WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1464/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1464/16 BEFORE: V. Marafioti : Vice-Chair M. Christie : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: June 3, 2016 at Toronto Oral DATE OF DECISION: July 14, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1891 DECISION(S) UNDER APPEAL: WSIB ARO decision dated January 15, 2014 APPEARANCES: For the worker: For the employer: Interpreter: S. Perciasepe, Paralegal Did not participate H. Khakpour, Persian-Farsi language 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. 1464/16 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer ( ARO ) S. Marangoni dated January 15, That decision confirmed the denial of initial entitlement for the worker s left shoulder and denied the worker s objection. [2] The worker attended and provided testimony. Ms. Perciasepe provided submissions on behalf of the worker. (ii) Issues [3] The Panel must determine whether the worker has initial entitlement for a left shoulder condition as arising out of and in the course of employment. (iii) Background [4] The background facts which underpin this appeal were summarized by the ARO in the decision under appeal. The Panel reviewed the entirety of the documentary record and the following background information is briefly noted. [5] On January 3, 2013 the worker claimed that he developed left shoulder pain as a result of having to hold on tight to the steering wheel of a large passenger bus because of a storm. The worker sought medical attention and an x-ray revealed loosening of the hardware that the worker had as a result of a non-compensable left shoulder injury. The pain continued and worsened and on February 10, 2013 when the bus driver attempted to close a side bay door, the door bounced back. The worker claimed entitlement for the left shoulder problems resulting from these incidents. Initial entitlement was denied by the Workplace Safety and Insurance Board ( WSIB or the Board ) in a decision dated February 26, 2013 and upon reconsideration the denial was confirmed in a decision dated April 19, The worker objected and the Appeals Resolution Officer ( ARO ) in the January 15, 2014 decision concluded that based on the evidence, the initial entitlement for the left shoulder condition as arising out of and in the course of employment was denied. The worker now appeals to the Tribunal. (iv) Law and Board policy [6] On January 1, 1998 the Workplace Safety and Insurance Act, 1997 (the WSIA ) took effect. Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies as applicable to this appeal. The Legal Services Division of the Board confirmed that the following policy packages, Revision No. 9, would apply to the subject matter of this appeal: Package No. 241 Initial Entitlement Package No. 300 Decision Making/Benefit of Doubt/Merits and Justice [7] Although not included in the policies the worker s representative presented a copy of Operational Policy Manual ( OPM ) Document No on the subject of Pre-existing Conditions. The Panel considered all of the policies in the context of the legislation in arriving at its decision. The policies will not be duplicated here for practical reasons. As the incident in

3 Page: 2 Decision No. 1464/16 question occurred in 2013 the Workplace Safety and Insurance Act applies. In particular the Panel noted the following sections of the WSIA: Section 2(1) of the Act states the following: 2. (1) In this Act, accident includes, (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; ( accident ) [8] Section 13(1) of the Act states the following: 13. (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. Presumptions (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. Exception, employment outside Ontario (3) Except as provided in sections 18 to 20, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario. (v) The worker s position [9] The worker provided testimony and Ms. Perciasepe provided submissions on his behalf. What follows is a summary of the worker s position based on the worker s testimony and submissions. [10] The representative provided copies of the x-rays that were completed in 2000 and The x-rays did not show a deformity in the left shoulder. The name and dates on the original x-rays were confirmed by the Panel. [11] The worker testified regarding the two incidents in question. In the January 2013 incident the worker was driving a bus in a severe storm with heavy winds and it was hard to control the steering wheel which put a lot of pressure on the worker s arms, especially the left arm. The worker indicated that something happened in his left arm. The worker testified that he experienced sharp pain and he visited his family physician who sent him for an x-ray of the left arm and prescribed medication for the pain. The worker s family physician Dr. J. Bernholtz indicated to the worker that there was loosening of the plate in his left arm that was causing his pain. The worker was referred to a specialist. [12] The second incident occurred in February 2010 when the worker again was driving the bus to Casino Rama and the side luggage door opened suddenly. The worker indicated that he pulled the bus over, got off and he indicated he tried to close it but it was very difficult to close and it did not close properly and bounced back injuring his arm. [13] The worker acknowledged having a fracture of the left humerus when he was 37 years old which was treated with a pin and plate. The worker acknowledged seeing Dr. Richards in 1999 to get an examination of his arm and he was cleared to perform his regular duties which he

4 Page: 3 Decision No. 1464/16 did up to The worker indicated he worked at two jobs with no limitations and no restrictions. [14] Ms. Perciasepe reviewed the Operational Policy Manual ( OPM ) Document No on the subject of Adjudicative Process and Policy No on the subject of Aggravation Basis. She also provided a copy of Operational Policy Manual ( OPM ) Document No on the subject Pre-existing Conditions. She submitted that the worker s claim satisfies all the five criteria in the Board s Five-point Check System as well as the Policy on Aggravation. Ms. Perciasepe noted that Operational Policy Manual ( OPM ) Document No indicates that entitlement for work-related injury/disease will not be denied due to the existence of a pre-existing condition. Once initial entitlement is established, the decision maker considers the impact, if any, of pre-existing conditions on the worker s ongoing impairment. Ms. Perciasepe noted that Document No on the subject of initial entitlement indicates that the decision maker first determines entitlement in the claim consistent with the thin skull doctrine. She submitted that a worker may have a pre-existing condition that could increase susceptibility to injury/disease but it is not considered during the initial determination of entitlement in a claim. In such cases Ms. Perciasepe submitted that workers are compensated for the work-related injury/disease and the claim is not denied due to existence of a pre-existing condition. [15] Ms. Perciasepe submitted that prior to January 3, 2013 the worker was able to work two jobs without limitations and without any impairment. She submitted that there was no other incident besides the two incidents noted that could cause the loosening of the worker s screws in the arm. She submits that the worker did have a pre-existing condition, but the two incidents caused the arm to jerk and produce symptomatology and aggravation. She submitted that the worker sought immediate medical attention, reported the incidents immediately to the employer and received medical attention and surgery from Dr. D. Dantzer for his compensable accidents. She submitted that the worker sustained an aggravation type of work injury with sufficient proof of accident, as the worker applied pressure to grip the steering wheel which was hard to control and the worker felt immediate pain in the left arm which continued. Following the first incident the worker continued to feel pain in the left arm and sustained another incident at work on February 10, 2013 when a passenger advised the bus driver that one of the side luggage doors had opened. The worker pulled over and attempted to close the door several times as it was not closing properly. On one of the attempts the door pushed back and hit the worker s arm. The worker was finally able to close the door and returned to the bus with increased left arm pain. Following this incident the worker again went to see Dr. Bernholtz. [16] In summary, based on the worker s detailed accounts of both incidents, the immediate reporting to the worker s family physician Dr. Bernholtz on those occasions, and reporting to both of the worker s concurrent employers, Ms. Perciasepe submitted that the worker did in fact sustain a work-related injury to his left arm as a result of the workplace accidents on January 3, 2013 and February 10, (vi) The Panel s findings and conclusions [17] The Panel arrived at a decision after considering the testimony, submissions, documentary evidence and the Board policies and legislation. The Panel finds, on a balance of probabilities, that the evidence does support the worker s objection. The following is a summary of our assessment and findings and conclusions that we arrived at. The Panel accepts based on

5 Page: 4 Decision No. 1464/16 the medical evidence on record and the testimony and submissions that the worker did have a pre-existing left arm condition. The worker s pre-existing condition was that of a fracture of the left humerus at age 37 which was treated with a pin and plate. However, there is no evidence that the worker complained of any arm pain or impairment prior to the January 3, 2013 incident. The worker worked at two jobs without any restrictions and there is no medical evidence that the worker required previous medical treatment for the left arm prior to the January 3, 2013 accident and the treatment received for the previous fracture of the left humerus at age 37. Although Dr. Dantzer reported on June 2012 that the worker had a deformity in his arm, the x-rays presented at the hearing from the year 2000 and 2013 did not show clear deformity in the worker s left arm. [18] The worker was not symptomatic and was completely functional before the January 3, 2013 incident. The worker has been able to work for over 14 years as a bus driver and as a mechanic without restrictions. The worker s left humerus fracture approximately 20 years ago required surgery. Surgery was successful and the worker was able to live free of pain and symptoms and was able to work two relatively heavy labour type jobs at the same time, that of a bus driver and as a mechanic. The worker s family physician Dr. Bernholtz confirmed that there were no complaints of pain prior to January 3, [19] The Panel accepts that the pre-existing condition was a post-surgery left humerus fracture that resolved without notable pain, symptoms or restrictions with respect to the ability to work in physically demanding occupations for the worker until January 3, Following the January 3, 2013 workplace accident, the worker s left arm condition underwent a change. [20] On February 11, 2013, Dr. Bernholtz completed a Form 8 (Health Professional s Report) indicating that the diagnosis was that of a left humerus fracture loosening of hardware. Diagnosis: Left humerus fracture, loosening of hardware. [21] On February 21, 2013 Dr. Bernholtz reported on the worker s incident of January 2013 indicating that the worker had difficulty because of bad weather and strong winds. The x-rays revealed loosening of the hardware and the worker was referred to an orthopaedic surgeon. The worker s pain worsened by January 16, 2013 according to the medical evidence and the worker s prescribed medication as a result of his pain. The worker did sustain the second incident on February 2013 when he tried to close the luggage door and an orthopaedic assessment was arranged with Dr. Dantzer. On June 12, 2013, Dr. Dantzer, orthopaedic surgeon, reported that the worker was driving a bus through a thunder storm which required the strong use of a steering wheel control and the worker noticed increased pain following this storm. On September 26, 2013, Dr. Dantzer reported to Dr. Bernholtz that the worker s symptoms had not improved. Dr. Dantzer wrote on September 26, 2013 the following: [The worker] returned to see me about his left arm. When I saw him in June he had been having symptoms from an old non-union starting in January 2013 related to his work as a bus driver. These symptoms have not improved. He continues to have daily pain. He has minimal use of the hand or arm for anything beyond light tasks. ( ) He currently has a functional arm, although for light tasks only. I do not see him being capable of performing any moderate or heavy activities. It would be very reasonable for

6 Page: 5 Decision No. 1464/16 him to not have surgery for his arm, given his base-line status and the relatively high risk of surgery. (a) Conclusions [22] The Panel accepts that the worker clearly had a pre-existing condition. However, prior to January 3, 2013 he was free of pain, symptoms and restrictions and was able to work two physically demanding jobs. Following a January 3, 2013 incident while working, the worker experienced left shoulder pain and immediately reported the incident to his doctor and employer. The worker had a second incident on February 10, The worker again reported the incident to his doctor and employer and stopped working both jobs that he was doing. Based on the totality of the evidence, it is our opinion that the worker s pre-existing condition has been aggravated by the work accidents and as a result the worker suffered a noticeable change in pain level symptoms, restrictions and ability to return to both of his pre-aggravation jobs. We are satisfied that the evidence, on a balance of probabilities, supports the granting of initial entitlement for the worker s aggravated left arm injury and therefore initial entitlement for the left shoulder condition as arising out of and in the course of employment is granted.

7 Page: 6 Decision No. 1464/16 DISPOSITION [23] The worker s appeal is granted. The worker has initial entitlement for the left shoulder condition as arising out of and in the course of employment. DATED: July 14, 2016 SIGNED: V. Marafioti, M. Christie, A. Grande