WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 465/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 465/14 BEFORE: S. Peckover: Vice-Chair HEARING: March 12, 2014 at Toronto Written DATE OF DECISION: March 14, 2014 NEUTRAL CITATION: 2014 ONWSIAT 547 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 30, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Not Participating M. O Dell-Reinhardt, Paralegal 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. 465/14 REASONS (i) Introduction to the appeal proceedings [1] The employer appeals a decision of the ARO, which concluded that it was not entitled to Second Injury and Enhancement Fund (SIEF) relief with respect to the costs of this claim. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issue [2] The issue before me is the employer s entitlement to SIEF relief in this claim. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1976, began working for the accident employer as a forklift operator in On May 30, 2011, he was stepping down from the forklift platform when he reached out to hold a safety cage grab bar, and felt pain in his right shoulder. He was off work and on loss of earnings (LOE) benefits until February 8, 2012, at which time he returned to modified work. He resumed his regular duties on March 8, An MRI dated June 23, 2011 revealed a low-grade partial thickness supraspinatus tear with moderate supraspinatus tendinosis, intrasubstance tear, and mild infraspinatus tendinosis. There was mild AC joint arthrosis and subacromial/subdeltoid bursitis. Lastly, there was an inferior labral tear with a paralabral cyst. [5] On December 22, 2011, Ms. O Dell-Reinhardt wrote to the Board on behalf of the employer, seeking a review of the file with respect to SIEF relief. She noted that the worker had had four prior claims involving the right shoulder, for one of which he was on modified duties for approximately two months. She questioned whether those prior injuries, or some other underlying pre-existing condition, might have contributed to causation and/or recovery under this claim. She followed up by letter dated January 17, [6] In a decision letter dated February 13, 2012, the Case Manager stated that, while there were prior claims for the right shoulder, there was no evidence to support that these prior claims had had any impact on the most recent claim. There was no evidence of a pre-existing condition that had contributed to the injury or delayed recovery. SIEF cost relief therefore was not warranted. The employer objected. [7] At the Appeals Branch, in a decision dated October 30, 2012, the ARO reviewed the medical information on file for this claim, as well as the four prior right shoulder claims. S/he concluded that, in all four cases, there was no indication in any of the claims of any pre-existing conditions or of ongoing issues after each claim was closed. The medical reporting and investigations in the current claim did not identify a pre-existing condition, and it was expected that the worker would fully recover. [8] The employer appeals from this decision. (iv) Law and policy [9] Since the worker was injured in 2011, 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.

3 Page: 2 Decision No. 465/14 [10] The Board s authority to establish the Second Injury and Enhancement Fund derives from section 98 of the WSIA, which states: 98. (1) The Board may establish a special reserve fund to meet losses that may arise from a disaster or other circumstance that, in the opinion of the Board, would unfairly burden the employers in any class. [11] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Package #107 Aggravation Basis/SIEF; and Package #299 Decision Making/Merits and Justice. [12] I have considered these policies as necessary in deciding the issues in this appeal, including Operational Policy Manual (OPM) Document No , entitled Second Injury and Enhancement Fund. This policy provides in part: Policy If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Both physical and psychological disabilities are included. Guidelines There is no provision in the Act for the Fund to apply to Schedule II employers. In situations where alcoholism plays a role in the causation of an accident, it is not considered to be a pre-existing condition with regard to the application of SIEF relief. The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. SIEF-application to employer costs Medical Significance of Pre-existing Condition* Minor Moderate Major Severity of Accident** Minor Moderate Major Minor Moderate Major Minor Moderate Major Percentage of Cost Transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50%

4 Page: 3 Decision No. 465/14 NOTES * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (lift, push, pull, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident Minor: expected to cause non-disabling or minor disabling injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF. (v) Analysis [13] In analyzing a SIEF appeal, Decision No. 1404/11 states: The standard of proof in a Tribunal appeal is the balance of probabilities. In a SIEF appeal, this means that the evidence must demonstrate that it is more likely than not that the underlying condition prolonged or enhanced the worker s disability resulting from the workplace accident. The severity of the accident and the significance of the pre-existing condition must also be determined based upon direct evidence or reasonable inferences which may be drawn from the evidence. In a SIEF appeal, there is often a lack of direct evidence, and the parties may be drawn into relying upon unsupported assertions and arguments. I find it necessary to emphasize, however, that entitlement for SIEF relief must be demonstrated on the basis of valid evidence or reasonable inferences drawn from the evidence. [14] Thus, I must determine, based on the evidence before me, whether it is more likely than not that a pre-existing, underlying condition prolonged or enhanced the worker s disability resulting from the workplace accident. On the other branch of the test for entitlement, I must determine whether it is more likely than not that the worker s pre-existing disability caused or contributed to the workplace injury. If either of these conditions is met, entitlement to SIEF cost relief must flow. [15] In the case before me, the worker had a number of problems in the right shoulder, as outlined above. The detailed findings are as follows, as described in the MRI dated June 23, 2011: There is mild AC arthrosis with minimal subchondral edema and capsular distention. There is a convex acromial undersurface. There is subacromial/subdeltoid bursitis. There is a low-grade articular sided partial-thickness tear of the distal supraspinatus with background moderate supraspinatus tendinosis and proximal intrasubstance tear. There is mild infraspinatus tendinosis. There is no muscular atrophy of the rotator cuff.

5 Page: 4 Decision No. 465/14 The long head biceps tendon and biceps labral complex are unremarkable. There is a suspected tear of the labrum at 5:30 position with multiloculated inferior paralabral cyst measuring 1.1 x 1 cm. There is a small shoulder joint effusion with fluid tracking within bicipital groove. There are subchondral cysts within the anterior and posterior humeral head but no other focal osseous lesions are demonstrated. Alignment is satisfactory. [16] The term arthrosis, of course, is a synonym for degenerative joint disease. [17] The Tribunal s Medical Discussion Paper entitled Shoulder Injury and Disability, authored by Orthopaedic Surgeon Dr. Hans Uhthoff and most recently revised in October 2010, indicates as follows with respect to rotator cuff tears: In the more common type of rotator cuff tear, the tearing occurs in older individuals with a moderate external force, such as during the lifting of objects. It causes a tear of a cuff tendon close to its insertion into bone. This site has been weakened by age-related, and maybe by activity-related, changes (middle aged and older persons), already present at the time of the incident. The incidence of age-related rotator cuff tears increases with age to a point where tears may occur in the absence of a history of injury. This happening must be considered as a disorder and not as an injury. [Emphasis added] [18] Apart from the middle-aged or older qualifier in the above description, this seems to describe the worker s situation. That is, at 36 years of age, he grasped a grab bar on the forklift and experienced pain in the right shoulder. [19] Dr. Uhthoff further elaborated on this situation, as follows: D. Rotator Cuff Tear As stated before, a severe acute trauma can cause a tear, particularly in younger individuals. In that instance, a piece of bone from the humeral head (greater tuberosity) is usually avulsed together with the tendon. Obviously, this must be considered as an injury. As stated above, in middle aged or older people, changes inside the tendon (degenerative changes) make the tendon weaker to a point where the tear may occur spontaneously with no trauma or with trivial trauma. In this instance, we are dealing with a chronic tear, a disorder. Work requiring repetitive or prolonged use of arms above the shoulder level (either flexion or abduction) may accelerate the progress of degenerative tendinitis and thus, may predispose to tears (work-related). Small tears may not cause any symptoms. Bigger tears cause a weakness and usually cause pain, mostly on abduction. [Emphasis added] [20] With respect to bursitis and tendonitis, Dr. Uhthoff stated as follows: Diseases and Disability of Shoulder A. Bursitis Bursitis of the shoulder is a disorder and usually refers to the subacromial-subdeltoid bursa that has become inflamed. This means that the bursal walls are thickened and that the amount of fluid in the bursa is increased. Bursitis almost always develops in response to an irritation by neighbouring structures. A bony outgrowth (spur of the acromion or osteophytes from an arthritic acromi-clavicular joint) or a thickened or a partially torn tendon of the rotator cuff may lead to an irritation of the bursa. With the exception of rheumatoid arthritis, bursitis can never be a primary or free standing diagnosis. It is always secondary to an

6 Page: 5 Decision No. 465/14 underlying disease. The diagnosis of bursitis as a work-related disorder is unacceptable. B. Tendonitis Tendinitis, a disorder In the strict sense of the word, it means an inflammation of a tendon. However, microscopic examination of a biopsy sample rarely shows the presence of inflammatory cells. The process is rather characterized by other, usually degenerative, tendinous changes that lead to a thickening of the tendon. Often the diagnosis of tendinitis is based on a clinical examination. All too often, additional testing later on reveals an incomplete tear of a cuff tendon. It is therefore my opinion, that the diagnosis tendinitis should only be provisional; more detailed examinations (ultrasound, MRI or even a diagnostic arthroscopy) should be done to exclude partial tears. [Emphasis added] [21] Thus, both bursitis and tendonitis could be indicative of a full or partial tear of one of the tendons in the shoulder. The tears, in turn, often are the end result of a weakening of the tendons in the shoulder due to degenerative changes. Both bursitis and tendonitis could also be the result of irritation caused by degenerative changes in the shoulder. [22] Also of note is the fact that the worker has had four right shoulder claims, as follows: April 15, 2007 Progression of pain in right shoulder during a six-hour period of repetitive lifting and handling boxes of product, overhead reaching. No lost time. November 9, 2007 while working in the aisles of the warehouse, the worker picked up a box weighing 15 to 25 pounds, and felt pain in his right shoulder. No lost time. January 18, 2010 pain in right shoulder while handling products. Tried to continue, but had difficulty using scanner that was above shoulder level. Off work for one week, then on modified duties for two months, following which, he returned to his regular duties. September 20, 2010 pain in right shoulder while performing regular duties. No lost time. Returned to regular duties on September 24, [23] I am of the view that the above medical record provides an explanation for the worker s various periods of right shoulder pain. The four prior claims also provide evidence pointing to the conclusion that the worker s right shoulder difficulties pre-existed the present claim, and that he had had periods of shoulder pain in the past, which required medical treatment, and in one instance, required time off work, followed by modified work. I conclude that the worker had a pre-existing disability in his right shoulder, consisting of degenerative changes, which predisposes him to right shoulder pain, given the right conditions. This medical condition, at the very least, contributed to the workplace accident on May 30, [24] Further, the worker s recovery from the injury in the present claim has been prolonged, in that he had had extensive treatment, and he was not ready to return to modified work until February 2012, some nine months after the injury. According to an old version of OPM Document No , Determining Maximum Medical Recovery (MMR), the usual healing time for all soft-tissue injuries is about three months. While part of the delay in returning to work was a result of the employer s inability to supply suitable modified work on a long-term basis, the fact remains that the worker was symptomatic throughout this time period. His recovery therefore was prolonged, as a result of the pre-existing condition.

7 Page: 6 Decision No. 465/14 [25] The employer therefore is entitled to SIEF relief. [26] As can be seen from the table of relief found in the Board s SIEF policy, the amount of SIEF relief granted is dependent on two variables: the severity of the accident and the severity of the pre-existing condition. [27] Board policy requires that accidents be characterized as either minor (expected to cause non-disabling or minor disabling injury), moderate (expected to cause disabling injury) or major (expected to cause serious disability, probable permanent disability). In addition to these definitions, the policy suggests that the severity of the accident is to be evaluated in terms of the accident history components, which include mechanics (lift, push, pull, fall, blow, etc.), position (kneeling, standing, sitting, squatting, bending, etc.) and environment (lighting, temperature, weather conditions, terrain, etc.). In determining the severity of accident Decision No. 1021/12 confirmed that the actual injuries are not considered but rather the extent of disability the mechanics of the accident would reasonably be expected to cause. [28] In the case before me, the worker did nothing out of the ordinary. He simply reached out for the grab bar in the cage of the forklift as he stepped down from it. In a person without this worker s pre-existing condition, this action would not be expected to cause injury. I therefore find that the accident was minor in severity. [29] With respect to the matter of the pre-existing condition, Board policy requires that it be characterized as minor, moderate or major. The policy does not define these terms and indicates only that the medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. These provisions were interpreted as follows in Decision No. 1582/07: I interpret the policy to mean that the medical significance of a pre-existing condition should be considered to be minor if it made the worker slightly more liable to develop a disability of greater severity than a normal person, and that it should be considered major if it made the worker extremely liable to develop a disability of greater severity than a normal person. If the extent to which the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person was more than slight, but less than extreme, the medical significance of the pre-existing condition could be considered moderate. [30] In the case before me, the worker has a degenerative condition in his right shoulder, which, on four prior occasions, has resulted in shoulder pain while performing his regular work duties. Although I find that the worker s pre-existing disability made him something more than slightly more liable to develop a disability of greater severity than a normal person (i.e., someone without that condition), I am not convinced that it makes him extremely more liable to do so, as compared to someone without that pre-existing condition. I therefore find that the worker s pre-existing condition was moderate in severity. [31] A moderate pre-existing condition and a minor accident lead to 75% SIEF relief.

8 Page: 7 Decision No. 465/14 DISPOSITION [32] The appeal is allowed. The employer is entitled to 75% SIEF relief with respect to all costs of this claim. DATED: March 14, 2014 SIGNED: S. Peckover