WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2649/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2649/16 BEFORE: K. Iima: Vice-Chair HEARING: October 6, 2016 at Toronto Written DATE OF DECISION: December 28, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3582 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated September 4, 2015 APPEARANCES: For the worker: For the employer: Interpreter: J.T. Lamont, Paralegal Not participating Not applicable 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. 2649/16 REASONS (i) Issue [1] The issue under appeal is the worker s entitlement to a redetermination of the non-economic loss (NEL) award for the left shoulder, rated at 8% in (ii) Background [2] The worker has entitlement for a permanent impairment to the left shoulder, resulting from a work-related strain injury on May 28, Based on the findings from a NEL medical assessment in October 1993, the worker s left shoulder impairment was rated at 8% on April 20, [3] In November 1998, the worker requested a NEL redetermination for the left shoulder. The claim was reviewed by a Workplace Safety and Insurance Board (WSIB or the Board) Medical Advisor who opined that the medical reports on file failed to support a deterioration of the worker s left shoulder condition below the 8% NEL level. As a result, the worker s request was denied at the operational and appeals levels of the Board. [4] In correspondence to the Board dated December 12, 2009, the worker s representative requested entitlement to a NEL redetermination of the left shoulder, which was denied by a Case Manager in May [5] On March 26, 2015, the worker s file was again reviewed to determine whether a redetermination of the worker s NEL award for the left shoulder was warranted. However, entitlement to a redetermination of the NEL benefit was denied on the basis that the worker s current limitations were not due to his work-related impairment of a shoulder strain, and a significant deterioration of his work-related permanent impairment was not evident. The Appeals Resolution Officer (ARO) upheld that decision on September 4, [6] The worker now appeals to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction: Written Appeals. The worker s representative relies upon written submissions dated May 25, (iii) Law and policy [7] Since the worker was injured in 1992, the pre-1997 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1997 Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA) also apply to the appeal. [8] Pursuant to section 42 of the pre-1997 Act, a worker is entitled to compensation for non-economic loss if a compensable injury results in a permanent disability. [9] Sections 47(9) and (10) of the WSIA provide that if a worker with a permanent impairment greater than zero suffers a significant deterioration in his or her condition, and 12 months have passed since the Board s most recent determination concerning the degree of impairment, the worker may request that the Board re-determine the degree of the worker s permanent impairment. Board Operational Policy Manual (OPM) Document No , NEL Redeterminations defines the term significant deterioration as follows:

3 Page: 2 Decision No. 2649/16 A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measureable change in objective clinical findings. (iv) Analysis [10] The issue of the worker s entitlement to a redetermination of his NEL award for the left shoulder turns on whether there has been a marked degree of deterioration in the worker s compensable condition of a left shoulder strain, as demonstrated by a measurable change in objective clinical findings. [11] The medical reports contemporaneous to the May 28, 1992 injury confirm the worker had sustained a strain injury to his left shoulder/rotator cuff area. Treatment was conservative with an emphasis on active rehabilitation and an exercise program focused on stretching and strengthening. [12] At the NEL assessment conducted by Dr. F. O Reilly on October 29, 1993, the worker had complained of persistent pain and weakness in the left shoulder and arm. There was no evidence of neurological deficiency and the worker s range of motion measurements in the left shoulder were: flexion 102 degrees, extension 62 degrees, adduction 30 degrees, abduction 30 degrees, internal rotation 40 degrees, and external rotation 40 degrees. [13] In May 1996, Dr. R. House, a specialist in occupational medicine, saw the worker in a follow-up 1 appointment at the worker s request. Dr. House noted the worker s complaints of ongoing pain in both shoulders with radiation of numbness from the shoulder down the arms. Following a physical examination, Dr. House reported that range of motion for both shoulders was normal, although there was some pain at the end of abduction and tenderness over the acromioclavicular (AC) joints; a neurologic examination was unremarkable. In the occupational physician s opinion, the worker s persistent shoulder pain appeared to be associated with chronic bilateral rotator cuff injuries and some underlying osteoarthritis of the shoulders. Dr. House recommended the worker continue with stretching exercises of the upper extremities and neck, and to try to remain as active and functional as possible. No additional investigation was ordered. [14] Over the course of the next few years, the worker requested further follow-up examinations by Dr. House. The physical findings in respect of his left shoulder, as documented in Dr. House s reports on file, are summarized as follows: September 27, 1996: some tenderness over the left AC joint as noted previously; active abduction was about 90 degrees, but full range of motion was achieved through passive abduction; neurologic examination was unremarkable; January 14, 1998: the worker s overall clinical condition was essentially unchanged since the last assessment; November 30, 1998: some tenderness over the left AC joint and left trapezius muscle; although there was some difficulty with full abduction of the left shoulder which was limited by pain after about 100 degrees of abduction, passive range of motion produced nearly full abduction; neurologic examination did not reveal any abnormalities; the worker s presentation was similar to the previous year; 1 The worker was first referred to Dr. House in October 1992 regarding his left shoulder as well as several other prior workrelated injuries.

4 Page: 3 Decision No. 2649/16 February 25, 1999: some tenderness over the left AC joint and left trapezius muscle; the worker was only able to actively abduct the left shoulder to about 100 degrees, but passive abduction of the shoulder was within normal limits; the worker reported some diminished sensation in the left arm and forearm which did not correspond with any definitive nerve root distribution; no additional investigations were arranged; June 1, 2001: tenderness over the left AC joint and to a lesser extent over the left trapezius; after about 90 degrees of active abduction, the worker began to experience pain in the shoulder; Dr. House was able to passively abduct the shoulder to essentially a full range of motion; neurologic examination indicated normal reflexes in both upper extremities; the worker reported diminished sensation over a broad area of the left forearm which did not correspond with any particular nerve root or nerve distribution; no additional investigations were arranged. [15] Thus, on my reading of Dr. House s reports, there appeared to be little, if any, change in objective clinical findings. In particular, I find it significant that notwithstanding the worker s subjective reporting of increased pain in his shoulder(s), Dr. House was unable to detect any change in objective clinical findings: the active range of motion measurements were similar to the measurements recorded in the worker s NEL assessment; the passive range of motion measurements yielded essentially a full range of motion; there were no neurological deficiencies detected; and the worker s reported diminished sensation in the left forearm did not appear to have an organic basis. Moreover, I note that Dr. House did not arrange for any additional investigations. He continued to recommend conservative treatment of the worker s pain symptoms and encouraged the worker to continue with stretching exercises on a daily basis and to remain as active as possible. [16] While I acknowledge that the worker has reported an increase in shoulder pain, I note that a worsening of subjective symptoms such as pain does not in and of itself warrant a NEL redetermination, particularly in respect of an organic condition. In this regard, I accept and adopt the reasoning set out in Tribunal decisions 2 which have found that an increase in the level of pain reported is insufficient to establish a significant deterioration in an organic condition for the purposes of warranting a NEL redetermination. [17] Following Dr. House s last report of June 1, 2001, the next medical report on file regarding the worker s left shoulder is from orthopaedic surgeon, Dr. M.W. Roscoe, nearly nine years later. In his report of March 31, 2010, Dr. Roscoe stated: This man was seen today for assessment of shoulder pain. He has injured his shoulders at work. The right one was back in 1989 and the left one in He was treated in the usual manner with conservative measures. Over the years he has reported significant ongoing pain which he thinks is worsening over time. Examination reveals a man whose shoulder alignment is normal. He has tenderness in both rotator cuffs... On the left shoulder his active abduction was better at 90 and forward flexion at 110. He had good rotation with his arm at his side, again with some pain and crepitus in the subacromial area. 2 See, for example, Tribunal Decision Nos. 1850/09, 136/07, and 2246/08.

5 Page: 4 Decision No. 2649/16 He has had ultrasounds done in 2008 showing tendonitis. [18] In Dr. Roscoe s opinion, the worker had chronic symptoms in his shoulders related to his prior work injuries. Of note, however, Dr. Roscoe did not express the view that the worker s condition had deteriorated. Although the orthopaedic surgeon referred to ultrasounds in 2008 which showed tendonitis, there was no evidence before me that the tendonitis was causally related to the worker s strain injury in I also note that the active range of motion measurements reported by Dr. Roscoe (abduction 90 degrees and flexion 110 degrees) suggested some improvement in flexion, as compared to the range of motion measurements in the NEL assessment (abduction 90 degrees and flexion 102 degrees). [19] The worker was subsequently referred to Dr. O.F. Veidlinger, a neurologist. In a report dated January 23, 2015, Dr. Veidlinger indicated that a recent examination had revealed calcific tendinopathy in supraspinatus and subscapularis, which was restricting the worker s ability to elevate his arm. The neurologist noted in February 2015 that the worker had good range of movement notwithstanding mild wasting both anteriorly and posteriorly over the scapular muscles. On May 1, 2015, Dr. Veidlinger opined that the calcified tendonitis was likely an ongoing effect of the worker s tendonitis. [20] In this case, the worker has entitlement to a NEL award for the left shoulder as a result of his compensable left shoulder strain. As noted above, there is no evidence before me which suggests that the worker s recently diagnosed tendonitis is causally related to his left shoulder strain in While there appears to be some suggestion of a reduction in the worker s ability to elevate his arm(s), the medical reporting from Dr. Veidlinger is clear that this is attributable to the calcific tendinopathy and tenosynovitis. As such, I am unable to find that the worker s compensable injury of May 1992 is a significant contributing factor to the claimed deterioration in his condition. [21] Therefore, for the reasons set out above, I find that the medical evidence does not support a conclusion that the worker has suffered a significant deterioration in his compensable condition, as demonstrated by a measurable change in objective clinical findings, since he was last assessed in Accordingly, the worker is not entitled to a NEL redetermination for the left shoulder.

6 Page: 5 Decision No. 2649/16 DISPOSITION [22] The appeal is denied. DATED: December 28, 2016 SIGNED: K. Iima