WORKERS COMPENSATION APPEAL TRIBUNAL [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #308 Appellant Brian Waddell, Q.C., Worker Advisor representing the Worker Respondent Stephen Carpenter, Solicitor representing the Workers Compensation Board Place and Date of Hearing January 9, 2018 Rodd Royalty Charlottetown 14 Capital Drive Charlottetown, Prince Edward Island Date of Decision March 21, 2018

2 WCAT Decision #308 Page 2 of 8 Introduction 1. This is an appeal arising from the decision of the Internal Reconsideration Officer ( IRO ), being IR# [PERSONAL INFORMATION], dated April 19, 2017, which denied the Appellant s (hereinafter referred to as [PERSONAL INFORMATION]) request for an internal reconsideration. [Appeal Record Tab 1]. Facts 2. This matter arose from a workplace injury [PERSONAL INFORMATION] sustained on April 1, [PERSONAL INFORMATION] injured her right shoulder when a mattress slipped as she was carrying out her duties as a housekeeper at the[personal INFORMATION]. [Appeal Record Tab 14]. 3. On April 11, 2016, [PERSONAL INFORMATION] sought medical attention from Dr. R. MacKinnon, whose first diagnosis questioned possible R.C. tear although in subsequent reports to the Workers Compensation Board (WCB) he noted strain v. tear. [Appeal Record Tab 5]. 4. Dr. MacKinnon (MacKinnon) referred [PERSONAL INFORMATION] to Dr. Scott Wotherspoon (Wotherspoon) who saw [PERSONAL INFORMATION] on April 27, Wotherspoon is an Orthopedic Surgeon. [Appeal Record - Tab 12, Paragraph 5]. 5. By letter dated May 3, 2016, the WCB accepted [PERSONAL INFORMATION] claim for benefits for a right shoulder strain questioning rotator cuff tear. [Appeal Record Tab 10]. 6. On July 15, 2016, [PERSONAL INFORMATION] had an MRI on her right shoulder. The MRI ruled out a rotator cuff tear, but reported dystrophic calcification at the footprint and insertion of the supraspinatus and a small degenerative cyst. [Appeal Record Tab 20].

3 WCAT Decision #308 Page 3 of 8 7. On August 4, 2016 the Case Coordinator advised [PERSONAL INFORMATION] that her claim was to close August 16, 2016 based upon her assessment that [PERSONAL INFORMATION] condition was not an industrial injury but arose from her calcification and/or her degenerative cyst. [Tab 21]. 8. On August 17,2016, Wotherspoon wrote to the WBC wherein he stated There is no question that she had a work related injury that has caused her right shoulder pain and dysfunction so I would recommend that Worker s Compensation continue to follow her and provide her the resources that are required including extension of her physiotherapy 9. [PERSONAL INFORMATION] sought internal reconsideration [Appeal Record Tab 23] and on October 24, 2016, the IRO accepted the Wotherspoon report of August 17, 2016, as new evidence worthy of reconsideration. [Appeal Record Tab 25]. 10. MacKinnon was consulted by [PERSONAL INFORMATION] on numerous occasions from April 2016 to January 2018 [Appeal Record Tab 5]. In all, 20 Form 8 reports that were submitted by MacKinnon indicated [PERSONAL INFORMATION] was unable to perform any kind of work. 11. On October 31, 2016, MacKinnon writes in his Form 8 report, Please tell me why her claim was closed. On April 27, 2017, MacKinnon writes on his Form 8 report The current SX s are not related in any way to the shoulder complaints in 2011 [Appeal Record Tab 5]. 12. On November 14, 2016, Dr. Hendrick Visser (Visser) reviewed [PERSONAL INFORMATION] medical file. At Page 2 of his report, Visser states In summary, we have a 48 year old housekeeping worker with a pre-existing tendency to muscular skeletal disorders (MSD) presumably on the basis of deconditioning and lack of physical fitness. (Emphasis added).

4 WCAT Decision #308 Page 4 of [PERSONAL INFORMATION] was advised that her claim would remain closed and her request for internal reconsideration was denied. [Appeal Record Tabs 27, 31, 1 and 2]. Issue 14. Was the decision to close the Workers claim for temporary wage loss and medical aid benefits correct? Appellant s Argument 15. The Appellant maintains that Section 6(1) of the Workers Compensation Act RSPEI 1988, Cap W-7.1 (the Act) mandates payment of benefits to any worker who suffers a personal injury by accident arising out of the course of employment. In support, the Appellant has referenced Section 6(9) of the Act plus the Board Policy POL 61, Sections 3 and 6. These Sections are found at Paragraphs 18 and 19 of the Appellant s Factum: POL 61, Section 3: Where an accident caused personal injury to a worker and the injury is aggravated by a pre-existing condition inherent in the worker at the time of the accident, the worker shall be compensated for the full injurious result until such time as the worker, in the opinion of the Worker Compensation Board, has reached a plateau in medical recovery. POL 6, Section 6: Where the Workers Compensation Board determines a personal injury, arising out of and in the course of employment, is no longer aggravated by a pre-existing condition, the Workers Compensation Board is not responsible for any further loss of earnings, medical aid or rehabilitation in relation to the preexisting condition. 16. The IRO has advanced a distinction between aggravating a pre-existing injury and a pre-existing condition being aggravated by the injury. The Appellant referenced WCAT Decision #180 which makes it very clear that an injury that

5 WCAT Decision #308 Page 5 of 8 aggravates a pre-existing condition is compensable and Section 6(9) must then apply to such a circumstance. 17. The Appellant maintains that [PERSONAL INFORMATION] injury was compensable under the Act. In fact, [PERSONAL INFORMATION] was compensated but was not compensated for the full injurious result of her injury. In short, the Appellant maintains that her condition has not plateaued. The main thrust of the Appellant s argument rests upon which medical evidence was preferred by the EO and IRO. 18. The Appellant argues that the evidence of Drs. Wotherspoon and MacKinnon should be preferred over that of Dr. Visser. To assist the Tribunal in reaching that conclusion, the Appellant has referred to Board Policy, POL-68, Section The Appellant advances that the opinion of a specialist Wotherspoon should be preferred over the opinion of a generalist Visser. He further notes that Drs. Wotherspoon and MacKinnon were treating physicians. 20. WCAT Decisions #210 and #222, clearly mandate that the opinion of a treating physician should be preferred over that of the medical advisor and as a result, the Appeal should be allowed. Respondent s Argument 21. The Respondent acknowledges that [PERSONAL INFORMATION] suffered a workplace injury resulting in right shoulder strain questioning a rotator cuff tear. The Respondent advances that in 2011 there were ongoing issues with her right shoulder. The MRI ruled out rotator cuff tear but found certain preexisting conditions which are advanced by the Respondent to be the real cause of [PERSONAL INFORMATION] ongoing issues. 22. The Respondent argues that the review of [PERSONAL INFORMATION] medical record gives Dr. Visser more insight into her current condition than that afforded to Drs. Wotherspoon and MacKinnon. The Occupational

6 WCAT Decision #308 Page 6 of 8 Disability Guidelines indicate that [PERSONAL INFORMATION] should have fully recovered within 42 days of the date of the injury and as a result Dr. Visser concluded that [PERSONAL INFORMATION] current conditions are more likely related to her pre-existing condition. 23. The Respondent references POL-68 and then noted that the Workers Compensation Board has the right and ability to accept the opinion of Dr. Visser over that of Drs. Wotherspoon and MacKinnon. 24. As a result of the medical evidence provided and the policies, the Respondent advances that the Appeal should be dismissed. Decision 25. In reaching its decision, the Tribunal very carefully reviewed all of the materials provided, the comprehensive Factums and supporting materials plus the thorough submissions from Counsel. When all of the material was distilled, the decision came to rest solely upon which medical evidence should be preferred. In reaching our decision, the Tribunal was guided by Board Policy POL Section 7 of POL-68 poses a serious of information upon which the decision should be guided. The Tribunal answered the matters advanced as follows: a) The Tribunal finds that the medical information can reasonably relate to the injury or symptoms to a workplace accident. b) The Tribunal finds that the workplace accident is of sufficient degree and duration to result in the reported symptoms or injury. c) There is no evidence of any other injury or intervening matter which should have caused or may have caused the injury complained of. d) The Tribunal finds that the need for time off work, related to injury has been well documented. e) The medical information was evidence based and consistent with relevant medical literature and/or disability guidelines.

7 WCAT Decision #308 Page 7 of The Tribunal then references Section 9 of POL-68 and finds the following: a) Dr. Wotherspoon is a specialist and was the sole specialist to treat [PERSONAL INFORMATION]. b) Both Drs. Wotherspoon and McKinnon actually treated [PERSONAL INFORMATION]. c) The WCB found Wotherspoon to be both relevant and creditable [Appeal Record Tab 25] d) All medical reports are based upon objective findings. e) Dr. Wotherspoon saw [PERSONAL INFORMATION] within 4 weeks of the date of the injury and treated her throughout. f) No party has suggested that there was bias or a lack of objectivity in any of the medical information advanced. 28. In addressing the evidence before the Tribunal, the following items influenced the decision: a) Drs. MacKinnon and Wotherspoon began treating [PERSONAL INFORMATION] as soon as she was injured (April 11 and April 27, 2016, respectively). Dr. Visser rendered his opinion on November 14, b) Each of Drs. MacKinnon and Wotherspoon were very clear and forceful in their opinion that [PERSONAL INFORMATION] claim ought not to be terminated. c) Each of Drs. MacKinnon and Wotherspoon were very clear and forceful that condition [PERSONAL INFORMATION] presented was a direct result of a workplace injury. d) There are two Doctors one an orthopedic surgeon a specialist who agrees on the diagnosis. Both of these physicians were treating physicians who saw [PERSONAL INFORMATION] on a regular basis. This is to be compared to the opinion of Dr. Visser who never saw [PERSONAL INFORMATION].

8 WCAT Decision #308 Page 8 of 8 e) The Tribunal was concerned by the fact that Dr. Visser s opinion was based, in whole or in part, on the presumption of deconditioning and lack of physical fitness. There is no evidence whatsoever on the record in support of this assertion. f) The Tribunal was also concerned by Dr. Visser characterizing that she injured her right shoulder with what appears to have been minimal exertion. There is no evidence as to the extent of the exertion beyond saying that a mattress slipped. Mattresses are heavy and awkward; hence the exertion could have been minimal or excessive. Dr. Visser has arbitrarily chosen the former when it could have easily been the latter. There is no evidence supplied to the Tribunal in support of either argument. 29. In the final analysis, the Tribunal has decided to prefer the evidence of a specialist treating physician and a treating family physician over the evidence of the Medical Review Officer. 30. [PERSONAL INFORMATION] was working before the accident. She was injured at the workplace. She is entitled to compensation and medical aid until such time as her injury has reached a plateau. She has not yet reached that plateau. 31. She is unable to work at this time due to that workplace injury whether that be an aggravation of a pre-existing condition or a pre-existing condition that was aggravated by her injury. 32. The Tribunal is of the view that attempting to make such a determination does not conform with the purpose of the Act as so clearly stated in MacLeod v. PEI (WCB) (1983), Carswell PEI 12 [1993], PEIJ No. 57, 115 A.P.R. 138, 144 DLR (3d) The Tribunal hereby allows the Appeal and returns the matter to the Workers Compensation Board for adjudication of appropriate benefits to the Appellant.

9 WCAT Decision #308 Page 9 of The Tribunal thanks Counsel for their materials and thoughtful submissions in this matter. Dated this 21 st day of March, Stephen D.G. McKnight, Q.C. Vice-Chairperson Worker Compensation Appeal Tribunal Concurred: Shelly Higgins, Worker Representative Bob Smith, Employer Representative