WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2082/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2082/16 BEFORE: R. Nairn: Vice-Chair HEARING: August 8, 2016 at Ottawa Oral DATE OF DECISION: October 28, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2937 DECISION(S) UNDER APPEAL: WSIB ARO decision dated March 5, 2012 APPEARANCES: For the worker: For the employer: Interpreter: J. Pasel, United Steel Workers Did not participate N/A 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. 2082/16 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a dietary aide in the accident employer s residential care facility. Born in 1959, the worker started with the employer in [2] On April 11, 2010, the worker injured her right shoulder at work. In her Report of Injury/Disease (Form 6) the worker described the mechanics of the accident as resident opened door aggressively at the same time I was opening the door. The door almost hit me and jarred my right arm and shoulder. In their Report of Injury/Disease (Form 7) the employer described the mechanics of the accident as resident opened door aggressively at the same time I was unlatching the door, the door almost hit me, my arm was in the handle and I jerked to get out of the road, jarred my arm & shoulder. [3] In Memo No. 1 of April 20, 2010, a WSIB (the Board ) Adjudicator noted the following after a conversation with the worker: This 51-year-old dietary aide, on April 11/10 had just reprimanded a patient from being in the walk-in-fridge. The resident left the area and when [the worker] was exiting the kitchen door she turned the lever (fire-like door) and at the same time, the same patient had pushed the door in and [the worker s] right arm got caught behind the lever and got stuck resulting in her jarring her right arm out of the lever. Pain to the biceps, right shoulder and right shoulder blade. [4] The worker sought medical attention and the Health Professional s Report (Form 8) of April 22, 2010, provided a diagnosis of right AC joint sprain. [5] As noted in Memo No. 1, the Board recognized the worker s right shoulder sprain as compensable and she was granted health care and loss of earnings ( LOE ) benefits. According to the decision on appeal, the worker was off work from April 12 to June 8, 2010, when she returned to modified duties. [6] On May 17, 2010, the worker had an MRI of her right shoulder performed and the results were interpreted to reveal: Impression: 1. Mild acromioclavicular degenerative changes. 2. Undersurface fraying/partial tear involving the distal posterior supraspinatus tendon likely extending into the conjoined tendon. Incidental note is made of minimal, more proximal associated delamination of the supraspinatus tendon at the musculotendinous junction. 3. Small amount of fluid in the subacromial/subdeltoid bursa, likely representing minimal inflammation/bursitis. [7] On September 20, 2010, the worker contacted the Board to advise that she had experienced an increase in her right shoulder pain because of some ironing she had performed at home. The worker asked that the Board grant her entitlement to further LOE benefits. However, in a decision dated October 25, 2010, a Board Case Manager denied the worker s request and concluded: ( )

3 Page: 2 Decision No. 2082/16 During the meeting with the Return to Work Specialist you explained what led to your flare-up. You had a doctor's appointment scheduled for the Monday so on Sunday, you wanted to try doing more activity to see how you were able to cope. You reported ironing 6 or 7 pieces at home and experienced an increase in pain right away. On your Worker's Continuity Report (form RE06) dated October 12, you stated that from July 21st to September 2 there has been no improvement and that your shoulder is sore all of the time. The Health Professional's Progress Report (Form 26) dated September 3rd, states you tried to use your arm and had increased pain. Policy states: A worker who is receiving benefits under the insurance plan, or who is entitled to do so, is required to provide the WSIB with any information necessary to adjudicate the claim co-operate in health care measures the WSIB considers appropriate co-operate in early and safe return to work (ESRTW) Workers must co-operate in the health care measures the WSIB considers appropriate. If they do not, the WSIB may reduce or suspend their benefits until they co-operate. From the information you provided, your flare-up was a result of not adhering to your medical limitations and performing duties at home that exceeded your limitations. It is reasonable to view this as non-co operation in your medical treatment. Based on all available evidence, applicable legislation and policy, there is no entitlement to loss of earning benefits from September 20 th. In reaching this decision the clinical findings from your recurrence were reviewed and it is noted that they are the same as prior to September 2nd except for the level of pain. [8] On November 23, 2010, the worker was assessed at the Board s Regional Evaluation Centre and in the report which followed that assessment, Dr. L. MacGregor (the evaluating physician) concluded: CLINICAL IMPRESSION Right rotator cuff tendinopathy plus or minus a mild bursitis. She had tenderness over her right pectoralis muscles and posterior cervical muscles. She had a pre-existing right shoulder injury about five years ago from which she only reported being about 65% better and always had residual symptoms prior to this most recent injury at work again. She has not had any physiotherapy or strengthening. She has had very passive treatment including chiropractic, acupuncture and massage therapy. Her prognosis is level 3 with a caveat that she has had prior pre-existing problems. She may get back to her pre-injury level, which was only 65% as she had a pre-existing problem. PLAN AND RECOMMENDATIONS 1. She should be on an anti-inflammatory and cytoprotective for at least a month and this could be administered by her family physician; this should be tried before having a Cortisone injection as it is a simpler mode of taking medications and with the cytoprotective she should not have GI side effects. If so then she could take the Cortisone injection. 2. She should maintain her current modifications with respect to her work. With respect to treatment we recommend 8 to 12 weeks of physiotherapy as she has not had this yet. She needs active assisted range of motion and modalities for the first little while and once the anti-inflammatories and painkillers have kicked in then she needs to work on strengthening and physio will help with functional testing for return to regular duties.

4 Page: 3 Decision No. 2082/16 3. This is a final report. She should temporarily avoid overhead reaching and lifting at work, but otherwise will probably be able to manage this down the road. We have not made any specific plans to see her in follow-up and she does not need any further investigations in our view. [9] Information on file suggests that after the worker was assessed at the Regional Evaluation Centre, she was provided with additional treatment that included physiotherapy and a work hardening program. The work hardening program commenced on March 29, 2011 and an extension to the program was allowed to June 17, In a decision dated June 9, 2011, a Case Manager advised the worker that her entitlement to LOE benefits would cease as of June 17, The Case Manager concluded: ( ) A work hardening program commenced March 29, 2011 and an extension to this program has been allowed to June 17, 2011 with full recovery expected. Based on all available evidence, applicable legislation and policy, there is no entitlement to benefits beyond June 17, Your claim was accepted for a right shoulder strain which should have resolved within the first six (6) months based on scientific evidence. The diagnosis of tendinopathy and bursitis are not compatible with the accident history you described. Therefore, there is no entitlement to benefits for these conditions. [10] The worker objected to the Board s refusal to recognize the September 20, 2010, recurrence as compensable as well as the refusal to recognize the diagnosis of tendinopathy/bursitis and to grant ongoing LOE benefits from June 17, These issues were eventually referred to an Appeals Resolution Officer ( ARO ) and in a decision dated March 5, 2012, the ARO denied the worker s appeal. With respect to the issue of the recurrence, the ARO indicated: Based on the evidence, I find the worker had returned to suitable work in June The worker had reached maximum medical recovery (MMR) and was medically fit for suitable work with precautions of no lifting from floor to (sic) waste with right arm; no lifting from waste to shoulder with right arm; no bending, twisting, repetitive movement of the right shoulder, no working at or above shoulder level and no pushing/pulling with right arm. The worker, while at home performed some ironing of several pieces of clothes and the duties involved pushing and pulling with the right arm. I find the worker was aware of her medical precautions and performed activity beyond the precautions and at home where she was unsupervised. I find the worker did not cooperate in the medical plan and a recurrence is not allowed. [11] With respect to the issue of the accepted diagnosis of the worker s injuries, the ARO concluded: In regards to the request for entitlement to tendonopathy and/or bursitis, the accident mechanism involved a sudden event and not a repetitive action or work that is sustained over time and not considered repetitive. The initial medical report of April 22, 2010 provided a diagnosis of right AIC sprain. The medical report of May 3, 2010 provided a diagnosis of a right rotator strain or possibly a tear. The medical report of May 13, 2010 provided a diagnosis of a right rotator cuff strain. The MRI of May 17, 2010 indicated mild acromioclavicular degenerative changes, undersurface fraying/partial tear of the distal posterior supraspinatus tendon and a small amount of fluid of the bursa representing minimal inflammation.

5 Page: 4 Decision No. 2082/16 I find the accident mechanism does not support a repetitive strain that commonly causes a bursitis or tendonopathy. The medical reports from April 22, 2010 to May 13, 2010 make no mention of a bursitis or tendonopathy and it is only in the MRI of May 17, 2010 that a mention of bursitis is made as an inflammation. I do not find the diagnosis of bursitis or tendonopathy related to the incident of April 11, 2010 [12] With respect to the issue of the worker s ongoing entitlement to benefits after June 17, 2011, the ARO concluded: The worker attended a regional evaluation centre (REC) on November 23, The report supported the worker had a previous right shoulder condition 5 years ago and was only 65% better and always had residual symptoms. The worker was provided with subsequent physiotherapy and work hardening to June The physiotherapy report of April 10, 2011 suggested full recovery as treatment progressed positively. The physiotherapy report of May 3, 2011 suggested new symptoms unrelated to the right shoulder including right thoracic region but with the range of motion. The physiotherapy report of May 30, 2011 indicated pain on overhead work. The physiotherapy discharge report of June 1 7, 2011 supported full range of motion of the right shoulder with pain on overhead work. There are no further medical reports on file to support the need for further treatment or objective symptoms. I find the worker had full range of motion of the right shoulder by June 2011 and as she had previously not recovered from her earlier shoulder issue, the continuing symptoms are both subjective and related to an earlier incident. (ii) Issues on appeal [13] The issues to be determined in this case are: a) whether the worker is entitled to recognition of the diagnoses of tendinopathy and/or bursitis under the April 2010 claim; b) whether the worker ought to be granted entitlement for a September 20, 2010 recurrence and c) whether the worker is entitled to further LOE benefits beyond June 17, 2011 under this claim. (iii) The worker s testimony [14] Under questioning from her representative, the worker described (and demonstrated) the mechanics of the accident on April 11, She testified that on the day in question, she went into the kitchen of her workplace to find a resident helping herself to some items. The worker explained to the resident that she was not authorized to be in the kitchen and asked her to leave. The resident left the kitchen area through the heavy steel fire door. A short time later, the worker went to leave the kitchen through the same door and at the same time as she unlocked it from the inside, the resident pushed the door from the other side. The worker testified, and demonstrated with the assistance of her spouse, that her right shoulder was banged against the wall as the door was pushed open.

6 Page: 5 Decision No. 2082/16 [15] The worker testified that she was able to complete the remainder of her shift (about two hours) and then her husband took her to the hospital where she was informed that nothing had been broken. She was authorized to be off work for a week by which time she was able to see her family doctor who suggested she remain off work and rest for another week. [16] The worker testified that she eventually returned to modified duties offered by the accident employer. Her restrictions were no above shoulder work, no stretching, pushing or pulling, no repetitive use of the right shoulder and no heavy lifting. It was her position that many of the duties offered by the employer violated her restrictions. For example, she had difficulty pulling a large roll of saran wrap to wrap cookies and she had a problem with reaching and lifting utensils and plates to set a table. She recalled at one point, she mistakenly used her right arm to open the steel door of the walk-in freezer and she experienced a sudden increase in her pain. She went to see her doctor who authorized her to go off work and as far as she could recall, the Board paid her benefits for this recurrence. [17] The worker also recalled the employer providing her with some clerical duties which included answering the phone, providing receipts to residents for their rent, calling residents to remind them of medical appointments and doing some filing. She found it difficult to perform these tasks with only one hand. [18] The worker testified that she did not feel particularly welcome in the clerical area and felt pressured by the employer to get back to her regular duties. She had spoken to her family physician, Dr. Tyler, about this and Dr. Tyler suggested she try and increase her level of activity at home. Following up on Dr. Tyler s suggestion, the worker tried to iron one or two of her husband s shirts on September 20, 2010, and experienced another significant increase in the level of her pain. [19] She was referred to Dr. Prihar, an orthopaedic surgeon, who injected her shoulder with cortisone. She testified the injection eliminated her pain for about three weeks but thereafter, the pain returned and was more intense than before. The worker testified she was also referred to a neurologist who, after arranging for two MRIs, concluded that surgery would not be recommended noting that the damage was so severe in her right shoulder that it would not be helpful. [20] The worker testified she has not worked since 2011 and continues to experience pain in her right shoulder with radiation into her neck. The pain has had a significant effect on her activities of daily living and her relationship with her husband and children. She is currently paying for her own periodic massage and physiotherapy treatment. She takes Tylenol No. 3, muscle relaxants and uses icepacks to help with her pain. [21] The worker testified that she made repeated efforts to contact the employer about returning to some type of modified duties. The employer has never offered her anything else. The employer has yet to terminate her employment. [22] The worker confirmed that she had a prior Board claim for a right shoulder injury that occurred in At that time, she was assisting with moving residents out of a facility where there was a fire. One resident, who was in a wheelchair, attempted to stand and pulled down on the worker s right arm as he began to fall. She experienced intense pain in the area of her neck and right shoulder.

7 Page: 6 Decision No. 2082/16 [23] The worker acknowledged that she continued to experience pain in her right shoulder between 2006 and She testified that as a result of the 2006 accident, there were a number of work activities that she was unable to perform. For example, she was unable to scoop icecream, she could not open containers and it was difficult for her to mop or lift a pail. She testified that the employer was aware of her ongoing problems. The worker modified her duties on her own by switching tasks with co-workers. The worker acknowledged, as accurate, the comment by Dr. MacGregor in the REC report that she had only made a 65% recovery from the 2006 accident by the time of the events in The worker testified that her level of pain increased after the accident in 2010 and has remained at that level ever since. (iv) Analysis [24] Since this worker was injured in 2010, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). (a) The appropriate diagnosis [25] In this case, the Board recognized that the worker sustained a right shoulder strain in the accident on April 11, The worker takes the position that the compensable diagnosis ought to be expanded to include bursitis/tendinopathy. Having had the opportunity to consider all of the evidence before me, I find that it does not support the worker s position. In my view, the balance of evidence supports the conclusion that the worker only sustained a right shoulder strain in the 2010 accident. In reaching that conclusion, I have taken particular note of the following: The initial Form 8 of April 22, 2010, provided a diagnosis of right AC [joint] sprain. In a Health Professional s Progress Report dated May 3, 2010, the worker s family physician, Dr. Tyler, provided a diagnosis of rotator cuff strain/or tear possibly. In her Form 8 of May 13, 2010, Dr. Tyler provided a diagnosis of sprained or torn rotator cuff muscle/tendon. The first mention of bursitis appears to be the May 17, 2010 MRI which noted small amount of fluid in the subacromial/subdeltoid bursa, likely representing minimal inflammation/bursitis. The MRI report also made reference to mild acromioclavicular degenerative changes and undersurface fraying/partial tear involving the distal posterior supraspinatus tendon. The case materials include a Tribunal Discussion Paper entitled Shoulder Injury and Disability authored by Dr. H. Uhthoff, an orthopaedic surgeon. With respect to the issue of bursitis Dr. Uhthoff notes: A. Bursitis Bursitis of the shoulder is a disorder and usually refers to the subacromialsubdeltoid bursa that has become inflamed. This means that the bursal walls are thickened and that the amount of fluid in the bursa is increased. Bursitis almost always develops in response to an irritation by neighbouring structures. A bony outgrowth (spur of the acromion or osteophytes from an arthritic acromioclavicular joint) or a thickened or a partially torn tendon of the rotator cuff may lead to an irritation of the bursa. With the exception of rheumatoid arthritis, bursitis can never be a primary or free standing diagnosis. It is always secondary

8 Page: 7 Decision No. 2082/16 to an underlying disease. The diagnosis of bursitis as a work-related disorder is unacceptable. In Memo No. 10 of May 21, 2010, Dr. Steinnagel of the Board indicated in part: ( ) The MRI shows mild AV joint degenerative changes, undersurface fraying/ partial tear of the distal posterior supraspinatous tendon, likely extending into the conjoined tendon. Incidental notes is made of minimal more proximal associated delamination of the supraspinatous tendon at the musculotendinous junction, and there was also a small amount of fluid in the subacromial/ deltoid bursa, likely representing minimal inflammation/bursitis. ( ) I would also add that likely most if not all the MRI findings appear to be pre - existing, and if one goes with the history that this worker only jarred her arm, as opposed to being shoved into the fridge door, or having the arm caught in the fridge door, one would not expect a minor incident to cause all the findings on MRI. I interpret the comments from Dr. Steinnagel to suggest that to the extent there was bursitis/tendinopathy present in the worker s right shoulder, these conditions were, more likely than not, related to something other than the compensable accident of April 11, In the REC report of November 23, 2010, Dr. MacGregor provided a clinical impression of right rotator cuff tendinopathy plus or minus a mild bursitis. Dr. MacGregor does not relate the tendinopathy or the bursitis to the April 2010 accident. Dr. MacGregor does however, make mention of the 2006 compensable accident noting that the worker has a pre-existing right shoulder injury about five years ago from which he only reported being about 65% better and always had residual symptoms prior to this most recent injury at work again. The issue of the relationship between the worker s current shoulder problems and the accident in 2006 is not before me. In his submissions, Mr. Pasel did not refer to medical evidence of any significance which commented on the causal relationship between the April 2010 accident and the diagnoses of bursitis/tendinopathy. In her testimony at this hearing, the worker described, both orally and visually, the mechanics of the accident on April 11, She testified that she was pushed backwards by the opening door and her right shoulder struck the wall behind her. The worker s testimony at this hearing differs from the description provided by the worker in For example, in her Form 6 of April 29, 2010, the worker noted that resident opened door aggressively at the same time I was opening the door. The door almost hit me and jarred my arm and shoulder. A similar description was noted by the Board Adjudicator in Memo No. 1 of April 20, 2010 to the effect that the same patient had pushed the door in and [the worker s] right arm got caught behind the lever and got stuck resulting in her jarring her right arm out of the lever. A similar version of the accident was provided by the employer in its Form 7. I prefer to place greater evidentiary weight on the descriptions of the accident

9 Page: 8 Decision No. 2082/16 provided in 2010, shortly after the incident occurred and as such, I did not accept that the worker struck her right shoulder in the compensable accident. [26] In this case, the Board accepted that the worker injured her right shoulder in the accident at work on April 11, The Board also accepted that as a result of that accident, the worker suffered a sprain/strain of her right shoulder. After reviewing the evidence currently before me, while it confirms that the worker continues to experience pain and discomfort in her right shoulder, it falls short of establishing, on a balance of probabilities, that the worker s entitlement in the 2010 claim ought to be expanded to include a diagnosis of tendinopathy/bursitis. As noted earlier, the issue of the relationship between these conditions and the compensable accident in 2006 is not before me. (b) The September 20, 2010 recurrence [27] Pursuant to section 126 of the WSIA, the Tribunal is required to apply Board policy. In this case, the Board has advised the Tribunal that one of the policies that applies to this appeal is Operational Policy Manual ( OPM ) Document No entitled Recurrences. This policy provides in part: Policy A worker is entitled to benefits for a recurrence of a work-related injury or disease. A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB 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. If a significant new work-related accident occurs, the WSIB establishes a new claim. [28] In this case, the worker requested ongoing entitlement to LOE benefits after September 20, 2010, on the grounds that she had experienced a recurrence of her compensable injuries after ironing at home. The Board s operating level would not grant the worker any further entitlement for this incident, being of the view that her flare up was a result of not adhering to your medical limitations and performing duties at home that exceeded your limitations. It is reasonable to view this as non-cooperation in your medical treatment. [29] Having considered the matter, I find myself in agreement with the worker s representative that the worker s attempt to iron one or two of her husband s shirts should not have been viewed as non-cooperation. As the worker noted in her testimony, her family physician had suggested she try to increase her activities at home in an effort to improve the mobility of her shoulder. Her testimony is consistent with the March 15, 2012, report from Dr. Tyler in which she noted she is also unable to perform household chores, although we do encourage her to perform some non-repetitive light duties and extension, such as light ironing, in order to encourage active ROM and prevent a frozen shoulder syndrome. Dr. Tyler had also provided a note dated November 29, 2010, which had indicated that the worker increased her activity (ironing at home) appropriately, in an attempt to improve her shoulder function from her WSIB shoulder injury. [30] While I am satisfied that the Board ought not to have concluded that the worker had been uncooperative, I am unable to grant entitlement for a recurrence.

10 Page: 9 Decision No. 2082/16 [31] OPM Document No provides that if the event in question is insignificant and clinical compatibility and continuity are established, the worker is entitled to benefits for a recurrence of the original injury. [32] As noted earlier this decision, the Board recognized that the worker had suffered a strain/sprain of her right shoulder on April 11, In her medical reporting of September 30, 2010, Dr. Tyler provided a new/additional diagnosis of partial tear of supraspinatus; worsening tendonitis. For the reasons noted earlier in this decision, I am unable to conclude that there is clinical compatibility between the right shoulder sprain/strain recognized in this claim and the subsequent supraspinatus tear or tendonitis. [33] While the worker may well have experienced an increase in her level of pain on September 20, 2010, it has not been established that this was a recurrence of her compensable injuries. (c) LOE benefits from June 17, 2011 [34] Section 43(1) of the WSIA provides that workers who have a loss of earnings as a result of their compensable injuries are entitled to the payment of LOE benefits beginning when the loss of earnings starts and continuing, among other things, until the loss of earnings ceases. [35] As indicated earlier, I do not dispute that the worker continues to experience pain and discomfort in her right shoulder. She testified about the effects the pain has had on her life and her relationship with her family. The worker s representative also referred to a recent November 20, 2015 report from the worker s family physician, Dr. Denis, and a September 30, 2015 report from Nurse Practitioner Ms. P. Bart. Both of those reports speak to the ongoing complaints of pain involving the worker s right arm and shoulder. Dr. Denis noted that despite all these investigations & treatments [the worker s] symptoms continue to persist. She feels she cannot return to work as a dietary aide at [the employer]. Ms. Bart noted that the worker remains unable to perform activities involving repetitive right arm movement or lifting, as well as any at or above right shoulder activity. She would only be able to return to work if she were placed on modified duties to accommodate her injury. [36] While I do not dispute the ongoing nature of the worker s right shoulder pain, I have not been referred to medical evidence of any significance which establishes, on a balance of probabilities, that this ongoing pain is related to the right shoulder strain the worker experienced on April 11, For these reasons, I must conclude that any loss of earnings the worker may have experienced since June 17, 2011, is not the result of the injury sustained in As noted earlier, the issue of the relationship between her loss of earnings and the claim in 2006 was not before me.

11 Page: 10 Decision No. 2082/16 DISPOSITION [37] The worker s appeal is denied. DATED: October 28, 2016 SIGNED: R. Nairn