WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1019/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1019/12 BEFORE: R. Nairn: Vice-Chair HEARING: May 22, 2012 at Toronto Written DATE OF DECISION: August 23, 2012 NEUTRAL CITATION: 2012 ONWSIAT 1911 DECISION(S) UNDER APPEAL: WSIB decision of Appeals Resolution Officer ( ARO ) dated September 9, 2010 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate Ms. S. Haddad, 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. 1019/12 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a heavy equipment operator in the accident employer s materials supply business. Born in 1951, the worker started with the employer in [2] On May 20, 2008, the worker experienced pain in the area of his right shoulder when he slipped at work. In their Report of Injury/Disease (Form 7) dated July 10, 2008, the employer described the mechanics of the incident as worker claims to have slipped while exiting a loader and cut himself by grabbing a ladder rail and hurt his right shoulder. Worker did not report the incident or any ongoing issues until he was scheduled for x-rays. [3] The worker sought medical attention and in the Health Professional's Report (Form 8) of July 11, 2008, Dr. G. Bakker provided a diagnosis of rotator cuff tendonitis strain severe. [4] On December 28, 2008, the worker had an MRI of his right shoulder performed. The results were interpreted by Dr. D. Struk (radiologist) to reveal: There is a large partial thickness tear involving the distal fibers of the supraspinatus tendon at the tendon insertion. The humeral fibers are involved. The tear extends through 75% of the thickness of the tendon. The overlying bursal surface fibers remain intact. No retraction of the myotendinous junction is observed. The tear measures 11.6 millimeters proximal to distal x 10.9 centimeters anterior to posterior. The infraspinatus tendon remains intact and normal in appearance. The subscapularius tendon and long head biceps tendon are intact and normal in appearance. There is no labral tear. Moderate osteoarthritis is present at the right acromioclavicular joint. No other cortical contour or bone marrow signal abnormality is detected. There is a small effusion involving the subacromial/subdeltoid bursa. The appearance is consistent with a mild bursitis. Impression: 1. large partial thickness tear, right supraspinatus tendon. 2. osteoarthritis, right acromioclavicular joint. 3. mild subacromial/subdeltoid bursitis. [5] Following an assessment at the Shoulder and Elbow Specialty Clinic in April 2009, the worker underwent surgery on his right shoulder on June 19, 2009, performed by Dr. S. Gallay. [6] The WSIB (the Board ) recognized the worker's right shoulder condition as compensable and according to the decision on appeal, the worker received various periods of loss of earnings ( LOE ) benefits up until April 12, 2010, at which time benefits were terminated as the worker developed non-compensable health issues which impacted on his ability to continue working. In a decision dated July 2, 2010, the worker was advised that the was being granted a 14% Non-Economic Loss ( NEL ) award for his compensable right shoulder condition diagnosed as RT shoulder supraspinatus tendon tear, type 1 SLAP lesion, type 3 acromion and subacromial bursitis.

3 Page: 2 Decision No. 1019/12 [7] In 2009 the Board considered the issue of the employer s entitlement to Second Injury and Enhancement Fund ( SIEF ) relief from the costs of this worker's claim. As noted in Memo #13 of January 22, 2009, a Board Adjudicator requested a medical opinion on the issue indicating noting the medical on file, do you feel the worker had a pre-existing condition regarding the right shoulder?. In Memo #14 of January 26, 2009, Dr. O Connor of the Board replied: The current medical on file suggests that there is a claim related R shoulder supraspinatus tendon tear and bursitis. There is no medical on file to suggest prior hx of symptoms or injury R shoulder. The R AC JTOA is likely pre-existing but as stated, asymptomatic prior to doa. Therefore, the current medical suggests at the most, minor pre-existing in terms of SIEF. [8] In light of the comments provided by Dr. O Connor, a Board Adjudicator in Memo #15 of January 28, 2009, indicated that SIEF of 50% will be granted noting the comments made by the RMA in the previous memo. The worker has minor pre-existing and the accident history was also minor. [9] In 2010, a Board Case Manager reconsidered the matter of the quantum of SIEF relief granted and noted the following in Memo #50 of February 22, 2010: Accident history/severity: on May 20, 2008 [the worker] was descending vertical rungs from his loader when he slipped and was momentarily hanging by his right arm on one of the rungs. Entitlement was allowed for a right rotator cuff strain and subsequently diagnosed supraspinatus tear with bursitis. In determining severity of the accident for SIEF I am satisfied that the injury is minor severity as it would be expected to cause a non-disabling or minor disabling injury. Pre-existing condition/severity: I reviewed the relevant medical information on file, including the MRI, operative findings and the opinion of a WSIB medical consultant. The osteoarthritis of the right acromioclavicular joint is considered pre-existing condition. I accept the opinion of the consultant on the severity of the pre-existing findings and do not find any other evidence to support that the severity is greater than that. I am satisfied that the pre-existing condition is minor. Duration: Loss of earnings was paid for periods in 2009 and Recommendation: Entitlement to 50% cost relief under SIEF on all claim costs is confirmed. [10] The employer objected to the fact they were not granted an increase in the 50% SIEF relief awarded and the matter was eventually forwarded to an Appeals Resolution Officer ( ARO ). In a decision dated September 9, 2010, the ARO denied the employer s appeal. With respect to the severity of the accident, the ARO indicated that the type of injury (a large partial thickness tear of the right supraspinatus), which followed though consistent with the mechanics of the accident, the work accident was one that would have been expected to cause only a minor disabling injury. [11] With respect to the medical significance of the pre-existing condition, the ARO concluded: Furthermore, reviewing the treating surgeon s report dated April 8, 2009, he documents that the usual healing time for the surgery is between three and six months. The surgery was carried out June 19, 2009 and in reviewing the surgeon s reporting of September 9, 2009 and January 21, 2010, there is no evidence the recovery was prolonged due to either the pre-existing osteoarthritis or the non compensable health

4 Page: 3 Decision No. 1019/12 issues. The worker based on the reporting post operative was cooperating fully with a medical rehabilitation program, which consisted of aggressive physical therapy to improve mobilization, stretching and strengthening. Though not disputing the worker presents with other non compensable health issues, there is no medical evidence these conditions impacted or prolonged the recovery. Notwithstanding the other health issues, the worker fully complied with, treatment for the compensable right shoulder condition and more importantly, the treatment was in no way delayed as a result of the other health issues. ( ) (ii) Issue on appeal [12] The issue to be determined in this case is whether the 50% SIEF relief granted in this worker's claim is correct. (iii) Submissions of the employer s representative [13] The employer agreed to have this appeal considered by means of written submissions. Ms. Haddad has provided submissions dated May 3, 2011, which have been reviewed and are included in Addendum No. 3. [14] In her submissions, Ms. Haddad confirms that the employer does not dispute the Board s characterization of the accident as one of minor severity. [15] With respect to the pre-existing condition, Ms. Haddad indicated in part: ( ) The additional and new information indicates to us that a higher level of SIEF would be in order. If you review the ultrasound of July 28, 2008, ( ) there was soft tissue calcification adjacent to the insertion of the rotator cuff tendon. The conclusion was evidence of rotator cuff tendonitis. This was noted very shortly after the incident of May 5, ( ) Further testing with an MRI on December 28, 2008 is noted (...) A tear is first noted at this point. Moderate osteoarthritis is also present at the right acromioclavicular joint. There is also indication of a mild bursitis. These definitively pre-existed the injury. A further testing dated March 23, 2009 diagnostic testing also confirmed as well that there was a 6 mm calcification sitting adjacent to the greater tuberosity indicative of probable calcific tendinopathy. ( ) The medical intake reflected that the worker has Diabetes and a medical alert is noted. Attached are some articles on this diagnosis and the implications. Attachment number 1 and 2 clearly reflect there is a relationship between diabetes and frozen shoulder, one of the diagnosis provided on this claim file. Please note that the up to the point of the MRI dated December 28, 2008, no tear was identified. There was a large partial thickness tear involving the distal fibers of the supraspinatus tendon at the tendon insertion on that date along with moderate osteoarthritis present at the right acromioclavicular joint. There was a small effusion involving subacromial bursa. The impression included a large partial thickness tear of the right supraspinatus tendon, osteoarthritis of the right acromioclavicular, and mild bursitis. I refer again to again to my submission of February 1, 2010, that references the prior WSIAT decision and note from the medical assessor Dr. R. Holtby. His opinion was that

5 Page: 4 Decision No. 1019/12 as indicated above the calcium deposit was noted on x-rays done soon after the accident, and these deposits do not develop rapidly, it must have been present prior to the accident. Also, there is a July 8, 2008 report on file which indicates that the soft tissue calcification was apparent at that time. Please note this worker did have a heart condition as well for which he was on medications. This too could have contributed in some way to the integrity of the blood supply required to ensure the tissue health of the shoulder was in good order. Please note that page 208 of the case record indicates a decision dated July 18, 2007 from WSIAT. In this decision you will note that the medical assessor Dr. R. Holtby was of the opinion that as indicated above the calcium deposit was noted on x-rays done soon after the accident, and these deposits do not develop rapidly, it must have been present prior to the accident. I believe it is likely that the pre-existing calcific tendonitis did prolong and enhance her symptoms. In addition the paragraph 31 of page 4, clearly indicated as well that there was a medical discussion paper on shoulder injuries which stated that calcific tendonitis cannot be attributed to factors associated with work. ( ) Mr. Harju a senior member of the WSIB staff, indicated the worker was having some cardiovascular problems which impacting the return to work. This was shortly after the January review of level of pre-existing and is dated April 13, Please note it was attached to my prior submission to the ARO and is attached again as it is not numbered. Memo #1 on page 84 of the case record reflected that at the time of reporting this heart condition, diabetes and medication were all issues. In that same submission to the ARO on page two, I expanded on the WSIAT document which indicated that the Calcific Tendonitis is a condition neither caused nor aggravated by any particular activity. It noted on page 16 of the report that degenerative changes made the tendon weaker to a point where lesser effort or a trivial trauma can cause a tear. Page 15 of the WSIAT medical paper stated it is an inflammation of a tendon. It is a process characterized by other usually degenerative changes that lead to a thickening of the tendon. I ask that you review page 159 with care in your decision making process. ( ) I maintain as per the decision previously made that the injury was minor in nature as ruled. In keeping with the medical opinion attached with this WSIAT decision it would appear that they have concluded that the pre-existing condition was major in nature and thus warranted 90% SIEF in that case. Clearly the heart issue also delayed the return to work and was noted to have been present since the onset. The frozen shoulder also is a known symptom of diabetes. We are seeking a higher level of SIEF on this file, and believe it warrants the same as this WSIAT decision noting Dr. Holtby, who is a recognized specialist believed this condition could not only be causal, but at least a major contributing factor. (iv) Amicus curiae submissions of the WSIB [16] Addendum No. 4 contains, among other things, amicus curiae submissions provided by the WSIB with respect to this employer s appeal for SIEF relief. Addendum No. 5 contains, among other things, excerpts from a Board presentation to the Tribunal on October 24, 2011, on the issue of SIEF relief. These materials were provided to Ms. Haddad and she was given the opportunity to make further written submissions upon them.

6 Page: 5 Decision No. 1019/12 [17] Ms. Haddad has provided additional submissions dated April 2, 2012, which are included in Addendum No. 6. In addition to confirming the basis for the employer s request for increased SIEF relief, Ms. Haddad also indicated: We are in objection to the WSIB having any further say, and ask that its submission be stricken from the record. It is one thing for the WSIB to provide guidance on policy, and quite another for them to justify their positions after they have had the opportunity to do so in the decision letter. We reinforce that WSIAT is the arms-length decision making body that is left to interpret policy. [18] Since the Board s submissions have been the subject of submissions in this proceeding, I have not removed them from the record. In reaching my decision in this appeal however, I have not relied on the material provided by the WSIB. (v) Analysis [19] Since this worker was injured in 2008, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [20] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies to this appeal is Operational Policy Manual 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. ( )

7 Page: 6 Decision No. 1019/12 SIEF-application to employer costs 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. [21] As the above-mentioned policy provides, deciding upon the appropriate quantum of SIEF relief to be granted in a particular case involves determining both the severity of the compensable accident and the medical significance of any pre-existing condition. [22] With respect to the accident severity, Board policy requires that it be classified 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 this case, the Board has determined that the accident on May 20, 2008 was of minor severity. The employer does not dispute that characterization and after reviewing the mechanics of the incident which involved the worker momentarily losing his footing (but not falling) while climbing out of his loader, I am prepared to accept that this incident would

8 Page: 7 Decision No. 1019/12 reasonably be expected to cause, at most, a minor disabling injury. As such, I would confirm the characterization of the compensable accident as one of minor severity. [23] With respect to the issue of the pre-existing conditions, Board policy requires that they too be characterized as either 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. [24] These provisions were interpreted in Tribunal Decision No. 1582/07 as follows: 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. [25] In this case, the Board has acknowledged that the worker has a pre-existing condition. SIEF relief was initially granted based on the opinion provided by Dr. O Connor that the worker had pre-existing osteoarthritis of the acromioclavicular joint. As I understand the employer s submissions, they are requesting that the medical significance of the pre-existing conditions be recognized as either moderate or major on the grounds that there were other pre-existing conditions which contributed to the worker's injuries or prolonged or enhanced his recovery from them. These conditions include diabetes, a heart condition and calcific tendonitis. [26] In a report of April 8, 2009, staff at the Holland Orthopaedic and Arthritic Center confirmed that the worker has non insulin dependent diabetes and high cholesterol. He takes Metoprolol, Lipitor, Aspirin, Ramipral, Gluconorm and Metformin. Accepting for the moment that the diabetic and heart conditions pre-existed the compensable accident, it is worth noting that according to Board policy a pre-existing condition is not, in and of itself, sufficient grounds to support the granting of SIEF relief. The evidence must also establish that the pre-existing conditions caused or contributed to the compensable injuries or enhanced or prolonged the worker's recovery from them. In this case, Ms. Haddad has provided two internet articles supporting the proposition that diabetes can contribute to frozen shoulder. One of the documents, an article from the American Diabetes Association, indicates that diabetes is also a risk factor for frozen shoulder, although precisely why that is so is a subject the medical community is still researching. Generally speaking, the Tribunal has been reluctant to accept medical literature, including internet based materials, as a basis for a determination about the existence or severity of a pre-existing condition and has generally preferred direct medical opinion evidence. Similarly, hearing panels have generally refused to rule in favour of speculative arguments about the existence or severity of pre-existing conditions without medical evidence in support of the representative s assertion. Medical evidence is necessary to establish that the worker's condition was prolonged or enhanced by a pre-existing condition. This finding cannot be made based only on the assertions of the employer s representative (See for example Decision Nos. 585/08). The employer bears the evidentiary burden of establishing its case on a balance of probabilities. While I acknowledge the theory advanced by Ms. Haddad to the effect that the worker's diabetes or heart condition/medication prolonged or enhanced the recovery from his compensable injuries, I find the position to be primarily conjecture based on the lack of medical opinion dealing specifically with this worker's case.

9 Page: 8 Decision No. 1019/12 [27] Similarly, while I am prepared to accept the opinion provided by Dr. Holtby to the effect that a degenerative condition like calcific tendonitis likely pre-existed the worker's compensable injuries, there is no evidence dealing directly with the facts of this case which would support a conclusion, on a balance of probabilities, that this condition prolonged or enhanced the worker's recovery. Once again, the employer s position is primarily speculative. [28] The Board has accepted that the worker had a minor pre-existing condition for the purposes of the SIEF policy. After reviewing all of the information before me, I am not satisfied that there is sufficient evidence available to support a conclusion that the pre-existing conditions in this case ought to be classified as anything more than minor. [29] As Board policy provides, the combination of an accident of minor severity and a preexisting condition of minor medical significance, entitles an employer to 50% SIEF relief.

10 Page: 9 Decision No. 1019/12 DISPOSITION [30] The employer s appeal is denied. DATED: August 23, 2012 SIGNED: R. Nairn