WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1718/12

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1718/12 BEFORE: J. Frenschkowski : Vice-Chair E. Tracey : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: February 18, 2015 at London Oral Post-hearing activity completed on April 8, 2015 DATE OF DECISION: May 20, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1098 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated December 19, 2011 APPEARANCES: For the worker: For the employer: Interpreter: C. Charlebois, Lawyer A. I., Company Personnel 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. 1718/12 REASONS (i) Introduction and background to the appeal [1] The now 54 year-old worker was employed as a virtual modeler with the accident employer, an automotive parts manufacturer and assembler, when she sustained a compensable injury to her left elbow on April 19, The worker tripped over a metal divider and fell, fracturing her left elbow. [2] In April 2011, the worker contacted the Workplace Safety and Insurance Board (the Board ), reporting that she had been experiencing left shoulder problems for 4-6 months prior and requesting entitlement for a left shoulder injury, as related to her compensable accident or injury. This issue came before Appeals Resolution Officer ( ARO ) G. Cole by way of written appeal. By decision dated December 19, 2011, the ARO denied entitlement to benefits for a left shoulder injury, as she was unable to establish proof of accident based on the delay in the onset and reporting of symptoms, and in seeking medical treatment. The ARO further concluded that the worker s left shoulder problems did not arise as a result of overuse after the April 19, 2010 compensable accident. The worker appeals this decision to the Workplace Safety and Insurance Appeals Tribunal (the Tribunal ). (ii) Issue [3] The issue in this appeal is whether the worker s left shoulder problems are attributable to the compensable accident of April 19, 2010, or whether they might have resulted from overuse of the arm after the incident. (iii) Medical evidence [4] The Health Professional s Report ( Form 8 ) completed on April 19, 2010 by the physician who attended to the worker at the hospital noted a fracture to the radial head of the worker s left elbow, as well as a soft tissue injury of her left hip. The worker was referred to her family physician, as well as to a specialist at the Hand and Upper Limb Clinic ( HULC ). [5] The worker had an appointment with a specialist, Dr. King, at the HULC on April 26, The clinic note of that date reported that the worker was doing well, without any real complaints. X-rays showed a very minimally displaced radial head fracture. Screening examinations for her left shoulder and wrist were reported as normal. Follow-up reports from the HULC, dated September 20 and October 25, 2010, report that the worker had developed new symptoms: that is, catching and locking in her left elbow, as well as numbness in the two ulnar digits. [6] In a clinical note dated March 9, 2011, the worker s family physician, Dr. Walker, recorded that the worker had been experiencing pain in her left proximal humerus area since the time of her injury in April 2010, but that the worker had not mentioned it previously because she thought it might be muscular. Dr. Walker also noted that the worker was quite certain it isn t shoulder. Upon examination, Dr. Walker found that the worker was very tender around deltoid insertion to left humerus and was experiencing pain with active and passive abduction with the left arm. An x-ray of March 10, 2011 reported no bony abnormality in the left humeral shaft and that the fracture of the radial head of the elbow had healed.

3 Page: 2 Decision No. 1718/12 [7] The worker saw Dr. King on April 18, 2011, who noted pain at the deltoid insertion and limited range of motion. She was referred for physiotherapy treatment and, in a Form 8 dated May 11, 2011, the physiotherapist queried a diagnosis of left shoulder tendonitis or rotator cuff tear. [8] In a letter dated May 26, 2011, responding to a request by the worker s representative, Dr. King suggested that there were three possibilities as to the cause of the tear of the worker s rotator cuff : (1) the tear occurred at the time of accident and became more symptomatic over time; or, (2) the worker had a pre-existing cuff tear that because symptomatic as a result of increased demands placed on her left shoulder due to her broken elbow; or, (3) the tear of the rotator cuff arose independently of the accident and injury. Dr. King wrote that he was unable to provide a definitive opinion as to the cause of this injury in these circumstances. [9] In response to another request from the worker s representative, Dr. King submitted an opinion dated November 29, 2011, in which he wrote that it seems more likely that her left shoulder discomfort developed subsequently to her left elbow injury and that he expected that the symptoms in her shoulder however are casually related to her left elbow insomuch as the stiffness and dysfunction that she has had in her left elbow likely has resulted in altered patterns of upper extremity movements resulting in secondary symptoms referable to her left shoulder. [10] An outpatient clinical report from the HULC, dated December 2, 2011, reported that the worker had been experiencing ongoing anterolateral shoulder pain which extends down the deltoid on the left side, which also extended proximally into the neck. Although the worker had restricted range of shoulder motion, as well as pain with impingement, her rotator cuff appeared to be normal in terms of strength. The worker was referred for an ultrasound in order to rule out rotator cuff pathology. [11] The ultrasound conducted on the worker s left shoulder on January 4, 2012 revealed that there were no frank tears, although the supraspinatus was slightly thinned, in keeping with mild tendinopathy. There was no evidence of impingement, and mild to moderate changes of the acromioclavicular joint were found. (iv) Testimony of the worker [12] At the time of the accident, the worker was standing outside of a loading dock, speaking with one of the managers, E. H. She was on one side of an approximately 3 ½ foot high metal divider and he was on the other. The worker stepped over the divider with her right foot, and the heel of her boot got caught on the divider. The worker fell down but could not recall how she fell, as everything became unclear the moment she hit the ground. The worker believed that she fell onto her head, shoulder and body. The manager advised her not to move and took her to the facility s health centre. The worker remembered that another co-worker, who was outside smoking at the time, also witnessed her fall. [13] The worker was unaware of the extent of her injuries until she was assessed by a nurse at the employer s health centre. The nurse told her that there was a bump on the left side of her forehead, near the hairline and, because the worker was experiencing significant pain in her left wrist and elbow, and the nurse suspected that she had broken her elbow. The worker was sent to a nearby hospital for further evaluation, where an x-ray confirmed that she had fractured the radial head of her left elbow. The worker also saw that there was a large bruise on her left hip. No x-ray of her left hip was taken. The worker could not recall being screened for left shoulder

4 Page: 3 Decision No. 1718/12 problems or having an x-ray of her shoulder taken. The worker s left arm was put in a sling, and she was sent home. She recalled being given a referral to the Upper Limb Clinic and instructed to remain off work until she had an appointment with the clinic. [14] The worker went back to work the day after the accident. She completed the employer s internal accident report with her manager and then remained at work for about 4 hours, but did not do any work. She came to work each day for about a week without doing any work. She believed she started a graduated return to work at 4 hours per day on April 27, She could not recall when she returned to full-time hours. The worker received 6 weeks of short-term disability benefits through the employer s health insurance plan, but could not state for what period. [15] The worker believed that her left arm was in a sling for at least one month. During this time, she was not required to do any typing at work. For the first few months after her injury, the worker was unable to use her left arm at all, at work or at home. The worker did return to her regular duties at some point, but spent the final weeks prior to her permanent lay-off in December 2010, in the finance department, doing accounts receivable and office work. She was able to complete this work using only her right, dominant, hand. [16] The worker explained that she believed the pain in her left shoulder may have been present since the time of the accident, but that she only gradually became aware of the pain in her left upper arm, which then moved into her shoulder. She was certain that she experienced this pain prior to December She did not report the onset of left arm/shoulder pain to her family physician as she hoped it would go away. Nor did she mention it to her specialist, Dr. King, or her physiotherapist until April [17] The worker completed the Form 6 herself and, although she believed that she injured her left shoulder in the initial trip and fall, she saw her left elbow as being the major problem, which is why she only mentioned this in her Form 6. She explained that she did not list the injuries to her head or hip, as these resolved. The worker agreed with the description of her injuries as listed in the employer s Form 7: the left arm, left wrist and left hip. [18] The worker found full-time work in an office as a recruiter in April In March 2013, she secured a position with a social services agency as a customer service associate, where she continues to work. [19] The worker testified that she continues to experience a constant ache in her left elbow. The pain is worse with cold weather, and the joint will occasionally lock and crack. She indicated that she may require surgery to replace the radial head of her elbow joint. [20] She also currently experiences daily pain in her left shoulder. This is the case whether she is at rest or engaged in activity. She finds that the 45-minute drive to and from work can result in shoulder pain, as well as her job duties, such as using the telephone and computer. She takes Extra Strength Advil in the morning for the pain in her left arm and shoulder, and medication to help her sleep at night due to pain. Some days, the elbow pain is worse than the shoulder pain and, on other days, it is the shoulder pain that is worse. Sometimes the pain from her elbow radiates into her shoulder. She does feel that overall, the pain in her left shoulder is worse than the pain in her elbow, rating it as 8/10, whereas the elbow is 6-7/10. She described the pain in her left shoulder as being at the top/outside of her shoulder.

5 Page: 4 Decision No. 1718/12 [21] The worker testified that she had no injuries to her left shoulder prior to April 2010, nor had she been to see her doctor about problems with her left arm prior to the compensable accident. (v) Law and policy [22] Since the worker was injured in April 2010, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [23] We have considered Operational Policy Manual (OPM) Document No , entitled Adjudicative principles: Adjudicative process and OPM Document No , entitled Secondary Conditions: Resulting from Work-Related Disability as being relevant to the issue in this appeal. (vi) Submissions [24] The worker s representative submitted that the worker had sustained a serious trip and fall accident, after which she was not aware of all of the injuries she had sustained, and relied on the employer s Form 7 and Board Memorandum No. 1, which both mention injury to the left upper arm in support of the worker s request for recognition of a compensable left shoulder injury. The representative also took the position that pain in and problems with the worker s left shoulder injury may have been masked by her medications. [25] In the alternative, the worker s representative claimed the worker s shoulder problems as a secondary condition to her fractured elbow, positing that the displacement of the elbow bones could have produced pain in her shoulder and that the worker s quick return to work may have been detrimental to her left shoulder. [26] The employer representative took the position that there was no medical evidence of any significance to establish that the worker injured her left shoulder on April 19, The representative emphasized the fact that there was no medical documentation concerning a left shoulder problem until almost 1 year post-accident, and that the clinical notes demonstrated that the pain the worker was experiencing was not actually in her shoulder. She also referred to Dr. King s report of November 19, 2011, in which he opined that the worker s left shoulder problems arose after her injury. [27] With respect to the contention that the worker s left shoulder problems arose from overuse, the employer representative submitted that the worker had not established the mechanism, or activities, that would have resulted in overuse of her left shoulder and a tear of the rotator cuff tendon. Indeed, the representative submitted that the medical evidence does not establish a diagnosis of a rotator cuff tear. Although Dr. King was under the impression that this was the case, none of the diagnostic testing revealed such a tear. (vii) Analysis [28] OPM Document No directs all adjudicators to consider the same five criteria when ruling on initial entitlement: an employer (see , Who is an Employer?) a worker (see , Workers and Independent Operators)

6 Page: 5 Decision No. 1718/12 a personal work-related injury proof of accident, and compatibility of diagnosis to accident or disablement history. [29] The nature of the worker s compensable accident a trip and fall over a railing onto concrete was such that it could have given rise to a left shoulder injury. However, neither of the two individuals who witnessed the incident provided a statement or testimony that the worker fell onto her shoulder. More importantly, no injury to the worker s left shoulder was detected during her initial visit to the HULC on April 26, 2010, or in subsequent visits. Given the lack of complaint regarding the shoulder at the time of the accident and the delay in seeking medical treatment for the shoulder, we find that proof of accident for the left shoulder has not been established. [30] Additionally, there is no diagnosis of the worker s left shoulder condition which is compatible with the accident history. Although a rotator cuff tear was initially suspected in April 2011, the medical evidence particularly the ultrasound investigation of January 2012 does not support a diagnosis of a rotator cuff tear. The Panel finds that the worker did not sustain a tear to the tendons of her left rotator cuff. Based on this finding, we also conclude that Dr. King s May 26, 2011 report does not address the issue under appeal. [31] Dr. King s report outlines the potential causes of a rotator cuff injury, including the worker s trip and fall. As we have found that the worker does not have a rotator cuff injury, and because there is no further diagnosis of her condition that has been proposed, we find that the worker has not established compatibility of a diagnosis to the accident history. [32] We therefore find that the worker is not entitled to benefits for a left shoulder condition arising from the April 19, 2010 compensable accident. [33] OPM Document No recognizes entitlement for secondary conditions that are causally linked to a work-related injury. As an example, the development of a left knee disability/impairment due to increased dependency following a work-related injury to the right knee is given. The Panel must therefore consider the secondary condition to which the worker is claiming entitlement. [34] The worker s representative claimed entitlement to a left rotator cuff injury due to overuse. As previously noted, the medical evidence does not substantiate such an injury. Further, the worker s testimony does not support a conclusion that she was engaged in activities which would have caused her to rely on her left shoulder to such an extent that she would have injured it. Indeed, her left arm was immobilized for an extended period of time. Further, the job duties were such that she was able to accomplish most with her right, dominant hand. We therefore do not recognize that the worker sustained an injury to her left shoulder due to overuse. [35] Dr. King s letter of November 29, 2011, also supports the Panel s conclusions that the worker did not sustain an injury to her left shoulder on April 19, 2010, and that a secondary condition did not develop as a results of the left elbow injury. Dr. King wrote that the worker was experiencing pain and stiffness in her left upper arm and deltoid muscle symptoms which he related to stiffness and dysfunction of her left elbow. The worker s symptoms in her left upper arm do not appear to be independent of her left elbow injury and do not have a distinct diagnosis. The Board did recognize that the worker had sustained an injury to her left upper arm and did grant her initial entitlement for this area. The worker may well have a permanent

7 Page: 6 Decision No. 1718/12 impairment to the left upper arm. The issue in this appeal, however, is entitlement to a NEL for the left shoulder. The Panel does not have jurisdiction over the question of the worker s entitlement to a NEL for the upper arm. The worker and her representative would have to pursue this matter with the Board. [36] The worker s appeal is denied. The worker does not have entitlement to a left shoulder injury as having arisen from the workplace accident of April 19, 2010, or as a secondary condition arising on a disablement basis from her left elbow injury and impairment.

8 Page: 7 Decision No. 1718/12 DISPOSITION [37] The appeal is denied. DATED: May 20, 2015 SIGNED: J. Frenschkowski, E. Tracey, J. A. Crocker

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1099/06

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1099/06 BEFORE: J. Dimovski: Vice-Chair HEARING: May 19, 2006 at Toronto Written DATE OF DECISION: June 29, 2006 NEUTRAL CITATION: 2006 ONWSIAT