Worker v. Employer, 2015 CanLII 39602

Workplace Safety and Insurance Board

Appeals Resolution Officer Decision

Decision Number: 20150066

Decision Date: May 11, 2015

Objecting Party: Worker

Represented by: Worker Representative

Respondent: Employer

Represented by: Employer Representative

Hearing: April 15, 2015 - London, Ontario

Heard by: A. Danos, Appeals Resolution Officer

Issues

The worker is requesting:

1. Recognition of a permanent impairment award for bilateral rotator cuff tendonitis and right biceps tendonitis
2. Entitlement for chronic pain disability (CPD)
3. Initial and ongoing entitlement for the upper back, neck, trapezius, scapula, posture, cervical brachialgia, myofascial pain syndrome and thoracic outlet syndrome (TOS)

Background

The worker was hired on January 25, 2010 as a temporary production worker at an automotive manufacturer. On May 19, 2010, she reported right shoulder symptoms to her employer. The claim was allowed for bilateral rotator cuff tendonitis and right bicep tendonitis.

Other diagnoses were offered throughout the claim. Entitlement was denied for injuries to the back, neck, trapezius, scapula, posture, cervical brachialgia, myofascial pain syndrome and thoracic outlet syndrome (TOS).

The Case Manager determined there was no permanent impairment for the allowed bilateral shoulder injuries, and also denied entitlement to chronic pain disability (CPD).

The worker is claiming initial entitlement for the denied areas of injury, and ongoing entitlement for the bilateral rotator cuff tendonitis and right bicep tendonitis.

Authority

The following policy documents apply:

• 11-01-01 – Adjudicative Process
• 11-01-05 – Determining Maximum Medical Recovery (MMR)
• 15-02-01 – Definition of an Accident
• 15-02-02 – Accident in the Course of Employment
• 15-03-01 – Recurrences
• 15-04-03 – Chronic Pain Disability

Analysis

1. Permanent Impairment of Bilateral Shoulder Injury

I find that the worker has a permanent impairment relating to the bilateral rotator cuff tendonitis and right biceps tendonitis.

According to WSIB policy, “impairment” means a physical or functional abnormality or loss which results from an injury. “Permanent impairment” means impairment that continues to exist after the worker reaches maximum medical recovery.

On August 10, 2011, the worker was seen at the Regional Evaluation Centre (REC) where the prognosis was incomplete recovery of bilateral rotator cuff tendonitis (right worse than left) and right bicipital tendonitis. On November 2, 2011, an orthopaedic surgeon suggested the worker was capable of returning to work with no restrictions. However, he also specified that if the worker’s return to regular duties significantly aggravated the worker’s condition, then she should go back to light duties.

The worker returned to a job which required overhead reaching and symptoms returned. Further entitlement was allowed as a recurrence.

On December 17, 2012 the doctor at the Speciality Clinic provided an opinion that the worker’s continuing condition was rotator cuff tendonitis as a result of overuse at work. He also gave a prognosis of incomplete recovery, and recommended restrictions.

The discharge report from the Specialty Clinic dated March 14, 2014 confirmed the continuing diagnosis and recommended permanent restrictions.

In this case it is clear that there is a permanent impairment to the bilateral shoulder and right bicipital tendonitis, based on specialists’ assessments throughout the file. The worker requires permanent restrictions against the listed activities, which means there is a physical or functional loss. Therefore the worker has entitlement to a Non-Economic Loss (NEL) review for the bilateral rotator cuff tendonitis (right worse than left) and right bicipital tendonitis.

2. Chronic Pain Disability (CPD)

I find that the worker does not have entitlement in this claim for chronic pain disability (CPD).

For a worker to qualify for compensation for CPD, the following conditions must exist, and must be supported by all of the indicated evidence:

• A work-related injury occurred;
• Chronic pain is caused by the injury;
• The pain persists six or more months beyond the usual healing time of the injury;
• The degree of pain is inconsistent with organic findings;
• The chronic pain impairs earning capacity.

In this case, the worker did have a work-related injury, and her pain persisted more than six months beyond the usual healing time of the injury. The evidence also supports that the chronic pain is caused by the injury.

However, the degree of pain is not inconsistent with organic findings; the objective medical information provides an explanation for the pain the worker is experiencing. As such, not all the required criteria have been met for entitlement to CPD. Therefore there is no entitlement to CPD in this claim.

3. Initial Entitlement to Other Areas

The evidence does not support initial entitlement to injuries to the back, neck, cervical brachialgia, trapezius, scapula, posture, myofascial pain syndrome and thoracic outlet syndrome (TOS).

Policy 11-01-01 requires that the diagnosis be compatible with the accident history or be causally linked to the work-related injury. I find that the references to conditions with respect to the back, neck, trapezius, scapula, cervical brachialgia, myofascial pain syndrome and TOS have not been shown to be the direct result of either the work duties or to the allowed right rotator cuff tendonitis and right biceps tendonitis. There is scant medical information to corroborate the numerous diagnoses, and in any case the onset of these issues occurred well after initial symptoms of the allowed conditions.

I find there is no causal relationship between the injury history and the diagnoses for any back, neck, trapezius, scapula, cervical brachialgia, myofascial pain syndrome and TOS.

Therefore, entitlement is limited to bilateral rotator cuff tendonitis and right biceps tendonitis.

Conclusion

I conclude the following:

1. A permanent impairment is evident for the bilateral rotator cuff tendonitis and right bicipital tendonitis.
2. There is no entitlement for chronic pain disability (CPD).
3. There is no initial entitlement to injuries of upper back, neck, cervical brachialgia, trapezius, scapula, posture, myofascial pain syndrome and thoracic outlet syndrome (TOS).

The worker’s objection is allowed in part.

DATED May 11, 2015

A. Danos Appeals Resolution Officer Appeals Services Division