WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 517/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 517/16 BEFORE: J.E. Smith: Vice-Chair HEARING: February 24, 2016 at Ottawa Oral DATE OF DECISION: March 4, 2016 NEUTRAL CITATION: 2016 ONWSIAT 576 DECISION(S) UNDER APPEAL: WSIB decision of Appeals Resolution Officer (ARO) M. Dumais, dated August 21, 2013 APPEARANCES: For the worker: For the employer: Interpreter: J. Meleras, Lawyer P. MacTavish, Lawyer 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. 517/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that he did not have initial entitlement for a right shoulder and upper back injury. The ARO rendered a decision following an oral hearing. (ii) Issues [2] The sole issue under appeal is whether the worker has initial entitlement for a right shoulder and upper back injury. (iii) Background [3] The now 31-year old worker claims gradual onset of an upper back and right shoulder condition, on a disablement basis, resulting from his repetitive job duties as an assembly operator, commencing in January In the decision dated August 21, 2013, the ARO denied entitlement for the upper back and right shoulder, finding that the worker s job duties were not compatible with the type of injury he sustained. It is that decision which is now appealed to the Tribunal. (iv) Law and policy [4] Since the worker claimed to be injured in 2009, 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. [5] An accident is defined in section 2(1) to include: (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; [6] General entitlement to benefits is governed by section 13: 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. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. [7] The statutory presumption set out in section 13(2) does not apply to an injury by disablement. See, for example, Decisions No. 268 and 42/89. [8] 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 [9] 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

3 Page: 2 Decision No. 517/16 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. [10] OPM Document No , Definition of Accident, defines a disablement as a condition that emerges gradually over time or an unexpected result of working duties. (v) Analysis [11] The appeal is denied for the reasons set out below. [12] The essential issue to be determined in this appeal is whether the worker sustained a workplace injury in January 2009 to his right shoulder and upper back, on a disablement basis, as a result of his assembly operator job duties. [13] I note, as stated above, that OPM Document No provides that an allowable claim must have five points: an employer, a worker, a personal work-related injury, proof of accident, and compatibility of diagnosis to accident history. In this case, I find that the worker s right shoulder and upper back condition is not compatible with the duties performed by the worker and thus entitlement is not established. I arrive at this conclusion for the reasons that follow. [14] First, I find it significant that in the multiple reports from medical professionals who treated and assessed the worker, none opined that there was a causal connection between the worker s job duties and his right shoulder and upper back condition. [15] In considering the medical evidence before me, I find it important to begin by examining the nature of the worker s upper back and right shoulder complaints, as well as the diagnoses made in relation to these complaints. I note that at the Tribunal hearing the worker testified that he experienced pain under his right shoulder blade, and over to the top of his shoulder into his neck and in the front of his shoulder. I note that although in the vicinity of his spine, he did not report symptoms specific to the upper back itself. Rather, he described pain that emanated from the shoulder. [16] Further, I note that once the worker s treating health care professionals provided diagnoses in respect of his upper back and right shoulder, the diagnoses were ultimately in respect of his shoulder rather than his thoracic spine. In that regard, I note that the worker sought treatment at a walk-in clinic regularly for various issues unrelated, and also for various complaints of joint pain. The first mention of shoulder pain is in a clinical note dated March 20, In particular, the attending clinic physician on that date, Dr. Hodgins, reported shoulder neck upper back pain x 3 mos. [17] There is one report of the worker seeking medical attention for the left shoulder on August 27, 2009, and the right shoulder is next mentioned in a clinical note dated September 26, 2009 in which clinic physician, Dr. J. Sicard, reported that the worker was seen for joint pain in multiple areas, including the knees, ankles, r shoulder and wrists. [18] According to the clinical notes before me, the worker was seen on October 29, 2009 at the walk-in clinic by family doctor, Dr. A. Kabir, for a left shoulder injury. In correspondence of that date addressed to Dr. Sicard, Dr. Kabir diagnosed the worker with a left rotator cuff tear, along with other joint pain, as follows: About 6 weeks ago, this patient had an injury to his left shoulder. He is a boxer. It was quite severe. He went to the hospital and x-rays were done which were normal. He has

4 Page: 3 Decision No. 517/16 been unable to really use his left arm because of severe pain in the left arm. He has not really had any treatment for it. He is wearing a shoulder sling for it. He also complains of bilateral knee pain, bilateral ankle pain, bilateral heel pain, bilateral shoulder pain, and bilateral wrist pain. He had x-rays which were completely normal and an ESR which was completely normal. He tells me he has lost about 30 lbs over the last couple of months but he has been doing that on purpose because of the pain in his knees. [19] The worker was again seen at the walk-in clinic with complaints of pain on the bottom of both feet over the prior two weeks, on November 24, 2009, joint pain for two years, and shoulder pain for two months. [20] According to a clinical note dated December 22, 2009, clinic physician, Dr. J. Kindle reported that the worker was seen for extreme back pain x 1 ½ years which Dr. Kindle assessed as chronic thoracic spinal pain; NYD. [21] On August 16, 2010 the worker was seen for chronic lumbar and cervical pain, complaining of back pain: upper R side ongoing issue x 1 ½ years migraines 3 weeks ago and past 2 days, according to the clinical note of clinic doctor, Dr. C. Ou. [22] On August 24, 2010, clinic doctor, Dr. Smolkin, reported seeing the worker in respect of R side of back painful x yrs mid scapular painful and tender. [23] On September 12, 2010, again Dr. Ou reported that the worker had chronic right upper back pain that radiated into the shoulder and advised that he required modified duties in his workplace as a result. [24] In a clinical note dated September 16, 2010, Dr. Kindle reported that the worker continued to have right upper back and shoulder pain: He still continues with severe pain in the right upper back area and the pain radiates into the shoulder. He is wearing a sling today. He really has difficulty in his job working on an assembly line, and they have tried to give him modified duties. [25] On September 21, 2010, Dr. Kindle reported that the worker s pain was getting worse: This man seems to be getting worse. He now carries his right arm in a sling. There is quite severe pain along the right side of his neck and chronic severe pain in the upper back area and right scapular area. He has been missing work because of the pain and wonders if he can speed up the MRI. O/A 1. Right arm pain and numbness; NYD 2. Right upper scapular pain; NYD [26] The worker s condition was similarly reported by Dr. Kindle on September 23 and 24, 2010, and by Dr. Ou on September 26, [27] On October 14, 2010, Dr. Kindle diagnosed the worker with a thoracic strain and with right upper back pain on November 1, [28] On November 19, 2010 Dr. Kindle diagnosed the worker with chronic severe right scapular pain. On January 14, 2011, the attending physician at the walk-in clinic, Dr. R. Blattel, reported that the worker had pain in right shoulder girdle area for two years. [29] An MRI of the cervical and thoracic spine, performed on January 18, 2011, indicated that there was some disc bulging in the T5-6 area, but without significant stenosis:

5 Page: 4 Decision No. 517/16 Mild discopathy involving the thoracic spine as described above. No significant spinal canal or neuroforaminal stenosis [30] On January 27, 2011, Dr. Kindle reported that the worker continued to have pain in the right scapular area, MRI shows some disc bulging T5-6 area, however this doesn t seem to be just where he is in pain and diagnosed him with chronic upper back pain. [31] Dr. Kindle reported again on February 8, 2011 that the worker s right shoulder area continued to be a problem: This man has been off work once again. His right upper scapular area has continued to be a major problem. We are still awaiting the referral to Dr. El-Sawy to see if he can help alleviate this man s problems. It always appears to be the same, and the change of work environment is probably the answer. [32] The worker was assessed by physiatrist, Dr. R. El-Sawy, on February 22, 2011, who did not speak to causation, and speculated that the worker s condition may be the beginning of adhesive capsulitis, or frozen shoulder, noting that no significant issues in the T-spine were identified: The worker presented with a two year history of mild pain in the mid-dorsal spine with inclination on the right paraspinal. This is about the level of T8-9 as it is just below the inferior angle of the right scapular. Although the range of motion in the shoulder is actually full, the fact that he had some discomfort may mean that he is beginning to have a shoulder adhesive capsulitis. [33] I note that the pain reported by Dr. El-Sawy at that time was at the T8-9 level, not at the level where the bulging was identified in the January 2011 MRI, that being T5-6; further, that Dr. El-Sawy opined that that there was no stenosis at the T-spine level and no abnormality of the cervical spine. [34] On March 8, 2011, Dr. Kindle reported that the worker continued to have pain in the right shoulder area that radiates into the upper back O/A right scapular pain; NYD. [35] At that time, Dr. Kindle speculated that the worker s condition was one of chronic tendonitis of the right shoulder, and referred him again to Dr. Kabir, commenting that the worker had pain in the right shoulder and decreased range of motion and was beginning to wonder if he can do this kind of work because of the ongoing problems. [36] On July 12, 2011, Dr. Kabir, on examination of the worker, diagnosed him with impingement syndrome of the right shoulder and possibly downsloping acromion. [37] Dr. El-Sawy reported again, as follows, on May 4, 2011: 1. As you know, the MRI revealed no abnormality in the cervical spine. There was evidence of small disc bulge at T5-T6 causing no significant spinal canal or neuroforaminal stenosis. This of course will not cause any radiation to the shoulder nor to the neck. 2. Mild right shoulder capsulitis that is symptomatically aggravated by functional problem. As advised before, he should be encouraged to exercise his shoulder for the range of motion. 3. I have no explanation for his neck ache. 4. As mentioned above, I am not the expert in migraine, and if you see necessary, he may be referred to a neurologist.

6 Page: 5 Decision No. 517/16 [38] On September 19, 2011, Dr. Kindle diagnosed the worker with chronic tendonitis of the right shoulder. [39] An MRI of the right shoulder was performed on February 14, 2012 which revealed the following: Small low-grade articular surface partial thickness tear of the supraspinatus. [40] From the foregoing medical reporting, and history of complaint, I draw a number of conclusions. I find that the worker reported multiple joint pains, along with right shoulder and upper back pain, through 2009 and I find that the symptoms in the worker s right shoulder area and upper back were considered as radiating one from the other until, ultimately, the diagnoses from Dr. Kindle and Dr. El-Sawy, in particular, were in respect of his right shoulder, not the thoracic spine. I note that the MRI of the thoracic spine showed relatively normal degenerative changes, with no nerve root involvement or stenosis, and that the small disc bulge that was revealed at T5-6, was not at the level where the worker reported pain, according to Dr. El-Sawy on February 22, Based on these results, Dr. El-Sawy found that the minor bulging at T5-6 would not explain the radiation to the shoulder or neck (report of May 4, 2011). I note that over time the consensus amongst the treating physicians, including Dr. Kindle and Dr. El-Sawy, was that the worker s pain emanated from his right shoulder, rather than his thoracic spine, and was variously diagnosed as impingement syndrome, tendonitis and finally a small, low grade partial tear, according to the MRI, in [41] Against those factual conclusions, I am persuaded that the worker s right shoulder and upper back symptomology, in this case, emanates from a right shoulder condition, rather than from the thoracic spine. In that context, I note that whether his right shoulder condition was diagnosed as impingement syndrome, tendonitis or a partial tear, none of the treating physicians opined that there was a causal connection between the worker s job duties and his condition. I find this, in itself, supports the conclusion that the worker s job duties were not causally connected to his right shoulder and upper back pain. [42] In the absence of a medical opinion supporting a causal connection, I look to the Tribunal Medical Discussion Paper, Shoulder Injury and Disability, dated October 2010 and included in Addendum 2 of the Case Record, for guidance. I note that the Medical Discussion Paper was prepared by orthopaedic surgeon, Dr. Hans K. Uhthoff. [43] The opinions expressed in the Tribunal s Medical Discussion Papers do not necessarily represent the views of the Tribunal. However, Panels may consider and rely on the medical information provided in the Discussion Paper subject to the need to recognize that it is always open to the parties to an appeal to distinguish a Discussion Paper and challenge it with alternative evidence. See Kamara v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2009] O.J. No (Ont Div Court). [44] In this case, I find it helpful to consider the information provided in the Medical Discussion Paper explaining injuries to the shoulder, vis a vis the various diagnoses made in respect of the worker s right shoulder. To begin, I note that Dr. Uhthoff describes tendinitis as follows: 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 characterised by other, usually degenerative, tendinous changes that lead to a thickening of the tendon.

7 Page: 6 Decision No. 517/16 [45] With respect to impingement syndrome of the shoulder, Dr. Uhthoff states the following: The Impingement Syndrome is caused by a squeezing of the contents of the space bordered on one side by the coraco-acromial arch and the other side by the humeral head. Both structures are visible on plain x-rays. The contents consist of soft tissues, namely the rotator cuff, in particular the supraspinatus tendon, and the subacromial bursa. The squeezing of these contents in an unyielding space can have two causes: 1. A thickening of the contents, a swelling of the tendon (tendonitis) and/or a swelling of the bursa (bursitis). 2. A decrease of the space, mostly caused by bony outgrowths, such as acromial spurs, osteophytes of the acromio-clavicular joint and/or osteophytes of the humeral head. As a syndrome is defined as a set of symptoms which occur together (Dorland, Medical Dictionary), the pathologic changes leading to the squeezing must be clearly described. As a symptom is the subjective evidence of a disease or of a patient s condition (Dorland, Medical Dictionary), Impingement Syndrome cannot be accepted as a free-standing diagnosis; the cause(s) must be given. [46] With regard to frozen shoulder, Dr. Uhthoff states that the condition may result from prolonged immobilization of the shoulder or tendinitis: This term is used to describe a severe, often painful and incapacitating limitation of passive and active movements. This disorder can follow a prolonged immobilization of the shoulder or it may be due to a tendinitis. This condition usually resolves, but may take up to one year of rehabilitation, consisting mainly of active exercises. In some cases, it does not resolve and stiffness may be permanent. [47] Against that background, Dr. Uhthoff states that degenerative processes may be present in individuals as early as 20 years of age, particularly in athletes, and may be made worse by repetitive activities which are at or above shoulder level: Degenerative processes inside the rotator cuff can be made worse by repeated activities with the hands at shoulder level or above it or by operating vibrating tools. Such activities, when performed repeatedly over a period lasting months and years may also affect the acromioclavicular joint leading to a joint degeneration and the formation of osteophytes. Impingement affects both genders equally. Impingement can start at an early age (around age 20) particularly in athletes. It can develop spontaneously in older people (around 50 to 60 years of age). [48] Finally, I note that Dr. Uhthoff states that repetitive overhead work may accelerate the process of degenerative tendinitis and thus may predispose an individual to rotator cuff tears: 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). [49] Rotator cuff tears, according to Dr. Uhthoff, may occur from acute trauma or from naturally occurring degenerative processes which may be accelerated by repetitive, above the shoulder level activities: 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

8 Page: 7 Decision No. 517/16 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. [50] From the foregoing discussion, I conclude that the worker s possible diagnoses, those being tendinitis, impingement syndrome, frozen shoulder and a small, partial tear of the supraspinatus tendon, more likely resulted from the degenerative processes described above, which, as explained in the Medical Discussion Paper, could have been accelerated by repetitive activities or prolonged use of the arms, only if those activities were performed above shoulder level. [51] In this case, the worker described his work duties in detail at the Tribunal hearing and these were not fundamentally disputed. The worker testified that there were a number of activities assigned in each work day, with each rotation being performed for two to two and a half hours at a time. The activity that was most difficult in terms of his shoulder and upper back pain was, according to the worker s testimony, referred to as chip to base assembly. This task involved sitting on a stool, at an assembly line, in front of a conveyor belt, removing microchips from a tray propped in front of the worker on an angle, using a vacuum pencil in his right hand to pick up the chip and inserting the chip into the cavity in the base of a cartridge. The worker testified that the work was done within a narrow space in front of him, similar to that of working on laptop computer. Movements of the hand and wrist were small, and in front of his body, while leaning forward over the conveyor belt. He could rest his right arm on the conveyor belt, while moving and inserting the chips, but testified that he usually did not. There were approximately 3,000 to 4,000 chips moved during a rotation, and this process was performed in a two to two and a half hour rotation, twice per day. [52] The worker also described sensor, pouching, cover load and boxing duties, all of which were less difficult for him than chips to base duties, during which he experienced more pain. Sensor duties required the worker to place the chip in position for scanning, then looking to the monitor to inspect the chip. Cover load required duties involving placing a plastic cover on a small conveyor belt, so that a machine could take the cover and seal it with adhesive. Pouching involved placing the cartridges in a pouch, then pressing on a foot pedal to seal the pouch. Finally, boxing involved making boxes, loading up the boxes with 24 or 25 cartridges, then weighing the boxes, and recording the weight on the computer. The worker testified that he would rotate through these stations for two to two and a half hours per rotation, in between the two chips to base rotations per day. [53] While I acknowledge that the worker s duties were repetitive in nature, I find the duties he described were not at or above shoulder level and thus were not the type of duties contemplated by Dr. Uhthoff as potentially contributing to an acceleration of degenerative changes in the shoulder or in rotator cuff tears. Thus, in the absence of an opinion from a treating physician on causation, and in considering the information provided by Dr. Uhthoff, I find the worker s job duties incompatible with the conditions identified as the source of pain in his right shoulder and upper back. [54] Mr. Meleras, for the worker, submitted that the worker was instructed by Dr. Kindle that he should not continue with his work as an assembly operator, given his right shoulder and upper back symptoms, and this was evidence of a causal link between the duties and the condition. I do not find this comment by Dr. Kindle implies a causal link. I find that experiencing pain while

9 Page: 8 Decision No. 517/16 performing an activity does not equate with a conclusion that the activity performed caused the condition which resulted in pain. [55] Mr. Meleras argued that no other cause of the worker s condition was identified. Again, I do not agree. Much was made by Mr. Meleras, at the Tribunal hearing, about the multiple references to the worker as a boxer by his treating physicians, arguing that this was completely inaccurate. The worker denied ever having been a boxer. However, he testified that he worked out at the gym on the punching bag, throwing punches with both arms, and it was this activity that he believed caused the left shoulder injury in October He testified that he continued to work out this way following the left shoulder injury, attempting to learn how to work out on the punching bag correctly. He testified that he also regularly worked out by playing basketball, occasionally lifting weights, and swimming. I find all of these activities of the type that involve repetitive at or above the shoulder movements, and are thus compatible with right shoulder tendinitis, impingement syndrome and the small tear of the supraspinatus tendon with which the worker was diagnosed, according to Dr. Uhthoff s discussion on causation, and more so than his work duties, which although repetitive, involved little to no at shoulder level movements, or above the shoulder activities. [56] Mr. Meleras argued that if the worker had sustained a rotator cuff tear at the gym or in some other incident he would have reported this to the doctors, just as he did with the left. I find this submission presumes that the injury was sustained suddenly, rather than as a gradual onset. However, it is not disputed that the onset of the worker s symptoms was gradual, and in such cases causation is often unclear. I thus find, on a balance of probabilities, that more likely than not the worker s right shoulder condition and related upper back pain resulted from his athletic activities, including working out on the punching bag and playing basketball, rather than his work duties, which I have, in any event, found incompatible with the conditions with which he was diagnosed. [57] Mr. MacTavish, for the employer, argued that it is not clear whether the partial tear of the supraspinatus tendon, identified in 2012, was present in Mr. Meleras submitted that it was, and is evidence of the injury sustained as a result of the worker s work duties. Even if the partial tear was present in 2009, I find no compatibility between the work duties and this tear, for the reasons stated above. Further, I note that Dr. Uhthoff states that small tears of the rotator cuff may not cause any symptoms at all and, therefore, I find that it could have been present in 2009, or could have emerged later. [58] With respect to causation of rotator cuff tears, I note that Dr. Uhthoff states that in younger individuals, like the worker, severe acute trauma may cause a tear. However, it is not disputed in this case that there was no such trauma. Rather, it is evident from the medical record, and the worker s testimony, that his symptoms emerged gradually over time and not from acute trauma. Therefore, in the absence of trauma, even though the worker was a young adult in 2009, based on Dr. Uhthoff s comments cited above, I find that the tear was, more likely than not, degenerative in nature. As such, while Dr. Uhthoff s medical opinion is that repetitive, above the shoulder activities could accelerate degenerative changes, and ultimately contribute to a small, partial rotator cuff tear, for the reasons explained previously, I find the worker s job duties were not of this type. His duties were repetitive in nature, but did not involve at or above shoulder level activities and thus, in my view, were not compatible with the small, partial tear identified in 2012.

10 Page: 9 Decision No. 517/16 [59] For all of the foregoing reasons, I find that the worker s right shoulder and upper back condition is not compatible with the disablement history in this case. He therefore does not have initial entitlement for these areas.

11 Page: 10 Decision No. 517/16 DISPOSITION [60] The appeal is denied. The worker does not have entitlement for a right shoulder or upper back injury, on a disablement basis, related to his job duties as an assembly operator. DATED: March 4, 2016 SIGNED: J.E. Smith