WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090082
OBJECTION BY: Worker
EMPLOYER: No longer in business
REPRESENTATIVES: Worker Representative
HEARING DATE: December 3, 2009
ATTENDEES: Worker, Worker Representative, 2 Observers
ISSUES
Denial of ongoing entitlement to the left knee.
Denial of ongoing entitlement to the right knee.
Denial of entitlement to the right shoulder.
Entitlement to Loss of Earnings (LOE) benefits.
HOW THE ISSUES ARISES
On March 25, 1996, while working as a roofer, the worker fell onto some gravel on a roof and injured his knees, right shoulder and low back.
The worker was diagnosed with a contusion to his knees and low back, as well as a right shoulder strain.
LOE benefits were paid from March 26, 1996 to May 6, 1996 and from October 23, 2996 to February 3, 1997.
The worker fell on his right shoulder when he was sleep-walking on July 3, 2007. The worker claimed that he had not recovered from the March 25, 1996 injury and that his ongoing right shoulder and knee problems were a result of the original injury.
A letter dated May 6, 2008 was sent to the worker from the decision-maker who advised the worker that the injury to his right shoulder, which occurred while sleep-walking, is a new non-work-related injury, and therefore his right shoulder problems are not a result of the original injury of March 25, 1996. The decision-maker also advised the worker that the current diagnosis of mild osteoarthritis for his knees is a result of a degenerative process, and not a result of the original bilateral knee injury of March 26, 1996. The decision-maker advised that ongoing entitlement in the claim is not granted.
The worker is appealing the denial of entitlement to the right shoulder and bilateral knees.
AUTHORITY
Operational Policy Manual (OPM) Document 15-03-01– Recurrences
Document 11-01-15 Aggravation Basis
EXHIBITS
Exhibit # 1 – Rotator Cuff Tears – Copyright 2007 American Academy of Orthopaedic Surgeons
Exhibit # 2 – Workplace Safety and Insurance Appeals Tribunal (WSIAT) – Medical Discussion Paper
Exhibit #3 – WSIAT Decision No, 395/07
Exhibit # 4 – WSIAT Decision No, 803
Exhibit #5 – WSIAT Decision No, 1318/02R2
ASSESSMENT OF THE EVIDENCE
I reviewed all the file information, including the following file documentation.
File Documentation
On October 23, 1996 the worker had an arthroscopy of the right knee with multi-compartment debridement and the post-operative diagnosis was osteoarthritis of the right knee.
On November 12, 1996 the worker was assessed by Dr. Ginty (Orthopaedic Surgeon), who noted the worker would have difficulty returning to a roofing job which involved a lot of kneeling and climbing ladders.
On December 17, 1996 the worker was followed-up by Dr. Ginty, who noted the worker was complaining of left knee patellofemoral symptoms and recommended a debridement.
On September 28, 1998 the worker had x-rays done on both shoulders which showed bilateral degenerative changes at the rotator cuff insertion.
On May 23, 1999 the worker had x-rays of the right knee which showed mild osteoarthritis.
On August 31, 2000 the worker was seen by Dr. Ginty, who noted the worker was having a dull aching pain in the left knee associated with weather changes, which suggested a diagnosis of osteoarthritis. The worker did not have any mechanical symptoms. The specialist noted the findings were related to the patellofemoral joint and referred the worker for physiotherapy treatment.
From August 2000 to April 2007 the worker sought treatment once for a right knee complaint and this is noted in the worker’s chart notes obtained from the family doctor by the investigator in April 2008. There are no other medical reports on the record during this time frame.
The chart notes that were obtained from the family doctor were copies of the original and were difficult to read, but I have summarized the legible notations below:
The family doctor’s chart notes were obtained by the investigator and they showed that the worker sought treatment on June 23, 1994 for a sore right knee. The family doctor noted the worker was sore when squatting and kneeling and queried whether the worker had a possible tear of the lateral cartilage. The family doctor referred the worker for x-rays.
The chart notes showed that the worker was followed-up on June 30, 1994 and the family doctor noted the worker may still have a cartilage tear.
Dates of treatment for the right knee include December 26, 1996, January 7, 1997, and February 21, 27, 1997, March 7, 1997, May 26, 1999, June 28, 1999, May 24, 2006 and April 24, 2007.
The worker was also seen on June 16, 20, 2000 for the left knee.
The chart notes also showed one visit for right shoulder on September 24, 1998 and the worker did not seek treatment again until May 9, 2007. The family doctor noted a decreased range of motion in the right shoulder.
On July 3, 2007 the worker was seen by the family doctor who noted the worker fell and hurt his right shoulder, “not WSIB”. A return to work dated of June 11, 1997 was documented. It was also noted that the worker’s pain reoccurred and was “worse in bed 5 days ago”, but there was no acute injury.
On April 24, 2007 the worker had an x-rays done of the right knee which showed mild symmetrical degenerative changes with no sign of effusion.
On May 5, 2007 the worker had a Magnetic Resonance Imaging (MRI) scan of the right shoulder which showed a normal alignment and no fracture. The MRI scan also showed “mild AC joint arthropathy, slight downward curvature of the lateral acromion and irregularity in the superolateral humeral head probably due to impingement.”
On September 9, 2007, the worker had a repeat MRI scan of the right shoulder which showed a complete full thickness tear of the “supraspinatus and subscapularis tendon and a partial articular surface tear of the infraspinatus tendon”. It also showed that the “bicep tendon appeared deficient and was sublexed from the bicipetal groove”. There were also findings concerning a “labral tear” and clinical correlation was recommended.
On September 20, 2007 the worker was seen by Dr. Weening (Orthopaedic Surgeon) who noted the worker had fallen four months prior while sleep-walking at home. The worker denied any previous right shoulder problems. The specialist noted the worker had an MRI on September 9, 2007 which showed a full thickness tear of the “supraspinatus tendon” and the worker would likely require surgical reconstruction.
The worker was assessed by Dr. Ginty on November 6, 2007 who noted the worker injured his right shoulder when he fell against a counter top. The specialist noted there was evidence of degenerative changes typical of a “chronic rotator cuff arthropathy” with a likely un-repairable rotator cuff tear which predated the worker’s injury of May 2007. An open debridement was not recommended.
On January 29, 2008 the worker was assessed by another Orthopaedic Surgeon, Dr. Holtby, who recommended the worker have surgical treatment to assess the tear and repair the right shoulder.
On June 26, 2008 the worker was followed up by Dr. Holtby, two weeks after the worker had a rotator cuff repair (date unknown) of the right shoulder. The specialist opined that the worker’s damage to his “subscapularis, biceps tendon and rotator cuff” were consistent with a significant injury that occurred some time in the past.
The file was listed for an investigation to obtain details about treatment received, new injuries and work performed for the period of February 1996 to April 1, 2008 (the date of the investigation).
The following is a summary of the results of the investigation;
Right knee
the worker closed down his roofing business in 1997,
the worker started employment with a wood crate making company and was employed there from 1996 until June 2007,
the job duties involved some lifting while he assembled crates at table height,
the worker received prescriptions for Tylenol 3 or Naprosyn in the 11 year period since the original injury in 1996,
the worker advised that at first it was not that bad but over time the knee gradually grew worse,
the worker advised that the right knee buckles and gives out and he was scheduled for surgery April 2009,
the worker was working as a lead hand in 2007 and it involved a lot of standing and walking but not a lot of heavy physical activity,
the worker denies any further injuries or accidents to the right shoulder and right knee.
Right shoulder
the worker has had intermittent problems with the right shoulder over the past 10 years including several cortisone injections,
he used his left arm more when the right arm became painful,
the worker advised that he has left shoulder problems as a result of overusing the left shoulder,
in May 2007 the worker advised that he fell in his bathroom at home and injured his right upper/arm and shoulder.
Complaints
the worker was hired by a crate making company in 1997 and the owner and supervisor of the company were interviewed by the investigator; they were aware of the worker’s limitations upon being hired and noticed the worker had difficulty walking up and downstairs, bending and lifting,
The worker started with the company part-time because the roofing business was slow in the winter,
The worker was described as dedicated and did not miss time from work despite his problems,
The worker was observed as having increasing difficulties with the shoulder over the last couple of years.
Worker’s Testimony
The worker testified that he worked as a roofer for 25 years from 1971 to 1996. As a roofer he would be required to carry heavy bundles up a ladder and nail shingles onto the roof. He would carry about 50 bundles a day up the ladder and he would perform this task in all weather conditions. The worker stated he would carry a bundle over his right shoulder while climbing up the ladder.
The worker testified that since the March 1996 accident he has had ongoing problems with his knees and right shoulder.
The worker representative questioned the worker with respect to his ongoing treatment since the original injury and the worker testified that he would take some medication for the pain in his shoulder and was given a cortisone injection from time to time but the pain would always return after a while.
The worker testified that after the accident he saw his family doctor who prescribed anti-inflammatories and his knees hurt a little but they started to get much worse and eventually he had to have surgery on his right knee.
The worker testified that following the work injury in 1996 he took another job because he was no longer able to perform the constant bending and lifting required as a roofer. He testified that at first he worked as a general labourer. The worker testified that he would call co-workers for assistance to perform heavier lifts. The job he performed involved screwing shocks into skids and was light in nature. The worker testified that for the first three years his shoulders were not that bad but gradually grew worse.
The worker testified that at the time of the fall in his bathroom at home in May 2007 he was not sleep-walking. He stated that his wife told this to the doctor. He stated that he was going to the washroom and fell into the counter.
The worker testified that he can no longer lift his arm past shoulder height and performs no household tasks. The worker stated that his son mows the lawn and shovels the snow. His wife performs household chores and he requires assistance when showering. The worker testified that he is not able to bring his plate from the table to the counter and unable to even wash dishes. He indicated he is able to drive 4-5 miles from his home and uses the low part of the steering wheel to turn.
I questioned the worker with respect to the accident in May 2007, and the worker testified that his knee gave out and he fell, injuring his arm below the shoulder.
The worker testified that prior to the injury he saw his doctor for his knee problems and was told that he had arthritis in his knees and was given a cortisone injection.
The worker testified that he is in receipt of Canada Pension Plan Disability benefits which were awarded for his bilateral knee and shoulder problems.
The worker testified that he is having left shoulder problems now as a result of overuse of the right shoulder.
I questioned the worker regarding the original injury history, and he testified that he was working on a flat top roof when he fell on the roof. He described the accident as first falling onto his knees and then onto his hands.
Worker Representative Submissions
The worker representative argued that the worker’s ongoing knee problems and right shoulder problems were a result of the March 26, 1996 accident. The worker representative argued that the fall the worker had in the bathroom in 2007 did not result in an injury to the right shoulder but the injury was to the area just below the arm.
The worker representative provided Exhibits #1 to #5 during her closing arguments and argued that the worker’s ongoing right shoulder problems were a result of his working duties as a roofer.
The worker representative argued that the worker was not a complainer, he was diligent, hard-working and never recovered from the original injury. The worker representative suggested that an x-ray cannot reveal a rotator cuff tear but that the tear was there since the original injury in 1996.
The worker representative argued the worker’s right shoulder rotator cuff tear was not a result of the fall in the bathroom but a result of his original injury in 1996 and/or his duties as a roofer.
The worker representative suggested the worker received full LOE from June 2007 to age 65 and the worker should also receive a permanent impairment for his bilateral shoulder and bilateral knee problems.
The worker representative provided Exhibit #1 to #5 and argued that the worker’s right shoulder problems are a result of the work performed as a roofer over a 25 year period. The worker representative suggested that Exhibit # 2 the WSIAT Medical Discussion paper on Shoulder Disabilities supported that a rotator cuff tear occurs in older individuals with a moderate external force, such as during the lifting of objects. The worker representative also suggested that the three WSIAT decisions supported that the worker’s rotator cuff tear was a result of working as a roofer.
Analysis
In determining ongoing entitlement to the bilateral knee and right shoulder injuries I reviewed the record, evidence, submissions and testimony.
- Ongoing entitlement to the left knee.
On March 25, 1996 the worker injured both knees. The treatment post-injury was primarily for the right knee. The worker noted in his progress reports in 1996 that he was experiencing pain in both his knees. The worker saw the specialist in December 1996 who noted the worker’s left knee complaints and also noted the worker may benefit from a debridement, however, this was not done. Following the December 1996 specialist assessment there was no further treatment sought until the worker saw his family doctor complaining of left knee pain in 2000. The worker was seen by a specialist on August 31, 2000 who noted the worker did not have any mechanical symptoms but rather a dull ache with weather changes suggestive of osteoarthritis. The worker did not seek treatment again until April 2007. The worker was referred for x-rays of both knees which showed degenerative changes.
I am not persuaded that the worker’s ongoing left knee problems are a result of the original injury of March 25, 1996. There is an absence of treatment beyond 1996 to support that the worker’s current complaints of pain are related to the original accident and injury. Furthermore the x-rays showed that the worker has degenerative changes in his left knee. On the one occasion the worker was seen by the specialist, he noted the worker’s complaints of a dull aching pain related to weather changes which were suggestive of osteoarthritis and this would not be in the scope of a work-related injury.
The balance of evidence supports that the worker injured his left knee on March 25, 1996, that he fully recovered from his left knee injury and the worker’s current left knee problems are unrelated to the original accident and injury of March 25, 1996.
- Ongoing entitlement to the right knee.
The worker first sought treatment with the family doctor prior to the March 25, 1996 injury. The worker testified that he received a cortisone injection prior to the injury and was told he had arthritis in his knee. The family doctor’s chart notes confirm that the worker sought treatment prior to the injury. When a worker has a pre-existing condition entitlement can be accepted to a work injury under the Aggravation Basis Policy 11-01-15. The policy states:
“If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state”.
I find that the worker received treatment prior to the March 25, 1996 work-related fall, and therefore, entitlement is granted on an aggravation basis.
After the fall in March 1996, the worker underwent surgery later that year. After the surgery the specialist noted the worker would have difficulty performing work as a roofer due to the bending and the kneeling required to perform the work of a roofer. The worker found work with another employer as a general labourer and closed his roofing business in 1997. The worker advised the investigator in 2008 that he was not able to return to work as a roofer because he was not physically able to do the work. He advised the investigator that his right knee was not too bad at first, however, it had gotten worse over the years. The worker sought sporadic treatment with the family doctor from 1997 to 1999. The worker sought treatment once in 2006 and again in April 2007, at which time he was sent for x-rays.
I am persuaded that the worker did not fully recover from his right knee injury. The worker was not able to return to his roofing duties due to the kneeling and bending required as a roofer. The worker was able to find alternate employment with a new employer where kneeling and bending was not required. The worker’s right knee injury did not return to its’ pre-accident state.
The balance of evidence supports that worker’s ongoing right knee problems are a result of the original accident and injury of March 25, 1996. The worker is entitled to Health Care benefits and a Non-Economic Loss (NEL) Assessment for ongoing right knee problems.
The worker did not have surgery on his left knee nor did he seek ongoing treatment for the left knee after the original accident and injury. Although there are degenerative changes in the right knee similar to the left, the right knee is allowed on an aggravation basis of the non-work-related pre-existing condition. Medical continuity cannot be established for the left knee. The absence of medical continuity as well as the diagnosis of degenerative changes persuades me that ongoing entitlement to the left knee was correctly determined by the operating area.
- Ongoing entitlement to the right shoulder.
On March 26, 1996 this worker fell onto his knees and then onto his hands on a flat top roof while working as a roofer. The worker was diagnosed with a strain to the right shoulder. One month following the original accident and injury the worker complained of right shoulder pain on a progress report, however, no further complaints were noted. The worker sought treatment once in the period of time between 1996 and 2007 when he had the fall in the bathroom.
The worker testified that he was not sleep-walking at the time of his fall in May 2007. The specialist report noted the worker was sleep-walking and fell. The worker testified that he was in the bathroom and fell but also stated that his knee gave out. The chart notes from the family doctor noted that the worker fell, and there is no indication in the notes that the worker was sleep-walking or that his knee gave out. This notation would have been within a very short time frame of the incident and I accept that the worker fell in May 2007, and the cause not being from the knee giving out or because of sleep-walking. Since, the cause of the fall is not a result of the knee giving out entitlement to the right shoulder cannot be allowed as a secondary injury.
The worker advised the investigator that he had intermittent problems with the right shoulder over the past 10 years requiring cortisone shots. The worker sought treatment once on September 24, 1998 in the time frame from 1996 to 2007. After the May 2007 fall the worker was seen by the specialist Dr. Weening who noted the worker denied any previous right shoulder injuries. There is an absence of any medical information to corroborate the worker’s testimony.
The worker was seen by Dr. Inskster who opined that the worker’s right shoulder and arm problems were consistent with a significant injury that occurred sometime in the past.
I am not persuaded that on March 25, 1996 this worker had a significant injury to his right shoulder. The worker fell on his knees first then onto his hands, on March 25, 1996. The worker’s right knee took the brunt of the impact, and with minimal right shoulder complaints and no treatment sought following the injury I am not persuaded that the original injury was significant enough in nature to result in a rotator cuff tear. The worker found alternate employment in 1997 and stopped working as a roofer, which was due to his right knee problems and not a result of ongoing right shoulder problems. The worker was still able to perform the work of assembling crates together for 10 years prior to going off work in June 2007 but did not seek treatment for any ongoing discomfort in that time frame.
The balance of evidence shows that there is no continuity of complaint or medical reporting to support that the worker’s current right shoulder problems are a result of the original accident and injury. The right rotator cuff tear is not compatible with a shoulder strain or the mechanism of injury on March 25, 1996.
During the closing submissions at the Hearing, the worker representative argued that the worker’s right shoulder problems were a result of his long history working as a roofer.
I am not persuaded by the WSIAT decisions No. 395/07 and 1318/02R2, as they are not on point.
WSIAT Decision 803 involved a worker employed as a roofer, when on May 15, 1985, he was performing his duties as a roofer and experienced a gradual onset of pain. The tribunal found that the worker’s gradual onset of pain was a result of the worker performed while roofing. I do not find this case persuasive, as there were no delays in the onset of pain, and the shoulder symptoms came on in the performance of this worker’s duties as a roofer, which is not true in the case before me.
I do not find that the worker’s right shoulder problems are a result of working as a roofer because the worker made all but one right shoulder complaint for which he sought treatment in 1998 and there is no evidence on record to show that the worker sought treatment for right shoulder problems during the 25 year period he was employed as a roofer. I cannot establish continuity from 1997 to 2007.
In summary, the balance of evidence does not support that the worker’s current right shoulder problems are a result of the original accident and injury or a result of the work performed as a roofer. The denial of entitlement to the right shoulder was correctly determined by the operating area.
- Entitlement to LOE benefit
The worker went of work in June 2007 for his right shoulder problems and never returned to work. The lost time from work is as a result of his right shoulder problems for which the worker has no ongoing entitlement.
The worker testified that he is no longer able to work because of his knees and shoulder problems. The worker was working as a lead hand at the time he stopped work in June 2007 and the work does not involve the activities of bending or kneeling. As the work of a lead hand is within the worker’s physical limitations, there is no entitlement to LOE benefits. The worker’s loss of earnings is not a result of his work-related right knee problems.
CONCLUSION
In conclusion I find:
The worker is entitled to Health Care benefits and a NEL assessment for ongoing right knee problems.
The denial of ongoing left knee problems was correctly determined by the operating area and therefore there is no entitlement to Health Care benefits or a NEL assessment for the left knee.
The denial of ongoing entitlement to the right shoulder was correctly determined by the operation area and therefore there is no ongoing entitlement to the right shoulder problems. Furthermore, there is no entitlement to the right shoulder on a disablement basis as the worker’s right shoulder problems are not found to be a result of the work performed as a roofer. There is no entitlement to Health Care benefits or a NEL assessment for the right shoulder.
The worker’s loss of earnings are not a result of the work-related right knee problems and therefore there is no entitlement to full LOE benefits from June 2007 to age 65.
The objection is allowed in part.
DATED December 17, 2009
P. Jones
Appeals Resolution Officer
Appeals Branch