WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2393/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2393/15 BEFORE: K. Cooper: Vice-Chair HEARING: October 28, 2015 at Kitchener Oral DATE OF DECISION: December 16, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2864 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated November 6, 2012 APPEARANCES: For the worker: For the employer: Interpreter: L. Horne, Office of the Worker Adviser C. Huras, 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. 2393/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that he did not have entitlement to a left shoulder impairment and subsequent surgery to correct same. The ARO rendered a decision based upon the written record without an oral hearing. [2] This claim was originally reported on November 2, 2009, when the worker claimed that while closing a railcar door he felt a pop/pull in his left forearm. The original diagnosis was of left lateral forearm strain. The worker went on to have problems with his left shoulder and was referred for corrective surgery. The operating level denied entitlement to the shoulder and attendant surgery. [3] The ARO decision appealed herein also denied entitlement on the basis that there was no mention of the left shoulder in the original accident report, and that there was a lack of compatibility between the worker s left shoulder diagnosis and the injuring mechanism. (ii) Issues [4] The sole issue under appeal is whether the worker has entitlement for a left shoulder injury and subsequent surgery as a result of his compensable November 2, 2009 accident. (iii) Background (a) Medical reports [5] A Form 8 dated November 4, 2009 was completed by Dr. Rosebush, a general practitioner. It noted that the worker was closing a railcar door when he felt sudden onset [of] pain in the left forearm. He also noted that the worker had injured his left elbow and forearm, and diagnosed a left lateral forearm muscle strain. [6] A Physiotherapy Assessment Report dated November 25, 2009 noted the same injury mechanism and diagnosis, excepting that the physiotherapist suggested a likely tear in his forearm. [7] A Worker s Progress Report dated November 26, 2009 referred to pain in his elbow. [8] A Form 26 dated December 22, 2009 was completed by the worker s physiotherapist. It noted the same diagnosis as previously given, with reduced range of motion (ROM) in his left elbow and wrist. [9] A report dated January 22, 2010 from Dr. Schuringa, an orthopaedic surgeon, diagnosed a severe case of lateral epicondylitis. [10] Form 26s dated January 29, 2010, March 11, 2010, and April 14, 2010 from the worker s physiotherapist noted the same diagnosis as previously given. [11] A report dated January 25, 2011 from Dr. Wright, an orthopaedic surgeon, noted the worker presented with ongoing pain which is felt in the shoulder and the elbow. He went on to note that the worker was developing adhesive capsulitis of his left shoulder. [12] A report dated February 25, 2011 from Dr. Schuringa noted that the worker had a problem with adhesive capsulitis of the left shoulder.

3 Page: 2 Decision No. 2393/15 [13] A report dated May 20, 2011 from Dr. Schuringa stated that the worker continued to suffer from stiffness and pain in his left shoulder, and opined that his shoulder is very difficult to examine and it is very difficult to reach a conclusive diagnosis at this point. [14] An ultrasound of the left shoulder dated August 3, 2011 found no abnormality. [15] A report dated September 16, 2011 from Dr. Schuringa noted that the worker had pain in his left elbow and shoulder. He opined that the shoulder remains difficult to assess as any attempt at active or passive range of motion precipitates acute pain. He went on to note that I am not certain we can assign a permanent impairment to his left shoulder at this time as adhesive capsulitis often does resolve over many months if indeed that is the only problem that is plaguing his left shoulder. [16] A MRI of the left shoulder dated November 29, 2011 found moderate tendinosis with tiny partial thickness incomplete humeral side tear of the supraspinatus tendon at its insertion. It also noted moderate AC joint osteoarthritis, and Buford complex. [17] A report dated January 10, 2012 from Dr. Schuringa stated that following the MRI and a consultation with another doctor, they could not identify a clear explanation for [the worker s] severe disabling left shoulder pain. He went on to state: There really is not any severe pathology in his left shoulder that would explain his extreme pain and loss of mobility. There is no sign of adhesive capsulitis on the MRI. [18] A report dated April 3, 2012 from Dr. Schuringa stated: Based on my most recent findings, I think it is now doubtful that [the worker] ever had a frozen shoulder. He developed pain in his left shoulder in conjunction with the pain he was having in his left elbow and this became more significant and severe in the months following the left elbow surgery. [The worker] had no pre-existing issues with his left shoulder and had never complained of left shoulder pain or dysfunction at any time prior to his injury of November 2, We do not always understand what causes pain or what precipitates pathology at a given anatomical site to become symptomatic, but in all probability had [the worker] never had the injury and struggled so severely with his left lateral epicondylitis and proceeded to surgery for that he probably never would have had any symptoms in his left shoulder. [19] A report dated June 15, 2012 from the worker s physiotherapist stated that he had reported left neck and upper trapezius soreness and tightness but this was not his primary concern or injury. (b) Board memoranda [20] Board Memo #33, dated June 19, 2012 set out the review and decision of the worker s Case Manager (CM). She noted: It is clearly noted that symptoms in the left shoulder and neck began in September There was no specific incident and no rationale as to how it would be related to this particular claim or the incident in November IW has seen several specialists and there is no clear cause as to his left shoulder symptoms. The MRI clearly confirms non-compensable findings that are not related to the claim and the initial accident history. The diagnosis of adhesive capsulitis would have been compatible but the MRI confirms that the IW does not have this and that his symptoms are coming from something else.

4 Page: 3 Decision No. 2393/15 [21] Board Memo #40, dated September 19, 2012 contained a review and opinion from Board Medical Consultant and orthopaedic surgeon Dr. Hummel. He opined: Although [the worker] continues to experience pain in the left lateral aspect of the elbow and in the left shoulder region, and although Dr. Schuringa has noted that but for the accident, [the worker] would not have to have undergone the surgeries and apparently has had no previous complaints regarding left elbow pain in the past, it is the opinion of this examiner that the reported mechanism of injury does not reasonably correlate with the patient s presentation. Dr. Schuringa notes that previous complaints of pain and discomfort in the left forearm region by [the worker] are not documented, there is no sufficient evidence to dismiss the possibility that underlying degenerative changes were pre-existing. It is possible that the action of closing the rail car door on November 2, 2009 strained the region of the left forearm and consequently induced some underlying pathologic process. However, in his consultation notes, Dr. Schuringa (January 10, 2012), indicates that there is no severe pathology in his left shoulder that would explain the extreme pain and loss of mobility. On May 20, 2011 he notes the shoulder is very difficult to examine and it is very difficult to reach a conclusive diagnosis In addition, EMG studies were demonstrated to be within normal limits and an ultrasound performed August 3, 2011 demonstrated no abnormality of the rotator cuff. An MRI study of November 29, 2011 showed degenerative changes in the left shoulder, however. Based on the foregoing, it is evident that there may be no explanation for [the worker s] pain syndrome. As well, it is the opinion of this assessor that the degenerative changes seen in the left shoulder and left forearm (elbow) regions, and the reported associated symptomatic complaints of pain, are not reasonably correlated. It is the opinion of this examiner that insufficient evidence exists to link the completed surgery to the workplace injury. (c) Form 6 [22] The worker s Form 6 noted that he had injured his left arm, elbow, and forearm, with the box next to each of these checked by the worker. There appears to be a thin black ink line running to the left of these boxes that starts at the left shoulder and runs alongside the left arm, elbow, and forearm. (iv) Testimony [23] The worker testified that he was working as a team leader in the rail yard on the night of November 2, He stated that he was pulling a railcar door shut with his left arm when the door came to a sudden and unexpected stop, and he felt a pop in his left forearm. He stated that he felt pain from his left bicep to his left hand. [24] He stated that on his Form 6, although he had only noted his left elbow, arm, and forearm as injured, the accident employer s ergonomist with whom he had spoken about his Form 6 drew a thin line next to all four of the boxes on his Form 6 to include his left shoulder. [25] The worker stated that the reason there was no mention of his left shoulder in early medical reporting was due to his prevailing pain in, and concern about, his left elbow and forearm.

5 Page: 4 Decision No. 2393/15 [26] The worker stated that he had surgery on his left shoulder in May 2012, but that he remains in pain and still undergoes cortisone shots. [27] The worker stated that he had no pre-existing issues or treatment for his left shoulder. (v) Law and policy [28] 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. [29] 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; [30] 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. 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. [31] 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 [32] 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. [33] 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: #241 Initial Entitlement #251 Secondary Entitlement #300 Decision Making [34] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No , Adjudicative Process ; OPM Document No , Benefit of Doubt.

6 Page: 5 Decision No. 2393/15 [35] OPM Document No , Definition of Accident, describes a chance event as an identifiable unintended event which causes an injury, an injury itself is not a chance event. The policy defines a disablement as a condition that emerges gradually over time or an unexpected result of working duties. [36] OPM Document No , Adjudicative Process, states that an allowable claim must have five points: an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history. OPM Document No provides the following guidelines for determining proof of accident: Proof of accident Decision-makers may consider the following when examining proof of accident, 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? (vi) Submissions [37] Ms. Horne, the worker s representative, submitted that the motion used by the worker to close the rail car door required him to use his entire left arm, including his shoulder. She submitted that this injuring mechanism is compatible with an injury to the left shoulder. She further submitted that the worker first mentioned his left shoulder beginning to stiffen in a January 7, 2010 visit to the doctor. She also submitted that the accident employer s own doctor in his April 3, 2012 report linked the worker s shoulder to his elbow and forearm issues. Ms. Horne also submitted that there was no evidence that the worker had a pre-existing condition of the left shoulder, and that the workplace accident of November 2, 2009 was at the very least a significant contributing factor to the left shoulder condition. [38] Ms. Huras, the employer s representative, submitted that the original area of injury did not involve the shoulder, and that the medical evidence on file does not support a finding that the worker s shoulder was injured in the accident. She submitted that the worker had not been found to have adhesive capsulitis, which may have been related to the injury. She submitted that there was no evidence of compatibility between the worker s left shoulder condition and surgery, and his compensable accident. (vii) Analysis [39] As noted above, there are five criteria to be met when finding entitlement to a workplace injury. In this instance, the main criterion in dispute is whether there is compatibility between the worker s left shoulder condition and his compensable accident. [40] The accident itself is not in dispute. The worker was attempting to close a heavy rail car door with his left arm when it came to a sudden and unexpected stop, and the worker heard or felt a pop in his left forearm.

7 Page: 6 Decision No. 2393/15 [41] He was initially treated primarily for his left elbow. There is no mention of the worker s left shoulder being injured in the initial documentation, although the worker suggested that the thin black line running alongside all four boxes on his Form 6 was placed there by a workplace ergonomist after speaking with him about his injury. The first mention of the worker s left shoulder becoming tight is in a January 2010 visit to the clinic doctor. It does not appear to be mentioned again until September 2010, at which point it is suggested that the worker may be developing adhesive capsulitis, or frozen shoulder. [42] The WSIB was prepared to accept this diagnosis given the worker s injury and his reliance on a left elbow brace to help keep his left upper extremity still. Subsequent investigations, however found no evidence of adhesive capsulitis. [43] Later, there is opinion that the worker had a pre-existing degenerative condition that was possibly responsible for his left shoulder symptoms, although there is no evidence of this condition on file, and the worker testified that he had never had an issue with his left shoulder prior to his compensable accident. [44] There are essentially two major competing medical opinions on file regarding the compatibility of the worker s left shoulder condition to his compensable accident, both filed by orthopaedic surgeons. [45] The first is that of Dr. Schuringa, who opined: Based on my most recent findings, I think it is now doubtful that [the worker] ever had a frozen shoulder. He developed pain in his left shoulder in conjunction with the pain he was having in his left elbow and this became more significant and severe in the months following the left elbow surgery. [The worker] had no pre-existing issues with his left shoulder and had never complained of left shoulder pain or dysfunction at any time prior to his injury of November 2, We do not always understand what causes pain or what precipitates pathology at a given anatomical site to become symptomatic, but in all probability had [the worker] never had the injury and struggled so severely with his left lateral epicondylitis and proceeded to surgery for that he probably never would have had any symptoms in his left shoulder. [46] The competing opinion is presented by Dr. Hummel, who opined: Although [the worker] continues to experience pain in the left lateral aspect of the elbow and in the left shoulder region, and although Dr. Schuringa has noted that but for the accident, [the worker] would not have to have undergone the surgeries and apparently has had no previous complaints regarding left elbow pain in the past, it is the opinion of this examiner that the reported mechanism of injury does not reasonable correlate with the patient s presentation. Dr. Schuringa notes that previous complaints of pain and discomfort in the left forearm region by [the worker] are not documented, there is no sufficient evidence to dismiss the possibility that underlying degenerative changes were pre-existing. It is possible that the action of closing the rail car door on November 2, 2009 strained the region of the left forearm and consequently induced some underlying pathologic process. However, in his consultation notes, Dr. Schuringa (January 10, 2012), indicates that there is no severe pathology in his left shoulder that would explain the extreme pain and loss of mobility. On May 20, 2011 he notes the shoulder is very difficult to examine and it is very difficult to reach a conclusive diagnosis

8 Page: 7 Decision No. 2393/15 Based on the foregoing, it is evident that there may be no explanation for [the worker s] pain syndrome. As well, it is the opinion of this assessor that the degenerative changes seen in the left shoulder and left forearm (elbow) regions, and the reported associated symptomatic complaints of pain, are not reasonably correlated. It is the opinion of this examiner that insufficient evidence exists to link the completed surgery to the workplace injury. [47] Thus, it appears to me, neither doctor is firm with his respective opinion. Dr. Schuringa noted that but in all probability had [the worker] never had the injury and struggled so severely with his left lateral epicondylitis and proceeded to surgery for that he probably never would have had any symptoms in his left shoulder. Dr. Schuringa, throughout his reports, notes that the worker s left shoulder condition is puzzling, and makes numerous efforts and referrals to understand the nature of this injury. Dr. Hummel opines that he does not believe that the injuring mechanism could have led to the worker s left shoulder condition, but also notes that, it is possible that the action of closing the rail car door in November 2, 2009 strained the region of the left forearm and consequently induced some underlying pathologic process. [48] While the medical evidence appears to be inconclusive, the Tribunal does not require scientific certainty to reach a decision as Tribunal decisions are based on the balance of probabilities and are subject to the principles of the benefit of the doubt. It is evident from both Drs. Schuringa and Hummel that they are unable to provide a definitive answer to the origin of the worker s left shoulder pain. Although there is no immediate mention of the worker s left shoulder being injured in the compensable accident, he does mention it to the accident employer s doctor on January 7, 2010, and the worker testified that it had bothered him from the start, but that his severe left elbow condition took precedence, which appears reasonable given that injury s severity. Although there is no documentary evidence indicating that the worker did or did not have a pre-existing condition in his left shoulder, I accept the worker s testimony that prior to this accident he had an asymptomatic left shoulder, regardless if there may have been an underlying pathology waiting to be activated as per Dr. Hummel. [49] The non-medical evidence before me when the worker first reported the onset of left shoulder problems and the actual injuring mechanism suggests a causal connection between the accident and injury. I find in this case that two months following a significant left elbow injury is not an unreasonable delay in reporting given the severity of the worker s left elbow symptoms. Furthermore, I find that the act of pulling shut a heavy door with your left arm and having it come to a sudden stop would require involvement of the whole left upper extremity, and is compatible with a left shoulder injury. The accepted fact that the worker s left shoulder was asymptomatic prior to the injury also suggests that the subsequent difficulties were at least significantly contributed to by the accident, which as noted above is the standard test applied in Tribunal case law. [50] The medical evidence, as noted above, is inconclusive and to a certain extent contradictory. Dr. Schuringa is a specialist who treated the worker, and operated on him. Dr. Hummel is also a specialist who had the opportunity to review all of the worker s medical reports on file. 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 Page: 8 Decision No. 2393/15 [51] I find that the evidence is approximately equal as to whether or not the worker s left shoulder condition arose as a result of his workplace accident. The non-medical evidence and testimony (particularly the fact that the worker s left shoulder was asymptomatic prior to the injury), suggests a causal connection. The medical evidence is approximately equal as to whether the worker s left shoulder is compatible with the accident. As such, I find on the benefit of the doubt, that he has entitlement to a left shoulder condition arising from his November 2, 2009 accident, and subsequent surgery for same.

10 Page: 9 Decision No. 2393/15 DISPOSITION [52] The appeal is allowed as follows: 1. The worker has entitlement to a left shoulder condition, and subsequent surgery, as a result of his compensable November 2, 2009 accident. [53] 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: December 16, 2015 SIGNED: K. Cooper