WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1695/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1695/11 BEFORE: M. Crystal: Vice-Chair HEARING: September 2, 2011 at Toronto Written case DATE OF DECISION: November 25, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2731 DECISION UNDER APPEAL: WSIB ARO decision dated November 4, 2010 APPEARANCES: For the worker: For the employer: Self-represented Mr. M. Senicar, Paralegal 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. 1695/11 REASONS (i) Introduction [1] This appeal was considered as a written case in Toronto on September 2, The employer appeals the decision of Appeals Resolution Officer (ARO) V. Escobar, dated November 4, That decision determined that the employer was not entitled to Second Injury and Enhancement Fund (SIEF) cost relief. [2] The employer was represented by Mr. Marc Senicar, paralegal. The worker indicated in a Tribunal form, entitled Consent to Release Worker s File for Employer S.I.E.F. Appeal that he wished participate in the appeal. Written submissions, dated March 30, 2011, were provided by Mr. Senicar. Although he was invited to provide submissions on the written appeal, the worker did not provide any submissions. (ii) The issue under appeal [3] The sole issue to be determined in this appeal is whether the employer is entitled to SIEF cost relief, and if so, the quantum of the cost relief. (iii) The evidence [4] In the circumstances of this appeal, the worker sustained an injury to his left shoulder as a result of a workplace accident that occurred on December 28, At the time of the accident, the worker was employed as a carpenter by the accident employer, a siding contractor. The worker filed a Worker s Report of Injury, dated January 29, 2008, which described the accident. That report stated, in part: I was bending a piece of flashing in the back of the cube van when I turned to put the material on the shelf. I slipped and fell on the floor of the cube van. As I was falling I had put my arm out to try and catch my fall.... I noticed some pain/burning sensation in my arm the day the injury happened December 28, [5] Entitlement for the worker s left shoulder injury is not contentious. The worker was almost 46 years old at the time of the accident. [6] The worker was seen at the emergency room of a local hospital on January 22, The emergency room report indicated that the worker had a sharp burning pain in his left shoulder and that he was not able to lift his left arm without assistance from the right arm. Dr. Paul Dupuis, who saw the worker at the hospital emergency room, prepared a Health Professional s First Report (Form 8), dated January 22, 2008, which provided a diagnosis of rotator cuff tenderness [sic poorly legible might be rotator cuff tendinosis ]. [7] The worker was subsequently seen by his family physician, Dr. Gordon Milne, who referred the worker to Dr. T. Wilson, orthopaedic surgeon, who saw the worker on January 31, Dr. Wilson s report of that date, dictated by his resident, Dr. M. Qutob, stated that the worker did not have any AC tenderness, but that he did have tenderness to the anterior superior aspect of his acromion. The report noted that the worker had positive impingement

3 Page: 2 Decision No. 1695/11 tests with pain as well as positive SLAP testing with significant amount of pain on the left side as well. The report stated, in part: Radiographs taken at the time of injury showed an acromial hook, but no significant bone injuries were appreciated. At this point in time, the patient demonstrates to have an anterior superior labral pathology as well as potentially rotator cuff pathology, possibly a full thickness tear. We have ordered an MRI for the patient and we have instructed the patient to make an appointment to see us in the office soon after the MRI has been completed... [8] The MRI was performed on February 3, 2008, and the report on the MRI stated, in part: FINDINGS: The biceps tendon s appropriately situated. The labrum appears to be grossly intact. There is moderate to severe AC joint arthrosis noted. Bone marrow signal intensity appears to be normal. No underlying marrow edema to suggest the presence of a fracture is seen. There is increased signal intensity identified along the supraspinatus tendon with associated enlargement of the tendon. Interstitial tearing is appreciated along the posterior aspect. There is a partial articular surface tear anteriorly with a tiny full thickness tear suspected measuring approximately 2-mm. There is a small amount of fluid seen within the subdeltoid subacromial bursa. The remainder of the muscles and tendons of the rotator cuff are intact. IMPRESSION: There is tendinopathy of the supraspinatus tendon with a tiny full thickness tear identified along the anterior aspect with interstitial tearing seen within the mid and posterior aspects of the vertebral body. There is no evidence for an underlying fracture. [9] The worker was seen again by Dr. Wilson on February 19, Dr. Wilson s report of that date stated, in part: We reviewed the MRI which reveals an almost full thickness or a full thickness supraspinatus tendon tear with significant bursal wear. He has the underlying hooked acromion and a thickening of the CA ligament and a likely superior labral lesion. [10] The report went on to state that the worker indicated that he wished to proceed with a surgical repair of the left shoulder. According to the Operative Report, dated March 5, 2008, the worker underwent the surgery repair to his left shoulder on that date. The Operative Report stated, in part: We made a second stab incision lateral to the acromion and inserted the shaver. We debrided the subacromial bursa, resected the CA ligament and removed a very large subacromial hook. We then spent some time assessing the cuff...[the report goes on to describe the procedure performed to repair the worker s rotator cuff tear]. [11] A further report, dated June 19, 2008, prepared by Dr. Wilson noted that the worker was continuing to experience left shoulder pain, and Dr. Wilson was concerned that the worker might have re-torn the rotator cuff post-operatively.

4 Page: 3 Decision No. 1695/11 [12] A further MRI was performed on the worker s left shoulder on July 10, The report on the MRI indicated that severe AC joint arthrosis was noted. A further MRI scan was performed on October 18, 2009, which disclosed evidence of a small tear at the insertion of the supraspinatus tendon onto the humeral head...[which] appears new. [13] In June 2009, the Board awarded the worker a non-economic loss (NEL) award for his left shoulder injury. For the purposes of the NEL award, the worker s left shoulder impairment was rated at 11%. [14] At the request of the Board s case manager, the Board s medical consultant, Dr. Kanalec, provided a medical opinion on the question of whether there was evidence that the worker had a pre-existing condition to the left shoulder that would be likely to have enhanced or prolonged the worker s workplace injury. The opinion was included in an internal Board memorandum, dated May 21, 2010, prepared by Dr. Kanalec. The memo set out some of the medical information that was included in the worker s claim file, and concluded by stating: Medical Opinion This gentleman sustained a rotator cuff tear as a result of the work related accident which I would consider to be of a moderate degree of accident severity as he had to support his body weight onto the outstretched left arm. There isn t evidence of a prior shoulder condition in this gentleman and there isn t evidence that the acromioclavicular joint is a source of pain. There is evidence of an acromion hook but there isn t evidence that the presence of this hook enhanced or prolonged the injury. The primary factor that resulted in the rotator cuff tear was the nature of the injury (falling onto an outstretched arm) and is compatible. Therefore based on a reasonable degree of medical probability there isn t evidence of a pre-existing condition in this case warranting SIEF. (iv) Applicable law and policy [15] The workplace accident which is the subject of this appeal occurred on December 28, Accordingly, the employer s entitlement to SIEF cost relief is governed by the Workplace Safety and Insurance Act, [16] In this appeal, the employer is seeking entitlement to SIEF cost relief. The Board s policy relating to SIEF cost relief is included in Operational Policy Manual Document No , which states 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 preexisting condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF Guidelines... The objectives of this policy are to provide employers with financial relief when a pre-existing condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions

5 Page: 4 Decision No. 1695/11 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 (v) Medical Significance of Pre-existing Condition* NOTES 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% * 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 Analysis [17] As noted above, the employer s representative provided written submissions, dated March 30, I have reviewed the representative s submissions. [18] According to Board policy, set out above, the level of an employer s SIEF entitlement is determined by two factors, namely, the severity of accident and the medical significance of pre-existing condition. In his submissions, the representative addressed both of these factors, submitting that, in this appeal, the severity of the worker s accident should be considered minor

6 Page: 5 Decision No. 1695/11 and that the medical significance of the worker s pre-existing condition should be considered moderate. According to the policy document, this combination of these factors would result in 75% cost relief to the employer. The representative s submission also indicated that cost relief of 50% to 75% was warranted under the Board s policy, in the worker s case. [19] The policy document provides that the issue of severity of accident shall be determined in keeping with the definitions set out therein. It provides that an accident should be considered to be of minor severity if it is expected to cause non-disabling or minor disabling injury and that an accident should be considered to be of moderate severity if it is expected to cause disabling injury. According to the representative s submissions, the worker s accident in this case should be considered to be of minor severity, because a slip and fall do [sic] not automatically imply or anticipate that it would result in a disabling injury. [20] I agree with the Board s determination that the severity of accident in this case should be considered moderate. In order for the severity of accident to be considered minor the accident would be one which was expected to cause non-disabling or minor disabling injury. In this case, the worker fell to the floor of a van and tried to grab onto something in order to break his fall, and he fell, apparently with his full weight, on his outstretched arm. Although I agree that this type of accident would not necessarily be expected to cause a permanent disability, and for that reason, the severity of the accident should not be considered to have been major, in my view, this type of accident would be expected to cause a disabling injury which would be likely to persist for more than a brief period of time. For that reason, the severity of accident in this case should be considered moderate rather than minor. [21] In addition to the question of the severity of accident, the Board s policy also requires the decision-maker to determine the medical significance of the worker s pre-existing condition according to the extent that [the pre-existing condition] makes the worker liable to develop a disability of greater severity than a normal person [i.e., a person who did not have such a preexisting condition]. I interpret this to mean that a pre-existing condition which made a worker more liable to develop a disability of greater severity than a normal person to a very high degree, is a condition which should be rated as one of major medical significance. If the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person to a small degree, the pre-existing condition should be determined to be of minor medical significance. If the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person to a degree, which would be appropriately considered to be more than a small degree, but less than a very high degree, the condition should be rated as one of moderate medical significance. [22] Further, in the context of the phrase the extent that [the pre-existing condition] makes the worker liable to develop a disability of greater severity than a normal person, I interpret the word disability to refer to the worker s compensable disability. This portion of the policy document must be interpreted in this manner, in order for the portion to make sense. [23] The question to be determined, therefore, is the extent to which the worker s pre-existing conditions made the worker liable to develop a compensable injury which would be more severe than a person who did not have these pre-existing conditions.

7 Page: 6 Decision No. 1695/11 [24] From my review of the case materials and the representative s submissions, I conclude that the worker s pre-existing conditions consisted of: A moderate to severe AC joint arthrosis as disclosed by the MRI conducted on February 3, 2008; and An underlying hooked acromion as disclosed by Dr. Wilson s report, dated February 19, [25] In his submissions, the employer s representative stated that the terms arthrosis and arthritis are interchangeable medical terms and that the two terms are synonymous. The case materials included a Medical Discussion Paper, dated November 2008, on the topic of Osteoarthritis, prepared by Dr. Marvin Tile, orthopaedic surgeon. The paper begins by stating: What is arthritis? The word arthritis comes from the Greek; arthro meaning joint and itis meaning inflammation. With common usage, disorders of synovial joints with little evidence of inflammation (itis) are also included in this broad group of disorders. Arthrosis is a more inclusive term, and is used by many physicians to more correctly designate these disorders. Arthritis occurs in a synovial joint (definition below) including small joints such as the finger joints or large joints such as the knee, hip and shoulder. [26] On the basis of this information, it does not appear that the terms arthrosis and arthritis are interchangeable or synonymous, although I agree that they are related terms. It appears that the term arthrosis, being a more inclusive term, includes all conditions of arthritis, but that arthrosis may also describe other joint disease which would not be referred to as arthritis. In this case, however, I accept that the term arthrosis was used to describe degenerative disease in the shoulder, which might otherwise be described as degenerative arthritis. I note that Dr. Wilson s report, dated February 19, 2008 noted that the worker had significant bursal surface wear and that the surgery on March 5, 2008 indicated that, during the surgery, Dr. Wilson inserted the shaver through an incision and debrided the subacromial bursa. [27] I interpret this information to be consistent with the worker having degenerative disease in his left shoulder, and that this was a pre-existing condition, which existed prior to the accident. It is not likely that the worker s moderate to severe AC joint arthrosis, developed between the time of the injury in December 2007, and the time of the MRI on February 3, 2008, given that, as Dr. Tile s paper indicates, the disease usually progresses slowly over time. [28] The case materials also included a Medical Discussion Paper, prepared by Dr. Hans K. Uhthoff, orthopaedic surgeon, on the subject of Shoulder Injury and Disability. A portion of the paper addressed the question of how degenerative change might impact upon a rotator cuff tear injury. In this regard, the paper stated: 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-

8 Page: 7 Decision No. 1695/11 related rotator cuff tears increases with age to a point where tears may occur in the absence of a history of injury. [29] Taking into account the worker s age at the time of the accident, and given the presence of degenerative disease on the MRI carried out shortly after the accident, in my view, it is probable that the worker s moderate to severe AC joint arthrosis played a role in the enhancement of the worker s injury. I note that Dr. Kanalec appeared to downplay this probability stating that, there isn t evidence of a prior shoulder condition in this gentleman and there isn t evidence that the acromioclavicular joint is a source of pain. I note that Board s policy document defines a pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident. Given the policy document directs the decision maker to take into account an asymptomatic condition which only becomes manifest postaccident, the question of whether there was evidence of a prior shoulder condition, as considered by Dr. Kanalec, is not determinative of the matter. [30] As for the worker s hooked acromion, I am less persuaded that this factor had a significant role in enhancing or prolonging the worker s injury. I have taken into account information included in the representative s submission which referred to an article, dated February 15, 1998, in American Family Physician, which indicated that a type III acromion is hooked and that cadaveric studies have shown an increased incidence of rotator cuff tears in persons with type II [i.e., curved] and type III acromions. The submissions also included other information obtained from internet websites which indicated that a hooked acromion could be a factor in increasing the likelihood of a rotator cuff tear. [31] The submission also noted that, although no explanation was provided by Dr. Wilson for doing so, the Operative Report discloses that during the worker s surgery, Dr. Wilson removed a very large subacromial hook. The representative s submission indicates that this was probably done by Dr. Wilson to relieve the Shoulder Impingement Syndrome and prevention of further rotator cuff tear.... [32] Although it is possible that, as a general proposition, a hooked acromion may enhance a shoulder injury, I am not persuaded that the worker s hooked acromion enhanced or prolonged the worker s injury, in the worker s actual case. There was no medical information, specific to the worker, included in the file which supports this proposition. I agree that Dr. Wilson may have surgically removed the hook as a preventative measure in relation to possible future injury, although if this is true, it does not necessarily follow that the presence of the hook as a preexisting condition at the time of accident enhanced the worker s injury or prolonged his recovery. I note that Dr. Kanalec expressed the view that there isn t evidence that the presence of this hook enhanced or prolonged the injury and I agree with him in that regard. [33] Notwithstanding my view that it is not probable that the worker s acromion hook significantly enhanced or prolonged his injury, I find that the worker had moderate to severe degenerative disease in his shoulder at the time of the accident, and it is likely that this factor enhanced the injury or prolonged the recovery. I find that the degenerative disease made the worker liable to develop a compensable injury which would be more severe than a person who did not have this pre-existing condition, more than to merely a minor degree, given that the worker s degenerative disease was described as moderate to severe. The presence at the time of the accident of such degenerative disease, which is common in an aging population, does not

9 Page: 8 Decision No. 1695/11 cause me to conclude, however, that the worker was liable to develop a compensable injury which would be more severe than a person who did not have this pre-existing condition, to a very high degree. Accordingly, I find that the medical significance of the worker s pre-existing condition should be considered as moderate. [34] The Board s policy document indicates that where the severity of accident is found to be moderate, and the medical significance of the worker s pre-existing condition is also found to be moderate, the employer is entitled to 50% SIEF cost relief. On this basis, I find that the employer is entitled to 50% SIEF cost relief.

10 Page: 9 Decision No. 1695/11 DISPOSITION [35] The appeal is allowed. [36] The employer is entitled to 50% SIEF cost relief in relation to the worker s left shoulder injury. DATED: November 25, 2011 SIGNED: M. Crystal