WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 687/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 687/16 BEFORE: L. Lampert: Vice-Chair HEARING: March 11, 2016 at Toronto Written DATE OF DECISION: March 31, 2016 NEUTRAL CITATION: 2016 ONWSIAT 847 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated December 16, 2014 APPEARANCES: For the worker: For the employer: B. Napoleone, Paralegal Not participating 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. 687/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker was not entitled to recognition of a permanent injury ( PI ) for his right shoulder. The ARO rendered a decision based upon a written record without an oral hearing. The ARO confirmed the WSIB Case Manager s decision dated August 25, (ii) Issues [2] The issue under appeal is as follows: 1. Is the worker entitled to recognition of a PI and Non-Economic Loss ( NEL ) award for his right shoulder which he claims is related to his compensable injury of January 22, 2013? (iii) Background [3] The now 68-year-old worker slipped and fell on some water while on his break during his work shift on January 22, He was granted health care benefits for a right shoulder soft tissue injury (later re-diagnosed as a strain/sprain injury). [4] He continued experiencing symptoms in his right shoulder and continued to miss time from work and to participate in chiropractic treatment. [5] It later became known that approximately one month before his workplace accident, he injured the same shoulder in a non-work related accident and was at the time of the workplace accident experiencing symptoms from the earlier injury. (iv) Submissions [6] The worker, through his representative, argues that his pain continues. He remains on medication, continues chiropractic treatment and is seeing a rheumatologist. He argues that there is medical continuity through July 15, He further argues that medical reports from the rheumatologist, Dr. Mahendira (July 21, 2015) and Dr. Nawab, the worker s family physician (August 27, 2015) confirm that his medical treatment has been ongoing, that he continues to experience pain and decreased range of motion and that he continues to have poor use of his right shoulder with no improvement. [7] On the basis of the foregoing, the worker requests that a PI be recognized in relation to his right shoulder and that he be granted a NEL award. (v) The ARO s decision [8] The ARO denied the worker s claim, relying, in part, on medical evidence which showed a previous non-compensable injury to the same shoulder approximately one month before this work-related accident. The ARO held that since the worker was symptomatic at the time of the work-related accident, the Board is only responsible for getting him back to his pre-accident state in relation to his right shoulder.

3 Page: 2 Decision No. 687/16 [9] The ARO further held that the Board is only responsible for the temporary aggravation to his right shoulder. In arriving at this decision, the ARO considered the usual healing time for an injury of this nature (which was initially diagnosed as a soft tissue injury to the right shoulder, but was later diagnosed as a strain/sprain injury) and found that it would be 12 weeks. Accordingly, the ARO held that the worker aggravated his still-symptomatic pre-existing non-compensable right shoulder injury with a compensable injury on January 22, 2013 and that this aggravation would have fully resolved as of April 16, 2013, or 12 weeks after the accident. (vi) Law and policy [10] Section 46 of the Workplace Safety and Insurance Act, 1997 (the WSIA) and section 42 of the pre-1997 Workers Compensation Act, as amended, provide that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [11] 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. [12] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #261 NEL Entitlement Package #300 Decision Making/Benefit of Doubt/Merits and Justice [14] I have considered these policies as necessary in deciding the issues in this appeal. [15] OPM Document No Determining the Degree of Permanent Impairment sets out the guidelines for determining the degree of a worker s permanent impairment by considering all of the relevant medical information on file. [16] OPM Document No Determining Maximum Medical Recovery (MMR) defines and sets out the guidelines for determining MMR. (vii) Medical evidence [17] The medical evidence shows that the worker fell off a bike in mid-december 2012, and injured his shoulder, the same shoulder that suffered a compensable injury approximately one month later while at work. [18] The evidence includes references to clinical notes from Dr. Lam, a family medicine specialist, dated January 4 and 15, Dr. Lam s notes reference right shoulder pain caused by a slip and fall accident while riding a bike and landing on his right shoulder, but normal range of motion. The pain persisted through his examination of the worker on January 15, [19] Throughout the medical records, the worker s shoulder abduction and flexion was measured and at various intervals following his work-related injury. It ranged from 45 o to 90 o, significantly lower than what one would see with a healthy shoulder.

4 Page: 3 Decision No. 687/16 [20] On July 5, 2013, Dr. Nawab, the worker s family physician who had been treating him since January 2013, noted very poor improvement, but was unable to comment on any required functional precautions for the timely return to work. [21] As of April 28, 2014, Dr. Nawab, wrote that he was unable to comment on whether the worker s right shoulder will be permanently impaired. [22] A detailed report from the specialist physician who saw the worker at the Rheumatology Clinic at St. Michael s Hospital on July 21, 2015, referred to chronic right shoulder rotator cuff tendinopathy that appears to have evolved into an adhesive capsulitis. It also mentioned a calcific tendinosis of the right shoulder and an increase in the worker s pain. The rheumatologist noted that range of motion in the worker s left (uninjured) shoulder is full while in the right shoulder, abduction and forward flexion were measured at 90 o and there was significant reduction in both internal and external rotation. [23] An August 27, 2015 letter from Dr. Nawab noted that he measured the worker s right shoulder abduction and forward flexion at 90 o He also noted ongoing pain, poor range of motion and poor use of his right shoulder without any improvement. (viii) Analysis [24] The appeal is allowed for the reasons which follow. [25] Evidence of a non-compensable injury to the right shoulder approximately one month prior to the compensable injury to the same shoulder is clear. The worker had sought medical treatment and as recent as January 4, 15 and 17, 2013, the worker continued to complain of pain related symptoms in his shoulder. [26] The medical information after the bike accident but before the work-related accident shows normal range of motion in the shoulder. This includes Dr. Lam s notes dated January 4, 2013 and January 15, In both instances, while he documents pain, he noted normal range of motion. [27] Five days later, on January 22, 2013, the worker fell while at work and complained of an injury to the same shoulder. [28] It is only after the work-related accident that the medical information shows decreased range of motion in the right shoulder. At various times, flexion and abduction were measured at well below normal: 45 o (January 25, 2013), 90 o (February 6, 2013), 45 o (February 26, 2013), 80 o (abduction on July 19, 2013 and January 21, 2014), 90 o (April 15, 2014 and July 15, 2014), are some examples. I note that the Tribunal s Medical Discussion Paper prepared by Dr. Hans K. Uhthoff titled Shoulder Injury and Disability in discussing rotator cuff tears states: Following a tear, active movements are restricted or impossible since the continuity between origin and insertion of the muscle-tendon-bone unit is disrupted. As the supraspinatus tendon is usually affected, it results in impaired abduction. The person cannot hold his/her arm in a position at 90 degrees away from the body (abduction). [29] While the diagnoses ranged from soft tissue injury to sprain/strain to rotator cuff tear, the references to the torn rotator cuff seem to have commenced only after the work-related injury. Given his expertise in orthopedic surgery, I accept Dr. Uhthoff s opinion that limited shoulder abduction and weaker internal and external rotation are consistent with a torn rotator cuff.

5 Page: 4 Decision No. 687/16 [30] Given that the range of motion issues only appear to have commenced after the work-related injury and that this is also when the medical records first suggest a torn rotator cuff, then on a balance of probabilities I find the worker suffered a rotator cuff tear with range of motion difficulties after the compensable accident. As the worker continues to experience range of motion issues and other symptoms, I find the worker did not return to his pre-compensable accident state and that the worker had a permanent aggravation of his right shoulder due to the compensable accident. [31] Accordingly, I find that the worker has entitlement for a rotator cuff tear in his right shoulder and is entitled to recognition for a permanent impairment and a NEL assessment. [32] This appeal is therefore allowed.

6 Page: 5 Decision No. 687/16 DISPOSITION [33] The appeal is allowed. The worker is entitled to recognition of a permanent impairment for his right shoulder and to a NEL assessment. [34] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: March 31, 2016 SIGNED: L. Lampert