WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 401/14 BEFORE: S. Netten: Vice-Chair HEARING: February 21, 2014 at Toronto Written Post-hearing activity completed on April 29, 2014 DATE OF DECISION: June 18, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1325 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated May 10, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Not participating M. Gordon, Paralegal 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
Decision No. 401/14 REASONS (i) Issue [1] The issue to be determined in this appeal is the quantum of Second Injury and Enhancement Fund (SIEF) relief granted to the employer in respect of the costs of the worker s claim. (ii) Overview [2] The worker, then a 47-year-old service technician, sustained a left shoulder injury upon pulling a heavy appliance on April 24, 2010. He received health care and loss of earnings benefits. The worker s entitlement to benefits is not at issue in this appeal. [3] The Case Manager granted entitlement to 25% SIEF relief in March 2011, finding that the worker s recovery was prolonged due to an underlying shoulder condition. An Appeals Resolution Officer (ARO) increased cost relief to 50% in May 2012. This was based upon findings of an accident of minor severity and a minor pre-existing condition, being degenerative changes associated with a previous shoulder dislocation. [4] The employer appeals the SIEF quantum to the Tribunal, agreeing that the accident was minor but arguing that the pre-existing condition was moderate or major. The employer seeks SIEF relief of 75% or 90%. [5] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. (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. 14-05-03, 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. [9] 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:
Page: 2 Decision No. 401/14 SIEF-application to employer costs Medical significance of preexisting condition* Severity of accident** 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 : expected to cause non-disabling or minor disabling injury : expected to cause disabling injury : expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF. [10] In this appeal, the employer's entitlement to SIEF relief is not in dispute. Moreover, the employer agrees with the Board s assessment of the severity of the accident as minor. The only question to be determined in assessing the correct quantum of relief, therefore, is the medical significance of the pre-existing condition. (iv) Medical reporting [11] It appears that the worker saw an associate of family doctor Dr. G. Holdway following the compensable injury. Dr. A. Daudl s chart note for April 29, 2010 stated:
Page: 3 Decision No. 401/14 WSIB Left Shoulder x6 days Moving a dryer that stacked on a pedestal to access the venting and felt pop to left shoulder. Dislocated and put back his shoulder. Has happened before (3-4 years ago). Having pain now using Advil as needed. Wants form filled O/E L shoulder tender over L anterior aspect ROM limited to 90deg abduction, limited in all directions Req given for Xray, sono. Will need physio and MRI [12] Dr. Daudl s diagnosis, in the Health Professional s Report of Injury completed that day, was L shoulder pain (dislocation). [13] The MRI of September 28, 2010 found a high-grade delaminating tear of the infraspinatus tendon, marked degenerative changes to the glenohumeral joint space likely secondary to previous trauma, and an extensive supra-posterior labrum SLAP-type tear. Dr. Holdway reviewed the results on December 28, 2010, writing MRI seems to show he has done quite a bit of damage to the shoulder with a SLAP lesion perhaps. [14] The worker was assessed by orthopedic surgeon Dr. I. Wong on January 17, 2011: This 47 year old male presents with shoulder pain for 8 months. There was a work injury in April 2010 (WSIB); he was pulling a heavy dryer when he felt the shoulder pop and dislocate. He reduced it himself. There was an initial episode of dislocation 5 years ago while weightlifting; also reduced by the patient. He has tried PT in the past as well as Advil, without sufficient benefit Xrays suggest inferior humeral head osteophytes and GT sclerotic cysts, with normal glenohumeral and AC joint space preservation (images not available for viewing). Reviewed today, no calcifications, shows osteophyte humerus. No joint space loss. Ultrasound suggests possible supraspinatus calcific tendinopathy. MRI suggests extensive SLAP tear from 6-11:00 position and a high-grade articular sided tear to the infraspinatus. Early arthritis, especially glenoid side. [15] Dr. Wong recommended a graftjacket reconstruction of the glenoid, based upon his assessment of signs and symptoms suggestive of OA changes glenoid. [16] Dr. Holdway provided a Progress Report on January 18, 2011 which noted that OA in glenoid? was a complicating factor influencing recovery. [17] Dr. Wong subsequently left the province. On February 11, 2013, orthopedic surgeon Dr. B. Smith assessed the worker for ongoing left shoulder pain and reviewed the imaging. Based upon diagnoses of partial thickness rotator cuff tear, superior labral tear, and posterior glenoid degenerative changes, Dr. Smith recommended arthroscopy for labral repair and rotator cuff debridement and, if then necessary, graftjacket glenoid resurfacing. (v) Medical discussion paper [18] A Tribunal medical discussion paper on Shoulder Injury and Disability written by orthopedic surgeon Dr. H. Uhthoff (revised October 2010) was included in the case materials for this appeal. The Tribunal s medical discussion papers are written by independent experts who are recognized in their fields of specialization. They are designed to provide parties and representatives with a general overview of medical topics; it is open to them to rely upon a discussion paper, or to distinguish or challenge it with other evidence. With respect to shoulder dislocation, Dr. Uhthoff explains:
Page: 4 Decision No. 401/14 If a shoulder joint dislocates more than once, we speak about recurrent dislocation. The force needed to get this joint out of place for the first time is considerable, but usually trivial at the subsequent dislocations. Ligaments function as checkreins. At the joint between shoulder blade and humerus, the anterior (glenohumeral) ligaments are one of the most important ones. Before the shoulder can dislocate the ligaments must tear and the capsule rupture. When this tear occurs at the labrum, the site where the capsule inserts into the anterior aspect of the glenoid, clinicians speak of a Bankart lesion [19] Dr. Uhthoff later reiterates that a first traumatic dislocation always precedes a recurrent shoulder dislocation. With respect to post-traumatic arthritis, he writes: Many episodes of recurrent dislocation can lead to arthritis meaning that the smooth gliding surfaces of the opposing bones (articular cartilage) are getting rough and irregular, sometimes to a point where entire areas of articular cartilage are lost and the underlying bone is exposed. (vi) Significance of the pre-existing condition [20] Tribunal jurisprudence has interpreted the language of the SIEF policy to mean that the medical significance 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 (see, for example, Decision No. 1635/07). 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. [21] In this appeal, the worker sustained a second, or recurrent, shoulder dislocation at work on April 24, 2010, in an accident of accepted minor severity. The worker s continuing symptoms related to a labral tear, glenoid arthritis and possibly the partial rotator cuff tear. The radiologist opined that the osteoarthritis was likely associated with previous trauma, and the medical discussion paper notes that recurrent dislocation can lead to arthritis. Most significantly, the medical discussion paper explains that a second dislocation can occur with minor force (as in the case at hand) precisely because an initial traumatic dislocation has first torn the ligaments. Accordingly, I find that the worker, by virtue of having had a prior shoulder dislocation, was extremely liable to develop a shoulder disability of greater severity than a person with no history of dislocation. The significance of the pre-existing condition was therefore major. (vii) Conclusion on SIEF quantum [22] Entitlement to SIEF relief has been granted by the Board. With respect to SIEF quantum, it is undisputed that the severity of the accident was minor, and I have found that the significance of the pre-accident condition was major. In these circumstances, Board policy provides for cost transfer of 90% to 100%. [23] The circumstances leading to 100% relief outlined in Board policy include the prior condition being the cause of the accident, which has been interpreted by the Tribunal as the precipitating or triggering cause (see, for example, Decision No. 526/08). This was not the case in this appeal, and the employer has not sought 100% cost transfer. Noting that the worker s
Page: 5 Decision No. 401/14 continuing symptoms were attributable to the impact of both shoulder dislocations, I consider cost relief of 90%, rather than a percentage between 90 and 100%, to be appropriate.
Page: 6 Decision No. 401/14 DISPOSITION [24] The appeal is allowed. The employer is granted 90% SIEF relief in respect of the costs of the worker s claim. DATED: June 18, 2014 SIGNED: S. Netten