WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1882/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1882/15 BEFORE: M. C. Smith : Vice-Chair B. Wheeler : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: September 8, 2015 at Toronto Oral DATE OF DECISION: September 23, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2117 DECISION(S) UNDER APPEAL: WSIB ARO decision dated May 3, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Mr. R. A. Fink, Lawyer Not Participating Not Applicable 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. 1882/15 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer (ARO) G. Sicilia, dated May 3, The worker was represented by Mr. Richard A. Fink, a lawyer. The employer did not participate in the hearing. As a preliminary matter, Mr. Fink informed the Panel that the Vietnamese interpreter who was present to provide translation assistance was a long-time friend of the worker. Mr. Fink assured the Panel that the worker s English was good, and that he did not need a translator. The worker agreed. Consequently, the interpreter was dismissed, and the hearing proceeded without an interpreter. Oral evidence was heard from the worker. Submissions were made by Mr. Fink. (ii) The issues Recognition of a permanent impairment (PI) and entitlement to a Non-Economic Loss (NEL) assessment for the right shoulder Entitlement to loss of earnings (LOE) benefits from April 22, 2008 (iii) Background [2] The worker is a now 53-year-old Computer Numeric Control (CNC) operator who began working for the accident employer in June He has been involved in 8 motor vehicle accidents (MVA s) in which he has suffered injuries to his neck, back and shoulders. The background to this case has been covered in detail in Workplace Safety and Insurance Appeals Tribunal (WSIAT) Decision No. 1287/11, dated April 24, In that decision, the Vice-Chair granted the worker initial entitlement for the right shoulder on a disablement basis arising out of his employment in August 2006, as well as full LOE benefits from August 23 to October 30, Entitlement was denied for any aggravation of the low back, neck or left shoulder. The issues of entitlement to a permanent impairment (PI) of the right shoulder and LOE benefits beyond October 30, 2006 were remitted to the Board for further adjudication. [3] The ARO decision of May 3, 2013 granted the worker full LOE benefits from October 30, 2006 to April 22, 2008, the date on which the ARO determined that the worker had reached maximum medical recovery (MMR). Entitlement to a PI of the right shoulder was denied. [4] The worker now brings his appeal for a right shoulder PI and LOE benefits beyond April 22, 2008 to the Tribunal. (iv) Relevant law and policy [5] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect and applies in this appeal. Pursuant to section 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and we have considered them as necessary.

3 Page: 2 Decision No. 1882/15 (v) Entitlement to a permanent impairment for the right shoulder [6] The worker has initial entitlement for the right shoulder on a disablement basis, arising out of his employment in August The issue to be considered here is whether this condition has resolved, or whether the worker has been left with a PI of the right shoulder. 1. The medical evidence [7] On February 26, 2007 Dr. M.C.Y. Lee, a rheumatologist, reported that the worker had pain in his lumbar spine and shoulders which seemed to be the result of his work. X-rays on February 26, 2007 revealed sclerosis and pseudocyst formation at the site of the insertion of the rotator cuff compatible with non-calcific tendonitis. The doctor noted that two subsequent MVA s may have caused neck pain and aggravated the worker s symptoms, particularly the back. [8] On August 1, 2007, Dr. Lee reported that an ultrasound on June 20, 2007 had revealed bilateral rotator cuff tendonitis with a partial thickness tear of the right supraspinatus tendon. [9] On September 28, 2007 an MRI of the right shoulder revealed severe tendinosis of the supraspinatus tendon with probable areas of bursal surface partial thickness tearing in the anterior leading edge. [10] On October 9, 2007 the worker attended Dr. Lee for a follow-up of his bilateral shoulder pain. The worker was still experiencing bilateral shoulder pain with activity. The doctor gave the worker a cortisone injection in the right shoulder. [11] The insurance company covering the MVA s arranged for the worker to undergo an assessment with Dr. T.K.C. Chan, an orthopaedic surgeon. The worker attended Dr. Chan on November 23, Dr. Chan examined the worker and reviewed the medical documentation. In a report dated December 5, 2007, the doctor reported that the worker had restricted ROM of the shoulders, more on the right. [12] On December 10, 2007, Dr. Lee reported that the worker continued to have chronic right shoulder pain, which could be partly due to some impingement. The cortisone injection of the right shoulder in October had not resulted in lasting improvement. The doctor referred the worker to an orthopaedic surgeon and recommended physiotherapy. [13] On February 8, 2008 Dr. A. Nguyen, family doctor, made the diagnosis of severe tendonosis of the right shoulder, with a partial tear of the right bursa. [14] On April 22, 2008 Dr. Nguyen completed a Health Professional s Progress Report (Form 26) indicating that the worker was experiencing pain and stiffness in the right shoulder with limited ROM. The doctor provided precautions for lifting and using the upper extremities. [15] The worker s representative arranged for the worker to be assessed by Dr. F. Langer, an orthopaedic surgeon. The doctor examined the worker and reviewed all the medical documentation. In correspondence to Mr. Fink dated October 29, 2008, Dr. Langer reported that the worker continued to have bilateral shoulder pain, worse on the right. The pain was aggravated by repetitive movements of the upper limbs, reaching, lifting, carrying, pushing, pulling, and above shoulder activity. Dr. Langer opined that the worker had a PI of the shoulder, and that he could only work with medical restrictions.

4 Page: 3 Decision No. 1882/15 [16] On December 9, 2008 the employer arranged for the worker to be assessed by Dr. S.P. Nessim, a specialist in sports medicine. Dr. Nessim reported that the worker was experiencing pain and restricted ROM in the right shoulder. He stated that the worker had suffered an impingement syndrome that had led to an adhesive capsulitis. The doctor opined that the worker could return to work with restrictions: no above-shoulder level work no repetitive movement of the shoulders no repetitive or twisting movement of the upper limbs no heavy lifting, especially with the right arm. [17] Dr. Langer assessed the worker again on October 17, The doctor concluded that the worker had serious impairments of right shoulder function resulting from work injuries in He opined that these impairments were permanent, and would continue to interfere with the worker s ability to do any work that required repetitive activities with the right limb, especially at and above shoulder level. [18] On July 14, 2015 the worker attended Dr. Langer for an additional assessment. Dr. Langer reported that right shoulder movements were 90% of normal with end point pain. There was no obvious impingement bilaterally. Dr. Langer concluded that the worker had a PI of the right shoulder, and opined that the MVAs subsequent to the workplace injury did not materially affect the pathological course nor contribute to the current clinical status of disability. Analysis [19] Section 46 of the Workplace Safety and Insurance Act, 1997 (the WSIA) and section 42 of the pre-1997 Workers Compensation Act, as amended, provide that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [20] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [21] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery (MMR). [22] In reviewing the medical evidence, the Panel finds the worker has entitlement for a permanent impairment for the right shoulder. [23] An ultrasound on June 20, 2007 and an MRI on September 28, 2007 revealed that the worker had a partial thickness tear of the right supraspinatus tendon. [24] The ARO decision of May 3, 2013 determined that the worker s condition had resolved by April 22, 2008 with no permanent impairment. However, after a careful review of the medical documentation, we find that the compensable right shoulder condition has not resolved: On October 29, 2008 Dr. Langer reported that the worker continued to have bilateral shoulder pain, worse on the right. The pain was aggravated by repetitive movements of the upper limbs, reaching, lifting, carrying, pushing, pulling, and

5 Page: 4 Decision No. 1882/15 above shoulder activity. Dr. Langer opined that the worker had a PI of the shoulder, and that he could only work with medical restrictions. On December 9, 2008 Dr. Nessim reported that the worker was experiencing pain and restricted ROM in the right shoulder, and had developed an adhesive capsulitis. The doctor provided medical restrictions for use of the right arm. On October 17, 2012 Dr. Langer assessed the worker, and concluded that he had serious impairments of right shoulder function resulting from work injuries in The doctor opined that these impairments were permanent, and would continue to interfere with the worker s ability to do any work that required repetitive activities with the right limb, especially at and above shoulder level. On July 14, 2015 Dr. Langer assessed the worker and reported that right shoulder movements were 90% of normal with end point pain. There was no impingement. Dr. Langer concluded that the worker had a PI of the right shoulder, and opined that the MVA s subsequent to the workplace injury [on October 31, 2006, November 23, 2006, August 2, 2007 and December 23, 2007] had not contributed significantly to the worker s right shoulder impairment. [25] In light of this medical evidence of ongoing right shoulder pain, necessitating medical restrictions, we find that the worker has an impairment of his compensable right shoulder condition which has not resolved. Given the number of years since the compensable accident, we find that the worker s right shoulder impairment is permanent. Consequently, we find that the worker has entitlement for a PI of the right shoulder, and is entitled to a NEL assessment. 2. Entitlement to LOE benefits subsequent to April 22, 2008 [26] The ARO decision of May 3, 2013 granted the worker full LOE benefits to April 22, Entitlement to a PI of the right shoulder was denied. [27] However, as indicated above, we find that the worker has a PI of the right shoulder, and could only work with medical restrictions. [28] There has been no ruling by the Board concerning the worker s entitlement to LOE benefits subsequent to April 2008 that has taken into consideration the right shoulder PI. The Board will be in a much better position to make determinations respecting the worker s employability after the NEL assessment for the right shoulder is conducted. Consequently, the issue of LOE benefits is remitted to the Board for further determination following the results of the PI assessment.

6 Page: 5 Decision No. 1882/15 DISPOSITION [29] The appeal is allowed in part. The worker has entitlement to a NEL assessment for the right shoulder. The issue of LOE benefits after April 2008 is remitted to the Board for determination subsequent to the NEL assessment of the worker s right shoulder. DATED: September 23, 2015 SIGNED: M.C. Smith, B. Wheeler, C. Salama