WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2676/16

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2676/16 BEFORE: R. Nairn: Vice-Chair HEARING: October 6, 2016 at Toronto Written DATE OF DECISION: November 30, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3269 DECISION(S) UNDER APPEAL: WSIB ARO decision dated July 3, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Self represented A. L., WCB Specialist 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. 2676/16 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a yard man/train man with the accident employer s railway operation. Born in 1958, the worker started with the employer in about [2] On July 16, 1986, the worker experienced an onset of pain in his right shoulder while trying to open a switch. He was initially diagnosed with a right shoulder strain. [3] The WSIB (the Board ) recognized the worker s right shoulder injury as compensable and he received various periods of temporary compensation benefits. In April 1989, following an examination by Dr. P. Hayashida of the Board, the worker was granted a 7% Permanent Disability ( PD ) award for his compensable right shoulder condition. [4] As noted in Memo #197, following a reassessment on June 21, 1999, by Dr. I dedomenico, the worker s PD award was increased to 10% with a diagnosis of rotator cuff tendonitis with calcific tendonitis. [5] On or about December 14, 2000, the worker was examined by D. J. Yeandle-Hignell of the Board and as noted in Memo #246 it was recommended that the worker s PD award be increased to 15% with a diagnosis of full thickness tear of the supraspinatus. [6] On January 29, 2003, the worker had surgery performed on his right shoulder by Dr. T Wilson. The post-operative diagnosis was right shoulder rotator cuff tendinopathy with no significant tearing, AC arthrosis and severe Type I superior labral lesion with very minimal instability. This surgery was recognized as part of the worker s entitlement in this claim. [7] In a report dated July 6, 2004, Dr. Wilson noted that despite having had surgery he has ongoing persistent problems, which may benefit from further surgery. Dr. Wilson booked the worker for repeat scope with possible biceps release or tenodesis with likely labral repair and possible repeat resection AC joint. As noted in the decision on appeal, follow up surgery was scheduled for March 2005 but had to be cancelled due to non-compensable medical issues. [8] The worker continued to receive ongoing conservative treatment, including physiotherapy. On October 25, 2010, the worker was examined by Dr. S. Wentzell of the Board for the purposes of a PD reassessment. As noted in Memo #553, after that assessment Dr. Wentzell recommended that the worker s PD award be increased to 20%. The accepted diagnosis was right rotator cuff tendinopathy, AC arthrosis, and a superior labral lesion, with arthroscopic debridement and distal clavicle excision. Dr. Wentzell suggested an arrears date of May 25, 2009, which was three months prior to the assessment of Dr. Wilson on August 25, 2009 when she made note of the worker s gradually worsening right shoulder pain. [9] In a Health Professional s Report (Form 8) dated December 14, 2010, the worker s family physician, Dr. Coulson, advised that on December 5, 2010 the worker slipped on ice and raised right arm to help save himself which resulted in a severe flare up of his right shoulder pain. Subsequently, the worker continued to seek treatment which included physiotherapy. In a report dated April 27, 2011, Dr. Wilson indicated in part: ( )

3 Page: 2 Decision No. 2676/16 [The worker] returned to see me with respect to his shoulder. When he was last seen he had some issues with his blood pressure which has now settled. He has been exercising and walking 10 miles a day. He has lost 10 pounds and his hemochromatosis has also stabilized. In December of 2010 he was walking when he slipped and his arm flew overhead. He had a flare up of his right shoulder symptoms with this. He was treated with physiotherapy but now has ongoing worsening pain, especially in the area of the anterior shoulder, through the long head biceps tendon. I have recommended a repeat MRI to see if he has done anything further to his shoulder. As you know this is a longstanding workman s compensation injury. We were planning revision surgery with the biceps included. We will wait to see what the MRI shows to decide what is to be done. In the meantime if there are any appropriate jobs available that avoids heavy, overhead, or repetitive and impact use of his right arm, he should consider return-to-work on a graduated part-time basis. [10] Information on file suggests that the Board s operating level would not grant the worker entitlement to temporary compensation benefits following the incident on December 5, 2010, with Dr. W. Maehle of the Board indicating in Memo #587 that medical reporting does not reflect the worker as totally disabled he is fit for one-handed activities. Pain in the RT shoulder is treatable. [11] In a report dated December 14, 2011, Dr. Coulson explained that the worker was examined on November 17, 2011 and that at that time he reported suffering an acute flare up of pain in his shoulder 14 days before (i.e. November 3, 2011). There was no particular precipitating event. As noted in Decision No. 254/13, the worker indicated he just woke up and had difficulty with the right shoulder. The worker was not working at the time but was participating in physiotherapy as a result of his earlier flare up. The Board s operating level would not grant the worker any temporary benefits with respect to the incident in November 2011 with Dr. Maehle indicating in Memo #616 that the medical reporting did not offer any findings in support of total disability on the worker s part. In fact, while confirming the worker s complaints, the reports offer no findings. [12] Subsequently, the worker objected to a number of decisions made by the Board s operating level and these were eventually referred to the Tribunal. A hearing was scheduled on January 30, 2013, before a Panel and Decision No. 254/13 described the issue agenda as follows: [8] We discussed the issue agenda with the parties. Pursuant to that discussion, it was agreed that in this appeal the Tribunal must decide: 1. whether the PD award increase from 15 to 20 percent granted as a result of the PD reassessment of October 25, 2010 is correct; 2. whether payment of PD arrears resulting from the reassessment of October 25, 2010, ought to start from January 29, 2003 (the date of the worker s right shoulder surgery) rather than May 25, 2009 (the current arrears date determined by the WSIB); 3. whether the worker has entitlement to supplementary benefits under subsection 147(4) of the WCA from October 25, 2010 (the date of his PD reassessment) or from the date of arrears of the PD award increase; 4. whether the worker has entitlement to temporary total disability benefits from July 2010 (when he states he experienced a flare-up of right shoulder pain) to October 25, 2010 (the date of his PD reassessment);

4 Page: 3 Decision No. 2676/16 5. whether the worker has entitlement to temporary total disability benefits from December 5, 2010 (when he slipped on ice) to April 1, 2011 (when physiotherapy treatment for the flare-up of his right shoulder pain ended); 6. whether the worker has entitlement to temporary total disability benefits from November 2011 (when the worker states he experienced a flare-up of right shoulder pain) to March 2012; and 7. whether the worker has entitlement to a PD reassessment. [13] On April 10, 2013, the Tribunal Panel released Decision No. 254/13 which granted the worker s appeal in part. Decision No. 254/13 confirmed that the October 25, 2010, increase in the PD award from 15% to 20% was correct as was the PD arrears date of May 25, The decision also confirmed that the worker did not have entitlement to Section 147 (4) supplementary benefits from the October 25, 2010 PD reassessment or from an earlier date. [14] The Panel in Decision No. 254/13 denied the worker entitlement to temporary total disability benefits for the period from July 1, 2010 to October 25, 2010 and concluded: [118] We find that there is a lack of evidence to indicate that the worker was totally disabled between July 1, 2010 and October 25, 2010, to warrant the granting of temporary total disability benefits for this period. We also deny the worker entitlement to full temporary partial disability benefits. [119] In her report of April 28, 2010, Dr. Wilson advised that the worker was managing well and considering surgery in January. She advised that should the worker return to work, he should avoid heavy, overhead or repetitive use of his right arm. In our view, this report indicates that as of April 28, 2010, the worker was capable of returning to work and approximating his escalated pre-accident earnings. [120] The worker testified that he was not participating in any specific medical rehabilitation during this period and, as we pointed out to the worker, there are no medical reports at all from July 2010 until September In her report of September 9, 2010, Dr. Wilson does not describe the worker s condition. She simply wrote to Dr. Coulson asking that he consider taking the worker back as a patient. Dr. Wilson did not indicate that the worker required any specific medical rehabilitation beyond that which was necessary for his permanent disability. The worker was partially disabled between July and October There is no evidence that he required medical rehabilitation during this period. Therefore, he does not qualify for full temporary partial disability benefits. [121] The worker does not have entitlement to temporary total disability benefits or full temporary partial disability benefits from July 1, 2010 to October 25, [15] The Panel in Decision No. 254/13, did however grant the worker entitlement to temporary total disability benefits from December 5, 2010 (when he slipped on ice) to April 1, 2011 (when physiotherapy treatment for the flare up of his right shoulder pain ended). In so doing, the Panel concluded: [130] Although the medical reporting during this period is sparse, and notwithstanding the opinion of Dr. Maehle and submissions of the employer, we are satisfied that the recurrence of December 5, 2010, resulted in temporary total disability. [131] We are persuaded by the reporting of Dr. Coulson and the treating physiotherapist. We disagree with the Acting ARO who found in the decision dated May 18, 2012, that the there was no objective evidence that the worker s right shoulder condition returned to its pre-accident state.

5 Page: 4 Decision No. 2676/16 [132} On December 14, 2010, Dr. Coulson characterized the effects of the incident as a severe flare-up of the worker s right shoulder pain. On December 23, 2010, the physiotherapist recommended a 12-week physiotherapy program to help settle down flare-up and the Board granted entitlement to the physiotherapy. In the report of February 25, 2011, Dr. Coulson advised that the worker continued to experience significant pain. He provided objective findings that support a significant deterioration when he advised: It is noted that even 2 or 3 degrees of attempted abduction causes extreme pain, and similar findings of forward flexion. He has very little in the way of functional ability at this time because of his fixed and acutely painful shoulder. [133] We find that the recurrence of December 5, 2010, ceased as of April 1, We note the Patient Encounter Worksheet dated April 5, 2011, in which Dr. Coulson advised, physio completed pain is better, but function not. There were no objective findings at that time to indicate that the worker s function was any less than that which was recognized in the PD reassessment of October 25, [134] In her report of April 27, 2011, Dr. Wilson noted that the worker had been exercising and walking 10 miles per day. She noted that although the worker complained of worsening pain, he was capable of working in a part-time job that did not require heavy overhead or repetitive lifting and impact use of his right arm. Dr. Wilson does not explain why the worker was only capable of part-time work if he was capable of exercising and walking 10 miles per day. [135] The worker has entitlement to temporary total disability benefits from December 5, 2010 to April 1, 2011, when his physiotherapy ended. [16] The Panel in Decision No. 254/13 also granted the worker entitlement to temporary total disability benefits from November 2011 (when the worker claimed to have experienced a flare up of right shoulder pain) to March 12, 2012 (when he stated the flare up of symptoms ceased). In reaching that conclusion, the Panel noted: [137] The findings reported by Dr. Coulson indicate that the worker s right shoulder range of motion for flexion and abduction was less than that which was reported in the PD reassessment of October 25, Dr. Coulson reported only 20 degrees flexion and abduction, whereas Dr. Wentzell found 40 degrees forward flexion and abduction. [138] In a physiotherapist report dated December 6, 2011, a physiotherapist advised that the worker complained of severe pain in his right shoulder with forward flexion to only 10 degrees. He recommended 12 weeks of physiotherapy (i.e. to February 28, 2012). In a report dated December 10, 2011, 1 the physiotherapist offered additional information: abduction 20 degrees, external rotation 10 degrees and internal rotation not tested. [139] The objective findings reported by Dr. Coulson and the physiotherapist support that the worker suffered a deterioration in his condition. [140] We find that the worker has entitlement to temporary total disability benefits from November 3, 2011 to February 28, This period coincides with the physiotherapist s recommendation for treatment. ( ) [17] The Panel, in Decision No. 254/13, concluded that the worker was not entitled to temporary disability benefits beyond February 28, 2012 and noted: [140] We find that the worker has entitlement to temporary total disability benefits from November 3, 2011 to February 28, This period coincides with the physiotherapist s recommendation for treatment. This period also coincides with the

6 Page: 5 Decision No. 2676/16 worker s ability to resume working as evidenced by the municipal Social Services Arbitration Board correspondence of March 15, There is no medical evidence after February 28, 2012, that indicates that the worker was totally disabled. [141] The worker is not entitled to temporary disability benefits beyond February 28, 2012, because he was not working at the time of the recurrence in early November 2011 and, in our view, was at his PD level before and after the period of November 3, 2011 to February 28, We have determined that the worker remained capable of approximating his escalated pre-accident earnings during periods where he was not temporary totally disabled. [142] The worker has entitlement to temporary total disability benefits from November 3, 2011 to February 28, [18] The worker visited his orthopedic surgeon, Dr. Wilson, on November 5, In the report which followed that visit, Dr. Wilson indicated: [The worker] was last seen by myself in Since then there has been progressive worsening pain in his right shoulder with no new injuries. He has recently been laid off seasonally. He has not yet had any physiotherapy as l had to fight to Workman's Compensation through an appeal to actually get coverage for physiotherapy. For this reason then it took so long for him to have the MRl done as well. The MRI reveals early glenohumeral arthritis which is slightly worse since his last MRI in There is no rotator cuff tear but some cystic degeneration in the humeral head at the site of his supraspinatus tendon insertion. He has some biceps tendinosis and subluxation. His shoulder range of motion has worsened significantly with forward flexion of 40 with severe impingement pain, external rotation of 30, and significant pain with resisted external rotation. I have recommended formal physiotherapy to try and improve his movement and if he is not gaining in range of motion he will follow up and we will get a new set of shoulder x rays and perform a glenohumeral and subacromial steroid and Marcaine injection. There aren't a lot of good surgical options for a young gentleman with early glenohumeral arthritis. It is possible that a lot of his symptoms are coming from his biceps tendon. We will wait and see how he does non-operatively. [19] As noted above, Dr. Wilson recommended the worker have additional physiotherapy and this issue was eventually considered by the Board s operating level. In Memo #644, of December 4, 2013, a Board Case Manager, after reviewing the information on file, concluded: PD Exam: 250ct2010: Findings: Well healed surgical scars; Tenderness; ROM: Flex--40 degrees, abd=40, add=25, ext= int rot=10, ext rot=20 Analysis/Decision: Current ROM findings are better that PD exam. Current MRI shows only mildly changed degeneration of glenohumeral joint when compared to 2009 MRI. The objective clinical evidence does not describe significant deterioration in the PD condition. As such, I am unable to allow for any additional HC benefits, including the requested physiotherapy [20] The worker did not agree with the Case Manager s decision and asked that the matter be reconsidered. In Memo #654 of January 6, 2014, the Case Manager indicated in part: ( ) New Issue/Reconsideration: Physiotherapist informed that they had made an error in their latest report or F8, that the information documented, specifically ROM values, were from another patient and not the worker's, thus they submitted a revised F8. Worker

7 Page: 6 Decision No. 2676/16 requesting reconsideration of REO denial based on this revised.report. In addition, I requested physiotherapist's clinical notes and the specialists 5Nov2013 consultation report. This new medical information is now on file. ( ) Analysis/Decision: The prior REO decision was denied based on objective clinical evidence that did not support deterioration in the PD condition; noted the initial physio F8 documented equal if not better ROM values than the 2010 PD exam and the recent MRI did not indicate significant deterioration from the 2009 MRI. Worker objected to this denial decision; subsequently, physiotherapist called and indicated they had erred in their F8 and submitted a revised F8. This new F8 does provide ROM values that are worse than 2010 PD exam. It should be noted that I did have reservation about the revised F8, noting that it is not common for such errors to take place, errors where all ROM values were documented incorrectly and by such a difference and as this admission was subsequent to the denial decision and worker's objection; also, as the significant deterioration now documented in the revised F8 was not in keeping with the relatively insignificant change revealed in the recent MRI. I requested the specialist consult report of Nov2013. In reviewing this report I note that the specialist ROM values are significantly better than those provided in the revised physiotherapist's F8. These ROM values are consistent and better than those of the 2010 PD exam. I have added greater weight to the evidence of the specialist's report versus the physiotherapist revised F8, notwithstanding the circumstance of the revised physiotherapist's F8. As well, the MRI holds sufficient evidence based weight given its pure objectiveness (ROM values being affected by subjective complaints of pain} and that the recent MRI with its revelation of insignificant deterioration is in keeping with the ROM values and exam provided and administered by the specialist. As such, I am unable to reverse my decision denying entitlement to physiotherapy as the preponderance of objective clinical evidence does not support deterioration in the PD condition. Entitlement to physiotherapy remains denied. [21] In light of the above, the worker was advised by the Case Manager in a decision dated January 6, 2014, that he did not have any entitlement to further physiotherapy or temporary total disability benefits. [22] The worker continued to disagree with the conclusions of the Case Manager and the issue was referred to an Appeals Resolution Officer ( ARO ). In a decision dated July 3, 2014, the ARO granted the worker s appeal in part. The ARO concluded that the worker had further entitlement to health care benefits (i.e. physiotherapy) between November 5, 2013 and March 13, 2014 noting: The worker required treatment to return to his pension level. The surgeon recommended physiotherapy and when this did not result in substantial improvement, she injected the shoulder. By March 13, 2014, the worker had returned to his pension level. His range of motion was improved by 20 degrees in flexion and abduction and his pain was reduced. I conclude that entitlement is in order for health care benefits as recommended by the worker's surgeon. I conclude that the treatment provided to the worker was for a worsening of the compensable condition and not age related arthritic changes which are described as mild and not particularly symptomatic.

8 Page: 7 Decision No. 2676/16 [23] With respect to the issue of the worker s entitlement to temporary total disability benefits however, the ARO concluded: While I accept that the worker required treatment as recommended by his healthcare practitioners, I am not persuaded that the worker was unable to work as a result of his symptoms. The evidence is that the worker had increased pain and decreased function due to impingement. The form 8 from the physiotherapist indicated the worker could not work due to failed surgery. I do not accept this assertion as the worker demonstrated the ability to work after his surgery. The form 8 indicated that the worker remained able to stand, walk, sit, use his upper extremities, operate a motor vehicle and use public transportation. He was limited from climbing, lifting, pushing and pulling and operating heavy equipment. I am satisfied that the worker would be able to use his right shoulder within his restricted range of motion on an occasional basis. This would not prevent him from performing office duties which can be done with a neutral shoulder moving the lower arm from the elbow rather than the shoulder. The worker remained mobile, able to drive and able to use his upper extremities. The worker had increased pain as evidenced by his symptoms but his restrictions did not prevent him from engaging in the normal activities of daily living. ( ) Dr. Wilson's report of November 2013 indicated that the worker had been laid off recently. She recorded that the lay-off was seasonal. The worker has been retrained at a University level. He worked for several years as a technician and recently as a Project Manager Assistant performing office duties. The medical reporting establishes that he has pain due to impingement and reduced range of motion for which he required treatment. It does not establish that he was unable to perform office duties or that he required a full time medical rehabilitation program. I conclude that the worker is not entitled to temporary total disability benefits. His loss of earnings is due to being laid off in 2013 not due to his work injury. (ii) Issue on appeal [24] The issue to be determined in this case is whether the worker is entitled to temporary total or temporary partial disability benefits from November 5, 2013 to March 13, (iii) The worker s submissions [25] As noted in a memo dated August 10, 2016 (contained in Addendum #4) a Tribunal Vice- Chair granted the worker s request to have this appeal considered by means of written submissions. The worker was provided with the opportunity to provide further written materials in support of his case. However, in correspondence contained in Addendum #5, the worker advised I will not be adding [anything] to the record. The issue has been awarded on many occasions under identical circumstances, most recently by the Tribunal with separate decisions. Please schedule the written hearing as soon as possible. (iv) Submissions of the employer representative [26] The employer s representative has provided written submissions dated September 9, 2016, which have been reviewed and are included in Addendum #5. In those submissions, the employer s representative concluded:

9 Page: 8 Decision No. 2676/16 We align with the ARO decision which granted health care benefits as recommended by the worker's surgeon with the rationale that the treatment provided to the worker was for a worsening of the compensable condition and not the age-related arthritic changes. We also agree with the denial to entitlement to full or partial TT benefits as the worker was not totally disabled and despite the temporary worsening the worker was still capable of working despite not having work available due to a non-work related lay-off period. The intent of Section 40 2b benefits as outlined in the Workplace Safety and Insurance Act (WSIA) was not to compensate workers for minor fluctuations in the worker's condition. Board Policy states that once a pension award is granted, temporary disability benefits are not extended unless it is established that the temporary disability significantly exceeds the recognized pension award as well as preventing the worker from performing suitable work. In this case, the medical findings during the time period in question do not indicate a change in function that would prevent the worker from performing the type of suitable sedentary work he had been retrained for and had secured for many years. While the recent prior lay off from his job had impacted his earnings, the reason for the lay-off was non-compensable. To support our position we rely on an excerpt from WSIAT Decision No. 745/92. The Panel in that decision emphasized in part: "We do not consider the intent of the legislation operative at that time to provide a mechanism for either precise reimbursement of the individual's subjective pain experience, nor individual wage fluctuations. Policy of the Board provides for a re-opening of temporary benefits where the compensable condition deteriorates below the level of pension; where the circumstances are drastic enough to require re-opening, it will be done. But, fluctuations in the worker's physical condition and earnings ability were not in our view, intended to be the subject of adjustment once the permanent partial disability award (Pension Award) was implemented under the pre-1990 Act." In this case, while it is unfortunate the worker suffered a temporary worsening it is evident that he was not impaired to the point of inability to perform safe and suitable work within his capacities during his period of temporary worsening. As such, his 20% pension award adequately compensates for the temporary worsening. The findings do not warrant re-opening of temporary total or partial benefits. (v) Analysis [27] Since this worker was injured in 1986 the applicable legislation is the pre-1989 Workers Compensation Act. Section 40 of the pre-1989 Act deals with issues of temporary total and temporary partial disability benefits and provides: 40.(1) Where injury to a worker results in temporary total disability, the worker is entitled to compensation under this Act in an amount equal to 90 per cent of the worker's net average earnings before the injury so long as temporary total disability continues, (2) Where temporary partial disability results from the injury, the compensation payable shall be, (a) where the worker returns to employment, a weekly payment of 90 percent of the difference between the net average weekly earnings of the worker before the injury and a net average amount that the worker is able to earn in some suitable employment or business after the injury; or

10 Page: 9 Decision No. 2676/16 (b) where the worker does not return to work, a weekly payment in the same amount as would be payable if the worker were temporarily totally disabled, unless the worker, (i) (ii) fails to co-operate in or is not available for a medical or vocational rehabilitation program which would, in the Board s opinion, aid in getting the worker back to work, or fails to accept or is not available for employment which is available and which in the opinion of the Board is suitable for the worker s capabilities. [28] Pursuant to Section 126 of the Workplace Safety and Insurance Act, 1997 (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 Definitions for Adjudicating Pre-1998 Claims. This policy provides in part: Policy The following definitions govern the adjudication of temporary disability in pre-1998 claims: Temporary total disability Temporary total disability is the complete inability to earn full pre-accident wages for a limited period of time as a result of the physical and/or psychological effects of the injury and the necessity for clinical treatment. A worker who is unemployable as a result of a combination of a work-related injury and a number of personal and vocational (noninjury related) factors is not considered totally disabled. Temporary partial disability Temporary partial disability is a reduction in the ability to earn full pre-accident wages for a limited period of time as a result of the labour market's inability to accommodate the worker with the remaining physical and/or psychological effects of the injury. This includes workers who are partially disabled but unemployable; without a medical rehabilitation (MR) program or work reintegration (WR) activities, and those who are not in need of these services to return to work. [29] Having had the opportunity to consider all the evidence before me, I find, on a balance of probabilities, that the worker ought to be granted temporary total compensation benefits for the period November 5, 2013 to March 13, In reaching that conclusion, I have taken particular note of the following: As noted in the decision under appeal, the ARO has accepted, and the employer has not appealed, that the worker had a temporary deterioration in the condition of his right shoulder which required him to seek physiotherapy treatment from November 5, 2013 to March 13, In his report of November 13, 2013 Dr. Wilson, an orthopaedic surgeon, recommended formal physiotherapy to try and improve his movement which he indicated had worsened significantly. Dr. Wilson suggested that if he is not gaining range of motion he will follow up and we will get a new set of shoulder x- rays and perform a glenohumeral and subacromial steroid and Marcaine injection. The worker s physiotherapist completed a Health Professional s Report (Form 8) dated November 19, 2013, in which he described the onset of the worker s

11 Page: 10 Decision No. 2676/16 condition as flare-up of R shoulder rotator cuff repairs, ongoing rotator cuff impingment. The physiotherapist outlined a requested treatment plan of 12 wks 2x/wk to provide modalities/rom [exercises] for pain relief. The physiotherapist added that the worker was unable to work surgical repair failed to correct problem. It was estimated that these limitations would apply for 14+ days. In his notes for the assessment of November 19, 2013, the physiotherapist documented range of motion findings of forward flexion 10 degrees. internal rotation [reduced by 50%] and abduction of 20 degrees. These range of motion findings documented the deterioration in the worker s condition from the time he had been assessed for his PD award in At that time, findings of 40 degrees forward flexion and 20 degrees of abduction had been noted. The worker was assessed again by the physiotherapist on December 5, In his notes, the physiotherapist indicated no change in status, continue with treatment protocol. I interpret this comment to suggest that the worker s inability to work and his increased functional limitations (as outlined in the November 19, 2013 reporting) remained valid into December In his note of December 24, 2013, the physiotherapist confirmed the worker s ongoing problems and indicated status unchanged struggles [with] impingement ( ) cortisone injection by specialist may be helpful. In a report dated January 30, 2014, Dr. Wilson advised: [The worker] returned to see me in follow up regarding his shoulder. Physio for the last 6 weeks has helped slightly. He has some decreased aching, although he still has pain. His range of motion is still restricted in forward flexion and abduction. We performed a right shoulder subacromial and glenohumeral steroid and Marcaine injection using 80 mg of Depo-Medrol with 0.25% Marcaine without adrenalin. I am hoping this will improve his symptoms and allow him to work on range of motion. The MRI revealed rotator cuff tendinopathy and early glenohumeral arthritis. The x-rays confirmed minimal glenohumeral arthritis, no proximal migration and a Type II acromion. ( ) I have given him another six months of Aleve and I have told him to continue to work on shoulder range of motion and follow up if things do not improve. At that stage we will have to decide whether it is worthwhile considering any further intervention. In a Progress Report dated February 20, 2014, the worker s physiotherapist noted that ROM remains less than 20 for flexion and abduction. As noted earlier, at the time of his PD assessment on October 2010, the worker s forward flexion and abduction were rated as 40 degrees. The worker s physiotherapist recommended 4-6 wks of therapy still as requested by Dr. Wilson, his orthopedic surgeon. I interpret this reporting to suggest that the worker s increased functional limitation and inability to work continued into late February As noted, the physiotherapist recommended a further 4 to 6 weeks of therapy.

12 Page: 11 Decision No. 2676/16 [30] In my view, the issue before me in this appeal is similar to that dealt with by the Panel in Decision No. 254/13 with respect to the issues of entitlement to benefits from December 5, 2010 to April 1, 2011 and from November 2011 to March In the case before me, the ARO has acknowledged, and the employer has not disputed, that the worker experienced deterioration in his condition in early November 2013 which required him to seek physiotherapy treatment. As noted in their submissions, it is the employer s position that even with the deterioration in his condition, the worker remained capable of performing sedentary employment. While I acknowledge that submission, I cannot agree with it. The worker s physiotherapist, at the outset, indicated that a return to work had not been discussed with the worker, that he was unfit to go back to work and that he required at least 12 weeks of therapy. As it turns out, the worker required more treatment and the Board paid for this therapy until about March 13, Dr. Wilson advised the worker to continue with clinical treatment throughout this period and progress reports from the physiotherapist noted reduced ranges of motion that required clinical treatment. As was the case with the Panel in Decision No. 254/13, I find that during the period the worker was seeking treatment for his compensable deterioration, he was completely unable to earn full pre-accident wages as a result of the physical effects of his injury and the necessity for clinical treatment and therefore he is entitled to temporary total disability benefits.

13 Page: 12 Decision No. 2676/16 DISPOSITION [31] The worker s appeal is allowed. [32] The worker is entitled to temporary total disability benefits from November 5, 2013 to March 13, DATED: November 30, 2016 SIGNED: R. Nairn