WORKERS COMPENSATION APPEAL TRIBUNAL WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #79

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL CASE ID # [personal information] BETWEEN: WORKER APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #79 Worker Stephen Carpenter Stewart McKelvey Stirling Scales Place and Date of Hearing Represented by her Spouse Solicitor representing the Workers Compensation Board Best Western Charlottetown 238 Grafton Street, Charlottetown, P.E.I. June 26, :00 a.m. Date of Decision November 15, 2007

2 - 1 - BACKGROUND INFORMATION/FACTS From a review of the Appeal Record filed in this matter, the Statement of Facts, as set out in the Factum filed by the Board provides an accurate summary of the events and processes involved in this case. The Employer s submissions filed in this matter indicate that the Employer completely agrees with the Statement of Facts as set out in the Respondent s (WCB) Factum. As the Worker in this case has not taken issue with the facts as referred to in the Factum filed by the Board in this matter, and has not drawn particular attention to any additional facts, this Tribunal adopts the Statement of Facts as set out in the Board s Factum as being accurate and reflective of the pertinent information relative to this appeal. These facts, to a slight extent edited in the interest of word economy, are as follows: Notice of Appeal In her Notice of Appeal, the Worker claimed: My Grounds of Appeal are that I think [personal information] made an error in judgement when she did not accept the expertise knowledge of Dr. A. Profitt regarding my injury. Materials Filed The Board filed a comprehensive Appeal Record involving all medical records/reports and notes to the file, many of which are referred to in its Factum. The Worker did not file any materials other than her Notice of Appeal and appears to have been content with the Appeal Tribunal ruling on her appeal, based on the information filed with the Tribunal, supplemented with the arguments ably presented by her supportive husband who assisted her in this matter. The IRO stated the issue under review at the Reconsideration Hearing as follows: RI-01: Is the worker entitled to benefits for her left shoulder injury (rotator) cuff tear) and is this related to her employment as an [personal information]? In her summary the IRO wrote: the worker, an [personal information], in [personal information] 2004 was [personal information] and hurt her left shoulder. This incident was reported to the supervisor on [personal information], Medical attention was sought on [personal information], 2004, and again on [personal information], 2004, from Dr. D. Stewart who diagnosed left AC strain and rotator cuff strain. Initially, the Worker continued to work after this injury, however, beginning on [personal

3 - 3 - information], 2004, she missed four (4) shifts and would return to work on [personal information], She is a [personal information] employee. An x-ray of the left shoulder taken on [personal information], 2004, showed a large osteophyte arising from the acromion and there are OA (osteoarthritis) changes of the AC joint. The Worker was referred to Dr. A. Profitt, Orthopedic Surgeon, and was seen on [personal information], It was Dr. Profitt s opinion that the worker had a rotator cuff strain and may have a small degenerative rotator cuff tear. He scheduled the worker for an MRI of the left shoulder. On June 3, 2004, the Worker s medical history was requested for the period of February 1, 2001, to June 1, 2004, as it related to the left shoulder. This was received on June 22, A MRI was completed on [personal information], which showed degenerative changes of the AC joint as well as moderate infrasubstance degenerative changes of the supraspinatus tendon. Dr. Profitt further indicates she has a chronic impingement syndrome. A decision letter was sent to the Worker on July 29, 2004, stating her claim had been denied. The Worker had acromioplasty, decompression, acromioclavicular joint and a repair of a rotator cuff tear of the left shoulder on [personal information], The pre-operative diagnosis was chronic impingement syndrome and arthritis of the left AC joint. Postoperative diagnosis was the same plus a small rotator cuff tear of the left shoulder. In her Rationale/Analysis for the Decision, the IRO noted that the evidence in the Worker s file revealed that: There is no definitive date of injury specified on the Worker s Report of Accident. When the Entitlement Officer spoke to the Worker on June 20, 2004, the Worker was unsure of the date of the incident. The Worker s report further states, The injury didn t bother me for a few weeks. The Worker did not report the incident to the employer until [personal information], 2004, 4-6 weeks post accident. Diagnosis provided by Dr. D. Stewart is left AC and rotator cuff strain. The left shoulder x-ray taken on [personal information], 2004, shows a large osteophyte arising from the acromion with OA changes of the AC joint.

4 - 4 - Dr. Profitt states on [personal information], 2004, that the Worker may have a small degenerative rotator cuff tear. The medical history documents previous left shoulder problems with no history of injury on [personal information], 2000, [personal information], 2003, [personal information], 2003, [personal information], 2003, [personal information], The [personal information], 2004, entry also states, No particular recalled injury. A cervical spine x-ray taken on [personal information], 2002, shows minor degenerative changes in the mid-cervical spine facet joints. A MRI completed on [personal information], 2004, showed degenerative changes of the AC joint as well as moderate infrasubstance degenerative changes of the supraspinatus tendon. The operative report dated [personal information], 2005, indicates chronic impingement syndrome and arthritis in the left AC joint. Policy Weighing of Evidence states, In determining entitlement, the Workers Compensation Board requires evidence that:. an injury has occurred;. the injury was caused by an accident arising out of and in the course of employment;. the diagnosed condition is compatible with the history provided. The standard of proof for decisions made under the Act is the balance of probabilities - a degree of proof which is more probable than not. The IRO concluded: In reviewing the file, it is my opinion the evidence does not support the symptoms the worker is experiencing as being related to her work. As noted above, the worker was unsure of a date of injury and the medical history supports previous left shoulder problems without any precipitating event. The medical on file also supports the worker having pre-existing degenerative changes which are attributing to her symptoms. The balance of probabilities does not weigh in favour of the worker, therefore the reconsideration request has been denied.

5 - 5 - THE ISSUE The Issue in the Appeal is: Whether the Worker suffered a left shoulder injury in the course of her employment, entitling her to compensation benefits pursuant to the Act. THE STANDARD OF REVIEW The Board s Solicitor noted that at the time that its Factum was being prepared, an earlier Decision of the Tribunal (Decision #37) ruled that the Standard of Review applicable to IRO Decisions was one of correctness, and that Decision was under Appeal to the Appeals Division of the Supreme Court of this Province. The Appeals Division of the Supreme Court rendered their decision in Workers Comp. Brd. (PEI) v. MacDonald 2007 PESCAD04: The Act provides for an appeal from a decision of the WCAT on a question of law or jurisdiction to this division of the Supreme Court of Prince Edward Island. As stated in Dr. Q, the choice of the standard of review by a reviewing court is a question of law and the reviewing court must be correct. Similarly, the choice of the standard of review by a reviewing tribunal, like WCAT, is a question of law and the reviewing tribunal must be correct. In my opinion the WCAT panel was correct in the choice of its standard of review or, perhaps more appropriately, it was correct in setting the parameters of its jurisdiction to review decisions of the Board. Accordingly, the standard of review to be applied in this case is correctness. The Legislation Workers Compensation Act, Chapter W-7.1 Section 1(1): (a) Accident means, subject to subsection (1.1) a chance event occasioned by a physical or natural cause, and includes: (A) (B) event rising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of employment and as a result of which a worker is injured.

6 - 6 - Section 6: (1) Where, in any industry within the scope of the Part, personal injury by accident arising out of and in the course of employment is caused to a worker, the Board shall pay compensation as provided by this Part out of the Accident Fund. (9) Where an accident caused personal injury to a worker and that injury is aggravated by some pre-existing physical 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 Board, has reached a plateau in medical recovery. Section 17: Notwithstanding anything in the Act, on any application for compensation the decision shall be made in accordance with the real merits and justice of the case and 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. Board Policy PRE-EXISTING CONDITIONS - POL DEFINITIONS 1. Aggravation means the worsening of a work-related injury due to a pre-existing condition. 2. Pre-existing condition means any condition which, based on a confirmed diagnosis or medical judgement, existed prior to the current work-related injury. 3. Objective medical evidence means evidence presented through a physical examination including diagnostic tests on a worker and reported by the treating or family physician. 4. Loss of earning capacity means the difference between the worker s net average earnings before the accident, and the net average amount the Workers Compensation Board determines the worker is capable of earning after the accident. 5. Plateau in medical recovery means there is little potential for improvement or any potential changes in the condition are in keeping with the normal fluctuations which can be expected with that kind of injury. 6. Rate group means a group to which an industry is assigned for assessment purposes.

7 - 7 - POLICY 1. The Workers Compensation Board has exclusive jurisdiction to determine whether any injury is caused by a work-related accident. 2. Where the worker is injured as a result of a work-related accident, and the injury is aggravated by a pre-existing condition of the worker, compensation for the injury will be paid in full until the Board is satisfied the worker has reached a plateau in medical recovery for that injury. 3. If a worker suffers a loss of earning capacity related in part to an accident and in part to a cause other than an accident, the Board will determine what portion of the worker s loss of earning capacity is a result of a cause other than an accident and charge that portion against the rate group to which the worker s employer belonged at the time of the accident. ANALYSIS At the Hearing the Worker argued that any delay in immediately reporting the incident was due mainly because of the fact that she believed that she just suffered a kink that should go away. She interpreted Dr. Profitt s conclusions as indicating that her rotator cuff tear was, in part, work related. However, upon reviewing his report, Dr. Profitt simply stated that the Worker had: A small rotor cuff tear at the time of surgery which could definitely be related to her [personal information]. Essentially, the Worker s whole case is based on this assessment/opinion of Dr. Profitt. However, the Board takes the position that based upon the whole of the medical evidence, and especially all of Dr. Profitt s opinions/assessments, both before and after the shoulder surgery, there is no evidence to support the Worker s interpretation of Dr. Profitt s views which lead to the conclusion, reached by the Worker, that the right shoulder cuff tear was in fact caused by her work incident involving the [personal information], as the Worker contends happened in this case. The Board s position, as stated at the hearing in this matter, was not to argue against the Worker s position that she suffered and continues to suffer pain. The Board s position is that the crux/central issue of this case involves the question of causation. Did a [personal information] incident at work cause the right shoulder cuff tear? Did the

8 - 8 - Worker s injury arise out of and in the course of her employment, or, was there some other likely non-work related cause for her shoulder pain and subsequent requirement for surgery? The Board argued that there were other reasonably plausible explanations, in fact amounting to strong evidence, to the effect that the injury was not the result of [personal information]. It argued therefore, that the IRO made the correct Decision in all of the circumstances. As did the IRO, the Board s Solicitor pointed out: no specific time or date of the injury; substantial medical evidence (from the worker s family physician) of previous and frequent shoulder problems and medical treatment, including physio for same in the year previous to the injury; and, the whole of Dr. Profitt s reports, indicating the presence of a degenerative arthritic condition in the worker that existed prior to the [personal information] incident in this case. The Board s Solicitor properly pointed out that the test, for determining whether or not an injury was work-related, is on the balance of probabilities. The Board s Solicitor pointed out that the IRO had the results of the [personal information], 2004, x-ray that showed a large osteophyte arising from the acromion and osteoarthritic changes to the AC joint. This, so says the Board, is evidence of a pre-existing arthritic condition. On [personal information], 2004, Dr. Profitt wrote: The worker has had a rotator cuff strain and may have a small degenerative rotator cuff tear. I am therefore going to schedule her for an MRI of her left shoulder and will see her in followup. At present she is unable to work because of her ongoing shoulder symptoms. In his post-operative report, Dr. Profitt concluded: There were gross degenerative changes of the AC joint. Some six months earlier, in his July 13, 2004, medical comment to the file, Dr. Carruthers, after a review of all of the reports and medical information in the file to that date, concluded: The degenerative findings noted on the x-rays of her shoulder would be compatible with production of a small rotator cuff tear as indeed would the work activity as described. However, I take particular note of (1) this worker seeking medical attention for symptoms involving the left shoulder in the year prior to filing of this claim, (2) no particular recall of an injury as noted when she first sought medical attention, (3) subsequent recall of a possible work event did not take place until 7 weeks later with no specific relationship in the interim.

9 - 9 - Section 17 of the Act states: Based on the present medical information it would be my medical opinion within a reasonable degree of medical certainty that it is less than likely that the worker s need to seek medical attention in [personal information] 2004 resulted from a work-related left rotator cuff injury. The worker has pre-existing degenerative changes that are compatible with the production of a degenerative tear. It should also be appreciated that there is a prevalence of approximately 25 percent of asymptomatic rotator cuff tears in the age group and a prevalence of over 50 percent asymptomatic tears in the over 60 age group. 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 and 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. Mr. Justice Mitchell, speaking for the Appeal s Division of the Supreme Court of this Province in MacLeod v. WCB 40 Nfld & PEI p. 138 PEICA at p. 143 held: Accordingly, the Worker s Compensation Act should be interpreted liberally so as to provide compensation for work-related injuries to as many as can reasonably be seen to fall within its purview.... A worker, such as the appellant, should therefore be given compensation benefits if his case can reasonably be brought within the scope of the legislation. Mr. Justice Mitchell in Blanchard v. WCB PEI (1995) 49 Nfld & PEIR 150 (P.E.I.SCAD) held: On any application for compensation an applicant is entitled to the benefit of the doubt, which means that is not necessary for the applicant to adduce conclusive proof of his right to the compensation applied for, but the Board is entitled to draw and shall draw from all the circumstances of the case, the evidence and medical opinions, all reasonable inferences in favour of the applicant (emphasis added)

10 CONCLUSION Based on all of the evidence, we are satisfied, applying the test of correctness, that there was ample evidence to support the Decision of the IRO in upholding the Decision of the Entitlement Manager in denying the claim in that case. Section 17 does not apply because the preponderance of the evidence is not in favour of the position taken by the Worker in this case: it is in fact strongly supportive of the position taken by the Board which concluded that the Worker s injury was not caused in whole or in part by the work incident complained of. The Worker cannot bring her case within any of the principles set out in the MacLeod and Blanchard cases. The Appeal is Denied. Dated this 15 TH day of November, ALLEN J. MacPHEE, Q.C. Chair of the Appeal Tribunal DON CUDMORE Panel Member NEIL MacFADYEN Panel Member

11 WORKERS COMPENSATION BOARD APPEAL TRIBUNAL BETWEEN: WORKER APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #79