WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2133/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2133/15 BEFORE: S. Netten: Vice-Chair HEARING: October 2, 2015 at Toronto Written DATE OF DECISION: October 22, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2378 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated January 31, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented J. Hudson, Lawyer None 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. 2133/15 REASONS (i) Issue [1] The issue to be determined in this appeal is the employer s entitlement to Second Injury and Enhancement Fund (SIEF) relief in respect of the costs of the worker s benefits for a 2011 right shoulder claim. (ii) Overview [2] The worker, a driver, sustained a twisting injury to his right shoulder while unloading a skid on August 30, He remained at work on modified duties. Entitlement was initially accepted for a shoulder strain and, in December 2012, for an insertional tear of the supraspinatus tendon. A permanent impairment was recognized, with restrictions on heavy and repetitive work with the right upper extremity, leading to a non-economic loss (NEL) award of 4% in April The worker s entitlement to benefits is not at issue in this appeal. [3] The employer sought SIEF relief in December This request was denied at the operational and appeals levels of the Board. [4] The employer now appeals to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In written submissions dated March 26, 2015, the employer s representative asserts that the worker had pre-existing tendinosis, and this predisposed him to the compensable injury, enhanced and/or prolonged his recovery, and contributed to his permanent impairment. In addition, she submits that the worker s heavy smoking predisposed him to sustaining the rotator cuff tear and enhanced and/or prolonged his healing. The employer seeks SIEF relief of up to 90%. [5] The worker declined to provide submissions to the Tribunal. (iii) Law and policy [6] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. Section 126 requires the Tribunal to apply Board policy when making its decisions. [7] The standard of proof applicable in SIEF appeals is the balance of probabilities, and the burden of proof rests with the claimant: see Decision No. 197/12. [8] The SIEF was initially created in 1978, pursuant to section 108(2) of the Workers Compensation Act. This provision, continued in section 98 of the WSIA, gives the Board broad discretionary power to establish a reserve fund to meet losses arising from circumstances that would unfairly burden the employers. Board policy on the SIEF, found in Operational Policy Manual (OPM) Document No , states: 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 pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Both physical and psychological disabilities are included.

3 Page: 2 Decision No. 2133/15 Guidelines The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions 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. [9] Hence, Board policy authorizes entitlement to SIEF relief when: (a) the worker had a pre-existing disability which required treatment and disrupted employment pre-accident, and that disability causes or contributes to the accident, or (b) the worker had an underlying or asymptomatic condition which becomes manifest post-accident, and that condition prolongs or enhances the recovery or claims period. [10] After one of these conditions precedent is met, the level of SIEF relief is determined. A matrix found in the SIEF policy assigns a percentage of cost transfer based upon the medical significance of the pre-existing condition and the severity of the accident. (iv) Evidence in the Board file [11] The worker was 54 years old on the date of accident, August 30, The Employer s and Worker s Reports of Injury explain that the worker was unable to stop the pump truck while loading materials into a trailer on a slope; the handle spun around, and pulled and twisted the worker s right shoulder. [12] The Injury/Incident Report, completed by the worker and his supervisor on August 31, 2011, indicated that the worker had not had a previous similar injury. Similarly, the worker s family physician, Dr. H. Boyd, indicated that he was not aware of any pre-existing conditions affecting recovery, in his Health Professional s Report of September 8, Dr. Boyd diagnosed right shoulder strain supraspinatus & subscapularis and prescribed rest, ice and over-the-counter medications. Restrictions were put in place for modified duties. [13] In his Progress Report of November 5, 2011, Dr. Boyd outlined treatment including physiotherapy and prescription medications, with mild improvement and no complicating factors influencing recovery. [14] The worker was assessed at the Board s Regional Evaluation Centre (REC) on December 23, While imaging studies are not on file, the REC report stated that an ultrasound revealed a partial tear of the supraspinatus tendon and some tendinosis in the infraspinatus tendon. On examination, orthopedic surgeon Dr. N. Clements and physiotherapist C. Caromicoli found some wasting of the supraspinatus, mildly restricted range of motion, and mild tenderness to palpation of the acromioclavicular joint and biceps tendon. They opined that the worker had sustained a rotator cuff tear in the work-related accident, and recommended six weeks of physiotherapy followed by a gradual return to regular work duties.

4 Page: 3 Decision No. 2133/15 [15] On January 26, 2012, physiotherapist K. Lee was not aware of any pre-existing or other conditions affecting recovery. In a Physiotherapist s Treatment Extension Request of February 23, 2012, M. Virk described the worker s range of motion and improved strength, with no factors delaying recovery. [16] Noting a lack of progression, the Nurse Consultant referred the worker to a Board specialty program in April Orthopedic surgeon Dr. J. Hall and physiotherapist C. McKenzie assessed the worker at the Shoulder and Elbow Specialty Clinic, on May 7, The diagnosis was a right rotator cuff strain type injury, without significant improvement in the last several months. Further, but not full, recovery was anticipated with another six weeks of physiotherapy. Continuation of work restrictions on heavy lifting, pushing, pulling, aboveshoulder work and repetitive use of the right upper extremity was recommended. [17] An addendum report of June 11, 2012 from Dr. Hall and Mr. McKenzie explained that complete recovery was unlikely because of ongoing limitations of motion and strength, but also recommended follow-up in July 2012 since most individuals with rotator cuff difficulties will reach their maximum medical recovery approximately one year after they injury. The addendum also stated that the worker was making slow gains and most individuals with rotator cuff strain injuries do recover and they do so quite promptly. [18] Mr. Virk s Physiotherapist s Treatment Extension Request of June 18, 2012 stated, for factors delaying recovery, Extent of injury [?] involv. of multiple tendons. He had noted the diagnoses as partial tear of the supraspinatus and tendinosis of the infraspinatus. [19] Dr. Hall and physiotherapist J. Law reassessed the worker in follow-up on July 23, The worker had full range of motion and good rotator cuff strength, with ongoing symptoms requiring restrictions and completion of physiotherapy. Dr. Hall recommended an MRI given his length of time of his symptoms from his injury and anticipated that an MRI would show mild to moderate rotator cuff disease. In this respect he wrote, It is difficult to determine whether this is a result of his most recent injury or chronic in nature. [20] The MRI of August 9, 2012 found an insertional full thickness tear of the supraspinatus tendon, and extensive tendinopathy within the remainder of the supraspinatus and infraspinatus tendons, as well as subscapularis. In follow-up on September 17, 2012, Dr. Hall reviewed the MRI and described the tendinopathy as mild to moderate tendinosis. He noted improved symptoms with full range of motion and much improved strength, and recommended a monitored gradual return to regular duties. At the final follow-up of November 29, 2012, the worker had reported difficulties with heavy and repetitive lifting, and Dr. Hall recommended corresponding permanent work restrictions. (v) Entitlement to SIEF relief [21] SIEF relief is in order 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 pre-existing condition. [22] There has been no suggestion that the worker had right shoulder problems prior to the 2011 work accident, and as such there was no pre-accident disability of the right shoulder as defined in Board policy.

5 Page: 4 Decision No. 2133/15 [23] Rather, the employer s representative submits that the worker had an underlying shoulder condition of pre-existing tendinosis, which predisposed him to injury and enhanced or prolonged his recovery. [24] I note first that it is insufficient, pursuant to Board policy, for an underlying pre-existing condition to simply expose or predispose a worker to injury, or contribute to the injury (see, for example, Decision No. 1030/14). For SIEF relief to be warranted, medical evidence that the pre-existing condition prolonged or enhanced the period resulting from the accident is required. This requires consideration of the effect of the pre-existing condition following, not preceding, the compensable injury. It is not in dispute that the workplace accident caused or significantly contributed to the worker s rotator cuff tear. The Tribunal s medical discussion paper titled Shoulder Injury and Disability 1 explains that in middle aged persons, pre-existing degenerative changes causing a weakness in tension of the tendon must have contributed to a rotator cuff tear. However, the question is not whether a pre-existing condition also contributed to the compensable injury, but whether a pre-existing condition resulted in the prolongation or enhancement of the claim. [25] The evidence on file does support the employer s position that the tendinopathy in three of the worker s rotator cuff tendons prolonged his recovery: Dr. Hall indicated that most rotator cuff strain injuries resolve quite promptly ; the worker required a much longer period of physiotherapy than was anticipated by the REC clinicians; physiotherapist Mr. Virk identified the involvement of multiple tendons as a factor delaying recovery; and Dr. Hall proposed an MRI to review the worker s pathology, given the long-lasting symptoms. [26] The employer s representative asserts that the presence of tendinosis in the worker s otherwise healthy tendons is indicative of degenerative, intrinsic tendinopathy as opposed to extrinsic tendinopathy, consistent with his age and profession. However, in my view the evidence does not establish, on a balance of probabilities, that the worker s rotator cuff tendinopathy was pre-existing. [27] I rely most heavily upon the comment from orthopedic surgeon Dr. Hall, who investigated the worker s condition and assessed him over time. Dr. Hall turned his mind to the two possibilities: post-traumatic injury-related tendinopathy, or chronic (and presumably pre-existing) tendinopathy. A specialist in orthopedics, he stated that it was difficult to determine which etiology applied in this case. [28] I place little weight on the unsourced excerpts from tendinosis.org submitted by the employer s representative, in particular the reference to the suffix osis implying chronic degeneration. While Dr. Hall did refer to tendinosis in one instance, he more regularly described the worker s condition as tendinopathy. I interpret from the comment discussed above that Dr. Hall did not assume and was not prepared to make a finding of chronic degeneration. [29] The article on tendinopathy submitted by the employer s representative from shouldercommunity.com, otherwise unsourced, states that tendinopathy refers to pathology in and pain arising from a tendon, without etiological implications. This article goes on to discuss extrinsic and intrinsic pathogenesis, with extrinsic factors including irritation or compression of the tendons, and intrinsic factors being a consequence of overuse or overload. It also states: 1 Written by orthopedic surgeon Dr. H. Uhthoff, October 2010, and included in the case materials

6 Page: 5 Decision No. 2133/15 Rotator cuff pathology is associated with advancing age, and thus a degenerative mechanism is likely to be the primary cause of this condition. It is unclear to me how the latter statement relates to the previous discussion of extrinsic and intrinsic causes. However, even if age-related tendon degeneration is the most likely cause of tendinopathy, the article does not posit agerelated degeneration as the only possible cause. Moreover, if this is an accurate statement of etiology I would expect Dr. Hall to be aware of it given his expertise, yet he was unable to determine, in this particular case, whether the worker s tendinopathy was chronic or a result of the injury a year prior. I prefer to rely upon the evidence specific to this worker than upon generic comments found in the literature, particularly when these are unsourced and not peer-reviewed. This is consistent with other decisions in which the Tribunal has been reluctant to accept medical literature as the basis for a determination about a pre-existing condition and has preferred direct medical evidence specifically addressing the worker s case (see for example Decisions No. 1155/04, 1359/07, 235/08 and 781/13). [30] The employer bears the evidentiary burden of establishing its case on a balance of probabilities. On the evidence before me, I find that it is not more likely than not that the tendinopathy was chronic in nature, nor is it more likely than not that the tendinopathy resulted from the injury. On a balance of probabilities, I do not find the worker to have had pre-existing rotator cuff tendinopathy. While the evidence is approximately balanced, the benefit of the doubt does not apply to SIEF appeals since, pursuant to section 124 of the WSIA, it applies only in favour of a person claiming benefits under the insurance plan. [31] Additionally, the employer s representative asserts that the worker s history of smoking predisposed him to sustaining the rotator cuff tear and enhanced or prolonged his healing. A preexisting condition is defined in Board policy as an underlying or asymptomatic condition which only becomes manifest post-accident. Smoking is not in and of itself a health condition but a behaviour. Like other behaviours such as poor diet and lack of exercise, smoking may be a risk factor relevant to determinations of causation in workers compensation cases, but such behaviours do not constitute conditions, pre-existing or otherwise. Moreover, smoking does not become manifest following an accident or injury. Consistent with Tribunal jurisprudence, I find that smoking does not meet the definition of a pre-existing condition found in the SIEF policy (see, for example, Decisions No. 765/15, 478/14, 1213/13, 668/10, 1269/12, and 464/09). (vi) Conclusion [32] The worker did not have a pre-existing disability which caused or contributed to the compensable accident. The worker s rotator cuff tendinopathy was not, on a balance of probabilities, a pre-existing condition, and smoking does not constitute a pre-existing condition for SIEF purposes. As such, the worker did not have a pre-existing condition which prolonged or enhanced the recovery or claims period. [33] Because of these findings, it is unnecessary for me to address the severity of the accident or the significance of the pre-existing condition. Pursuant to Board policy, the employer is not entitled to SIEF relief.

7 Page: 6 Decision No. 2133/15 DISPOSITION [34] The appeal is denied. DATED: October 22, 2015 SIGNED: S. Netten