WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 621/14

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 621/14 BEFORE: S. Netten: Vice-Chair HEARING: April 3, 2014 at Toronto Written DATE OF DECISION: April 30, 2014 NEUTRAL CITATION: 2014 ONWSIAT 955 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated January 8, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Not participating R. Smolander, Paralegal None 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. 621/14 REASONS (i) Issue [1] The issue to be determined in this appeal is the quantum of Second Injury and Enhancement Fund (SIEF) relief granted to the employer in respect of the costs of the worker s 2011 right shoulder claim. (ii) Overview [2] The worker, then a 53-year-old machine operator, sustained a compensable right shoulder injury upon falling at work on May 26, The Board granted entitlement for a humeral neck and greater tuberosity fracture, and for subsequent diagnoses including adhesive capsulitis (frozen shoulder), a step deformity of the greater tuberosity, and a tear of the supraspinatus tendon. The worker s entitlement to benefits is not at issue in this appeal. [3] The Case Manager granted entitlement to SIEF relief in December A cost transfer of 25% was based upon an accident of moderate severity and a minor pre-existing condition. [4] The employer appeals the SIEF quantum to the Tribunal, taking the position that the worker s non-compensable calcific tendinitis and bursitis amount to at least a moderate pre-existing condition. The employer seeks SIEF relief of 50%. [5] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. (iii) Law and policy [6] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. Section 126 requires the Tribunal to apply Board policy when making its decisions. [7] The standard of proof applicable in SIEF appeals is the balance of probabilities, and the burden of proof rests with the claimant: see Decision No. 197/12. [8] The SIEF was initially created in 1978, pursuant to section 108(2) of the Workers Compensation Act. This provision, continued in section 98 of the WSIA, gives the Board broad discretionary power to establish a reserve fund to meet losses arising from circumstances that would unfairly burden the employers. Board policy on the SIEF, found in Operational Policy Manual (OPM) Document No , states: Policy If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. [9] A matrix found in the SIEF policy assigns a percentage of cost transfer based upon the medical significance of the pre-existing condition and the severity of the accident:

3 Page: 2 Decision No. 621/14 SIEF-application to employer costs Medical significance of preexisting condition* Minor Moderate Major Severity of accident** Minor Moderate Major Minor Moderate Major Minor Moderate Major Percentage of cost transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% NOTES * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (lift, push, pull, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident Minor: expected to cause non-disabling or minor disabling injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF. [10] In this appeal, the employer's entitlement to SIEF relief is not in dispute. Moreover, the employer agrees with the Board s assessment of the severity of the accident as moderate. The only question to be determined in assessing the correct quantum of relief, therefore, is the significance of the pre-existing condition. (iv) Medical reporting [11] The worker was seen in the emergency department on May 26, 2011, where the nondisplaced right humeral neck and greater tuberosity fracture was diagnosed. Initial treatment consisted of immobilization and three months off work. Noting minimal displacement of the greater tuberosity since the original x-ray, orthopedic surgeon Dr. I. Wong wrote on June 15, 2011 that he would like to take it slow until we have more consolidation before we

4 Page: 3 Decision No. 621/14 start physiotherapy. Physiotherapy began on June 28, 2011 and progressed to active mobility mid-july Adhesive capsulitis was diagnosed by family physician Dr. P. Ford on August 24, The worker returned to modified duties, without the use of the right arm, on August 31, [12] Physiotherapy continued based upon the diagnosis of proximal humerus fracture. On September 6, 2011 physiotherapist D. Nightingale reported non unionized bone # as a factor delaying recovery. In follow-up on September 7, 2011, Dr. Wong reported the additional diagnosis of adhesive capsulitis, and the proposed treatment plan was physiotherapy x 3 months. He ticked no to the question Are there any complicating factors that may influence your patient s recovery and return to work? On November 22, 2011, Mr. Nightingale noted post-fracture frozen shoulder as a factor delaying recovery. On January 24 and May 31, 2012 he noted fracture, chronicity, developed frozen shoulder as factors delaying recovery. [13] On May 2, 2012 Dr. Wong reported: 6 months with PT now for adhesive capsulitis and calcific tendinitis. Still having some pain and stiffness. Has been working on this. Will need to continue physiotherapy for this stretching. Still having pain in the anterolateral portion of the shoulder. Would like a cortisone injection in shoulder Recommend to continue to go to physio until full ROM. [14] In July 2012 Dr. Ford noted a new diagnosis of rotator cuff injury, possibly caused by the initial injury, and identified this as a complicating factor influencing recovery. The worker had a right shoulder ultrasound on July 16, This identified a large calcific focus at the anterior supraspinatus, which could possibly represent a step deformity, as well as a possible tear. Correlation by MRI was recommended. The MRI of August 2, 2012 confirmed a step deformity in keeping with the previous fracture; a partial thickness tear of the supraspinatus tendon; moderate AC joint degenerative changes; lateral downsloping acromion possibly impinging the supraspinatus on abduction; and subacromial-subdeltoid bursitis. [15] A Comprehensive Assessment Report of October 9, 2012 included diagnoses of right AC joint strain, right subacromial bursitis, slight right shoulder impingement, and partial rotator cuff tear. Slight downsloping of the acromion was noted as a possible cause of impingement. Injections were provided that month. Orthopedic surgeon Dr. P. Mathew then offered arthroscopic surgery for a rotator cuff repair, AC joint resection, subacromial bursectomy and exploration of the previous greater tuberosity fracture. The operative report of January 24, 2013 provided a diagnosis of right rotator cuff tear and right AC joint arthropathy 1. Dr. Mathew found no evidence of the previous greater tuberosity fracture during the surgery. He debrided an extremely frayed anterior labrum, performed a subacromial decompression/bursectomy 2, repaired the near full-thickness tear of the supraspinatus tendon, performed an acromioplasty 3, and resected 4 2 shaver widths of distal clavicle. 1 a disease of a joint : Merriam-Webster Medical Dictionary 2 excision of a bursa : Merriam-Webster Medical Dictionary 3 excision of the anterior hook of the acromion for the relief of pressure on the rotator cuff produced during movement of the joint between the glenoid cavity and the humerus : Merriam-Webster Medical Dictionary 4 the surgical removal of part of an organ or structure : Merriam-Webster Medical Dictionary

5 Page: 4 Decision No. 621/14 (v) Medical discussion paper and Board opinions [16] The medical discussion paper on Shoulder Injury and Disability, written by orthopedic surgeon Dr. H. Uhthoff in October 2010, was relied upon by the employer s representative and was included in the case materials for this appeal. The Tribunal s medical discussion papers are written by independent experts who are recognized in their fields of specialization. With respect to the conditions at issue here, Dr. Uhthoff writes: Bursae... Under normal circumstances, the subacromial bursa does not communicate with the glenohumeral joint cavity. It does so, however, after a complete tear of the rotator cuff. When the amount of fluid increases, we speak of an effusion; it is often accompanied by a thickening of the wall of the bursa, known as bursitis. A bursitis always develops in response to other pathology. Therefore, the diagnosis of bursitis must be considered as a secondary happening, the primary condition being a pathology of the rotator cuff or the coraco-acromial arch, such as spurs (osteophytes) Bursitis Bursitis of the shoulder is a disorder and usually refers to the subacromial-subdeltoid 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 acromio-clavicular 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 to an underlying disease. The diagnosis of bursitis as a work-related disorder is unacceptable. Rotator Cuff Tear Even after a most successful repair of a rotator cuff tear, a complete recovery of function and strength cannot be expected in the middle aged and older worker. Calcific Tendinitis, also known as Calcifying Tendinitis This condition is neither caused by work nor aggravated by any particular activity. It affects females more often. Calcific deposits in the opposite shoulder occur in up to 40% of patients. Calcific tendinitis cannot be attributed to factors associated with work. The thickening of the tendon caused by the calcific deposit often leads to an impingement syndrome. Frozen Shoulder (Adhesive capsulitis) This term is used to describe a severe, often painful and incapacitating limitation of passive and active movements. This disorder can follow a prolonged immobilization of the shoulder or it may be due to a tendinitis. This condition usually resolves, but may take up to one year of rehabilitation, consisting mainly of active exercises. In some cases, it does not resolve and stiffness may be permanent. [17] In response to the employer s request for SIEF relief due to calcific tendonitis and bursitis, the Case Manager referred the file for a Physician Case File Review. Dr. S. Wentzell provided an opinion on October 15, 2012 that the initial medical reports did not reveal additional findings nor were there prior shoulder problems. He noted that the development of adhesive

6 Page: 5 Decision No. 621/14 capsulitis was consistent with the fracture and associated reduced mobilization. Upon a further review on December 4, 2012 following receipt of updated medical information, Dr. Wentzell wrote: Considering the updated medical information, a minor pre-existing condition is now identified for the worker s right shoulder which appears to be impacting recovery in this case. The right shoulder ultrasound, in conjunction with the MRI results, suggests that the worker has a step deformity of the greater tuberosity (consistent with the compensable fracture) and not a calcific deposit. The MRI scan also revealed a partial thickness tear of the supraspinatus tendon, which may be related to the traumatic injury, noting the fracture of the greater tuberosity. Apart from this, note is also made of some AC joint degeneration, lateral downsloping of the acromion, slight shoulder impingement, and subacromial bursitis. As outlined previously, the worker had no previous history of right shoulder symptoms before the fracture on 26May2011, and there is no history of an underlying medical condition which would predispose her to develop a fracture. Overall, noting the details provided in the medical reports, there appears to be a minor pre-existing condition which is prolonging recovery following the compensable right shoulder fracture. [18] A Board memorandum of December 28, 2012 outlined the worker s entitlement as including the initial fracture, adhesive tendonitis, step deformity of the greater tuberosity, and partial thickness tear of the supraspinatus. Entitlement for the upcoming surgery was allowed. (vi) Significance of the pre-existing conditions [19] The employer s representative points to non-compensable calcific tendinitis and bursitis in claiming increased SIEF relief. However, I am not persuaded that either of these were pre-existing conditions. [20] First, I find that the diagnosis of calcific tendinitis was not confirmed. Dr. Wong mentioned this condition once, in May 2012, indicating that the worker had been undergoing physiotherapy for adhesive capsulitis and calcific tendinitis. The imaging to that point made no reference to calcific tendinitis. The physiotherapy reports in 2011 and 2012 did not mention calcific tendinitis, but referred repeatedly to the fracture and frozen shoulder. The July 2012 ultrasound identified a calcific focus, but this was determined to reflect a step deformity in the subsequent MRI. [21] As for subacromial bursitis, the medical discussion paper states that this always develops in response to other pathology, such as pathology of the rotator cuff or osteophytes. The paper points out that this condition is therefore not directly work-related. I find no evidence in this case that the worker likely had subacromial bursitis prior to her injury in May It is unknown whether her bursitis developed in response to compensable or non-compensable pathology, but in the absence of evidence of prior shoulder problems I cannot conclude that the bursitis pre-dated the accident. Thus, while not found to be compensable, the subacromial bursitis is not, on a balance of probabilities, a pre-existing condition. [22] Dr. Wentzell did not specify which conditions he believed to be pre-existing, nor did the Board outline the accepted pre-existing conditions in its correspondence. As with the bursitis, there is no evidence that the worker had any shoulder impingement prior to the date of accident. It is implied in Dr. Wentzell s report that the worker s degenerative changes and underlying physiology pre-dated the accident. I therefore find it more likely than not that the degenerative changes, including the moderate AC joint degeneration identified by MRI and the fraying of the

7 Page: 6 Decision No. 621/14 labrum addressed in the arthroscopy, and the lateral downsloping acromion were the conditions which existed prior to the date of accident. [23] Tribunal jurisprudence has interpreted the language of the SIEF policy to mean that the medical significance should be considered to be minor if it made the worker slightly more liable to develop a disability of greater severity than a normal person, and that it should be considered major if it made the worker extremely liable to develop a disability of greater severity than a normal person (see, for example, Decision No. 1635/07). If the extent to which the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person was more than slight, but less than extreme, the medical significance of the pre-existing condition could be considered moderate. [24] Moreover, Tribunal decisions have held, in the context of degenerative disease, that comparison is required with a normal person of the worker s age (see, for example Decision No. 14/11 and 1528/05). The Vice-Chair in Decision No. 1528/05 stated in this regard: I agree with Decision Nos. 1596/98, 701/01 and 186/91 that some degree of degenerative change would be considered normal according to medical understanding of the natural process of aging and degenerative disc disease While the worker s condition was described as moderate in some of the medical reports, moderate in medical terms does not necessarily result in a finding of a moderate pre-existing condition. Given the age of the worker, some degenerative disc disease would be evident even in the normal person comparator. [25] I agree that it is appropriate to compare the worker s likelihood of developing greater disability with that of a normal person of his age. [26] Here, the worker s initial fracture in May 2011 was complicated first by the development of frozen shoulder, and subsequently by the recognition of a rotator cuff tear, along with bursitis, degenerative changes and the sloping acromion. The shape of the acromion was specifically identified as a potential source of impingement. Surgery was performed for the rotator cuff tear and the joint disease, and this included debridement and resection of degenerative changes as well as excision of the hook of the acromion. The fraying of the labrum was described as extreme, from which I infer that the extent of this degenerative condition was unlikely to be the norm for an individual of the worker s age. Noting that the pre-existing degenerative changes and downward sloping acromion ultimately required substantial surgical interventions, I find that these conditions had made the worker more than slightly more liable to develop a disability of greater severity than a normal person of her age. I conclude, therefore, that the medical significance of the pre-existing conditions was moderate. (vii) Conclusion on SIEF quantum [27] Entitlement to SIEF relief was granted by the Board. It is undisputed that the severity of the accident was moderate, and I have found that the significance of the pre-existing conditions was moderate. In these circumstances, Board policy provides for a cost transfer of 50%.

8 Page: 7 Decision No. 621/14 DISPOSITION [28] The appeal is allowed and the decision of the Board on the quantum of SIEF relief is varied. The employer is granted 50% SIEF relief in respect of the costs of the worker s claim. DATED: April 30, 2014 SIGNED: S. Netten