WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1245/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1245/15 BEFORE: S. Hodis : Vice-Chair B. M. Young : Member Representative of Employers D. Broadbent : Member Representative of Workers HEARING: June 8, 2015 at Oshawa Oral DATE OF DECISION: October 16, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2320 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) F. Bruno dated June 12, 2013 and ARO S. Van Veen dated December 31, 2014 APPEARANCES: For the worker: For the employer: Interpreter: C. Topple, Paralegal R. Fink, Lawyer 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

2 Decision No. 1245/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker s ongoing shoulder problems were not related to the August 22, 2012 incident or the original accident in January 2012 and that the worker did not have ongoing entitlement to LOE benefits from August 22, 2012, entitlement for the left shoulder surgery on October 5, 2012 and a permanent impairment assessment for the left shoulder. The ARO rendered a decision based upon a written record without an oral hearing. [2] The employer appeals a decision of the ARO, which concluded that the employer was only entitled to 75% second injury and enhancement fund (SIEF) relief on all costs of the claim. The ARO rendered a decision based upon a written record without an oral hearing. [3] A preliminary issue arose at the commencement of the hearing in relation to one of the employer s witnesses. The original witness (Health and Safety Manager) scheduled to attend was unable to attend the hearing. The employer requested that it be permitted to replace this witness with another witness (General Manager) who would give evidence relating to the modified work activities. The worker s representative did not object to the replacement of the witness. The Panel granted the employer permission to replace the witness. [4] During the hearing, the employer s representative asked permission to ask this witness questions about the following three additional issues: a. Steering wheel injury and counter rotating of steering wheel and his experience of what makes a sudden turn b. Seeking employment after operation with accident employer c. Other injuries before August 2012 [5] The worker s representative did not object to this additional line of questioning and as such the Panel allowed this additional line of questioning. (ii) Issues [6] The issues under appeal are as follows: 1. Are the worker s ongoing shoulder problems related to the August 2012 accident or the original accident? 2. Does the worker have ongoing entitlement to LOE benefits from August 23, Does the worker have entitlement for the surgery on October 5, 2012? 4. Is the worker entitled to a permanent impairment assessment for the shoulder? 5. Is the employer entitled to a higher quantum of SIEF relief?

3 Page: 2 Decision No. 1245/15 (iii) Worker s testimony [7] The worker testified that on January 28, 2012, the date of the accident, he was a snow plow driver. The worker testified that he was using his right arm to manipulate the controls and was using his left arm to steer. The worker testified that the left arm was in the steering wheel with his hand on one of the spokes when the steering wheel spun as he was turning left. The worker testified that the steering wheel snapped back and went in the other direction. The worker testified that his hand was in the steering wheel at this time and he injured his shoulder. [8] The worker testified that he is right handed and is currently 43 years old. The worker testified that his highest level of education is Grade 9 and he is a not a good reader or writer. The worker testified that he is not able to remember what he has read when he reads something. The worker testified that he takes his AZ licence every five years orally. [9] The worker testified that prior to his accident he had been working with the accident employer for three seasons on the road crew and for two seasons on the snow plow. The worker testified that after his accident he was working light duties in the sand camp where he resided. The worker testified that he would call in drivers and do paperwork. The worker testified that he did this light work for one month. The worker testified that he worked on standby. If the snowplows were called out he would work in the office. The worker testified that he was laid off at the end of the season for approximately two months. The worker testified that he was scheduled to attend the summer start up meeting but was told the night before the meeting to not attend and that his services were no longer needed. [10] The worker testified that the Board arranged a return to work meeting with the employer. The worker testified that he was told that no jobs in the summer works were available. The worker was moved to the tanker division to be a tanker driver. The worker testified that he worked one day and reinjured himself when he climbed a ladder to vent the tanker. The worker testified that he had to climb two to three rungs and had to pull himself up. As he was pulling himself up on the first rung which was three feet from the ground he injured his shoulder again. The worker testified that after this incident he has stopped working and is no longer working for the accident employer. The worker testified that he did not receive any loss of earnings (LOE) benefits. [11] The worker testified that in October 2012 he had surgery on his shoulder. The worker testified that the surgery did not help and the worker had to go for cortisone shots which also did not help. The worker testified that while he was off work waiting for his surgery he was offered an office job in Markham doing paperwork. The worker testified that he did not accept this job as the emergency room doctor, the surgeon and his family doctor told him that he should not operate a motor vehicle. The worker testified that he lived in Lindsay and drove a standard automobile. [12] The worker testified that after his surgery he was able to return to work in three months. The worker testified that he had sharp pains while he was healing. [13] The worker testified that while performing light duties, he was taking anti-inflammatories, muscle relaxers and Tylenol #3 with codeine. The worker also testified that he attended massage sessions that were paid by the Board. The worker testified that he also had 15 to 16 weeks of physiotherapy that was paid by the Board.

4 Page: 3 Decision No. 1245/15 [14] The worker testified that he worked from May 2013 to May 2015 and he is currently not working. The worker testified that in May 2013 he obtained a job as a driver. The worker testified that he did not suffer a wage loss in terms of money but did have to work an additional 10 hours a week more than in his pre-injury job. The worker testified that when he returned to work in May 2013 he did not wear a sling. The worker testified that this work was demanding. The worker testified that he had to climb in and out of a box and had to shovel with one hand. The worker testified that his job was easier than his pre-injury job as he did not have to do strapping, chaining or bundling of equipment. The worker testified that while working at this new job he only took some over the counter medication. [15] The worker testified that for the last three weeks prior to the hearing he has been wearing a sling and has been advised that he will require further surgery on his left shoulder which is scheduled for June The worker testified that he has been advised that he needs another surgery because the doctors have found a bone floating around which is likely a result of the previous surgery. [16] The worker testified that in 2010 he had an accident in which he suffered a concussion and a sore left shoulder. The worker testified that he was on light duties for two weeks and then recovered from this injury. [17] The worker testified that presently he has good days and bad days but more bad days than good. The worker testified that he struggles with sleep which is sporadic. The worker testified that he spends most of his night in a recliner. The worker testified that although he worked the last two years he has been struggling with his left shoulder. The worker testified that the first surgery resulted in the removal of his bursae as it was infected and now he just has bone on bone. [18] During cross questioning, the worker was asked if he told the Regional Evaluation Centre when he attended in July 2012 that the steering wheel made an unexpected turn. The worker testified that he told them that the steering wheel made an unexpected turn. The worker was unable to recall if he told anyone in the emergency room about the unexpected turn. The worker testified that he told the nurse practitioner at his family doctor s office about the unexpected turn. [19] The worker testified that he did not tell Dr. Al Fahd in September 2012 about the steering wheel incident as the focus was on the tanker truck accident. The worker testified that he told Dr. Al Fahad about his motor vehicle accident in 2010 when he hurt his shoulder on the seat belt. The worker testified that he was on light duties for three to four weeks after this accident and then returned to regular duties. The worker testified that from 2010 to 2012 he was not receiving therapy but would tell his doctor that his shoulder was sore. The worker testified that this accident did not impede his ability to do his regular job which required a lot of strapping and chaining which required the use of his arms. [20] The worker testified that in February 2012 he was cleared to return to full duties. The worker testified that he returned to plowing but did not recall plowing much. The worker testified that he worked on the brine truck. The worker testified that in March 2012 he returned to full regular duties. The worker testified that he only went out to plow if he was called to do so. Otherwise he stayed at the camp and kept the place clean. [21] The worker was cross questioned about a telephone call with the general manager for the accident employer in June The worker confirmed that the general manager contacted him but denied that he told the general manager that he had reinjured himself in May/June The

5 Page: 4 Decision No. 1245/15 worker testified that at the time of the call he was putting a return spring on a four wheeler. The worker testified that in May/June 2012 he was able to drive a motor vehicle and was able to drive standard. The worker testified that in May/June 2012 he returned to his previous hobbies which included hunting, fishing, four wheeling, working at the family farm and saw mill and haying. The worker testified that he returned to these activities with some modifications. The worker testified that he did not need to use an axe to split wood as he made a splitter to do this. The worker testified that if he had returned to work in May/June 2012 he would be working as he had done for the last two years. [22] The worker was asked during cross questioning if there was anything unusual about the tanker at the time of the second accident. The worker testified that the tanker was on a bit of an angle but he could not say if that was unusual as this was the first time he drove the tanker truck. [23] The worker testified that after the tanker truck accident he did not return to work at a desk job as he was told not to drive a motor vehicle. The worker testified that driving with his right arm would cause problems in this left shoulder due to vibration which caused pain. [24] The worker testified that following his operation, his left shoulder was not 100%. The worker testified that he did not have constant pain but it was still tender. The worker testified that his range of motion never returned. The worker testified that six to eight months following his operation he was able to use his shoulder more but then it started to get sore again and he always felt that there was pressure on his shoulder. The worker testified that he was able to drive a standard car and was able to return to his driving job approximately five to eight weeks after surgery. The worker testified that after he was cleared by his doctor to return to work he went back to the accident employer to ask for a job but was told that none were available. The worker testified that he started a job search in August [25] The worker testified that in April 2015 he saw the surgeon and was told he needed more surgery. The worker testified that approximately six to seven months ago he was experiencing swelling after work and his fingers and forearm were numb. The worker testified that approximately three months ago, he was unable to lift the tailgate or get into the box. The worker testified that approximately three weeks ago he had to start wearing a sling again. The worker testified that he was advised to rest his arm and to not move his arm out to the side. [26] The worker testified that he did not injure his shoulder a few weeks prior to the workplace accident and did not go for x-rays at the Minden Hospital. The worker testified that he injured his forearm in September 2011 while bear trapping. [27] The worker testified that he took a letter from his physiotherapist dated August 22, 2012 to the return to work meeting with the accident employer and the Board. The worker testified that his physiotherapist said that he had restrictions but the Board said he had no restrictions. [28] The worker testified that the letter dated February 27, 2012 which was prepared by Ms. Lucas, a nurse practitioner, was written to allow the worker to try to return to regular duties to see if he could manage them. The worker testified that prior to the letter being written he was on light duties. [29] The worker testified that in the spring of 2012 he attempted a return to work to full duties, but the worker testified that he did not drive the snow plow. The worker testified that he only drove the brine truck. The worker testified that he self-modified his duties by using his right arm more when a task required the use of both hands.

6 Page: 5 Decision No. 1245/15 (iv) General Manager testimony [30] The General Manager (GM) testified that he has experience driving a snow plow. The GM testified that snow plows have power steering. The GM testified that the power steering will not move on its own and requires the driver to move it. [31] The GM testified that he attended the August 16, 2012 return to work meeting with the worker. The GM testified that the worker admitted that he hurt himself at home while working on a motor vehicle. The GM could not recall any particulars of the injury. During cross questioning, the GM testified that the worker was not offered a tanker job but was told to contact the accident employer about job availability. The GM testified that the jobs offered had no restrictions as the worker did not have any restrictions. The GM testified that the employer had no concerns about the worker having to climb the ladder on tanker truck as the worker had no restrictions. The GM testified that he does not recall seeing the letter from the worker s physiotherapist but did recall the worker stating that he had been to see the physiotherapist. The GM testified that he recalled the worker stating that he could not work but the Board said the worker could. [32] The GM confirmed that the worker was offered an office job in Markham after the injury with the tanker truck. The GM testified that this was the same location the worker had to drive to for the tanker truck job. [33] The GM testified that he has no knowledge of the worker asking for work from the accident employer from November 2012 to May (v) Medical evidence [34] Clinical notes from the worker s family physician indicated that the worker was involved in a motor vehicle accident in December 2010 and injured his left shoulder. The worker was cleared to return to work five days later. A September 9, 2011 entry indicated that the worker complained of a bothersome left shoulder and unable to pick up a coffee cup. The doctor recommended he continue with light duties and would be reassessed in three weeks. The worker was advised to not do bear trapping or straining of his left shoulder. A January 30, 2012 entry noted that the worker injured his left shoulder at work while driving a snow plow. The August 24, 2012 entry indicated that the worker returned to work on August 22, 2012 and reinjured his shoulder while pulling himself up on a ladder. The worker reported that he had returned to the same state he was after the January 2012 injury. An August 28, 2012 entry indicated that the worker was booked for surgery on October 16, [35] A MRI of the left shoulder dated March 15, 2012 indicated that the worker had moderate osteoarthrosis of the acromioclavicular (AC) joint. The report also indicated that there was mild increased intrasubstance signal noted near the conjoined tendons of the supra and infraspinatus which probably represented a mild element of tendinopathy. No definite tearing was identified. Mild to moderate degenerative changes were noted within the acromioclavicular joint. The report indicated that the findings were equivocal for tendinosis involving the conjoined tendon of the infra and supraspinatus. Clinical correlation was recommended. [36] The worker attended the Regional Evaluation Centre (REC) and a final report was issued on July 3, The worker was diagnosed with left rotator cuff tendinitis as a work related injury and moderate osteoarthritis (OA) of the left AC joint as a pre-existing non-occupational injury. The REC report recommended that the worker engage in eight weeks of active

7 Page: 6 Decision No. 1245/15 rehabilitation. With respect to a return to work, it was recommended that the worker initiate sedentary duties as soon as possible working pre-injury hours in order to avoid further deconditioning. Following six weeks of modified duties at a sedentary level, a gradual increase to duties at the pre-injury level was recommended over a period of four weeks. The REC report indicated that the worker had achieved partial recovery and full recovery was anticipated over the following eight to 10 weeks with implementation of the recommendations in the report. The REC report indicated that the worker was not expected to have a permanent impairment. [37] On July 30, 2012 the physiotherapist requested an extension of treatment. [38] A letter from the physiotherapist dated August 22, 2012 indicated that the worker s diagnosis was left shoulder supraspinatus and infraspinatus tendinosis and left AC joint osteoarthritis. The physiotherapist indicated that the worker had undergone physiotherapy for the last 10 weeks and had shown considerable improvement with passive ROM and active assisted ROM. The worker continued to experience left shoulder pain with active ROM. The physiotherapist indicated that the worker s physiotherapy was scheduled to end on August 28, 2012 based on the REC recommendations despite the concerns of severity on initial assessment reported by her to the case manager on June 21, The physiotherapist indicated that the return to work specialist at the Board planned on returning the worker to work without restrictions as a truck driver. The physiotherapist expressed concerns about this as the worker continued to experience increase aggravation with full left shoulder active range of motion (ROM) and considerable weakness in the rotator cuff. Although the physiotherapist indicated that it was important for the worker to return to work, she indicated her concerns that repetitive left shoulder use and lifting would re-aggravate the worker s symptoms. The physiotherapist completed a Health Professional s Report on the same date and indicated that the worker s restrictions included no lifting, use of upper extremities and operating heavy equipment. The physiotherapist indicated that due to disuse since January 2012, the worker has reduced strength and endurance. [39] A Health Professional s Report dated August 22, 2012 completed by Dr. Bruno indicated that the worker had acute left shoulder/neck strain as a result of climbing a ladder on a tanker. The worker had minimal mobility of neck and shoulder and was unable to work for the next three to seven days due to pain/spasm. [40] A letter from Dr. Anderson (family doctor) dated August 24, 2012 stated that the worker was totally disabled on August 22, 2012 based on his direct examination and management of the worker. [41] A Health Professional s Continuity Report completed by the physiotherapist dated September 6, 2012 indicated that the worker returned to work on August 22, The worker reported his left shoulder being a little stiff from the drive to work. The worker attempted to climb a ladder to vent the truck but was unable to climb and take the weight through is arm and dropped to the ground in shoulder pain. The physiotherapist indicated a Functional Abilities Form (FAF) was completed July 30, 2012 with restrictions which were not followed on the return to work. The worker as diagnosed with left supraspinatus and infraspinatus tendinosis. The therapist indicated that the worker had restrictions and would have to be off work three to seven days as per Dr. Bruno s instructions.

8 Page: 7 Decision No. 1245/15 [42] A report from Dr. Al Fahd (orthopaedic surgeon) dated September 6, 2012 indicated that the worker had a history of painful left shoulder. Dr. Al Fahd indicated that recently the worker was improving with physiotherapy but has been unable to use his shoulder and has been in a great deal of pain since pulling up on a ladder. On examination, Dr. Al Fahd indicated that he could not examine the shoulder very well as the worker was in a great deal of pain. Dr. Al Fahd indicated that the worker was very tender over and just under the AC joint. A review of the MRI indicated that the worker has severe arthritic changes with some osteoarthritis of the lateral clavicle. Dr. Al Fahd did not see a tear of the cuff muscle but noticed a bit of tendonosis on the tendons. Dr. Al Fahd opined that the main pathology was the AC joint which caused impingement as well as severe pinching and was related to the flare up of arthritis. [43] A MRI of the left shoulder dated September 22, 2012 was compared to the March 15, 2012 MRI. The report indicated that there was moderately severe AC joint OA with evidence of physical impingement upon the myotendinous junction of the supraspinatus muscle; however, there was no evidence of significant tendinopathy or tearing of the supraspinatus tendon particularly at the level of insertion of the supraspinatus and infraspinatus tendons. The remainder of the rotator cuff was unremarkable. [44] A Health Professional s Report dated September 24, 2012 completed by Dr. Al Fahd indicated that the worker had left shoulder pain, limited ROM and tendon impingement. He indicated that the worker required surgery. The worker was diagnosed with left shoulder impingement and osteoarthritis in the AC joint. Dr. Al Fahd indicated that no clinical improvement was expected. [45] A operative report dated October 5, 2012 indicated that the worker s pre-operative diagnosis was left shoulder impingement with arthritis in the AC joint, possible tear in meniscus. The post-operative diagnosis was Type II acromion with severe osteoarthritis on AC joint, impingement and subacromial bursitis. No tear was found but there was some degenerative changes on the cuff muscle itself especially over the supraspinatus tendon. [46] A FAF dated February 10, 2013 which was completed by Dr. Al Fahd indicated that the worker was capable of returning to work with restrictions and modified hours. The worker s restrictions included no lifting more than 5 to 10 kilograms from waist to shoulder, no ladder climbing more than three steps, limited left arm pushing and pulling, no above shoulder activity, and no operating motorized equipment. Dr. Al Fahd indicated that the worker had left shoulder pain secondary to inflammation and was quite symptomatic. [47] An x-ray dated February 14, 2013 was compared to an August 29, 2012 x-ray. The report noted that since the last examination there has been an acromioplasty and resection of the distal clavicle. No complication due to surgery was identified and no other bone, joint or soft tissue abnormality of significance was seen. (vi) Submissions [48] The worker s representative submitted that the worker is seeking LOE benefits from August 23, 2012 to May 2013 as the worker found employment with another employer in May 2013.

9 Page: 8 Decision No. 1245/15 [49] The worker s representative submitted that the worker aggravated a pre-existing shoulder condition and the problem is with the AC joint and not osteoarthritis. The worker s representative submitted that the Board recognized the worker s claim on the basis of tendonitis but the doctors opine that the worker s issue is a structural issue with the AC joint. [50] The worker s representative submitted that the worker suffered a permanent aggravation of his pre-existing condition and as such should be entitled to a non-economic loss (NEL) assessment. [51] The worker s representative submitted that the worker was performing the tanker job duties which were not a suitable job for someone with a shoulder problem. The worker s representative submitted that the worker s doctor expressed concern about this job in August [52] The worker s representative submitted that the worker attempted to rehabilitate himself vocationally after his surgery and recovery and was able to find work by May The worker s representative submitted that is was not reasonable for the worker to go to Markham for a clerical job as the length of the drive and the bumpiness would cause a problem for the worker s shoulder. [53] The worker s representative submitted that they do no object to the employer s appeal regarding SIEF relief. [54] The employer s representative submitted that there is no explanation from the doctors as to why a steering wheel event caused a problem. The employer s representative submitted that the accident employer was surprised by the worker s testimony as the Form 7 only indicated that the worker was turning the steering wheel. The employer s representative submitted that the employer did not challenge the initial occurrence but there was no knowledge that something more violent than a turning of the steering wheel happened as there was no mention of it in the family doctor notes, the REC report or the surgeon s report. The employer s representative pointed out that the employer s witness who has experience with snow plow driving testified that he would not expect a rebound on a steering wheel. The employer s representative submitted that the Panel should accept the accident as originally reported and not as the worker testified to today. The employer s representative submitted that the original reported accident was minor in nature. [55] The employer s representative submitted that by August 2012, the worker s condition was related to his degenerative condition and not his workplace accident and it was his degenerative condition that resulted in the operation two months later. The employer s representative submitted that the worker s shoulder had so many defects that any slight event could make the worker symptomatic. The REC report indicated that the worker s rotator cuff tendonitis resolved by August 2012 and it indicated that the worker s rotator cuff was inflamed not torn. The operative report indicated that the operation was not due to inflammation but do to structural defects in the shoulder. [56] The employer s representative submitted that the physiotherapist s letter only says no repetitive lifting and the employer s representative submitted that climbing a ladder to vent is not repetitive. [57] The employer s representative submitted that the worker was offered a desk job in August 2012.

10 Page: 9 Decision No. 1245/15 [58] With respect to the issue of SIEF relief, the employer submitted that the worker had a moderate pre-existing condition that played a major role as it is the driving force of the worker s complaints. (vii) Law and policy [59] Since the worker was injured in 2012, 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. [60] 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 [61] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [62] 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 #12 Adjudication Process Package #38 Recurrence Package #224 LOE Benefits benefits as of July 15, 2011 Package #247 - SIEF Package #253 Lost Time/No Lost Time decisions prior to February 15, 2013 Package #261 NEL Entitlement Package #300 Decision Making/Benefit of Doubt/Merits and Justice [63] We have considered these policies as necessary in deciding the issues in this appeal. (viii) Analysis [64] The worker was granted entitlement for a left trapezius/shoulder strain as a result of the January 2012 accident. The worker was assessed at the REC on July 3, 2012 where the diagnosis of left shoulder strain was confirmed. Restrictions were imposed on the worker and a gradual return to work was recommended. It was expected that the worker would fully recover. The worker returned to work on August 22, 2012 to the tanker division. LOE benefits were paid until this time. The Board denied any ongoing benefits beyond August 22, 2012 on the basis that the worker had fully recovered from his work related shoulder condition as of August 21, 2012 as per the REC report. The ARO found that any ongoing left shoulder problems were not as a result of the incident at work on August 22, 2012 or the original accident in January 2012 but rather his non work related pre-existing degenerative condition.

11 Page: 10 Decision No. 1245/15 [65] The Panel finds that the worker s ongoing shoulder problems after August 22, 2012 are related to the worker s original accident in January 2012 and his recurrence in August The worker is entitled to LOE benefits from August 22, 2012 to May 2013, a NEL assessment and the surgery in October 2012 for the reasons that follow. [66] The ARO based his decision on the REC report, which if the recommendations within that report had been followed, may have resulted in the worker being fully recovered by August 21, However, the recommendations in the REC report and the recommendations of the physiotherapist who was treating the worker at the time were not followed. As a result, the worker reinjured his shoulder on August 22, 2012 when he returned to work on the tanker truck which required him to pull himself onto a ladder. [67] The REC report dated July 3, 2012 clearly stated that the worker should engage in eight weeks of active rehabilitation and six weeks of modified duties at a sedentary level with a gradual increase to duties at the pre-injury level over the following four weeks. The REC report indicated that the worker had achieved partial recovery and full recovery was anticipated over the following eight to 10 weeks with implementation of the recommendations in the report. On August 22, 2012, the worker was just completing physiotherapy and had not performed any modified duties at a sedentary level. The worker was deconditioned. The worker s physiotherapist also expressed concern about the worker s return to work as a truck driver. The physiotherapist expressed concerns about this as the worker continued to experience increase aggravation with full left shoulder active ROM and considerable weakness in the rotator cuff. Although the physiotherapist indicated that it was important for the worker to return to work, she indicated her concerns that repetitive left shoulder use and lifting would re-aggravate the worker s symptoms. The physiotherapist completed a Health Professional s Report on the same date and indicated that the worker s restrictions included no lifting, use of upper extremities and operating heavy equipment. The physiotherapist indicated that due to disuse since January 2012, the worker has reduced strength and endurance. [68] The duties of a tanker driver, which involved climbing a ladder in which the worker would have to pull himself up onto was clearly outside the restrictions outlined by the physiotherapist and would not be considered sedentary level duties as recommended by the REC. It is not surprising that the worker reinjured himself when he started work on August 22, [69] Board Operational Policy Manual (OPM) Document No entitled Recurrences states that a recurrence may result from an insignificant new accident or may arise when there is no new accident. To identify a recurrence, the decision maker must confirm that there is clinical compatibility between the original injury or disease and the current condition or a combination of clinical compatibility and continuity. [70] Clinical compatibility and continuity are clearly established in this case. The worker injured the same body part as a result of an insignificant new accident. Continuity is clearly established as the worker had just been cleared to return to work and had been involved in active treatment for the same shoulder. [71] The Panel finds that the worker has entitlement for a recurrence on August 22, 2012 as well as the October 2012 surgery which was required as a result of the August 22, 2012 recurrence as confirmed by Dr. Al Fahd. Prior to August 22, 2012, there was no discussion that the worker required surgery for his pre-existing condition or even the January 2012 incident. The worker was only referred to the surgeon after the August 22, 2012 injury. Dr. Al Fahd

12 Page: 11 Decision No. 1245/15 opined that the main pathology was the AC joint which caused impingement as well as severe pinching and was related to the flare up of arthritis. From Dr. Al Fahd s reporting it is clear that the worker s shoulder problem after August 22, 2012 was not solely related to his pre-existing osteoarthritis. The worker s AC joint was impinging and causing the worker s symptoms. Dr. Al Fahd recommended surgery for a left shoulder impingement and osteoarthritis in the AC joint. [72] As the worker has entitlement for the recurrence and surgery, the worker is also entitled to full LOE benefits. The worker was not able to work from August 22, 2012 to May The initial medical reporting indicated that the worker would be off work for three to seven days. The worker then saw Dr. Al Fahd who reported at the beginning of September 2012 that the worker was unable to use his shoulder and was in a great deal of pain. Dr. Al Fahd did not clear the worker to return to work. Given the state of the worker s condition in early September, it would not have been reasonable for the worker to do office work and drive a long distance to work. By the end of September, the worker was told that he would require surgery. After the surgery, the accident employer did not have a job available for the worker and the worker was not given any labour market re-entry (LMR) support. The worker was not cleared to return to work until February 10, 2013 with restrictions. The worker took it upon himself to find a job and engaged in self-directed LMR which resulted in employment in May The Panel is satisfied that the worker made reasonable efforts to mitigate his wage loss once he was cleared to return to work. As such the worker is entitled to full LOE benefits from August 22, 2013 to May 2013 when the worker returned to work. [73] With respect to the issue of a permanent impairment, Board OPM Document No states that workers who have a work related permanent impairment are eligible for NEL benefits. Permanent impairment means any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. [74] Although the REC report indicated that the worker was expected to fully recover and no permanent impairment was anticipated, things changed for the worker following the REC evaluation. First, it did not appear that the worker had fully recovered from the January 2012 accident by August 21, 2012 as anticipated. The worker did not appear to have returned to his pre-accident state. The physiotherapist s report of August 22, 2012 indicated that the worker was not fully recovered despite the physiotherapy treatment. She imposed restrictions as the worker had reduced strength and endurance. [75] Second, after the August 2012 recurrence, the worker does not appear to have returned to his pre-accident state. Dr. Al Fahd confirmed that the worker was improving with physiotherapy but was unable to use his shoulder and was in a great deal of pain since pulling up on a ladder. On September 24, 2012, Dr. Al Fahd confirmed that no clinical improvement was expected. Dr. Al Fahd completed a FAF on February 10, 2013 indicating that the worker was capable of returning to work with restrictions and modified hours. The worker s restrictions included no lifting more than 5 to 10 kilograms from waist to shoulder, no ladder climbing more than three steps, limited left arm pushing and pulling, no above shoulder activity, and no operating motorized equipment. Dr. Al Fahd indicated that the worker had left shoulder pain secondary to inflammation and was quite symptomatic. The worker in his testimony confirmed that since the surgery his range of motion has never returned.

13 Page: 12 Decision No. 1245/15 [76] The Panel is satisfied, based on the evidence before it, that the worker has suffered a permanent impairment and is entitled to a NEL assessment. The maximum medical recovery date is September 24, (a) SIEF [77] 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. [78] 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.). The severity of accident is defined as follows: 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 [79] 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. [80] In terms of the accident history, the reporting indicates that the worker injured his shoulder when turning the steering wheel. The worker described in his testimony that the steering wheel snapped back; however, the Panel agrees with the employer s representative that there is no concurrent reporting of the accident in that manner either to the Board or the medical personnel who attended to the worker. As such, the Panel accepts the history of the accident as initially reported. [81] In the Panel s view, there is nothing about the accident history that would suggest that such an incident, had it occurred to a person without the worker s pre-existing conditions, would be expected to cause anything more than a minor disabling injury, at most. We therefore find that the accident was minor. [82] With respect to the matter of 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.

14 Page: 13 Decision No. 1245/15 [83] The Panel agrees with the accident employer s submissions that the pre-existing condition was major. The worker sustained a shoulder injury in 2010 as a result of a motor vehicle accident. The worker also reported problems with his shoulder only a few months prior to the workplace accident. His family doctor recommended light duties and placed restrictions on the worker. The MRI reports showed moderate osteoarthritis and Dr. Al Fahd commented in September 2012 that the worker had severe arthritic changes. Given that the workplace accident only occurred in January 2012, it is unlikely that the severe arthritic changes developed after the accident. It is more probable than not that they already existed at the time of the accident. Given the severe arthritic changes that already existed, it is extremely likely that the worker would develop a disability in his shoulder of greater severity than a normal person. As such, the Panel finds that the worker had a major pre-existing condition. [84] Given the major pre-existing condition and a minor accident, the accident employer is entitled to 90% SIEF relief. Although the chart in Board Policy indicates that a major pre-existing condition and a minor accident results in a range of %, 100% is only granted if the prior non-work related condition is the cause of the accident. In this case, the prior non-work related condition is not the cause of the accident. As such, 90% SIEF relief is appropriate.

15 Page: 14 Decision No. 1245/15 DISPOSITION [85] The worker s appeal is allowed as follows: 1. The worker has entitlement for a recurrence on August 22, 2012 and the October 2012 surgery. 2. The worker is granted full LOE benefits from August 22, 2012 to May 2013 when he obtained employment. 3. The worker has entitlement for a NEL assessment for the shoulder. [86] The employer s appeal is allowed. The employer is entitled to 90% SIEF relief. DATED: October 16, 2015 SIGNED: S. Hodis, B. M. Young, D. Broadbent