WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1636/10 I

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1636/10 I BEFORE: M. M. Cohen : Vice-Chair A. D. G. Purdy: Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: August 26, 2010 at Hamilton Oral DATE OF DECISION: September 29, 2010 NEUTRAL CITATION: 2010 ONWSIAT 2190 DECISION(S) UNDER APPEAL: WSIB ARO decision dated October 11, 2007 APPEARANCES: For the worker: For the employer: Interpreter: Ms. A. Serra, Office of the Worker Adviser Did not participate 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. 1636/10I REASONS (i) Introduction [1] This is a worker appeal of a decision of Appeals Resolution Officer (ARO) Ms. S. M. Elliott of the Workplace Safety and Insurance Board (the Board), dated October 11, 2007, denying that the worker has initial entitlement for the left shoulder arising from the workplace incidents of May 21, 2007 and May 28, (ii) Background [2] The worker, a licensed mechanic who is now close to 65 years of age, asserted a claim for left shoulder injuries suffered as a result of lifting tires and doing a brake job on May 21, 2007 and again on May 28, [3] On the later date the worker informed the employer and sought medical treatment. The worker obtained an ultrasound on May 29, 2007 the results of which indicated a partial tear of the supraspinatus tendon, a full thickness tear at the infraspinatus tendon, marked biceps effusion and fluid in the subaxillary subdeltoid bursa. [4] The Claims Adjudicator did not consider the damage to the non-dominant left shoulder to be medically compatible with replacing off two sets of tires from two different vehicles over a one week period at waist to abdomen height. [5] The ARO also considered the findings noted on the ultrasound to be extensive and beyond what is compatible with the worker s accident history. (iii) The issue [6] The issue is whether there is a causal relationship between the accident history and the subsequent diagnosis. (iv) The worker s evidence [7] The worker testified that he has worked as a licensed mechanic since he came to Canada about 35 years ago and had worked at that occupation before he came to Canada. [8] On May 21, 2007, he was required to inspect the brakes on a Pathfinder motor vehicle, an SUV. Repairing brakes is an activity he has performed many times. The vehicle was placed on a hoist and he raised it using a hydraulic system at the accident employer s place of business. [9] He stated that he then removed the four tires at chest level, dropped them on the floor and then inspected the brakes. Upon completion of the brake job he then lifted and re-secured the tires. On lifting the tires he felt pain in his left shoulder. The vehicle had an 18 inch wheel, which he described as rather big for an SUV. He regarded the weight of the tires to be 35 to 50 pounds and possibly heavier. [10] He thought the pain would pass and did not report the matter to the accident employer. He recalled that the incident took place in the morning and that he carried on with his mechanic s

3 Page: 2 Decision No. 1636/10I duties. He did not regard the injury to be terribly painful, thought it was a spasm and continued working. He took Tylenol for his pain although it did not help. [11] On May 28, 2007, he performed a similar job on a Maxima, a full size passenger vehicle. He again lifted the tires to replace them back on the axle. When he finished the job he felt such pain in his left shoulder that he reported it to the service manager who told him to go see a doctor. He stated that the Maxima had smaller tires than the SUV and estimated their weight to be between 35 and 40 pounds. [12] He explained that he was sent by a doctor for an ultrasound and was told that he had two tears. He stated that he had cortisone shots thereafter which gave him some relief and was also referred for physiotherapy which he believed he took two times per week for three weeks. [13] He explained that the doctor authorized him to be off work, especially since the accident employer could not accommodate him for lighter work. He explained that it was three months before he was able to go back to work and that he has returned to his full duties. [14] He stated that the shoulder bothers him somewhat but it is generally okay now. [15] He explained that he is right handed and needs two hands to lift the tires. Being right handed, his right shoulder can absorb more weight than the left. [16] He testified that between the two dates in question he performed his normal duties. These involved such activities as conducting safety checks, removing tires and inspecting brakes, inspecting the electrical and steering systems, overhauling the engines and conducting engine repairs. He confirmed that he is paid a flat rate per job regardless of whether the job is completed early or late. [17] He testified that he is five feet four inches tall and that it is a mechanic s responsibility to control the height of the hoist. [18] He testified that he was not suffering any difficulties with his left shoulder prior to these incidents and denied that he ever injured his shoulder outside of work. (v) Medical evidence [19] The ultrasound dated May 29, 2007 stated: There was a marked biceps tendon effusion in the left shoulder, sub-acromial bursitis, a full thickness tear at the infraspinatus tendon and this was 1.5 x 1.5 x 0.6 cm and there was a partial tear at the posterior supraspinatus region 1.3 x 1.4 x 0.9 cm, signs positive for moderate impingement syndrome and this was all in the left shoulder. No other abnormalities. SUMMARY There was a partial tear at the supraspinatus tendon posteriorly, a separate full thickness tear at the infraspinatus tendon, marked biceps tendon effusion and fluid in the subaxillary subdeltoid bursa.

4 Page: 3 Decision No. 1636/10I [20] With reference to an accident date of May 28, 2007, Dr. R. Anastasio, family physician, completed a Form 8 that stated that the patient started complaining about left shoulder pain after repetitive lifting as part of his work as a mechanic. The physician described the nature of the injury as a repetitive strain injury and diagnosed the worker with tendonitis. The worker was not to conduct repetitive movements of his shoulder. [21] On June 21, 2007, the physiotherapist indicated that the worker was not working as per doctor s orders. The treatment plan was manual therapy, modalities for pain and inflammation, taping, range of movement and strengthening exercises. [22] On June 29, 2007, the physiotherapist reported that the worker was originally assessed on June 21, 2007 for a left shoulder injury that he sustained at work while lifting tires and replacing brakes. The treatment was at a frequency of three times per week. The findings were as noted in the ultrasound. The physiotherapist concluded his WSIB claim has been denied at this time, although I feel that it is a legitimate claim and I am recommending that he appeal the decision. She noted that the worker was continuing physiotherapy treatment through his limited private insurance. (vi) Board adjudicative process [23] On June 21, 2007, the Claims Adjudicator concluded that a causal relationship could not be established between the accident history and the current diagnosis and that the claim will be denied. [24] On August 10, 2007, the Claims Manager commented about the determination that the diagnosis would not be medically compatible with the accident history and wrote I would rather you had the MC [medical consultant] reach that conclusion especially since onset was specific. Please refer to MC first. An opinion from a Board medical consultant was not obtained. [25] The ARO came to a conclusion similar to that of the Claims Adjudicator without seeking a medical opinion. (vii) Submissions [26] Ms. Serra submitted that the worker had suffered personal injury in his left shoulder from the two specific incidents and that following the most significant one on May 28 stopped working and obtained immediate medical attention. She requested that the Panel accept that the injury happened as a result of the incidents and that the worker did not injure himself otherwise. [27] She noted that the decision-makers at the Board did not get an opinion from any Board medical consultant notwithstanding that a Claims Manager recommended that such an opinion be obtained. (viii) Conclusion (a) Law and policy [28] The Board s Operational Policy Manual (OPM) Document No , Adjudicative Process, states in part:

5 Page: 4 Decision No. 1636/10I Diagnosis If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, an opinion is sought from the WSIB s medical consultant. (b) Analysis [29] It was submitted on behalf of the worker that there is a direct relationship between the worker s described accident history and the nature of the diagnosis such that there should be a finding that the incidents as described by the worker were the cause of his left shoulder condition. [30] We find no reason to doubt the worker s detailed description. Nor do we have reason to doubt his assertions that he had no previous left shoulder problems and did not otherwise suffer injury to his left shoulder outside of work. Such is our finding of fact. That being said there remains the information that a medical consultant s opinion was recommended and should have been obtained pursuant to the Board s policy. Not being physicians, we are not in a position to state whether the accident history and the resulting diagnosis are compatible. The Panel therefore has determined that it cannot reach a decision without obtaining expert medical opinion in regard to the issue before it. There is no medical opinion expressed as to whether the worker s work activities were the cause or a significant contributing factor in the development of his left shoulder condition. [31] Therefore the Panel instructs the Tribunal Counsel Office (with guidance from the Tribunal s Medical Liaison Office) to refer the Panel s interim decision, together with the exhibits, particularly the complete medical evidence, such as it is, to an appropriate medical expert to seek an opinion upon the following: 1. Would the worker s activities of May 21 and May 28, 2007 have caused or significantly contributed to the worker s left shoulder condition as diagnosed by the ultrasound? 2. Please explain how you reached your conclusions. 3. Is there any other medical information which you feel would be of assistance to the Panel and the parties in understanding the cause of the worker s condition? [32] Upon the issue of this interim decision, the Panel requests that the Tribunal Counsel Office contact Ms. Serra and determine whether she proposes any further questions that she feels should be presented to the medical assessor. [33] The Panel will receive the assessor s opinion, based upon the background and findings of fact contained in this interim decision and the assessor s review of the Case Record materials. [34] Upon receipt of the assessor s opinion, the representative of the worker will have an opportunity to review the assessment and make further written submissions.

6 Page: 5 Decision No. 1636/10I DISPOSITION [35] The appeal is deferred pending the receipt of the medical assessor s opinion. DATED: September 29, 2010 SIGNED: M. M. Cohen, A. D. G. Purdy, K. Hoskin