WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 3231/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 3231/16 BEFORE: S. Peckover: Vice-Chair HEARING: December 12, 2016 at Toronto Written DATE OF DECISION: December 20, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3511 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 21, 2015 APPEARANCES: For the worker: For the employer: Interpreter: Not participating M. Gordon, Paralegal Not Required 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. 3231/16 REASONS (i) Introduction [1] The employer appeals a decision of the ARO dated October 21, 2015, which concluded that it was not entitled to cost relief under the Second Injury and Enhancement Fund (SIEF). (ii) Issues [2] The issue before me is the employer s entitlement to SIEF relief with respect to the costs of this worker s claim. Specifically, Mr. Gordon seeks 90% SIEF relief for the employer. (iii) Background [3] The following are the basic facts. [4] The worker, a general associate in a retail distribution centre born in 1963, was walking to her car at the end of her shift on March 19, As she crossed the parking lot on the employer s premises, she slipped and fell, injuring her right arm (palm, elbow, right forearm, and shoulder), as well as her left knee and ankle. [5] The worker s right shoulder remained symptomatic, and she was diagnosed with rotator cuff tendinopathy. An ultrasound dated May 22, 2013 showed evidence of minimal calcification in the supraspinatus and subscapularis tendons, in keeping with calcific tendonitis. It also revealed a small tear in the subscapularis tendon, and fluid in the biceps tendon sheath, indicating tenosynovitis. An MRI scan dated November 21, 2013 revealed evidence of moderate subacromial / subdeltoid bursitis, along with supraspinatus tendinosis, without a discrete tear. It also showed that the worker had a Type II acromion. [6] On January 14, 2015, she underwent an arthroscopic decompression and debridement of the right shoulder. She received full Loss of Earnings (LOE) benefits from that date to March 2, 2015, at which point she returned to work. She was considered to be at Maximum Medical Recovery (MMR) as of July 2, [7] In a letter dated January 12, 2015, Mr. Gordon s office wrote to the Board on behalf of the employer, and requested that the file be reviewed with respect to SIEF relief. In a decision letter dated January 20, 2015, the Case Manager found no evidence of a pre-existing condition in the medical reporting. SIEF relief therefore was denied. [8] At the Appeals Services Branch, in a decision dated October 21, 2015, the ARO noted that entitlement had been accepted for rotator cuff impingement and tendinopathy of the right shoulder. While there was evidence of pre-existing conditions in the right shoulder, for SIEF relief to flow, it had to be demonstrated that these conditions enhanced the disability or prolonged the recovery period. The recovery period was from January 14, 2015 (the date of surgery) to July 2, 2015 (the date on which MMR was reached), a period of 6 months. This was considered appropriate, given the nature and extent of the surgery and the required rehabilitation. Further, no physician or therapist had indicated that the recovery period was in any way prolonged or slow. SIEF relief therefore was denied. [9] The employer appeals from this decision.

3 Page: 2 Decision No. 3231/16 (iv) Law and policy [10] Since the worker was injured in 2013, 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. [11] The Board s authority to establish the Second Injury and Enhancement Fund derives from section 98 of the WSIA, which states: 98 (1) The Board may establish a special reserve fund to meet losses that may arise from a disaster or other circumstance that, in the opinion of the Board, would unfairly burden the employers in any class. [12] 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 [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 No. 181 NEER Adjustments DOA as of January 1, 2008; Package No. 247 SIEF; and Package No. 299 Decision Making / Merits and Justice. [14] I have considered these policies as necessary in deciding the issues in this appeal, including Operational Policy Manual (OPM) Document No , entitled Second Injury and Enhancement Fund. This policy provides in part: 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. Guidelines There is no provision in the Act for the Fund to apply to Schedule II employers. In situations where alcoholism plays a role in the causation of an accident, it is not considered to be a pre-existing condition with regard to the application of SIEF relief. 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. ( ) SIEF-application to employer costs

4 Page: 3 Decision No. 3231/16 Medical significance of preexisting condition* Minor Moderate Major Severity of accident** Minor Moderate Major Minor Moderate Major Minor Moderate Major Percentage of cost transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% NOTES * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (lift, push, pull, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident Minor: expected to cause non-disabling or minor disabling injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF. (v) The Medical Evidence [15] The following medical evidence is relevant to the issue before me: A right shoulder X-ray dated May 22, 2013 revealed no significant bone or joint abnormality. An ultrasound of the right shoulder on the same date revealed minimal calcification in the supraspinatus and subscapularis tendons, in keeping with calcific tendonitis. A small partial tear was demonstrated in the subscapularis tendon, with maximum dimension of 7.5 mm. Fluid was seen in the biceps tendon sheath, in keeping with tenosynovitis. An MRI of the right shoulder dated November 21, 2013 revealed the following:

5 Page: 4 Decision No. 3231/16 Findings: Supraspinatus and infraspinatus tendinosis. Minimal subscapularis tendinosis. No discrete rotator cuff tear. Moderate subacromial / subdeltoid bursitis. No disproportionate fatty atrophy of rotator cuff musculature. No significant subacromial spur. Mild acromioclavicular joint osteoarthrosis. The glenohumeral joint is unremarkable with no evidence for a joint effusion or significant articular cartilage loss. Small para labral cyst at 12 o clock may be related to a non-detached superior labral tear. Impression: Moderate subacromial/subdeltoid bursitis. Supraspinatus and bursitis tendinosis without discrete tear. In the Operative Note dated January 14, 2015, orthopaedic surgeon Dr. Elmaraghy reported as follows: PREOPERATIVE DIAGNOSIS: Right rotator cuff impingement POSTOPERATIVE DIAGNOSIS: Right rotator cuff impingement PROCEDURE: Right arthroscopic rotator cuff decompression and debridement Examination under anesthesia demonstrated no capsular restriction, no minimal crepitus. Standard posterior entry portals were established. Intra-articular examination demonstrated degenerative superior labral tear, debrided with a shaver and smoothed with cautery. The biceps anchor was stable. There were no significant arthritic changes in either the glenoid or humerus. Anterior labrum and capsule were normal. Long head of biceps was stable in its groove without tendinopathy. The undersurface of the subscapularis had low grade articular sided fraying which was debrided with a shaver and smoothed with cautery. Undersurface of the supraspinatus and infraspinatus were normal. Posterior labrum and gutter were clear. Scope was then placed through the posterior skin incision into the subacromial space. We established lateral access and visualization. We performed an anterior and lateral acromioplasty with a high-speed burr. CA ligament was released with cautery. Subacromial bursa was debrided with a shaver and rotator cuff on the bursal side was identified to have some bursal sided fraying without an any [sic] significant structure tear requiring repair. This was smoothed with cautery. [Emphasis added] (vi) Analysis [16] In analyzing a SIEF appeal, Decision No. 1404/11 states: The standard of proof in a Tribunal appeal is the balance of probabilities. In a SIEF appeal, this means that the evidence must demonstrate that it is more likely than not that the underlying condition prolonged or enhanced the worker s disability resulting from the workplace accident. The severity of the accident and the significance of the pre-existing condition must also be determined based upon direct evidence or reasonable inferences which may be drawn from the evidence. In a SIEF appeal, there is often a lack of direct evidence, and the parties may be drawn into relying upon unsupported assertions and

6 Page: 5 Decision No. 3231/16 arguments. I find it necessary to emphasize, however, that entitlement for SIEF relief must be demonstrated on the basis of valid evidence or reasonable inferences drawn from the evidence. [17] Thus, I must decide whether the worker had a pre-existing condition, as defined above, which prolonged her recovery or enhanced her injury. On the other branch of the test, I must determine whether she had a pre-existing disability, as defined above, which caused or contributed to the workplace injury. If the answer to either question is in the affirmative, the employer may be entitled to SIEF relief. [18] In preparation for this appeal, Mr. Gordon enlisted the assistance of orthopaedic surgeon Dr. Gordon. In the resulting Independent File Review, dated June 1, 2016, Dr. Gordon opined as follows: 1. Does the medical and other claim evidence confirm the presence of pre-existing and/or underlying conditions that would have enhanced the severity of the injury? [The worker] had significant pre-existing conditions as described in the x-ray and ultrasound as well as the operative report. She had pre-existing calcific rotator cuff tendinopathy which is completely unrelated to her fall. She also has a congenital down-sloping acromion which has been shown to lead to tendinopathy. In Dr. Elmaraghy s OR note dated June 14 th 2015, he described degeneration of the superior labrum and minor fraying of the rotator cuff. Thus this lady s pain is almost certainly from the pre-existing calcific rotator cuff tendinopathy. 2. Does the medical and other claim evidence confirm the presence of pre-existing and/or underlying conditions that have prolonged the recovery from the compensable condition Again, as above, the down-sloping acromion and calcific rotator cuff tendinopathy are underlying conditions that she had at the time of her fall and would prolong her recovery. 3. If so, please identify the condition(s). As above. 4. What is the severity, from a medical perspective, of the pre-existing/underlying conditions in influencing the worker s disability based on the terms provided? This is a major underlying condition because this is what has prolonged her recovery and was in fact the cause of her shoulder pain. I make this conclusion on the basis that when Dr. Elmaraghy did his surgery, her only pathology was of mild degeneration of the labrum and mild fraying of the under surface of the cuff. The largest problem that produced her symptoms and prolonged her recovery is the pre-existing calcific tendinopathy of the rotator cuff. [Emphasis added] [19] In his submissions dated June 15, 2016, Mr. Gordon stated that he agreed with the ARO s conclusion that the accident was minor in severity. In terms of a pre-existing condition, he noted that the ARO had stated that no attending physician or therapist had indicated that the recovery period was in any way prolonged or slow. He pointed out that, in the Shoulder Program of Care, Care & Outcomes Summary dated June 28, 2013, the report writer identified the worker s underlying calcific tendonitis as a factor impacting recovery. [20] Mr. Gordon also noted that neither the Case Manager nor the ARO had consulted a Board Medical Consultant with respect to whether there was a pre-existing condition which was having an impact on the claim or the worker s recovery. He therefore had enlisted Dr. Gordon s

7 Page: 6 Decision No. 3231/16 assistance in this regard. The result is the report dated June 1, He asked that Dr. Gordon s report be given significant weight, given his credentials and expertise as an orthopaedic surgeon. He submitted that Dr. Gordon was in the best position to provide commentary on the existence of a pre-existing shoulder condition and whether it had enhanced and/or prolonged the compensable shoulder condition in this claim. [21] From Dr. Gordon s report, the following pre-existing conditions / disabilities were identified: Type II acromion; Calcific rotator cuff tendinopathy; and Low-grade degenerative changes in the superior labrum and minor fraying of the rotator cuff [22] With regard to the Type II acromion, this shape of acromion has been found to be a normal anatomical variant, for which SIEF relief is not available. See, for example, Decision Nos. 197/12, 142/15, 247/15, and 736/15. [23] Regarding the low-grade degenerative changes, Dr. Gordon was of the opinion that these were minimal changes. As such, it is unlikely that they had any impact on the worker s recovery, or any causal contribution to the accident. [24] As noted above, Dr. Gordon was of the opinion that the worker s calcific rotator cuff tendinopathy was the largest pre-existing condition, and the one responsible for her ongoing pain. In the Tribunal s Medical Discussion Paper entitled Shoulder Injury and Disability, authored by orthopaedic surgeon Dr. Uhthoff and last revised in October 2010, we read the following: E. Calcific Tendonitis, also known as Calcifying Tendinitis This condition is neither caused by work nor aggravated by any particular activity. It affects females more often. Calcific deposits in the opposite shoulder occur in up to 40% of patients. Calcific tendinitis cannot be attributed to factors associated with work. The thickening of the tendon caused by the calcific deposit often leads to an impingement syndrome. [25] This is very much in agreement with Dr. Gordon s comments, above, to the effect that this condition was not related to the workplace accident. [26] There is nothing in the medical reporting to indicate that the worker had any pre-existing difficulties with her right shoulder. It therefore was asymptomatic prior to the workplace accident, and the calcific tendonitis was discovered thereafter. This therefore meets the definition of a pre-existing condition. [27] Dr. Gordon was of the view that the worker s recovery was prolonged. I note that she was found to be at MMR as of July 2, 2015, about 5.5 months after her surgery on January 14, An older version of Board OPM Document No , Determining Maximum Recovery, contains a table entitled Usual Healing Times. That table indicates that the post-surgical recovery time for a rotator cuff repair is 6 months, while that for an acromioplasty is three to six months. Arthroscopic acromioplasty is surgery done on a shoulder to relieve an impingement syndrome. From the Operative Report, quoted above, I conclude that the main procedure done during the surgery was the acromioplasty. Thus, recovery times for this

8 Page: 7 Decision No. 3231/16 surgery range from three to six months. I therefore concur with Dr. Gordon s assessment that the worker s recovery more likely than not was somewhat prolonged. [28] The employer therefore is entitled to SIEF relief. [29] As can be seen from the table of relief found in the Board s SIEF policy, the amount of SIEF relief granted is dependent on two variables: the severity of the accident and the severity of the pre-existing condition. [30] Board policy requires that accidents be characterized as either minor (expected to cause non-disabling or minor disabling injury), moderate (expected to cause disabling injury) or major (expected to cause serious disability, probable permanent disability). In addition to these definitions, the policy suggests that the severity of the accident is to be evaluated in terms of the accident history components, which include mechanics (lift, push, pull, fall, blow, etc.), position (kneeling, standing, sitting, squatting, bending, etc.) and environment (lighting, temperature, weather conditions, terrain, etc.). In determining the severity of accident Decision No. 1021/12 confirmed that the actual injuries are not considered but rather the extent of disability the mechanics of the accident would reasonably be expected to cause. [31] As noted above, Mr. Gordon stated that he agreed with the ARO that the accident was minor in severity. The worker was simply walking to her car on a paved surface when the accident occurred. It was dark out, since she had just finished her midnight shift, but there was some lighting in the parking lot. I find that this mechanism of accident is likely to result in a minor disabling injury, at the very most. I therefore agree that the accident was minor in severity. [32] With respect to the pre-existing condition, Board policy requires that it be characterized as minor, moderate or major. The policy does not define these terms and indicates only that the medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. These provisions were interpreted as follows in Decision No. 1582/07: I interpret the policy to mean that the medical significance of a pre-existing condition should be considered to be minor if it made the worker slightly more liable to develop a disability of greater severity than a normal person, and that it should be considered major if it made the worker extremely liable to develop a disability of greater severity than a normal person. If the extent to which the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person was more than slight, but less than extreme, the medical significance of the pre-existing condition could be considered moderate. [33] In the case before me, I am of the view that it is more likely than not that the worker s pre-existing calcific tendonitis made the worker something more than slightly more liable to develop a disability of greater severity than a normal person. However, given the use of the term minimal calcification in the ultrasound report dated May 22, 2013, I am not persuaded that it rendered her extremely liable to do so. The pre-existing calcific tendonitis therefore is moderate in severity. [34] A moderate pre-existing condition and a minor accident result in 75% SIEF relief to the accident employer.

9 Page: 8 Decision No. 3231/16 DISPOSITION [35] The appeal is allowed in part as follows: 1. The employer is entitled to 75 % SIEF relief. DATED: December 20, 2016 SIGNED: S. Peckover