WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 641/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 641/16 BEFORE: L. Petrykowski: Vice-Chair HEARING: March 3, 2016 at Hamilton Oral DATE OF DECISION: March 14, 2016 NEUTRAL CITATION: 2016 ONWSIAT 673 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer dated October 22, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Ms. T. Verbeek, Office of the Worker Adviser Mr. M. Gordon, paralegal N/A 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. 641/16 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the Appeals Resolution Officer ( ARO ) of the Workplace Safety and Insurance Board ( Board ), dated October 22, 2012, which found that the worker did not have ongoing entitlement under her claim. That decision was rendered on a decision without hearing basis at the Board s Appeals Branch. [2] The worker attended the Tribunal hearing with Ms. Verbeek of the Office of the Worker Adviser. The employer participated through its representative, Mr. Gordon, a paralegal. (ii) Issue [3] The issue to be decided in this appeal is: 1. Whether the worker has ongoing entitlement under her claim, including recognition of claim entitlement for her left shoulder and Loss of Earnings ( LOE ) benefits? (iii) Background [4] I have reviewed the entirety of the documentary record and the following background facts are briefly noted. [5] The worker, now age 55, began working with the accident employer on September 25, The worker felt pain in her left arm following work activities of handling coats and hoodies at a retail store on August 25, The initial medical diagnosis provided by Dr. Krass, a family physician, on August 27, 2011 was left shoulder sprain/strain and tendonitis. [6] The Board s operating level allowed the worker s claim and paid Loss of Earnings ( LOE ) benefits from August 29, 2011 to September 11, 2011 when the worker returned to modified duties. The Board determined that the worker had achieved full recovery as of January 7, 2012, largely on the basis of a Regional Evaluation Centre ( REC ) report dated December 7, [7] The worker requested claim entitlement for ongoing left shoulder problems. The Board determined that the worker s injury was not to her left shoulder, and further entitlement was denied on the basis that the worker had a pre-existing degenerative condition affecting her left shoulder. [8] The worker s representative objected to that decision and the matter was referred to the Board s Appeals Branch. The determinations of the Board s operating level were upheld by the ARO in the decision dated October 22, 2012, which included the following analysis: ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS In December 2011, the worker was assessed at a Regional Evaluation Clinic where it was indicated the diagnoses was: 1) Left biceps muscle strain 2) Left medial epicondylitis I note the worker was not considered to have had a shoulder injury. I note it was also indicated in the REC report the following:

3 Page: 2 Decision No. 641/16 "Based on the radiographic appearance, this claimant's soft tissue calcification likely predates the August 25, 2011 injury". The worker was discharged from the clinic with a recommendation that she avoid heavy lifting and carrying for a four week interval. A full recovery was anticipated in four weeks. Subsequent to this, the worker was assessed by an orthopedic surgeon, Dr. Ostrowski and his report of March 27, 2012 provided the following information: "On examination, there is nearly full active motion of the shoulder." "There is mild tenderness over the AC joint and greater tuberosity. There is some tenderness in the bicipital groove. Clinically, the tendon is intact. She has some mild pain with stressing the biceps tendon." Dr. Ostrowski further stated: "An ex-ray of the left shoulder dated August 31, 2011 revealed two 1 cm calcific deposits, one adjacent to the greater tuberosity and one in the anterior aspect of the upper humeral shaft. An ultrasound suggests that one deposit of calcium is in the proximal biceps muscle and there is a small deposit in the supraspinatus tendon." "An MRI reveals early acromioclavicular joint arthritis, slight glenohumeral arthritis and some superficial fraying of the supraspinatus and infraspinatus tendons, with a partial thickness tear at their insertion." The following is an explanation of rotator cuff tears, which the worker was not diagnosed with at the time of the accident, but there is mention that she does have some partial tears and these would be causing her some problems. In addition, these findings did not occur at the time of the accident in August 2011, but are clearly pre-existing. "Most tears are the result of a wearing down of the tendon that occurs slowly over time. This degeneration naturally occurs as we age. Rotator-cuff tears are more common in the dominant arm. Repetitive stress is the most significant factor involved in degeneration of the rotator cuff. Repetitive stress consists of repeating the same shoulder motions frequently, such as overhead throwing, rowing, and weightlifting." Subsequent to the report by Dr. Ostrowski, I note the worker underwent injections into the left shoulder for her partial thickness rotator cuff tendon tear. A further report from Dr. Ostrowski dated May 7, 2012 indicated: "She has nearly full active motion. Maximal tenderness is over the AC joint and the greater tuberosity. There is minimal tenderness in the bicipital groove. The biceps tendon is intact. She has an arthritic AC joint and a partial rotator cuff tear at the insertion of the supraspinatus and infraspinatus tendons and mild biceps tendonitis. In reviewing the medical documentation on file, it would appear that the minor injuries sustained by this worker at work, diagnosed as left biceps muscle strain, and left medial epicondylitis did resolve, and the worker's ongoing problems are more likely related to her underlying condition in the shoulder, as the medical documents indicate ongoing problems with the left shoulder only. Having regard to this, I agree with the case manager and uphold the decision to deny ongoing entitlement and benefits in this claim.

4 Page: 3 Decision No. 641/16 CONCLUSION Ongoing entitlement and entitlement to further LOE benefits is denied. The worker's objection is denied. [9] The correctness of the above-noted ARO determinations, insofar as they have been above identified in the issue agenda for this appeal, is the matter now before the Tribunal. (iv) Law and policy [10] The established date of accident in this claim was August 25, 2011 and therefore the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. In determining benefit appeals, the Tribunal is required to apply Board policy in accordance with the provisions of section 126 of the WSIA. [11] Subsection 13(1) of the WSIA states: A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. [12] Subsection 2(1) of the WSIA defines impairment as a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [13] Subsection 2(1) of the WSIA defines permanent impairment as an impairment that continues to exist after a worker reaches maximum medical recovery. [14] Subsection 46(1) of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [15] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages: 1, 38, 61, 107, and Revision #8, would apply to the subject matter of this appeal. [16] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual ( OPM ) Document # , Determining the Degree of Permanent Impairment ; OPM Document # , Determining Maximum Medical Recovery ; and OPM Document # , Adjudicative Process. (v) The worker s testimony [17] The worker testified that she had no left shoulder problems prior to her 2011 injury. She never saw a doctor for it nor did she require modified duties before her accident. On the date of accident, she was in charge of the men s department. It was August and they were getting ready for winter. She was working with men s hoodies and coats. She grabbed three or four at a time from a six feet rack. She took coats at 4:45 p.m. and felt a jab in her left arm. She lifted the coats and walked them over three to four feet. She did this rack-related work for most of her shifts. The jab that she felt was in her upper left arm. She notified her employer of the injury. She spoke with the operations manager who was on duty. She had to fill out a report with the store manager the next day. She finished her shift on the date of accident as there were only fifteen minutes left. She did not see a doctor that night.

5 Page: 4 Decision No. 641/16 [18] The worker then testified that her left upper arm was hurting very much that night. It was very sore and she could not move her arm. She made herself a sling and elevated it. She went into work the next day and completed a report for the manager. This was completed later in the day and her upper arm and shoulder was affected. She did modified duties involving no lifting and no repetitive work. This was sorting clothes, item by item, and she could not do cash. She completed a full shift of modified duties on the date after the accident. She called to make a doctor s appointment and this was maybe for Saturday morning. She continued with her modified duties until that appointment. [19] The worker then states that a clinic doctor saw her and not her family doctor. The doctor recommended that the worker rest her arm for two weeks. She did not get medication and made an appointment to see her family doctor. The worker notified the employer about her prescribed rest and they said it was fine. The worker then returned to work after two weeks. Her arm was still bothering her then. Her pain was 8 out of 10 during her time off and when she returned. She returned to the same modified work as before. She did not do cash work and did no lifting, bending, or repetitive work. She worked to her limitations and was a key holder. She saw her family doctor and was referred to physiotherapy, which lasted at least a couple of months. Her family doctor, Dr. Torigian, referred her for x-ray and ultrasound tests. He also recommended she see a surgeon. [20] The worker then stated that she did not have her MRI at the time of the REC assessment. She told them about the shoulder and she knew of the assessment results. She cannot recall speaking to the Board about her left shoulder after the REC assessment. She saw the surgeon, Dr. Ostrowski, who had the MRI. She was told to have surgery to repair a tear. She discussed her work injury with him. He never said anything about arthritis. They discussed the tear and injury. The worker mentioned the accident and the surgeon said that is what he saw. The surgeon said it needed to be repaired as it would not heal on its own. She stayed on modified duties until her surgery. She was off work then until August She did not return to regular duties thereafter. She is still on modified work at the jewelry counter and has permanent restrictions. She cannot recall any change in her hours and she works 30 hours per week. The worker then stated that prior to her injury she was not involved in any sports or extracurricular students. She has movement restrictions concerning how much she can handle. She does not see her family doctor on a regular basis. She is not on any medications. She had no left shoulder restrictions prior to the accident. [21] The worker then stated that she had a right arm condition. She remembers saying her right arm was completely destroyed to the employer but that was a dramatic description. She had golfer s elbow in her right arm. Her right arm was injured due to repetition but there was no WSIB claim for this. This was from repetitive work. She did not claim it as her workplace was having reviews about musculoskeletal injures and she was advised this was part of life. This was in 2010 with the same employer. [22] The worker then stated that her 2011 accident date began with working with totes, men s accessories, and children s toys. This included repetitive work. She did fashion work later in the day when it was ready. Unpacking totes could be one hour or it could be the better part of the day. She cannot recall the time spent on the date of the accident. Fashion work could be after lunch. She cannot recall the number of hoodies or racks she worked with on the date of accident. She cannot recall the duration of the hoodies work on the date of accident. It was possible that she did other work that afternoon but she cannot exactly recall. The jab in her left arm was above

6 Page: 5 Decision No. 641/16 the elbow but she cannot pinpoint it. The pain did not go away and there was a consistency of pain after that. [23] The worker then stated that modified work was offered to her. She recalls the August 26/27, 2011 offers in the documentary record. She signed and reviewed them. The document says upper arm but that it is not the worker s handwriting. The documents reflected the work that she was offered. The worker was then off for a time and returned to modified work doing duties reflected in the written offers. She had surgery to repair the tear on October 26, The surgeon talked about her ultrasound and MRI findings before then. She cannot recall discussing calcification with the doctor. There was no mention of arthritis by the surgeon. She was not capable of returning to work after the surgery. She was getting ready for work in August. The employer knew she was coming back because of the FAF. She cannot recall a May 2013 offer of modified work. [24] The worker then stated that she made a good recovery since the surgery. She has periodic pain since the surgery and this depends on her activities. She saw Dr. Ostrowski last in 2013 when he did the FAF. Dr. Ostrowski talked about the MRI with the worker and said she needed surgery for tear repair. She has no other health issues related to her arm injury. She does not have any hobbies like renovations. She had no motor vehicle accidents over the last ten years. The employer was aware of her right arm injury. The worker reported it to the WSIB but she dropped it because of the training. She was under the impression that all people have it and it was part of life. (vi) Submissions of the worker s representative [25] On behalf of the worker, Ms. Verbeek submitted that the Board accepted there was a left shoulder injury initially. The REC findings were done before the MRI. SIEF was denied as there was no evidence of a pre-existing condition. The worker did not hurt her left shoulder prior to the date of accident, as supported by the Form 8 and the worker s testimony. The MRI showed a tear in 2011 but the REC dealt with the biceps. The worker was not sent for a follow-up to the REC after the MRI and no opinion about medical compatibility was sought from a Board Medical Consultant. Dr. Ostrowski opined that the tear was from the injury. She noted the 2013 MRI showing rotator cuff problems. The diagnosis was compatible and the Tribunal s medical discussion paper supported that repetitive work can result in shoulder problems. The worker had previous right arm problems that the employer knew about. The worker never returned to regular duties for her left shoulder injury and is working less hours now. The claim should be allowed for health care, LOE, and a permanent impairment. The latter is supported by Dr. Ostrowski s evidence. Arthritis was not significant in this case and the surgery was for a tear. Regardless of the worker s arthritis, the sole responsibility for the shoulder need not be the accident. The medical discussion paper notes that small tears can have no symptoms. The ultrasound does not always show tears and an MRI is required for this. The worker s pain remained at 8 out of 10. (vii) Submissions of the employer s representative [26] On behalf of the employer, Mr. Gordon submitted that the ARO was very specific about a biceps and epicondylitis injury. The worker is seeking entitlement for a rotator cuff tear. The surgery was conducted for that and an arthritic joint. The worker was specific about left upper arm complaint but not for the shoulder. The shoulder tear did not come from the accident. The concurrent diagnosis was not from the date of accident. He noted the Tribunal s medical

7 Page: 6 Decision No. 641/16 discussion paper in that MRI and ultrasounds can be considered. The latter was reliable in this case and the REC did their assessment. A physical examination did not reveal a tear. The REC findings do not support the entitlement being sought. She had full range of motion in her shoulder and no tear was identified. The worker had a tear but it did not arise from the accident. The ARO s decision should be confirmed. If the tear is accepted, then LOE should be sent back to the Board for consideration. The modified work offers need to be looked at and appropriate information-gathering needs to take place regarding potential LOE benefits. (viii) Analysis and conclusions [27] In the present case, I must determine whether the worker should have ongoing entitlement under her claim, including whether she has left shoulder entitlement under her claim. I first note that I am required to apply Board policy in the adjudication of this appeal as a result of the applicable provisions of section 126 of the WSIA. In order to establish that an accident occurred, proof of accident is required. The standard of proof required in Tribunal proceedings is proof on the balance of probabilities. [28] In making my determination on the issue of whether proof of accident existed in the present case, as it applies to a claimed left shoulder injury, I have also considered that OPM Document # , entitled Adjudicative Process, sets out a five-point check system for ruling on initial entitlement to benefits and states that an allowable claim must have proof of accident. On the issue of proof of accident, this applicable Board policy notes: Some points adjudicators consider when examining proof of accident are: Does an accident or disablement situation exist? Are there any witnesses? Are there discrepancies in the date of accident and the date the worker stopped working? Was there any delay in the onset of symptoms or in seeking health care attention? [29] I have considered that the worker s claim arose from an incident occurring on August 25, 2011 in her workplace. The Worker s Report of Injury/Disease ( Form 6 ) dated September 8, 2011 described the following accident history: Had been moving bar fixturing and filling with clothing (men s) all day. At end of day was hanging heavy cost and hoodies, about 2 3 at a time (heavy) carrying from 5 1/2 bar to 10 bar and felt my upper left arm get a jab, about 4:45 at end of shift. Mentioned to a couple of co-workers that I wrenched my arm, glad it s home time. [sic] [30] I have also considered that the worker identified both her left arm and left shoulder as areas of injury on the Form 6. The worker did not indicate on that Form 6 that she had hurt this area of her body before and likewise the Employer s Report of Injury/Disease ( Form 7 ) dated August 30, 2011 responded no to the question whether they were aware of any prior similar or related problem, injury or condition affecting the worker. The Form 7 indicated that the worker had a upper left arm injury related to putting away hoodies and coats on August 25, 2011, which was reported to the employer on that same day. The worker then spoke with the Board on September 1, 2011 and confirmed the accident history as involving an injury to [left] arm/shoulder due to putting 9 hoodies/coats away, carrying 3 at a time from a roller rack, 5-1/2 [feet] in height walking [feet] and placing on H run, 4-1/2 [feet] high (regular racks on

8 Page: 7 Decision No. 641/16 the shopping floor). The worker also noted to the Board then that she felt jab in top of arm while putting the last hoody on bar. I find it significant that the worker s accident history has been internally consistent both in the documentary record and in her straightforward/credible testimony at the Tribunal hearing. [31] I have further considered that the contemporaneous medical documentation also suggested that the worker had injured her left shoulder in this workplace accident. The worker saw Dr. Krass at her regular doctor s (Dr. Torigian) clinic on August 27, 2011, where a clinical record explained that the worker injured [left] shoulder lifting Aug. 25 no [history] of left shoulder injury or problem and now painful and stiff. Dr. Krass noted that the worker had a painful left shoulder and very limited range of motion on that occasion. He diagnosed tendonitis of the worker s left shoulder and prescribed rest and ice. Dr. Krass also completed a Form 8 on that occasion which related the worker s left shoulder tendonitis to possibly repetitive lifting of heavy garments on August 25, He classified the injury on that form as a sprain/strain and tendonitis/tenosynovitis. The worker was also medically authorized to be off work from that date for two weeks, which in my view, suggests that the severity of her workplace injury was more than minor. [32] The worker had an ultrasound and x-ray of her left shoulder on August 31, 2011 that revealed moderate sized calcification in the muscle tissue of the proximal biceps compatible with myositis calcific ends. Calcific biceps tendinosis and supraspinatus tendinosis plus mild subacromion/subdeltoid bursitis. The worker was then sent to a specialized program of care for upper extremities where it was noted on September 30, 2011 that she had pain and reduced range of motion in her left shoulder, lateral elbow pain, and that her biceps was affected. Mr. Lanni, a physiotherapist at this program of care, provided a working diagnosis of rotator cuff injury on that occasion. Mr. Lanni s later Form 26 dated November 9, 2011 noted that the worker still had left shoulder and upper arm pain. [33] I further note that the Board initially allowed left shoulder entitlement under the worker s claim in Board Memorandum #3 dated October 25, However, upon receiving additional medical documentation, the Board determined on January 23, 2012 that the worker recovered from a left bicep muscle strain and left medial epicondylitis injury. The Board also then determined that the worker s ongoing impairment (left shoulder) was a result of a nonoccupational condition. The Board s Memorandum #15 dated January 26, 2012 explained that entitlement was accepted for left biceps strain and left medical epicondylitis and that she had achieved full recovery as of January 7, [34] Although not the only issue under consideration, the crux of the worker s case in the Tribunal appeal revolves around whether her ongoing left shoulder problems were compensable under her claim. I find it significant that contemporaneous medical and non-medical evidence supported that the worker s left shoulder (and left arm, more generally) was injured on August 25, 2011 in her workplace. This injury took place on the backdrop of no clinicallysignificant pre-existing medical condition affecting the worker s left shoulder prior to the workplace accident. Similarly, there is no information to suggest that the worker had symptomology or functional limitations associated with her left shoulder/arm prior to the workplace accident. She was a full-time retail store coordinator who worked without medical restrictions or the need for any medical accommodation prior to the workplace accident. Following the accident, however, there was continuous medical evidence of left shoulder symptomology affecting the worker, in addition to evidence that the worker s left arm was

9 Page: 8 Decision No. 641/16 affected by way of a biceps muscle strain and medial epicondylitis as diagnosed by Dr. Griffiths, a rheumatologist, at the REC on December 7, The presence of substantial left shoulder symptomology that did not abate subsequent to the workplace accident of August 25, 2011 suggests that the workplace accident primarily affected the worker s left shoulder. [35] With respect to Dr. Griffiths report, which was heavily relied upon by the ARO, it cannot be considered in isolation and apart from the medical evidence as a whole. Dr. Griffiths report was written in the absence of the MRI of the worker s left shoulder which took place twelve days later on December 19, This undermines the evidentiary weight that can be attributed to the REC assessment in relation to understanding the worker s left shoulder condition. I am cognizant that Dr. Griffiths report did not suggest that the worker had substantial left shoulder pathology and also noted that her range of motion was full in that regard. However, I find it significant that Dr. Griffith performed the Hawkins maneuver as part of his physical examination of the worker and this revealed mild impingement on stressing the left shoulder. In my view, this suggests that there was some degree of left shoulder pathology verified by physical examination at the REC, and I find this to be aligned with the fact that the preponderance of evidence both before and after the REC assessment supported that the worker was affected by left shoulder pathology. [36] While initially diagnosed by Dr. Krass as a sprain/strain and tendonitis, the worker s left shoulder injury did not resolve by the time Mr. Lanni provided a working diagnosis of rotator cuff injury on September 30, 2011, about one month later. The worker s left shoulder/arm injury continued to exist from August 2011 into January Medical continuity, including continuity of complaint on the part of the worker, was established over this period. This is further supported by the fact that the worker was never cleared to resume her regular duties over this temporal period or, in fact, until the time she had left shoulder surgery in October The MRI of the worker s left shoulder dated December 19, 2011 revealed that she had tendinosis of supraspinatus and infraspinatus with partial thickness insertional tears measuring 9 and 12 mm. I give significant weight to the MRI findings as MRI is well-recognized as a more diagnostically precise evaluation tool than ultrasound, especially where the possibility of surgical intervention is considered. The MRI revealed partial thickness tears affecting the worker s rotator cuff which I find to be aligned to the earlier clinical suggestions that the worker had a rotator cuff injury. Following the availability of the MRI findings, the worker was further assessed by Mr. Lanni on January 9, 2012 who then noted that the worker continued to have left shoulder pain in the context of left rotator cuff tears. [37] In my view, this better-identified left shoulder pathology did not arise independently of the August 25, 2011 workplace accident. There is no suggestion that an intervening cause or remote event precipitated or sustained the worker s left shoulder symptomology from August 25, 2011 into The only logical inference that can be drawn is that the workplace accident was a significant contributing factor in the development of the worker s left shoulder pathology, inclusive of tendinopathy and tears. In the absence of clinically-verified symptomatology associated with the worker s left shoulder prior to August 25, 2011, it would be specious to conclude that the worker s post-accident left shoulder symptomology was caused by anything other than the accident itself.

10 Page: 9 Decision No. 641/16 [38] I have further considered that the worker was then seen by Dr. Ostrowski, an orthopedic surgeon, on March 27, 2012 who described that the worker had a left shoulder injury on August 25, 2011 which he diagnosed as rotator cuff tendinitis, partial tears along with calcific tendinitis on the backdrop of early acromioclavicular joint arthritis, slight glenohumeral arthritis. So while there was evidence of an early and slight arthritic process affecting the worker s left shoulder, these minor findings do not preclude the worker from initial or ongoing entitlement under her claim so long as the workplace accident made a significant contribution to the development of her ongoing left shoulder impairment. In that light, I find it significant that Dr. Ostrowski s later report dated November 8, 2012 suggested that the worker s significant problems and injury was related to a rotator cuff rather than arthritic findings. [39] The worker remained in medical treatment and Dr. Ostrowski ultimately performed surgery on her left shoulder on October 26, 2012 for a left shoulder rotator cuff tear and acromioclavicular arthritis. I have also considered that Dr. Ostrowski s report dated November 8, 2012 noted that the worker had a significant tear noted at the time of surgery, which was repaired. This is in keeping with a recent work injury. I find it significant that Dr. Ostrowski did not suggest there that the worker s rotator cuff tear was degenerative/underlying in nature or that it was related to any factor other than the workplace accident itself. [40] The worker was then involved in post-surgical rehabilitation until Dr. Ostrowski noted on June 18, 2013 that the worker has a permanent impairment related to the shoulder with permanent restrictions from heavy lifting, other repetitive use of the arm and using her arm at or above shoulder level. She can now be referred for a NEL assessment. He also documented that the worker s active forward flexion is 120 degrees, she experienced pain with external rotation beyond 30 degrees, and her rotator cuff strength is 4+/5. He also completed a Functional Abilities Form dated June 18, 2013 stating that the worker had permanent restrictions, in the context of the worker s anticipated re-integration into accommodated employment thereafter. [41] On the whole, I find on a balance of probabilities that the worker sustained an accident in the workplace affecting her left shoulder on August 25, 2011 in relation to repetitive lifting of coats/hoodies. The accident was so substantial from a clinical perspective that Dr. Krass felt that the worker needed to be off work for two weeks to rest. The contemporaneous medical and nonmedical evidence supports that the worker sustained a left shoulder injury that was initially diagnosed as tendonitis and a sprain/strain. Proof of accident and medical compatibility have been established within the meaning of OPM Document # for this workplace injury. The worker continued to have left shoulder symptomology following the workplace accident, including to the time that an MRI identified tears in her left shoulder on December 19, The worker was then treated for those tears until such time that a decision was made to proceed with repair surgery that took place on October 26, Dr. Ostrowski felt on November 8, 2012 that the tear was significant and was in keeping with a recent work injury rather than suggesting that any other causative factor was responsible for the surgical intervention. As such, having considered the totality of evidence before me, alongside applicable law and Board policy, I find that the worker s appeal for a left shoulder injury claimed to have arisen out of and in the course of her employment (August 25, 2011) is allowed.

11 Page: 10 Decision No. 641/16 [42] I have further considered that the WSIA provides a definition of permanent impairment in subsection 2(1) stating 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 while permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. Subsection 46(1) of the WSIA sets out entitlement in instances where the worker is found to have a permanent impairment stating if a worker s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss. [43] I have also considered that OPM Document # , entitled Determining Maximum Medical Recovery, states that: 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. [44] In this vein, I have finally considered that OPM Document # , sets out factors which are to be considered when determining whether or not a worker has reached MMR, as follows: Identifying MMR If a worker has a permanent disability/impairment, decision-makers identify when MMR is reached and record the date. A worker may have reached MMR and still be receiving treatment, such as physiotherapy or drugs where a significant improvement is unlikely. Decision-makers determine when MMR is reached based on the following information which includes but is not limited to clinical reports from the treating health professional(s) specialists' report(s), where appropriate reports from agency(ies) providing treatment and/or evaluation, (e.g., Regional Evaluation Centres) information from the worker on his/her medical impairment external, evidence-based medical/scientific guidelines on disease and injuryspecific impairment and treatment, the opinion of WSIB clinical staff, if obtained. [45] In considering the evidence about this matter, I note that the worker s compensable left shoulder injury required surgery on October 26, Following that surgery, Dr. Ostrowski explicitly noted on June 18, 2013 that the worker had a permanent impairment, reduced range of motion, reduced strength, and required permanent functional restrictions in relation to her left shoulder. I accept this uncontroverted evidence from a medical specialist of a post-surgical workrelated physical/functional abnormality and loss affecting the worker s left shoulder that continued to exist after she reached MMR. As such, the worker is entitled to a NEL assessment for her left shoulder under her claim. The worker s appeal is allowed in this regard. [46] With respect to the worker s left biceps strain and medial epicondylitis, I note that the worker already has entitlement under her claim for these injuries. I also accept Dr. Griffiths opinion dated December 7, 2011 that these particular injuries were expected to fully resolve within four weeks of that assessment date. I also find it significant that while the worker was being treated with physiotherapy for her left shoulder injury by Mr. Lanni on January 9, 2012, no

12 Page: 11 Decision No. 641/16 such treatment was prescribed or recommended on that occasion for either a left biceps strain or medial epicondylitis. Mr. Lanni s detailed treatment extension request from that date also suggested that the treatment was only for the worker s left shoulder and only provided objective findings to support the existence of extant left shoulder pathology. In my view, this was in keeping with Dr. Griffiths opinion that the worker s left biceps strain and medial epicondylitis would resolve by then. Following that time, there is no evidence of substance to suggest that the worker sustained a permanent impairment for either a left biceps strain or medial epicondylitis. Therefore, the worker s appeal for ongoing entitlement on that basis is denied. [47] In summary, having considered the totality of evidence before me, alongside applicable law and Board policy, the worker has established initial claim entitlement and ongoing entitlement for a left shoulder injury under her claim, inclusive of the tendinopathy and tears that were identified in the documentary record. The worker also has recognition of a post-surgical permanent impairment under her claim in relation to her left shoulder and is therefore entitled to a NEL assessment for it. The nature and duration of any additional benefits, including LOE benefits, that the worker may be entitled as a result of these determinations is remitted to the Board for future adjudication, subject to the usual rights of appeal. With respect to the worker s compensable left biceps strain and medial epicondylitis, there is no recognition of a permanent impairment nor is there any basis to grant ongoing entitlement under her claim.

13 Page: 12 Decision No. 641/16 DISPOSITION [48] The worker s appeal is allowed, in part, as follows: [49] The worker has established initial claim entitlement and ongoing entitlement for a left shoulder injury under her claim, inclusive of the tendinopathy and tears that were identified in the documentary record. The worker also has recognition of a post-surgical permanent impairment under her claim in relation to her left shoulder and is therefore entitled to a NEL assessment for it. The nature and duration of any additional benefits, including LOE benefits, that the worker may be entitled as a result of these determinations is remitted to the Board for future adjudication, subject to the usual rights of appeal. [50] The worker has not established entitlement for recognition of a permanent impairment or ongoing entitlement under her claim for her compensable left biceps strain and medial epicondylitis. DATED: March 14, 2016 SIGNED: L. Petrykowski