WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 807/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 807/15 BEFORE: S. Peckover: Vice-Chair HEARING: April 23, 2015 at Toronto Written DATE OF DECISION: May 12, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1008 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 15, 2013 APPEARANCES: For the worker: For the employer: Interpreter: K. Hahn, Paralegal Not participating Not Required 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. 807/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated October 15, 2013, which concluded that she had no permanent impairment (PI) in the neck and right shoulder. (ii) Issue [2] The sole issue before me is whether the worker has a PI in the neck and right shoulder, and therefore should be granted a non-economic loss (NEL) award. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1955, began working for the accident employer, a grocery store, in In June 2007, she reported a gradual onset of neck and right shoulder pain, which she attributed to the repetitive nature of her work as a deli manager. Entitlement was allowed for the neck and right shoulder, with an accident date of June 4, 2007, and in July 2009, after a review of the file, was expanded to include bilateral carpal tunnel syndrome (CTS). She was provided with modified work, and continued working until August 28, Her physician authorized her off work for three weeks, following which she returned to work on September 24, 2007 with modified hours and duties. [5] The worker attended a Regional Evaluation Center (REC) assessment on November 30,2007, the report from which is dated December 3, The diagnosis was repetitive strain injury with cervical brachial myalgia, with no findings of cervical radiculopathy. The worker also complained of generalized myalgia/arthralgia of the low back, pelvis, knees and feet, not related to the workplace injury. The recommendations were to transition the physiotherapy program to a home-based program over the ensuing four weeks; continue with restrictions at work on a temporary basis for eight weeks, with gradual increase in hours; and consider pain management counselling if not improving. [6] The worker underwent a Functional Evaluation Program and a Work Hardening program in late January 2008, to prepare her to return to work as a grocery clerk with the employer. She was discharged from the Work Hardening program on February 15, 2008 as fully job ready. The summary report of that date indicated that the worker had achieved all targets considered essential for a successful return to the target job on a full-time basis. She demonstrated full range of motion and associated whole body mobility during free movement patterns or under loads she would be expected to bear at work and/or during her leisure hours, without hesitation. [7] The worker underwent compensable right wrist surgery for her CTS on February 15, 2010, following which she was eventually granted a 5% NEL. Although surgery on the left wrist was contemplated, the worker declined to undergo it. [8] The worker attempted to return to modified work on a number of occasions following her surgery, but was not successful in continuing to work. A Functional Capacity Evaluation (FCE) on January 26 and 27, 2011 found that the worker was not physically capable of doing the job of produce clerk. As the employer was unable to offer suitable permanently modified work, the

3 Page: 2 Decision No. 807/15 worker was sponsored in a work transition (WT) program, and was retrained in the suitable occupation (SO) of Front Desk Hotel Clerk. [9] In a letter dated February 28, 2011, Mr. Hahn requested that the worker s file be reviewed with respect to a PI for the neck and right shoulder. In a decision letter dated March 8, 2011, the Case Manager stated that a review of the medical documentation on file provided no objective medical evidence to support that there was a permanent impairment for the neck and shoulder. Entitlement to a NEL award therefore was denied. [10] At the Appeals Branch, in a decision dated October 15, 2013, the ARO reviewed the available medical documentation, and found that there was no current medical information on file. All recent medical activity was related to the worker s bilateral CTS. The medical reports on file did not provide any evidence of a measurable functional impairment. At both the FRP in February 2008 and the FCE in January 2011, the worker was noted to have normal range of motion and muscle strength in the neck and shoulder. Entitlement to a PI for the neck and right shoulder therefore was denied. [11] The worker appeals from this decision. (iv) Law and policy [12] Since the worker was injured in 2007, 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. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #61 NEL Entitlement decisions prior to March 30, 2011; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [14] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Policy Operational Policy Manual (OPM) Document No , Determining Maximum Medical Recovery (MMR), which states as follows: 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. Guidelines Definitions Significant improvement refers to a marked degree of medical improvement in the work-related impairment that is demonstrated by a measurable change in objective clinical findings. 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.

4 Page: 3 Decision No. 807/15 Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. Policy OPM Document No , Determining the Degree of Permanent Impairment, which states: Workers who have a work-related permanent impairment are eligible for non-economic loss (NEL) benefits. To rate permanent impairments, the WSIB uses a prescribed rating schedule, all relevant health care information in the claim file and if required, the report from a NEL medical assessment. Guidelines When the worker reaches maximum medical recovery (MMR), the WSIB attempts to determine the degree of the worker s permanent impairment by considering all relevant health care information in the claim file. The worker and employer are advised of this procedure. Permanent impairment Permanent impairment means any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. A worker s degree of permanent impairment is expressed as a percentage of total permanent impairment of the whole person. Rating Schedule The prescribed rating schedule is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition revised (the AMA Guides). (v) Analysis [15] In his submissions dated February 19, 2015, Mr. Hahn argued that the worker s original areas of injury in this claim were to the neck and right shoulder, and that they continued to be a factor in any and all attempts at returning to modified duties with the employer. He stated that restrictions or limitations had been in place since the date of accident for the neck and right shoulder, which were clearly documented in the claim file. He stated that, when the WT plan was being developed in 2011, four years after the accident, the Board still maintained that the neck and right shoulder were a responsibility of this claim, and precautions were provided for them. [16] A review of the medical and other documentation on file will be helpful in determining the level of the worker s recovery from her neck and right shoulder difficulties. The following are relevant to this discussion: The initial reporting is focused mostly on the neck and right shoulder, although there are some EMG studies of the wrists dating from July 24, 2007 which revealed median nerve entrapment in both wrists, mild on the right and moderate on the left. In a Functional Abilities Form (FAF) dated October 12, 2007, Family Physician Dr. Hyndman listed restrictions of no lifting above shoulder height, no pushing/pulling greater than

5 Page: 4 Decision No. 807/15 five pounds, and no repetitive right arm use. The worker was also to take frequent micro-breaks while working. She was to attempt four-hour work days. In a Physiotherapist s Treatment Extension Request dated October 29, 2007, Physiotherapist S. Lehouillier reported that the worker had improved shoulder and neck range of motion, and increased scapular strength, as a result of treatment. Her symptoms and findings at that time included a rounded shoulder posture with forward head positioning; muscle imbalance in the thromboids; levator scapular/ut tension, right greater than left; and soft tissue inflammation, right greater than left. Restrictions were no repetitive use of the upper extremities, above shoulder lifting, or pushing/pulling greater than five pounds. In a FAF dated October 29, 2007, Mr. Lehouillier listed restrictions of no push/pull greater than 7.5 pounds, and no work above the right shoulder. The worker could work four to six hours per day, as tolerated. He asked for a referral for a multi-disciplinary assessment. Similar restrictions were listed in a FAF dated November 28, 2007, although the hours of work were reduced to four per day, and the push/pull limitation was reduced to five pounds. Repetitive use of right arm was to be no more than 30 minutes with a break or change in job. The REC assessment, dated December 3, 2007, is the first to provide range of motion findings for the worker s neck and right shoulder. It reported as follows: Inspection of her spine revealed normal alignment with the cervical and lumbar lordosis maintained. Cervical range of motion was within functional limits but was associated with pain, particularly on extension and rotation the left and right. There was diffuse tenderness to light palpation over the axial cervical spine paracervical musculature and trapezius muscles. No muscle spasm was identified. Shoulder range of motion was functional on the left side. On the right side, shoulder range of motion was restricted actively in abduction at 90º and forward flexion 110º. Passively, I could put the shoulder through a full range of motion but with pain. I was not able to demonstrate any impingement signs. There was no evidence of shoulder instability. Neurological examination of the upper extremities was associated with cogwheel giving way on motor testing but there were not focal motor deficits. Deep tendon reflexes were symmetrical and 2+ and there was intact sensation to light touch. Phalen s test was negative bilaterally. Tinel s test was negative at the wrist and the elbow. The physical examination was characterized by considerable pain behavior with verbalization of pain, facial grimacing, withdrawal to light touch and cogwheel giving way on motor testing. The summary report dated February 15, 2008, from Workright, where the worker participated in the FRP, indicates as follows: [We] were able to design programming specifically to this outcome relative to [the worker s] realized and/or potential problems with her neck/upper back/upper extremities. At this time, we are pleased to report that [the worker] has achieved all targets considered essential for a successful return to the target job on a full time basis. In this regard, she demonstrates full range of motion and associated whole body mobility during free movement patterns or under loads she would be expected to bear at work and/or during her normal avocational lifestyle without hesitation. At this time, [the worker] no longer reports or demonstrates limitations or unusual risk of injury or severe symptom exacerbation throughout her neck/upper back/upper extremities while

6 Page: 5 Decision No. 807/15 engaged in manual material handling type of work up to a HEAVY LEVEL on a full time basis. Therefore, as of February 15, 2008 we have discharged [the worker] as job ready without limitation relative to resuming her pre-injury full time gainful employment with [the accident employer]. [Emphasis in italics in original; emphasis in bold added] [17] Thus, as of February 15, 2008, the worker was cleared to return to work with the employer with no restrictions for her neck and right shoulder. From that date to the present, the medical reporting relates to the worker s CTS, her right wrist surgery for CTS, and numerous EMG test results for the CTS. However, there are some passing references to the neck and right shoulder in some of the later reports. For example, in the FCE dated February 24, 2011, Physiotherapist W. P. Landry reported as follows: Chief Complaints/Symptoms The client stated she had the following complaints and symptoms. The therapist asked If these symptoms did not exist, would you be 100%? She stated she would be. 1) Pain in hands, arms, shoulders and neck. 2) Stiffness in neck, right shoulder 3) Weakness in right and left hand. [18] The Functional Capacity Evaluation Summary Report, contained in the FCE dated February 24, 2011, states as follows: Date of Injury: June 4, 2007 Area of Injury: Neck, Shoulders, Bilateral CTS. Right Wrist Surgery February 2010, Left Wrist Surgery March Summary of Findings [The worker] did not have any difficulties with tests that did not involve her neck and arms. [The worker] perceives her abilities to be at the sedentary physical demand level according to her subjective reports. It was determined that [the worker] was not able to perform the job of a produce clerk due to the lifting and carrying requirements She also did not meet the demands required for the dexterity and gripping work required. She demonstrated high physical effort and her subjective reports were inconsistent. Abilities/Strengths [The worker] had no difficulties with the following activities: 6. Reaching activities (outstretched) at or below waist level 7. Neck Flexion postural work (dynamic/static)

7 Page: 6 Decision No. 807/15 Limitations [The worker] had restrictions with the following activities: 1. Fine/Medium dexterity work Occasionally 2. Gripping (right hand) Occasionally 3. Tip Pinching Right/Left Hand Occasionally 4. Palmar Pinching Right / Left Hand Occasionally 5. Bilateral/Right/Left handed Push/Pulling Occasionally 6. Elevated / Overhead work Occasionally 7. Neck Extension postural work (dynamic/static) Occasionally 8. Lifting Floor to Waist, 20 lbs occasionally / times per hour 9. Lifting Waist to Above Shoulder, 15 lbs occasionally / times per hour 10. Carrying (bilateral) 50 feet, 15 lbs occasionally / times per hour Definitions: Occasionally (between 25 minutes and 2.5 hours per 8 hour day, not al at once but spread over the 8 hour day or times per hour over the 8 hours) [Emphasis added] [19] While the later reporting, as outlined above, does mention some neck and shoulder difficulties, and hints at ongoing problems with those areas, there is a lack of information before me to establish that the worker had ongoing compensable difficulties with the neck and right shoulder. As noted above, after February 15, 2008, there are no reports from the worker s treating physician, her physiotherapist, any specialists consulted, or from the worker herself with respect to ongoing difficulties with those areas. There is no documentation of range of motion with respect to the neck and shoulder after February 15, 2008, which clearly indicated that they were normal at that point in time. Neither is there a report from any of her treating health care providers which would indicate that the worker received any kind of treatment for the neck and shoulder after that date. [20] I therefore find that the information before me is insufficient to establish that the worker had any residual impairment in her neck or right shoulder for which a permanent impairment award would be payable.

8 Page: 7 Decision No. 807/15 DISPOSITION [21] The appeal is denied. DATED: May 12, 2015 SIGNED: S. Peckover