisting shoulder pain and instability. They typically occur after an episode where subluxation or dislocation has occurred but are also a feature of repetitive microtrauma, usually in throwers. Bankart and SLAP lesions are the most common forms of labral injuries. The aetiology of the Bankart lesion, involving detachment of the labrum and capsule from the rim of the glenoid in relation to anterior dislocation, has been described earlier. The SLAP lesion involves a tear of the superior labral in the antero-posterior direction. This typically is seen in throwers, where there is traction on the tendon of LHB, which inserts at the superior labrum. Such lesions can also arise in relation to a variety of other activities, including a fall on to an outstretched arm with the shoulder in abduction and slight forward flexion, from acute traction or from an abduction-external rotation mechanism. Once a tear of the labrum has occurred, it may propagate anteriorly, posteriorly, or both. The resulting instability can lead to lesions of the rotator cuff and the LHB. Snyder at al. proposed a system of classification of SLAP lesions that includes such sequelae. The patient may report non-specific, deep-seated shoulder pain and catching or popping with specific movements. Signs of associated LHB or rotator cuff pathologies may be noted and a SLAP test may be positive, but can be unreliable. Investigations Diagnosis of labral pathologies can be difficult. MR arthography can demonstrate such pathologies, but many cases require diagnostic arthroscopy. 2 [15] SLAP lesions can be difficult to diagnose: Labral tears The glenoid labrum increases the depth of the glenoid and serves as an anchor for the attachment of the gleno-humeral ligaments. Historically, labral tears have been difficult to diagnose. Findings on physical examination can be confused with impingement and rotator cuff tendinopathy and by bicipital tendinitis. Diagnosis can be confirmed with arthro-mri, arthro-ct, and double-contrast arthrotomography. Arthroscopy has greatly increased the knowledge of the glenoid labrum in normal and pathologic situations and has aided the diagnosis and treatment of labral lesions. Labral tears can be divided into those associated with symptoms of internal derangement and those associated with anterior or posterior instability. A soft tissue Bankart lesion is associated with a tear of the anterior band of the inferior glenohumeral ligament and is associated with anterior instability. Isolated labral tears that do not involve detachment of the ligaments can cause internal derangement and may have an arthroscopic appearance similar to a meniscal tear of the knee Soft Tissue Rheumatology. Oxford University Press,

7 Page: 6 Decision No. 925/07 Andrews first described lesions of the anterosuperior labrum in throwing athletes; these lesions were often associated with biceps tendon tears (10 percent). These tears result from traction of the biceps tendon. Snyder and coworkers introduced the term SLAP lesion in 1990 to describe an injury involving the long head of the biceps tendon and the superior portion of the glenoid labrum. The long head of the biceps tendon originates at the supra glenoid tubercle and glenoid labrum in the superior-most portion of the glenoid. The major portion of the tendon blends with the posterosuperior aspect of the labrum. The most common mechanism of a SLAP injury is a fall onto the outstretched arm with the shoulder in abduction and slight forward flexion. The lesion can also result from an acute traction on the arm and from abduction and extension rotation mechanism. Patients usually complain of pain with overhead activities and frequent catching or popping sensation in the shoulder. The most reliable diagnostic test is the O'Brien test. The test is performed against resistance with the arm in forward flexion with the elbow extended and the forearm pronated. In the second part of the test, the arm is supinated. If less pain occurs during the latter part of the test, it suggests a SLAP lesion. The most accurate diagnostic test is an MRI arthrogram with gadolinium. Treatment for symptomatic SLAP lesions is surgical. 3 [16] SLAP lesions have classifications: SLAP Classification Type I: In type I lesions, the glenoid labrum demonstrates degenerative changes and fraying at the edges but remains firmly attached to the glenoid rim. No avulsion of the biceps tendon is present (see Image 1A). 4 [17] I find that a Type 1 SLAP lesion, which Dr. Haider discovered in arthroscopic surgery in 2004, would be consistent with the worker s right shoulder complaints. From the medical literature, we discern that a Type 1 SLAP lesion is a marked fraying at the edges of the biceps tendon. SLAP lesions are difficult to diagnose and appear to have only been specifically identified as recently as Generally, shoulder arthroscopy is the most definitive way to confirm a superior labral tear. Unfortunately, it was not until the worker s arthroscopic shoulder surgery in February 2004 that the worker s Type 1 SLAP lesion had been diagnosed. This would likely explain why the worker s SLAP lesion had not been previously diagnosed and why the Medical Consultants did not give it much attention, as they did to the worker s osteoarthritis, in their memoranda. [18] Meanwhile the worker has continued to complain of right shoulder pain throughout the history of this file. I accept the worker s testimony that she never had right arm problems before the accident in November 1993 and she has never had total relief from the pain in the right after the November 1993 accident. [19] I am therefore left to determine when the worker s SLAP lesion occurred and whether it was caused by a workplace injury. The medical literature advises that superior labral tears can occur when a patient falls onto an outstretched hand or shoulder and from a sudden pull, such as 3 Kelley s Textbook of Rheumatology. V.1. 7 th Edition

8 Page: 7 Decision No. 925/07 when trying to lift a heavy object. I find that the worker s November 1993 right shoulder injury resulted from the sudden pull using the mixer as she described. [20] I note from the case materials for a related claim that the worker slipped down some stairs on April 6, 1996, which she reported that day to the employer. She sought medical attention that day and a Physician s First Report (Form 8) was filed (the physician s name is indiscernible). The physician noted the worker s history of accident as having fallen down 18 steps she attempted to stop her fall with her right arm. The diagnosis was intraspinatus strain right shoulder. The physician reported that the shoulder could not abduct or rotate and that the worker had a painful glenoid. All of this would seem to indicate that the worker aggravated her right shoulder condition. [21] In my view, this sequence of events explains why the worker complained of increased right shoulder symptomatology in 1996 after her condition seemed to have stabilized around I do not accept Ms. Russell s submissions that the worker did not complain of right shoulder problems between 1994 and [22] On the basis of the evidence before me, I find that the worker s Type 1 SLAP lesion was more likely than not caused by the workplace accident in November 1993 and/or the workplace accident of April 6, 1996 and that it went undiagnosed until the surgery on February 10, I find that the April 6, 1996 accident aggravated the worker s right shoulder condition. [23] I therefore find that the surgery on the right shoulder on February 10, 2004 was necessitated as a result of the combination of the injuries sustained in the November 17, 1993 and April 6, 1996 workplace accidents. [24] Therefore, the worker has entitlement to the right shoulder surgery on February 10, The Board shall determine the extent and duration of benefits flowing from this decision, including ongoing entitlement, entitlement to temporary disability benefits and entitlement to a permanent impairment assessment as a result of the Type 1 SLAP lesion, but not as a result of the osteoarthritis in the right shoulder. [25] The worker and the employer shall have the usual rights of appeal from any decision made by the Board pursuant to this decision.

9 Page: 8 Decision No. 925/07 DISPOSITION [26] The worker s appeal is allowed. 1. The worker has entitlement to the right shoulder surgery on February 10, The Board shall determine the extent and duration of benefits flowing from this decision, including ongoing entitlement, entitlement to temporary disability benefits and entitlement to a permanent impairment assessment as a result of the Type 1 SLAP lesion, but not as a result of the osteoarthritis in the right shoulder. 3. The worker and the employer shall have the usual rights of appeal from any decision made by the Board pursuant to this decision. DATED: May 10, 2007 SIGNED: M. Butler