WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 738/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 738/16 BEFORE: S. Netten: Vice-Chair HEARING: March 16, 2016 at Toronto Written DATE OF DECISION: March 31, 2016 NEUTRAL CITATION: 2016 ONWSIAT 841 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated September 27, 2013 APPEARANCES: For the worker: For the employer: Interpreter: L. Volpe, Paralegal 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. 738/16 REASONS (i) Issues [1] The issues under appeal are as follows: 1. The recognition of a permanent impairment, and corresponding entitlement to a non-economic loss (NEL) evaluation, for the left side of the neck, left shoulder, left upper arm and upper back; and 2. Entitlement to physiotherapy denied in February (ii) Overview [2] The worker, an auto mechanic, sustained compensable strains to the left arm, shoulder, neck and upper back upon pulling an alternator from a truck on September 19, The worker began physiotherapy, and returned to modified duties on October 24, On February 28, 2012 the Nurse Consultant denied further physiotherapy beyond February 7, On June 15, 2012, the Case Manager determined that the worker s strains had fully resolved without permanent impairment, noting that pre-existing degenerative changes may explain ongoing symptoms. [3] The worker s objections to these decisions were denied by an Appeals Resolution Officer in September The worker now appeals to the Tribunal. [4] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In written submissions dated August 4, 2015, the worker s representative requests recognition of a permanent impairment for the left side of the neck, left shoulder, left upper arm and upper back, as well as ongoing entitlement to health care benefits and physiotherapy. (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. Section 126 requires the Tribunal to apply Board policy when making its decisions. [6] 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) Permanent impairment [7] On the evidence before me, I find on a balance of probabilities that the worker has a residual permanent impairment, consisting of chronic cervical and left trapezius strain with reduced lateral flexion and internal rotation. There is no continuing compensable arm or shoulder joint impairment, nor is there permanent impairment to the upper back other than the trapezius. In reaching these conclusions, I rely primarily upon the report of orthopedic surgeon Dr. M. Heller, as well as subsequent reporting from the worker s other health professionals.

3 Page: 2 Decision No. 738/16 [8] Pursuant to section 2(1), a permanent impairment includes a physical or functional abnormality or loss which continues to exist after maximum medical recovery (MMR). Board policy (Operational Policy Manual Document No ) states that workers reach 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. [9] In this claim, Dr. Heller noted on December 5, 2011 that the worker s symptoms had plateaued. The worker completed active physiotherapy for the compensable injuries on or around February 7, Significant improvement was therefore unlikely after that date, and I find that the worker, more likely than not, reached MMR by February 7, [10] Dr. Heller clarified the worker s diagnosis as cervical and left trapezius strain in December At that time the worker had activity-related left shoulder girdle pain in the trapezius distribution, with some associated loss of cervical lateral flexion and shoulder internal rotation; other neck and shoulder movements were full, and there was no shoulder impingement. Dr. Heller did not attribute the worker s symptomology to underlying degenerative changes, nor were there any diagnoses for the arm, shoulder joint, or upper back. He recommended symptomatic treatment and modified duties (avoiding excessive work above chest level) for at least another 3 months, without providing a prognosis. [11] Complete recovery was not subsequently confirmed or implied; rather, physiotherapist E. Aquino noted ongoing pain, trapezius tightness, and functional limitations in January 2012; family physician Dr. M. Petrini wrote in April 2012 that the worker continued to complain of left neck/shoulder/upper limb pain, requiring work restrictions; and the worker remained on accommodated duties at work. In February 2013, orthopedic surgeon Dr. R. Abughaduma similarly described the trapezius on the left side of the neck as one source of the worker s continuing pain. [12] While Dr. Abughaduma identified the left rotator cuff as a second source of pain in February 2013, I do not find this to be a result of the workplace injuries: a September 2011 shoulder ultrasound showed a normal rotator cuff, the worker was initially diagnosed with soft tissue strains without mention of the rotator cuff, and the medical reporting, in particular Dr. Heller s report, does not support a rotator cuff injury around the time of MMR. There is in any case no subsequent mention of a left rotator cuff injury in the case materials. [13] I note also that medical evidence from 2015 indicates that the worker is now suffering from rotator cuff tendonitis in the right shoulder, carpal tunnel syndrome, and cervical spondylosis, requiring treatment. The worker does not presently have entitlement for any of these conditions, in this claim. [14] In the result, the worker is entitled to a NEL evaluation of his compensable permanent impairment, being chronic cervical and left trapezius strain. (v) Entitlement to physiotherapy [15] The worker initially attended for 12 weeks of physiotherapy, beginning on October 3, Physiotherapist Ms. Aquino submitted an Extension Request for the period December 28, 2011 to February 7, 2012, which was approved. A second Extension Request of January 25, 2012, to allow for further treatment from February 9 to March 8, 2012, was denied.

4 Page: 3 Decision No. 738/16 [16] I find no basis to overturn the denial of further active rehabilitation at that time. The worker s condition had plateaued in December 2011 after two months of physiotherapy, there was no medical recommendation or prescription for further physiotherapy, and Dr. Petrini supported continuing with home physiotherapy (hot packs and exercises) in April I do not interpret Dr. Heller s mention of symptomatic treatment on December 5, 2011 as a recommendation for longer-term active physiotherapy; he had noted initial improvement from physiotherapy with a subsequent plateau, and did not specifically recommend physiotherapy or any form of practitioner-provided rehabilitative therapy at that time. Pursuant to section 33(1), a worker is entitled to health care, which includes physiotherapy, as may be necessary, appropriate and sufficient as a result of the injury. I find, on a balance of probabilities, that further physiotherapy in February 2012 (other than a home-based program) was not necessary. [17] In his written submissions, the worker s representative requested ongoing entitlement to health care benefits and physiotherapy, without being more specific. The worker now has continuing entitlement in this claim, and consequently he is, in general, entitled to health care which is necessary, appropriate and sufficient as a result of his compensable impairment. Any specific request for further health care must be made to the Board, in the first instance. The only issue before me is the worker s entitlement to the additional physiotherapy requested in early 2012, and his appeal of that issue is denied.

5 Page: 4 Decision No. 738/16 DISPOSITION [18] The worker s appeal is allowed in part. [19] The worker has a compensable permanent impairment consisting of chronic cervical and left trapezius strain. He is entitled to a NEL evaluation of this impairment. [20] The worker does not have a compensable permanent impairment of the left arm, left shoulder joint or rotator cuff, or upper back. [21] The worker does not have entitlement to the further course of physiotherapy requested in early DATED: March 31, 2016 SIGNED: S. Netten