WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1935/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1935/15 BEFORE: J.E. Smith: Vice-Chair HEARING: September 14, 2015 at Toronto Oral DATE OF DECISION: September 21, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2105 DECISION(S) UNDER APPEAL: WSIB decision of Appeals Resolution Officer (ARO) S. Van Veen, dated June 14, 2013 APPEARANCES: For the worker: For the employer: Interpreter: P. Sacco, Paralegal Not participating S. Gentile, Italian Language 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. 1935/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that he did not have ongoing entitlement beyond October 2007 for a recurrence of a right shoulder injury claimed to have been the result of a December 16, 2006 accident, or for a permanent impairment for the right shoulder. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [2] The issues under appeal are as follows: 1. Ongoing entitlement beyond October 2007, including the July 22, 2008 recurrence claimed to be related to the compensable right shoulder injury of December 18, 2006; and 2. Entitlement for a right shoulder permanent impairment. (iii) Background [3] The now 60-year old worker was injured on December 18, 2006, when a wooden crate fell and hit his right shoulder and the side of his head, while performing his regular duties as a drywall taper. He was diagnosed initially with contusions and soft tissue injuries. The Board allowed the worker s claim for the right shoulder specifically on an aggravation basis, as it was determined that he worker had a pre-existing rotator cuff tear prior to the workplace accident. The worker received full loss of earnings (LOE) benefits between December 19, 2006 and October 1, 2007, when he returned to work. He was denied ongoing entitlement by the Case Manager beyond that date, including for a recurrence of July 22, 2008, based on the view that he had returned to his pre-accident state. The Case Manager also denied him entitlement for a permanent impairment to the right shoulder as a result of the December 18, 2006 accident. The worker underwent right rotator cuff tear surgery in November [4] In the decision dated June 14, 2013, the ARO upheld the decision to deny ongoing entitlement beyond October 1, 2007 and for a permanent impairment as, in the view of the ARO, the worker had returned to his pre-injury status by October 1, It is that decision which is now appealed to the Tribunal. (iv) Law and policy [5] Since the worker was injured in 2006, 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. [6] General entitlement to benefits is governed by section 13(1): 13(1) 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.

3 Page: 2 Decision No. 1935/15 [7] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [8] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [9] Section 46 of the WSIA provides that if a worker s injury results in a permanent impairment, the worker is entitled to compensation for non-economic loss. [10] 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. [11] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. (v) Analysis [12] The appeal is allowed for the reasons set out below. (a) Ongoing entitlement beyond October 2007 [13] Tribunal jurisprudence has developed over the years, defining and applying the test for causation in the context of workplace compensation claims. The approach followed by the Tribunal was explained in Decision No. 2062/01R, issued on April 29, 2005: In order to establish entitlement, it is not necessary to show that the workplace injury was the sole contributing factor, or even the predominant contributor. The workplace injury need only be a cause of the disability, providing that it makes more than a de minimus contribution. Even though the Tribunal uses the language of a significant contribution, Tribunal decisions illustrate that the test embodies the material contribution test developed in tort law. See for example, Decision Nos. 832/91 (October 7, 1992), Decision Nos. 228/02R (January 20, 2004) and 1645/99R (October 31, 2000). The use of the word significant is not intended to connote a higher standard for establishing causation in workplace injury cases. [14] Accordingly, the test to be applied here is whether the worker s compensable injury was a significant contributing factor in his right shoulder condition beyond October 1, 2007, the date after which his ongoing entitlement was denied by the Board. If it was, then ongoing entitlement for his right shoulder will be allowed, regardless of whether other factors may also have contributed to the condition [15] It is not disputed that the worker had a pre-existing, underlying condition prior to the accident, in the form of a right rotator cuff tear. In correspondence dated June 27, 2005 addressed to the worker s family doctor the worker s orthopaedic surgeon, Dr. R. Vandersluis, reported a diagnosis of possible rotator cuff tear vs. tendonitis and referred the worker for an MRI. The worker underwent an MRI of his right shoulder on January 12, 2006, following which radiologist, Dr. J.D. Rubenstein, reported the following findings: There is a full thickness tear at the distal insertion of the supraspinatus tendon with slight retraction. The tear extends to the margin of the infraspinatus attachment, as well.

4 Page: 3 Decision No. 1935/15 The remainder of the examination is unremarkable. [16] Based on the foregoing medical reporting, I accept that the evidence establishes that the worker had a full thickness right rotator cuff tear prior to the December 18, 2006 accident. However, the evidence before me also supports that the worker s right shoulder condition, which the Board accepted was worsened by the accident of December 18, 2006, had not resolved by October 1, 2007 or returned to its pre-accident state. In arriving at this conclusion, I rely on the opinions of the worker s family doctor, Dr. A. Masellis (June 27, 2010 report), as well as orthopaedic surgeon Dr. S. Gallay (July 11, September 14, and November 14, 2007 reports), both of whom opined that the worker s condition had significantly worsened due to the December 2006 accident, and continued to significantly impact his level of impairment beyond October 1, [17] Furthermore, I am persuaded that prior to the compensable accident of December 18, 2006, the worker was able to work full hours and regular duties, but afterwards was never able again to resume full regular duties. More specifically, I accept that the worker s right shoulder symptomology prior to December 2006 did not interfere with his ability to work and was manageable with Tylenol 3s. In contrast, after the December 2006 accident, I find that beyond October 2007, the worker could no longer perform his regular duties and had more debilitating symptoms, including acute pain and nerve involvement, and severely restricted motion, all of which had not been true prior to the compensable injury. I find the following evidence supports these conclusions. [18] The worker testified that prior to December 2006, he typically worked 45 hours per week, including Saturdays, notwithstanding some aching in his right shoulder. He also testified that he managed the pain in his right shoulder with Tylenol 3s. However, after the December 2006 accident, the worker testified that he continued to use Tylenol 3s but this was not sufficient to manage his pain. He testified that he received nerve block injections on several occasions in 2007, and ultimately underwent surgery in He testified that he could not perform his regular duties or work full hours again after his December 2006 compensable accident, due to his right shoulder pain and restricted motion. [19] I find the worker s testimony is borne out in the documentary record before me. I note that the medical record documents indicate that the worker was treated with nerve block injections to his right shoulder, on a number of occasions following the accident, in [20] I note as well that the worker s family doctor, Dr. A. Masellis, summarized the worker s history of injury, in a report dated June 27, 2010, in which he stated that the worker s right shoulder became more acutely symptomatic following the December 2006 accident, that it had not resolved and that the worker was still markedly restricted with his ability to use his shoulder and his ability to work: I want to re-iterate again that [the worker] did not have any right shoulder condition that prevented him from being able to work as a drywall taper before his accident at work in December of Yes, he had shoulder problems as I stated in my last report, however not to the degree that he couldn t do his job. As I stated previously, the primary area of concern has been [the worker s] right shoulder which in my opinion was permanently aggravated by the acute injury he sustained in December of This accident, in my opinion, led to a severe exacerbation of his underlying problem. There is no doubt in my mind about this point. To his credit, [the worker] tried to continue working in his regular capacity however it became increasingly

5 Page: 4 Decision No. 1935/15 clear that the shoulder continued to be hindered by this type of work. This is why he stopped working in I also want to draw your attention to a comment I made in my last report to you. I made reference to the November 14, 2007 report of the Shoulder and Elbow Specialty Clinic. This report indicated that further risk of harm to the shoulder would likely occur if [the worker] returned to his pre-accident job. This is what has taken place in [the worker s] case. I feel that some consideration should be given to this point. I personally feel that returning to his work as a drywall taper after the 2006 injury was something that contributed to the rapid and continued deterioration of the shoulder. [21] Further, contrary to the findings of the ARO, I am satisfied that the evidence establishes that the worker was unable to return to his regular duties by October The worker testified that when he returned to work in October 2007 he was assigned light duties, consisting of small touch ups and other light work, and never worked more than three to five hours per day again. He testified that he continued to perform these duties until July 2008 when he could no longer tolerate the pain in his right shoulder. The worker s testimony is supported by the medical evidence before me and, in particular, the reporting of Dr. S. Gallay, Orthopaedic Surgeon, who first saw the worker at the Board s Shoulder and Elbow Specialty Clinic on July 11, In the first report dated July 11, 2007, Dr. Gallay diagnosed the worker with rotator cuff impingement, tendinosis, with an underlying rotator cuff tear and noted that a return to work plan was contemplated at that time, which involved work at the worker s own pace, as follows: Clinical history and examination indicates a diagnosis of rotator cuff impingement, tendinosis, with an underlying rotator cuff tear, which became far more symptomatic after his injury. [22] Dr. Gallay recommended a trial of cortisone injections and 6 weeks of rest, 6 weeks of physiotherapy and reassessment at 6 weeks, following which, if the worker showed marked improvement, then a return to work plan would be initiated. [23] When Dr. Gallay saw the worker again on September 14, 2007, he approved an attempt to return to work as follows: [The worker] received a cortisone injection on July Once again today he reported 100% relief for approximately a month and thereafter had some worsening of pain but overall still feels significantly improved. [ ] We talked about treatment options at this time and he wanted to know whether he could try working at his own pace. We discussed this with our Return to Work Coordinator and decided that it was appropriate to go ahead with a trial of back to work at his own pace. Should this fail I would see him on an expedient basis here at the WSIB specialty clinic to discuss the next option, which is athroscopic rotator cuff repair and decompression of the shoulder. [24] Pursuant to Dr. Gallay s recommendations, in an Initial Assessment Report dated September 14, 2007, the Return to Work (RTW) Coordinator reported as follows: [The worker] would like to attempt to return to work before considering surgery. He has medical restrictions to work at his own pace. He was educated to work within the limits of his pain and to advise this return to work coordinator if his symptoms worsen. [25] Based on the foregoing reporting by Dr. Gallay and the Return to Work Coordinator, I find that the worker s return to work in October 2007 was on a trial basis, and was not to his

6 Page: 5 Decision No. 1935/15 regular duties, but to performance of his duties at his own pace. This was acknowledged by the RTW Coordinator, who noted that the worker s restrictions included working at his own pace. [26] That the worker had not recovered from his December 2006 compensable accident is further supported by the reporting of his family doctor, Dr. Masellis, in a Form 26 dated October 4, I note that Dr. Masellis reported that a complete recovery from the compensable accident was not expected and that his return to work was on an as tolerated basis: Sustained severe soft tissue injuries to shoulders, neck head post concussion and post traumatic [ ] complete recovery not expected he returned to work as tolerated on October 1, 2007 [27] The worker was seen again by Dr. Gallay in November 2007, following his attempt to return to modified duties. In a report dated November 14, 2007, Dr. Gallay summarized the worker s attempted return to work as follows: [The worker] had 100% relief form his first cortisone injection. Thereafter, he went back to work for three weeks with comfort, thereafter pain began to develop once again. He returned to clinic today complaining once again of rotator cuff impingement symptoms with the previously known underlying finding of a rotator cuff tear and impingement and bursitis/tendinosis. I have complied with his request and gone ahead and injected the shoulder once again. I had explained to him that should his pain recur, as I would likely anticipate it will if he continues to do his work, he would then need to be re-assessed for consideration for surgery. Surgery, however, would only stand an approximate 50% to 60% chance of returning him to a drywall taping job which is overhead. The overall success of surgery for pain relief is 85% to 90%; however, this would not be for overhead work. He understood the description and will follow-up with us should his pain recur and he needs further assistance. [28] I find Dr. Gallay s comments further evidence that the worker s compensable injury continued to interfere with his ability to work and had not resolved by October Although the worker had pain relief for a few weeks following his cortisone injection, it was expected to return, according to Dr. Gallay, as the effect of the injection wore off and he attempted to resume his drywall taping, overhead work duties. An ability to manage temporarily with the assistance of nerve block injections, and at his own pace, in my view, does not equate with a finding that the worker was able to return to his regular duties on October 1, 2007, or that the worker had returned to his pre-injury state; a state in which he was not restricted from performing his full duties by his underlying rotator cuff tear. [29] I note that the worker testified that he continued to attempt to work but could not tolerate the pain any longer by July 2008, when he stopped working. His testimony is supported by the documentary record before me, including a Form 8 dated September 15, 2008, and accompanying cover letter, in which Dr. Masellis reported as follows: The following is to notify the Board that I am reopening the above claim/back and R shoulder for total disability. The patient claims that he has not been able to work since 22/7/08 because of re-exacerbation (severe) of pain over his back and R shoulder. [30] Dr. Masellis also reported severely restricted range of motion, in every direction, of the worker s right shoulder and referred him for decompression treatments. [31] In a REO8 Form dated October 8, 2008, Dr. Masellis reported that the worker was totally disabled from any compensable work due to his constant severe pain.

7 Page: 6 Decision No. 1935/15 [32] The worker underwent surgery on November 27, 2009 to repair his right rotator cuff tear. In a Form 8 dated, February 9, 2010, Dr. Masellis attributed the need for rotator cuff surgery to the original December 2006 injury: Patient had rotator cuff repair surgery on the right distal supraspinatus tendon on Nov 27, 09 from an injury that was sustained when a skid fell on him from above [33] Based on the testimony of the worker, which is supported by the documentary evidence of Drs. Gallay and Masellis, I therefore conclude that while the worker was diagnosed with a right rotator cuff tear prior to the December 2006 injury, he was able to function at work, perform his regular duties and work 45 hours per week, and managed his pain with Tylenol 3s. In contrast, however, following the accident, the worker missed work for a period of 9.5 months, returned to light duties with accommodation, in that he was to work at his own pace, and could not sustain even those light duties beyond July 2008 when his condition deteriorated to the degree that he required surgery. [34] For all of the foregoing reasons, I find that the worker s right shoulder injury sustained in the December 18, 2006 accident did not resolve when he returned to work on October 1, 2007, and he thereby has ongoing entitlement. I also accept Dr. Masellis s opinion of June 27, 2010, that his attempt to work, even at his own pace, further exacerbated the worker s right shoulder symptomology, just as was predicted by Dr. Gallay in the reports dated September 14 and November 14, I am persuaded that this aggravation of his symptoms resulted in an inability to continue working by July 22, 2008, and significantly contributed to his need for rotator cuff repair surgery in November 2009, as was so noted by Dr. Masellis on June 27, (b) Entitlement to permanent impairment of the right shoulder [35] As noted above, when a worker sustains a permanent impairment, in the form of either a physical or functional abnormality, he or she is entitled to be assessed for the purposes of determining his or her non-economic loss (NEL) entitlement. I find, in this case, that the evidence establishes that the December 18, 2006 accident resulted in both physical and functional abnormalities which are permanent. [36] First, I note that the worker underwent surgery on his right shoulder, which by definition results in a permanent physical abnormality. Further, I accept the reporting of Dr. Masellis, who opined in the Form 26 dated October 4, 2007, that the December 18, 2006 accident resulted in an aggravation of the worker s right rotator cuff tear, which was not expected to resolve. Finally, I am persuaded by the medical reporting of Dr. Masellis of June 27, 2010, in which Dr. Masellis continued to report not only that the worker presented with severely restricted motion in the right shoulder by June 2010, four years after the accident and one year post surgery, but also that his right shoulder condition was permanently aggravated in the December 18, 2006 workplace accident. [37] For all of these reasons, I accept that the worker s right shoulder condition was permanently aggravated in the December 18, 2006 compensable accident, which resulted in both permanent physical and functional abnormalities. He is thereby entitled to a NEL assessment in respect of his right shoulder.

8 Page: 7 Decision No. 1935/15 DISPOSITION [38] The appeal is allowed as follows: 1. The worker has ongoing entitlement beyond October 2007, including for the July 22, 2008 aggravation and surgery of November 27, 2009, related to the compensable right shoulder injury of December 18, The nature and duration of the benefits flowing from this decision is returned to the WSIB for further adjudication, subject to the usual rights of appeal. 2. The worker s right shoulder condition was permanently aggravated by the December 18, 2006 workplace accident. He is thereby entitled to a NEL assessment of his right shoulder. DATED: September 21, 2015 SIGNED: J.E. Smith