WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1314/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1314/16 BEFORE: S. Netten: Vice-Chair HEARING: May 18, 2016 at Toronto Written DATE OF DECISION: August 2, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2059 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated January 29, 2015 APPEARANCES: For the worker: For the employer: Interpreter: D. Stewart, Office of the Worker Adviser Not participating None 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. 1314/16 REASONS (i) Issue [1] The issue under appeal is the recognition of a permanent impairment, and corresponding entitlement to a non-economic loss (NEL) determination, for the right shoulder. (ii) Overview [2] The worker reported feeling a sharp pain in his right shoulder upon pulling an empty laundry bag on a trolley up an incline on May 14, A work-related muscle strain was accepted by an eligibility adjudicator on May 19, 2012, and the worker began a course of physiotherapy. A subsequent diagnosis of right rotator cuff tear was accepted on August 2, The worker had continued working following the date of accident, but by September 2012 had retired from employment. As outlined in a decision letter of October 11, 2012, physiotherapy was extended for a further six weeks and full recovery was anticipated by January [3] After obtaining pre-accident clinical notes, the Case Manager determined on August 1, 2013 that ongoing right shoulder problems were related to a pre-existing condition, and denied a permanent impairment in this claim. A reconsideration decision of May 30, 2014 applied the Board s Aggravation Basis policy and found that the worker had returned to his pre-injury condition by July 31, The worker s objection to these decisions was denied by an Appeals Resolution Officer in January [4] The worker now appeals to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction: Written Appeals. In written submissions dated October 9, 2015, the worker s representative acknowledges a previous symptomatic shoulder injury, but asserts that the workplace injury permanently aggravated the pre-existing condition. (iii) Legal framework [5] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [6] Pursuant to section 46, a worker is entitled to compensation for non-economic loss if his or her injury results in permanent impairment. As defined in section 2(1), a permanent impairment includes a physical or functional abnormality or loss which continues to exist after maximum medical recovery. [7] The applicable Board policy on Aggravation Basis entitlement (Operational Policy Manual Document No , July 2008) states: In cases where the worker has a pre-accident impairment and suffers a minor workrelated injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state. A pre-accident state is the worker's level of impairment and work capacity prior to the work-related injury.

3 Page: 2 Decision No. 1314/16 Permanent impairment In some cases, workers never return to the pre-accident state. If there is a permanent worsening of the pre-accident impairment, the decision-maker may determine that the work-related injury/illness has permanently aggravated the pre-accident impairment. If medical evidence confirms that the work-related injury/illness permanently increased the worker's pre-accident impairment, the worker may be entitled to a non-economic loss benefit. [8] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Prior to May 14, 2012 [9] In the Worker s Report of Injury dated May 27, 2012, the worker ticked no to the question Have you hurt this area(s) of your body before? To the adjudicator on June 22, 2012, the worker reportedly stated that he had prior right shoulder problems years ago, with no medical treatment. However, clinical notes obtained from family physician Dr. S. Koziak in May 2013 outline the following pre-accident history: A right shoulder ultrasound dated December 8, 2008 indicated a small intrasubstance tear of the supraspinatus tendon. In follow-up on December 15, 2008, Dr. Koziak noted full range of motion and a history of symptoms since May. He diagnosed mild tendinopathy and a possible supraspinatus tear. The worker opted for home exercises over physiotherapy or a cortisone shot. On May 14, 2009, the worker reported that he was seeing an osteopath for right shoulder pain, and the history was noted as sore shoulder with hockey declined cortisone. The worker had painful abduction but full range of motion. The diagnosis was supraspinatus tendinitis, and the worker was referred for an MRI with an indication of ultrasound small tear supraspinatus, ongoing pain. The MRI of October 21, 2009 noted marked tendinosis of the supraspinatus tendon, as well as a partial tear of the infraspinatus and capsular thickening suggestive of adhesive capsulitis. On November 2, 2009 the worker had full range of motion except that certain movements caused pain. The worker was referred to a cortisone clinic. On May 25, 2010, the worker continues with pain in his right shoulder. On May 7, 2012, the worker injured right shoulder playing hockey again, and had full range of motion but he notes some pain with elevation of his arm. Dr. Koziak s assessment was: recurrent tendinopathy, right shoulder. the patient did have an MRI, a while back, which revealed a supraspinatus tear. It appears that he has reinjured it playing hockey. I discussed with him treatment options, which included time[, p]hysical therapy, home exercises or cortisone injection. He has chosen home exercises for now.

4 Page: 3 Decision No. 1314/16 [10] In Dr. Koziak s summary in a report dated April 6, 2014, he outlined this history including the findings of supraspinatus and infraspinatus tears, noted that the worker had postponed an appointment with another physician, and described a hiatus until May 7, [11] On this evidence, I find that the worker has had right shoulder problems dating back to May 2008, associated with a small tear and marked tendinosis (chronic degenerative damage) of the supraspinatus tendon and a partial tear of the infraspinatus tendon, for which he has had medical care from his family physician and an osteopath. Following a two-year period without treatment from his family doctor, and immediately prior to the workplace injury, he had re-injured the right shoulder playing hockey, opted for home exercises over physiotherapy or a cortisone shot, and had full range of motion but pain with elevation. (v) Following the workplace injury [12] In his Report of Injury of May 27, 2012, the worker reported feeling a sharp pain in his shoulder, bicep, tricep and down to the side of the wrist, upon pulling a trolley. [13] The worker sought medical attention five days following the workplace injury, on May 19, Ambulatory Health Services physician Dr. A. Bellissimo noted that the worker had pain on biceps flexion and shoulder abduction, the bicipital tendon was tender and the biceps was intact. Imaging taken that day to rule out a fracture showed underlying supraspinatus tendinopathy. Dr. Bellissimo discharged the worker with a diagnosis of soft tissue injury/muscle strain, and recommended three to seven days of minimal arm use. The Worker s and Employer s Report of Injury both indicate that the worker did not lose time from work, and had returned to his regular duties as production manager at a linen service. [14] The worker saw Dr. Koziak on June 7, 2012, who wrote that there was a previous history of injuries to the right shoulder as well as the recent workplace accident in which the worker was helping another worker with his arm outstretched and pulling, and noted discomfort in his right shoulder with radiation of pain down to the wrist level. Dr. Koziak indicated that the worker had reaggravated a previous right shoulder tendinopathy, and he recommended a limitation on overhead work. An ultrasound of June 25, 2012 found a full thickness tear of the supraspinatus tendon near its insertion, as well as tendinopathy within the infraspinatus tendon. In follow-up on July 3, 2012, Dr. Koziak noted ongoing pain, almost full range of movement, and continued work without modification as he is in a managerial position. His Functional Abilities Form and Health Professional s Progress Report of the same date contained no limitations, and anticipated clinical improvement. On July 31, 2012, Dr. Koziak noted less pain and increased range of movement, and virtually full range of movement with a little bit of discomfort in the last 10 degrees of elevation. [15] The worker had begun Board-funded physiotherapy on July 12, Physiotherapist J. Yin provided temporary task limitations on lifting, pushing/pulling and bending/twisting with the right shoulder, which were reiterated on July 31, 2012 and September 6, The worker himself reported less pain, more movement, getting stronger on August 1, [16] When assessed by orthopedic surgeon Dr. S. Gallay and physiotherapist M. Rachevitz at a Regional Evaluation Centre (REC) on September 19, 2012, the worker had full range of shoulder motion, power testing was intact and slightly painful with supraspinatus testing only, and there were positive impingement signs. Dr. Gallay reported a small to medium sized rotator cuff tear, and was not aware of the pre-existing pathology or symptoms in the right shoulder.

5 Page: 4 Decision No. 1314/16 Temporary work restrictions on heavy or repetitive right arm use were recommended (though it had been noted that the worker had retired), along with further rotator cuff strengthening. [17] The worker s physiotherapist described improving movement in October and November 2012, with continuing impingement with full elevation and adduction. An MRI of November 13, 2012 found diffuse tendinosis, a full-thickness tear of the supraspinatus, small infraspinatus tear, superior subscapularis tear, and a split tear and dislocated long head biceps tendon. On discharge from physiotherapy on November 21, 2012 it was noted that impingement remains a problem but functionally he has progressed reasonably well, and that repeated or sustained above shoulder activities would be a problem indefinitely. On November 26, 2012 Dr. Koziak reported full range of motion with some pain at night or with certain activities. [18] In follow-up on March 6, 2013, Dr. Gallay noted that the worker was working part-time (presumably with a new employer) and required permanent restrictions on repetitive or sustained above-shoulder work. [19] In his letter of April 6, 2014, apparently solicited by the worker or his representative (as there was no request from the Board), Dr. Koziak wrote: Ultimately, another MRI of the shoulder was done on 13 November 2012, which revealed a full-thickness tear of his right supraspinatus tendon and a small tear of the infraspinatus tendon. Based on that assessment there was obviously a progression of the supraspinatus tendon tear. One could assume that the injury he sustained at work contributed to it as there was a hiatus from his more remote injury, however, as to what extent is unclear as he had a antecedent history just before of a hockey injury to that same shoulder. As to the exact extent of permanent restrictions this is beyond my scope as a family doctor. Overhead work is usually problematic with rotator cuff injuries. (vi) Discussion [20] The characterization of the workplace injury as an aggravation of a pre-existing symptomatic condition is accepted by the worker s representative. The question to be determined is whether this injury resulted in permanent impairment. [21] On the evidence before me, I find that the worker s condition largely returned to the pre-accident state following the workplace injury and rehabilitation. To the extent that there was some progression of the underlying pathology, I do not find the workplace accident to have made a significant contribution to that progression. As such, the work-related injury did not, on a balance of probabilities, permanently aggravate the pre-accident impairment, and there is no entitlement to a NEL award in this claim. [22] The worker had a substantial history of right shoulder problems, including rotator cuff tears and tendinosis, for which he sought medical and osteopathic care between 2008 and Immediately prior to the workplace injury, the worker had reinjured the shoulder, he was trying a home exercise program, and he had full range of right shoulder motion with pain on elevation. He was sufficiently symptomatic that other treatments, including physiotherapy and cortisone, were offered to him. In comparison, following the workplace accident and some initial rehabilitation, the worker had virtually full range of motion with pain at the last 10 degrees of elevation, on July 31, Subsequently, the worker s range of motion was described by Drs. Gallay and Koziak as full, with signs of impingement and supraspinatus tendinopathy. As

6 Page: 5 Decision No. 1314/16 for work capacity, the worker performed the same managerial work duties with the accident employer both before and after the workplace injury. [23] The June 2012 ultrasound and November 2012 MRI suggest a progression of the rotator cuff pathology since In the absence of imaging taken shortly before May 2012, or immediately following the hockey re-injury of May 7, 2012, it is not clear whether this reflects a non-traumatic degenerative progression, increased tearing associated with the hockey injury, and/or additional pathology resulting from the workplace injury. In the REC report, Dr. Gallay did not address the role of the pre-existing condition and any ongoing contribution of the work injury, since the prior history was not disclosed. I place little weight on the opinion obtained from Dr. Koziak in 2014: while he suggests that one could assume a contribution from the workplace injury given the hiatus from the problems, he then qualifies this by pointing out the immediately preceding hockey injury. He provides no other rationale which would support a finding that the workplace injury made a significant contribution to the additional tendinopathy. [24] The worker had a substantial degree of pre-existing tendinosis and an immediately preceding and symptomatic hockey re-injury, and he then experienced a pulling injury most contemporaneously described as a muscle strain involving the shoulder and arm. In the absence of a medical opinion which describes and explains the likely contributions of the pulling action, the hockey injury, and natural progression of existing degeneration, and which attributes the increased tendinopathy between 2009 and 2012 in significant part to the pulling action at work, I find on a balance of probabilities that the workplace injury did not make a significant contribution to the shoulder pathology seen on imaging in To use the language noted by the worker s representative from Decision No. 2062/01R, the evidence before me does not establish that the workplace injury was a significant or material factor, i.e., that it fell outside the de minimus range. [25] While the worker s representative emphasizes the introduction of permanent restrictions imposed by Dr. Gallay in March 2013, he also notes (as did Dr. Koziak) that the worker did not require specific modified duties with the accident employer since he was able to avoid any physical activity at work as he was employed in a managerial position. This would have been the case both before and after the workplace injury. Nevertheless, in his Health Professional s Report of June 7, 2012 Dr. Koziak advised the worker to limit overhead work, yet on July 3, 2012 Dr. Koziak noted no limitations. Dr. Koziak further suggested, in April 2014, that overhead work is generally contraindicated for those with rotator cuff injuries, and again this would have been the case both before and after the accident. It thus may well be that a restriction on repetitive or sustained above-shoulder work would have been recommended for the pre-existing pathology or symptomology, if the worker s regular duties had required such activity. The lack of pre-existing restrictions, in the worker s specific employment context, is not meaningful. In any case, permanent restrictions were imposed following MRI investigation into the extent of the rotator cuff pathology and in relation to the worker s return to other employment (of which no details are provided). Since the worker s capacity to work with the accident employer did not change following the workplace injury, and since I have not found the workplace injury to have significantly contributed to the progression of the shoulder pathology, I do not find the May 2013 permanent restrictions to have been imposed as a result of the workplace injury.

7 Page: 6 Decision No. 1314/16 [26] The worker s representative also refers to Decisions No. 529/14 and 1845/10 in his submissions. However, the facts of those cases are substantially different from the facts of this appeal, in which there was not only a lengthy history and significant underlying pathology but also an immediately preceding injury to the same part of the body. [27] As I have found on a balance of probabilities that the work-related injury did not permanently aggravate the pre-existing shoulder impairment, the worker s appeal is denied.

8 Page: 7 Decision No. 1314/16 DISPOSITION [28] The appeal is denied. DATED: August 2, 2016 SIGNED: S. Netten