WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1700/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1700/07 BEFORE: A. Morris : Vice-Chair C.J. Robb : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: July 18, 2007 at Kitchener Oral DATE OF DECISION: November 20, 2007 NEUTRAL CITATION: 2007 ONWSIAT 2920 DECISION(S) UNDER APPEAL: WSIB ARO decision dated January 12, 2006 APPEARANCES: For the worker: For the employer: Consuelo Iglesias, OWA Not participating 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. 1700/07 REASONS (i) Introduction [1] These are the reasons for the decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by the worker from the decision of Appeals Resolution Officer (ARO), A. Clark. That decision concluded as follows: the worker was not entitled to ongoing benefits for a right shoulder condition; the worker was not entitled to an assessment for a permanent impairment of the right shoulder; the worker was not entitled to benefits for a left shoulder condition; the worker was not entitled to an assessment for a permanent impairment of the left shoulder. (ii) Background [2] The worker, who is now 41 years old, began working as a part-time warehouse labourer for a large retail store on June 5, He helped unload a snow blower and shed from a truck on November 5, 2001, during a delivery. Later that evening he experienced pain in his right shoulder. He reported the injury to his supervisor on November 6, [3] The worker also sought medical treatment at a local Urgent Care Centre on November 6, The clinic provided a diagnosis of soft tissue injury to the right shoulder. The Form 8 Physician s First Report was completed by the worker s family doctor, Dr. Wurtele, on November 8, Dr. Wurtele diagnosed a shoulder strain. The Claims Adjudicator (CA) allowed the claim for a right shoulder strain by letter dated December 24, [4] The worker did not return to work, as the employer was unable to offer modified work. On January 1, 2002, the worker was laid off temporarily because of a post-season decrease in business. On April 15, 2002, his employment was terminated. [5] The Board continued to pay LOE benefits to the worker because the employer had been unable to provide suitable work and the worker required suitable work. The Board then provided the worker with a six week work-conditioning program through the Canadian Back Institute (CBI) which began in March, It was determined that the worker was capable of returning to the essential duties of his pre-accident employment at the time he was discharged from the program on May 14, The CA terminated benefits at that time. [6] The worker objected to the closure of the claim. According to the letter from the CA dated March 25, 2004, he sought entitlement to a permanent impairment in relation to the right shoulder. He sought entitlement to a left shoulder condition which his doctor attributed to overuse due to the problems with the right shoulder. He sought benefits beyond May 14, He sought Labour Market Re-entry (LMR) services. He sought a Non-Economic Loss (NEL) assessment. These claims were denied by the CA, primarily on the basis of the medical evidence.

3 Page: 2 Decision No. 1700/07 [7] The worker appealed to the ARO who referred the matter back to the CA for investigation and clarification of certain matters. LOE benefits were subsequently extended to July 11, 2002, the date of a report by an orthopaedic specialist, Dr. Boynton. At the time of the ARO hearing, the worker s representative advised that LOE and LMR benefits were no longer an issue as the worker was employed. [8] The ARO upheld the decision of the CA to deny ongoing entitlement for the right shoulder, to deny a permanent impairment assessment for the right shoulder, to deny entitlement to benefits for a left shoulder condition, and to deny a permanent impairment assessment for the left shoulder. The worker now appeals to the Tribunal. (iii) Issue [9] The issues on this appeal as referred to in the Hearing Ready Letter of October 11, 2006 are as follows: Is the worker entitled to ongoing benefits for his right shoulder condition? Is the worker entitled to a permanent impairment assessment for his right shoulder? Is the worker entitled to benefits for a left shoulder condition which he claims is a consequence of the right shoulder injury? Is the worker entitled to an assessment for a permanent impairment of the left shoulder? (iv) Decision [10] We find that the worker is not entitled to ongoing benefits with respect to his right shoulder and is not entitled to a permanent impairment assessment with respect to his right shoulder. We also find that the worker is not entitled to benefits in relation to a left shoulder condition. Our reasons follow. (v) Analysis [11] The Form 6 Worker s Report of Injury/Disease completed by the worker on November 30, 2001, indicates that the worker did not feel pain immediately when he helped lift the snow blower and shed off the truck. He didn t feel pain until later that evening. The pain was in his right shoulder. He believed that he had hurt himself lifting the snow blower although he initially thought that the pain might have been caused by a smoker s patch that he was wearing. The doctor advised him that this had nothing to do with the pain. [12] An x-ray of the shoulder performed on November 6, 2001, showed a normal examination. He was diagnosed by the Urgent Care Centre as having a soft tissue injury to the right shoulder. His family doctor, Dr. Wurtele, indicated a diagnosis of right shoulder strain on the Form 8 of November 8, She indicated that she expected a full recovery in four to six weeks. [13] The worker saw Dr. Richardson of Kinetex Innovative Assessment & Rehab Centre Inc. on December 4, Dr. Richardson noted that the x-ray and an ultrasound were normal. The ultrasound of November 16, 2001, which is presumably the ultrasound to which Dr. Richardson was referring, indicated that a rotator cuff tear was not demonstrated and that the examination

4 Page: 3 Decision No. 1700/07 was normal. Dr. Richardson felt that the clinical findings in relation to the worker were consistent with a rotator cuff tendonitis with a myofascial reaction in the shoulder girdle area. [14] Dr. Wurtele repeated Dr. Richardson s diagnosis in the Form 26 Physician s Progress Report of January 7, She expected improvement in eight to 12 weeks and complete recovery in three to four months. She indicated that the worker was to have no use of his right shoulder. We note that the worker was in any event not working at this time. [15] In the Form 26 dated February 4, 2002, Dr. Wurtele indicated that she expected ongoing improvement over the next six to eight weeks and complete recovery in the next two to three months. With respect to restrictions, the worker was to have no heavy or repetitive use of the right arm. [16] On February 26, 2002, Dr. Richardson noted that the right shoulder range of motion was full but that the impingement sign for tendonitis was positive. He indicated that the worker continued to suffer from rotator cuff tendonitis which was being aggravated by physiotherapy. He thought that the worker might have to tone down the exercises. [17] In the Form 26 completed by Dr. Wurtele on March 27, 2002, she indicated that she did not expect the worker to recover completely. The diagnosis of rotator cuff tendonitis was the same and she did not provide a reason as to why she now thought that the worker would not recover. [18] The worker saw Dr. Bright at Kinetex Assessment & Rehab Centre Inc. on August 5, 2002 and Dr. Bright administered a cortisone injection. Dr. Bright also provided the worker with a letter to give to the CBI to avoid certain activities during the next two weeks. A note provided by Dr. Bright on April 5, 2002, indicated first a diagnosis of cervical radiculopathy and also a diagnosis of rotator cuff tendonitis. Dr. Bright did not refer to cervical radiculopathy in his narrative report of April 5, The worker was not granted entitlement for a neck condition and entitlement for a neck condition is not an issue in this appeal. [19] The worker attended the CBI for a work conditioning program. The discharge report of May 3, 2002, indicated that on discharge, the worker demonstrated full, functional neck and active right shoulder range of movement, although he continued to demonstrate marked forward head posture and forward rounded shoulders. Under the heading Pain Control, the report noted that initially the worker had reported right side neck, shoulder and intermittent pain into the right elbow, which the service provider believed were consistent with discogenic neck problems with referred arm pain. He also demonstrated right shoulder pain which the service provider felt was indicative of an impingement injury. [20] A report from Dr. Bright dated May 24, 2002, indicated that the worker had had some benefit from two cortisone injections with a decrease in the frequency and severity of the pain. However, he was definitely not pain-free. Because of the limited response to treatment, Dr. Bright referred the worker to an orthopaedic specialist, Dr. Erin Boynton. [21] Dr. Boynton saw the worker on July 11, On examination, she found no deformity or atrophy around the right shoulder girdle. The worker had a restricted range of movement of

5 Page: 4 Decision No. 1700/07 the neck. The range of motion of the right shoulder was normal. The impingement signs were negative. The neurovascular examination was normal. There was no evidence of instability. She thought that the worker might have had some mild scapulothoracic bursitis. Her impression was that the worker s symptoms likely came from his neck. She indicated that she would not limit him in his work at that time. She would encourage him to get off the analgesics that he was taking. [22] On August 11, 2003, Dr. Wurtele provided an update with respect to the worker s condition. She continued to believe that the worker had a right shoulder strain triggered by work. She indicated that the physiotherapist thought that there was a neck component to the worker s injury but that both she and Dr. Richardson felt that the major problem was in his shoulder with referral spasms into the neck and compensatory headaches. [23] We note at this point that Dr. Boyton also thought that there was a neck component to the worker s injury as did apparently Dr. Brighton, as shown in the note which he provided on April 5, 2002 and which was referred to above. [24] Dr. Wurtele went on to advise that the worker had permanent restrictions as a result of his work-related injury. Dr. Boyton, by contrast, had imposed no restrictions. When providing ranges of motion measurements with respect to both shoulders, Dr. Wurtele opined that there were abnormalities of the left shoulder which she felt were a direct result of overuse of that side in trying to compensate for the problems on the right shoulder. She did not expect any improvement over time. She did not provide a diagnosis in relation to the left shoulder. Dr. Wurtele also forwarded her clinical notes and records for the period. [25] The ARO, confronted with conflicting medical reporting, sought an opinion from Senior Appeals Medical Consultant, Dr. Kanalec. In Board Memo #49, Dr. Kanalec noted the conflict with respect to the diagnoses between the treating practitioners, Dr. Wurtele and Dr. Richardson, and the orthopaedic specialist, Dr. Boynton. In addition, he felt that there was inconsistency on whether true shoulder impingement existed. He noted that Dr. Boynton did not think so, and felt that the problems stemmed from the neck. In addition, Dr. Kanalec noted that all shoulder imaging studies to date, plain film and ultrasound failed to demonstrate any abnormality. Dr. Kanalec also opined that with impingement or rotator cuff tendonitis, one would have expected some relief with cortisone injections and this did not occur. Dr. Kanalec also noted that a review of Dr. Wurtele s clinical notes and records showed a lack of consistent complaint with respect to the right shoulder. There were no entries with respect to the right shoulder from October 1, 2002, until an entry on July 17, [26] Dr. Kanalec s opinion was that he did not think that a permanent right shoulder work-related impairment exists. Notwithstanding the conflicting medical information and despite the ongoing periods of subjective complaints, the ultrasound did not demonstrate any rotator cuff abnormality and Dr. Boynton demonstrated normal range of motion without impingement. There were significant periods in the doctor s records where shoulder complaints were not present. [27] In reviewing all of the medical information, we agree with Dr. Kanalec s medical opinion with respect to a permanent impairment of the right shoulder.

6 Page: 5 Decision No. 1700/07 [28] We also note the following with respect to the worker s work history since the accident of November, The worker s evidence was that he started working as a security guard in July, He lost this job due to frequent absences in April, A review of Dr. Wurtele s clinical notes and records indicate that these absences were not related to the shoulder. In approximately July, 2003, he began working for a janitorial service. He had medical problems not related to the right shoulder during this time. Since March, 2004, he has worked as a security/custodian person at a nursing home. These jobs have been at no wage loss. The job at the nursing home pays significantly more than what the worker had been earning with the accident employer. The janitorial job and custodial aspects of the nursing home job would seem to require the use of the upper extremities, suggesting that the worker has sustained employment over a significant period of time working without restrictions of the shoulders. He advised that he did this with the help of prescription pain medication, but the evidence was that he had used prescription pain medication on an ongoing basis prior to the accident of November, 2001, because of a back condition. [29] We find that the worker had recovered from his right shoulder injury by the time of the consultation with Dr. Boynton on July 11, [30] With respect to the left shoulder, we find insufficient evidence of a left shoulder impairment as related to the workplace injury of November 5, [31] We find that the worker is not entitled to benefits with respect to the right shoulder subsequent to July 11, 2002, and is not entitled to a permanent impairment assessment in relation to the right shoulder. We find that the worker is not entitled to benefits in relation to the left shoulder, including benefits in relation to a permanent impairment.

7 Page: 6 Decision No. 1700/07 DISPOSITION [32] The appeal is dismissed. DATED: November 20, 2007 SIGNED: A. Morris, C.J. Robb, M. Ferrari