WORKERS COMPENSATION APPEAL TRIBUNAL

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #210 Appellant Respondent Maureen Peters, representing the Worker Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing Thursday, April 2, 2015 Quality Inn on the Hill 150 Euston Street Charlottetown, Prince Edward Island Date of Decision May 18, 2016

2 WCAT Decision #210 Page 1 of 15 Facts and Background 1. The Appellant was employed with [PERSONAL INFORMATION] in the [PERSONAL INFORMATION]. On March 29, 2010 the Appellant filed a Form 6 with the Workers Compensation Board, which was received on March 30, The form indicated that the Appellant was experiencing pain in the right shoulder and neck, which was reported to her supervisor on December 28, [Appeal Record Tab 5] 2. In a report dated April 6, 2010, a Board Occupational Therapist reviewed the Appellant s work duties and determined that risk factors for the right shoulder/neck could be appreciated. [Appeal Record Tab 6] 3. The Board accepted the Appellant s claim for compensation for right shoulder/neck impingement syndrome effective March 30, [Appeal Record Tab 7] 4. On June 5, 2010 the Appellant began an ease back program, working for four hours a day at modified duties. [Appeal Record Tabs 27, 28, 34, 36, 40, 41, and 45] 5. On August 9, 2010 the Appellant was examined by Dr. John Campbell, Orthopedic Surgeon, who reported that he believed the Appellant was suffering from a right shoulder rotator cuff tear of the repetitive strain type. He recommended that she stop working and referred her for an MRI. [Appeal Record Tab 47] 6. On September 28, 2010 the Appellant saw Dr. Campbell again and the results of the MRI were reviewed. A rotator cuff tear was confirmed and the Appellant was booked for surgery. [Appeal Record Tab 51] 7. On April 4, 2011 the Appellant underwent a right shoulder arthroscopy, glenohumeral examination, and subacromical acromioplasty with distal clavicular excision. [Appeal Record Tab 55]

3 WCAT Decision #210 Page 2 of On December 12, 2011 Dr. Campbell performed an open excision of the distal clavicle as the Appellant was continuing to experience right shoulder symptoms. [Appeal Record Tab 82] 9. In a follow up appointment on February 9, 2012 the Appellant was again examined by Dr. Campbell. Dr. Campbell noted that the Appellant was experiencing pain in the left shoulder similar in nature to the symptoms experienced in the right shoulder. [Appeal Record Tab 87] 10. On February 29, 2012, the Board Medical Advisor, Dr. Stephen O Brien, provided an opinion stating that the Appellant s left shoulder symptoms would not be related to the right shoulder condition or activity that initiated the claim. On the same date, the Case Coordinator wrote to the Appellant advising that her left shoulder symptoms would not be approved under the claim. [Appeal Record Tabs 88 and 91] 11. The Appellant saw Dr. Campbell again on September 21, 2012 and January 8, On both occasions, Dr. Campbell noted that the Appellant was experiencing symptoms in her left shoulder. [Appeal Record Tabs 121 and 125] 12. On January 29, 2013 the Board received a letter from the Appellant requesting that her left shoulder be covered under her claim. The Appellant felt her left shoulder symptoms were the result of overcompensating for her right shoulder injury. She stated in the letter that Dr. Campbell agreed. [Appeal Record Tab 126] 13. On April 24, 2013, the Case Coordinator responded, in writing, to the Appellant s request, stating that the decision to deny coverage for the left shoulder would not change. [Appeal Record Tab 133]

4 WCAT Decision #210 Page 3 of On July 29, 2013 the Appellant submitted a Request for Internal Reconsideration. [Appeal Record Tab 142] 15. On October 8, 2013 the Internal Reconsideration Officer ( IRO ) dismissed the Appellant s reconsideration request. The IRO returned the file to Client Services for consideration of new evidence on the file subsequent to the Appellant s request. [Appeal Record Tab 146] 16. On November 1, 2013 the Case Coordinator wrote to the Appellant informing her that after review of the new evidence, namely the MRI results and the report from Dr. John Campbell, it was determined that the new information did not change the previous decision regarding the left shoulder. [Appeal Record Tab 147] 17. On January 27, 2014 the Appellant submitted a second request for Internal Reconsideration. [Appeal Record Tab 152] 18. On March 13, 2014, the IRO issued a decision denying the Appellant s reconsideration request. [Appeal Record Tab 1] 19. The Appellant filed a Notice of Appeal with the Workers Compensation Appeal Tribunal ( WCAT ) appealing the above decision on April 11, [Appeal Record Tab 2] Issue 20. Was the decision to deny the Appellant's claim for left shoulder symptoms appropriate?

5 WCAT Decision #210 Page 4 of 15 Appellant s Argument 21. The Appellant argued that the left shoulder symptoms were a result of overcompensation of the right shoulder injury and should be covered under the claim by virtue of Section 6(1) of the Workers Compensation Act, R.S.P.E.I Cap. W-7 (the Act ), which states the Board shall pay compensation to any member who suffers "personal injury by accident arising out of the course of employment". 22. The Appellant submitted that there was sufficient evidence to support, on a balance of probabilities, that her left shoulder symptoms were related to her compensable right shoulder injury. 23. The Appellant submitted medical evidence from her treating Orthopedic Surgeon, Dr. John Campbell, who wrote in a letter dated January 8, 2013: [PERSONAL INFORMATION] also has similar pain in her left shoulder, which is related to her right shoulder in the sense that it is over compensating and causing degenerative changes at her left shoulder. I think this is related to her right shoulder from her injury and I would ask that her left shoulder be considered under the same coverage as her right. [Appeal Record Tab 125] 24. The Appellant had an MRI performed on the left shoulder in February 2013, with findings of a very similar nature to the right shoulder. Dr. Campbell stated in part: The findings on the left shoulder are very similar to her right. It does suggest that there is probably a small full thickness rotator cuff tear, some subacromial impingement, and AC joint arthritis. [Appeal Record Tab 134]

6 WCAT Decision #210 Page 5 of The Appellant acknowledged that there was conflicting medical evidence. Dr. Stephen O Brien, Board Medical Advisor, was not in agreement with Dr. Campbell s opinion regarding the causation of the Appellant s left shoulder symptoms. His medical opinion dated April 2, 2013 stated: The acromioclavicular issue was osteoarthritis, which would be a pre-existing condition which would take many years to develop and would not have been affected by her right shoulder condition or the activity that initiated this claim. As noted previously, the only workplace risk factors that were relevant under this claim were risk factors specific to her right shoulder. [Appeal Record Tab 130] 26. The Appellant submitted that Pol 68 Weighing of Evidence should be applied in this case and that Dr. O Brien s report should not be given as much weight in the decision making process. Pol-68 states in part: 9. Where there is conflicting medical information on a claim, the Workers Compensation Board will analyse the information objectively using the following criteria: the expertise or degree of specialization of the health care provider giving the opinion; the relevance of the clinical expertise of the heath care provider giving the opinion to the medical question being addressed; the accuracy of the information relied upon by the health care provider; objective versus subjective medical information; the relevance of any research referenced by the health care provider; and any issues of bias or objectivity. 27. The Appellant argued that the medical evidence and opinion of Dr. John Campbell, treating orthopedic surgeon, should be given greater weight than that of Board Medical Advisor, Dr. O Brien. Dr. Campbell is an orthopedic surgeon, a degree of specialization that is not shared with Dr. O Brien. Dr. Campbell also treated the Appellant throughout the claim, while Dr. O'Brien never met the Appellant.

7 WCAT Decision #210 Page 6 of The Appellant noted that the MRI report was never sent to Dr. O Brien, as it was determined by the Case Coordinator that it would not change the decision on the left shoulder claim. 29. The Appellant submitted that the diagnosis of a rotator cuff tear meant that she was not suffering from an inherent medical condition, as opined by Dr. O Brien, and that absent evidence of intervening or alternative causes for the injury, the only rational explanation was that it related to the workplace injury that initiated the claim. 30. The Appellant argued in response to Dr. O Brien s opinion that there were no risk factors present associated with the left shoulder during the workplace assessment by the Board Occupational Therapist in The Appellant submitted that there were no risk factors indicated only because these risk factors were not being evaluated. 31. The assessment did not give a complete or accurate assessment of the worker s date of accident duties but rather only the duties that were related to her right shoulder. In addition to grading, the Appellant was required to do cleaning involving awkward positions and heavy lifting to empty tubs of product. The Appellant was also responsible for changing screens on the machines, which exposed her to vibrations. [Appeal Record Tab 6] 32. The Appellant provided the Tribunal with a British Columbia Workers Compensation Appeal Tribunal Decision No In that case there were also conflicting medical opinions as to whether or not left shoulder symptoms arose as a result of overcompensating for a compensable right shoulder injury. The BC Board Medical Advisor was of the opinion that the left shoulder symptoms were not related, while the treating orthopedic surgeon felt that they were related. The Tribunal found in favour of the Appellant in that case, stating:

8 WCAT Decision #210 Page 7 of 15 While it is not necessary for a physician or practitioner to have personally examined a worker in order to provide a persuasive opinion or persuasive evidence on a matter under appeal, in these particular circumstances, I place weight upon the fact that Dr. Tarazi has examined the worker and treated him over time. Dr. Tarazi had the opportunity to assess the worker s left shoulder over time in a clinical setting and I place significant weight upon that assessment. I also find the evidence of Dr. Tarazi to be particularly persuasive as he is a specialist in orthopedic surgery. I place significant weight upon the fact that Dr. Tarazi treated the worker during the course of his right shoulder injury and performed surgery. He therefore has directly observed and assessed the state of the worker s right shoulder before and after that surgery, with reference to the operative and clinical findings as well as the functional limitations in the worker s right shoulder and arm. Dr. Tarazi is of the opinion the left shoulder symptoms are a result of overcompensation. [Appellant s Factum Tab 4] 33. The Appellant further argued that in the event that the Tribunal finds the evidence to be at least equal in weight, the benefit should be given to the worker by virtue of Section 17 of the Act which states: 17. Notwithstanding anything in this Act, on any application for compensation the decision shall be made in accordance with the real merits and justice of the case where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant , c.67, s. 17. Respondent s Argument 34. The Respondent argued that this was not a personal injury arising out of the course of employment as set out in Section 6 of the Act. 35. The Respondent argued that the original claim was accepted for right shoulder repetitive strain. There was no mention of any issues or symptoms relating to the left shoulder for approximately two years after the original claim was made. It was the Respondent s position that there was no connection between the two shoulder issues.

9 WCAT Decision #210 Page 8 of The Respondent noted that on August 6, 2010 when the Appellant was assessed by Dr. Campbell, he noted that the Appellant had a rotator cuff tear of her right shoulder and made a referral for an MRI. The Respondent stated that Dr. Campbell made no mention made of the left shoulder. 37. The Respondent argued that while there was some reference made by Dr. Campbell to the Appellant s left shoulder symptoms in February 2012, there was no causal connection relating the left shoulder to the right shoulder injury. Dr. Campbell s letter dated February 9, 2012 stated in part as follows: [PERSONAL INFORMATION] is also having pain at her left shoulder of a very similar nature and I suspect this is mostly from acromioclavicular issues as well. [Appeal Record Tab 87] 38. The Respondent advised that Dr. Stephen O Brien s opinion clearly stated that the left shoulder symptoms did not arise from nor were related to the right shoulder work injury. Dr. O Brien s opinion dated February 24, 2012 stated in part as follows: The acromioclavicular issue was osteoarthritis which would be a pre-existing condition which would take many years to develop and would not have been affected by her right shoulder condition or the activity that initiated this claim. [Appeal Record Tab 88] 39. The Respondent further noted that the Functional Capacities Evaluation completed on the Appellant on June 4 and 5, 2012, showed the left shoulder capacities to be within normal limits in all areas. [Appeal Record Tab 113] 40. The Respondent argued that it was not until Dr. Campbell's letter of January 2013 that he attempted to draw a connection between the left shoulder pain and the original injury.

10 WCAT Decision #210 Page 9 of The Respondent stated that there was no conclusive evidence to support this and Dr. Campbell did not provide any further objective medical evidence. [Appeal Record Tabs 134 & 135] 42. The Respondent stated that on February 1, 2013, the Appellant had an MRI on her left shoulder which revealed a rotator cuff tear. [Appeal Record Tab 135] 43. The Respondent argued that in his letter dated February 6, 2013, Dr. Campbell failed to specify the connection between both shoulder issues. In referencing the MRI results, Dr. Campbell stated, in part: The findings on the left shoulder are very similar to her right. It does suggest that there is a probably a small full thickness rotator cuff tear, some subacromial impingement, and AC joint arthritis. [Appeal Record Tabs 134 and 135] 44. The Respondent argued that there was no conclusive evidence to support that finding and that Dr. Campbell did not provide any further objective medical evidence. 45. The Respondent submitted that Dr. O Brien s opinion clearly identified the cause of the left shoulder symptoms to be degenerative arthritis. In his report dated April 2, 2013 Dr. O'Brien stated: The fact that Dr. Campbell reported on February 9, 2012, just 2 months following her right shoulder surgery, similar symptoms in the left shoulder; during which time because of the post-surgical nature [PERSONAL INFORMATION] would not have been overly active would indicate that her left shoulder symptoms were indeed a pre-existing condition and not related to the workplace activity that initiated this claim or to the treatments provided for her right shoulder.

11 WCAT Decision #210 Page 10 of The Respondent suggested that it appeared as though Dr. Campbell was in a position of advocating for the Appellant. The Respondent stated that the Board placed greater weight on the opinion of Dr. O Brien as he offered an objective medical opinion rather than a subjective opinion. 47. The Respondent argued that with the conflicting medical evidence on this file, the Tribunal must weigh the evidence pursuant to POL-68 "Weighing of Evidence", most specifically sections 7 and The Respondent argued that objective medical evidence was more persuasive than subjective medical evidence. 49. The Respondent suggested that it was compelling that the discussion on the left shoulder did not arise until some two (2) years after the initial injury. 50. The Respondent also pointed to the report of June 8, 2013 of Dr. Campbell in which he made an attempt to explain and discuss the acromioclavicular arthritis. He stated, "I think this is related to her right shoulder from her injury and I would ask that her left shoulder be considered under the same coverage as her right." 51. The Respondent further argued that the MRI on the left shoulder did not link the Appellant's left shoulder injuries to the workplace injury which initiated the claim. 52. The Respondent suggested that the evidence weighed against the Appellant and therefore on a balance of probabilities there was no causal link in the Appellant's left shoulder the original incident. Analysis/Decision

12 WCAT Decision #210 Page 11 of Pursuant to Section 6 under the Workers Compensation Act, R.S.P.E.I. 1988, W-7.1 the Board shall pay compensation to any worker who suffers personal injury by accident arising out of and in the course of employment. 54. The Appellant argued that her left shoulder symptoms were as a result of over compensating for her compensable right shoulder injury and therefore should be covered under the claim. 55. The Appellant was employed with [PERSONAL INFORMATION] and on March 30, 2010 filed a Form 6 which was accepted for compensation effective March 30, The diagnosis accepted under the claim was right shoulder/neck impingement syndrome. 56. The Appellant began an ease back program on June 15, 2010 and on August 9, 2010 was examined by Dr. John Campbell, orthopedic surgeon, who found that the Appellant had a right shoulder rotator cuff tear of the repetitive strain type. She was referred to an MRI, recommended that she stop working and then on September 28, 2010 after reviewing the MRI, confirmed a rotator cuff tear and booked her for surgery. 57. The Appellant had surgery on April 4, 2011 and unfortunately had to have another surgery on December 12, On February 9, 2012 the Appellant was seen in a follow up with Dr. Campbell and he noted that she was having pain in her left shoulder of a similar nature to the symptoms experienced in the right shoulder. 59. The Board had requested a medical opinion from Dr. Stephen O'Brien, their medical advisor, who stated that the left shoulder symptoms would not be related to the right shoulder condition or activity that initiated the claim. The Appellant continued to see Dr. John Campbell in September 2012 and January 2013 and, on those occasions, Dr. Campbell noted that she was experiencing symptoms in her left shoulder.

13 WCAT Decision #210 Page 12 of In this case, like many others, there is conflicting medical evidence regarding the claim. On the one hand, we have the evidence of Dr. John Campbell who was of the opinion that the left shoulder injury was related to the workplace injury that initiated the claim. In his letter of January 8, 2013 he wrote: [PERSONAL INFORMATION] also has similar pain in her left shoulder, which is related to her right shoulder in the sense that it is overcompensating and causing degenerative changes at her left shoulder. I think this is related to her right shoulder from her injury and I would ask that her left shoulder be considered under the same coverage as her right. 61. The Respondent argued that Dr. Campbell, in his report of February 9, 2012, stated that the pain she was experiencing in her left shoulder was of a very similar nature to the right shoulder and the Respondent stated that Dr. Campbell also said that he suspected that it was mostly from acromioclavicular issues. 62. The Respondent argued that it was not until Dr. Campbell's report of January 8, 2013 that he actually attempted to draw some connection between the left shoulder pain and the original injury. 63. The Respondent suggested that Dr. Campbell made the request for the connection on behalf of his patient but provided no objective medical evidence to support the connection. 64. The Respondent also looked to the functional capacity evaluation which was performed on June 4 th and 5, 2012 which found that the worker's left shoulder was within normal limits for forward flexion extension and turner rotation and external rotation. 65. The Respondent argued that Dr. Stephen O'Brien's report should be given more weight. The Respondent argued that Dr. Stephen O'Brien's report explained that the acromioclavicular issue was osteoarthritis which would be a pre-existing condition which

14 WCAT Decision #210 Page 13 of 15 would have taken many years to develop and would not have been affected by the worker's right shoulder condition or the activity that initiated the claim. 66. The Appellant argued that the medical information from Dr. Campbell should be given greater weight in the decision making process than the information provided by Dr. O'Brien. The reasons being that Dr. Campbell had examined and treated the Appellant while Dr. O'Brien had not and also that Dr. Campbell was an orthopedic surgeon with a degree of specialization that was not shared by Dr. O'Brien. 67. The Appellant noted that in the Memo of April 2, 2013 Dr. O'Brien wrote that the Appellant suffered from acromioclavicular arthritis in the left shoulder which would be considered an inherent medical condition that is very common, and therefore noncompensable. However, there was a follow up report from Dr. John Campbell dated February 6, 2013 in which Dr. Campbell reviewed the MRI findings and provided a diagnosis of rotator cuff tear. It was noted that this report was not forwarded to Dr. O'Brien for review and the case coordinator determined that it would not change the decision on the claim regarding the left shoulder. 68. The Appellant mentioned that Dr. O'Brien's opinion stated that under the claim there were only workplace risk factors identified for the Appellant's right shoulder and not her left shoulder. However, as the Appellant pointed out in a letter received by the Board on January 29, 2013, the Appellant explained that she was required to use her left shoulder for more of her work tasks on account of her right shoulder symptoms. The Appellant argued that the assessment completed by the Board occupational therapist did not give an accurate or complete picture of her day of accident work duties. In addition to [PERSONAL INFORMATION] the Appellant had to do cleaning involving awkward positions and heavy lifting of [PERSONAL INFORMATION] and the Appellant noted that the review of the Appellant's duties was completed on April 6, 2010 and at that time only the right shoulder was being evaluated.

15 WCAT Decision #210 Page 14 of The Appellant provided the Tribunal with a similar fact scenario from the B.C. Workers Compensation Appeal Tribunal Decision. 70. The B.C. Tribunal stated that the associated pain was a result of overuse and noted that the worker had to rely on his left arm for many more activities. The Tribunal found that the evidence of the orthopedic surgeon was particularly persuasive because he was a specialist in orthopedic surgery, they placed significant weight on the fact that he treated the worker during the course of his right shoulder injury and performed surgery and therefore directly observed and assessed the state of the worker's right shoulder before and after the surgery with reference to the operative and clinical findings as well as the functional limitations in the worker's right shoulder and arm. The orthopedic surgeon was of the opinion that the left shoulder symptoms were as a result of overcompensation. 71. With regard to POL-68 and considering the factors in Sections 7 and 8 and Section 17 of the Act, the Tribunal finds that gives more weight to the evidence of Dr. Campbell than Dr. O Brien. Dr. Campbell examined the Appellant, performed the surgeries and advised that her left should injury was related to her right shoulder injury. The Tribunal is unsure if it would have made a difference had Dr. O Brien reviewed a copy of Dr. Campbell s February 6, 2013 report, but that report did note the MRI findings and provided a diagnosis of a rotator cuff tear. The Appellant also pointed out that there were workplace factors that could be identified for her left shoulder. 72. The Tribunal has reviewed all the evidence, the case law and has reviewed the weighing of evidence policies under the Act. The Tribunal finds that based on the weighing of evidence that the medical information could reasonably be related to the injury at the workplace accident. The Tribunal finds that while some of the evidence of Dr. Campbell may have been subjective, there was objective medical evidence regarding the Appellant. 73. The Tribunal, based on all of the evidence provided by the Appellant and Respondent, finds that the evidence for and against the issue are at least equal in weight and therefore

16 WCAT Decision #210 Page 15 of 15 we must give the benefit of the doubt to the Appellant and therefore find that the decision to deny the Appellant s claim for left shoulder symptoms was incorrect and the Tribunal finds for the Appellant. Therefore, the Appellant s appeal is allowed. 74. We thank counsel for their materials and submissions. Dated this 18 th day of May, P. Alanna Taylor, Vice-Chair Workers Compensation Appeal Tribunal Concurred: Eugene Lavers, Employer Representative Elizabeth Mobbs, Worker Representative