Medical evidence showed worker suffered shoulder pain and limitations after reaching maximum medical recovery after being run over by co-worker
An Ontario worker has won an appeal for compensation for a permanent impairment of his shoulder after a workplace accident where he was hit by a cart driven by a co-worker.
The 61-year-old worker was a millwright. On May 5, 2012, a co-worker was driving a motorized cart in the plant and came too close to him. The worker tried to hold the cart off with his arm, but the cart lifted him off the ground and pinned him against a fence. The worker injured his right shoulder in the accident, which was diagnosed as a soft tissue injury.
The Ontario Workplace Safety and Insurance Board (WSIB) granted the worker compensation for a personal injury stemming from an accident at work.
The worker continued to have problems with his right shoulder and various medical examinations — including an MRI on June 1, 2012 — revealed that he had moderate-to-advanced osteoarthritis, a cyst, and tendonitis in his rotator cuff. The worker claimed benefits for all of these conditions and also that the workplace accident had permanently impaired his right shoulder.
However, the WSIB found the worker’s soft tissue injury had fully resolved by September 2012, four months after the accident, and there was no permanent impairment. The worker was granted entitlement of health care benefits only up until Sept. 9.
The worker appealed the decision and a WSIB appeals resolution officer found the worker was entitled to benefits for the tendonitis in his shoulder, as the condition was “compatible with the mechanism of injury” and likely related to the worker being hit by the cart. Since the worker underwent treatment for his tendonitis until March 28, 2013, the officer ruled the worker should receive full loss-of-earnings benefits up to that date.
However, the appeals resolution officer also found the worker’s tendonitis resolved when his treatment ended, so he was not entitled to permanent impairment benefits after March 28, 2013. The officer also found the osteoarthritis and cyst were likely pre-existing conditions and not consistent with injury, so the worker wasn’t entitled to benefits for those.
The worker appealed to the Ontario Workplace Safety and Appeals Tribunal, claiming the osteoarthritis and cyst in his shoulder should be compensable and his shoulder was permanently impaired as a result of the workplace accident.
The tribunal found that the worker’s MRI was less than one month after the workplace accident and the osteoarthritis was “moderate-to-advanced.” The tribunal noted that it is possible for the condition to be caused by trauma, but the advanced stage of it detected in the MRI made it more likely it was the degenerative-type of osteoarthritis. In addition, none of the doctors who treated the worker expressed an opinion that the workplace accident caused or significantly contributed to the condition.
The tribunal found the same for the cyst. There were no medical opinions indicating that it was caused or aggravated by the workplace accident, and its presence in the MRI less than one month after the accident meant it was probably there before, said the tribunal in upholding the denial of benefits for the osteoarthritis and shoulder cyst.
As for the worker’s tendonitis, the tribunal agreed with the previous decisions that the worker’s tendonitis was caused by the workplace accident. The medical opinions from several examiners, including the worker’s treating orthopedic surgeon, indicated the nature of the condition was consistent with the workplace accident as described by the worker and in general could be caused by such an injury. The tribunal upheld the worker’s entitlement for compensation for tendonitis in his shoulder.
The tribunal then looked at whether the worker’s tendonitis qualified for benefits for a permanent impairment. It referred to the definition of impairment — “a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss” — and permanent impairment — “impairment that continues to exist after the worker reaches maximum medical recovery” — in the Ontario Workplace Safety and Insurance Act, 1997.
A report from the orthopedic surgeon in Feburary 2013 stated that the tendonitis and related “shoulder girdle sprain” could be “extremely difficult to completely get rid of.” Medical reports following that one indicated the worker continued to have shoulder pain after the injury, causing “significant disability.”
The tribunal also found the worker was “forthright and honest” in describing his injury and medical conditions and it was unlikely he was exaggerating the extent of his pain. It pointed to a Jan. 21, 2013, medical report that stated the worker had no shoulder pain before his accident and by that point had “reached a plateau in improvement.” It also noted the worker had permanent restrictions on lifting, no lifting from waist to shoulder, and no bending or over-the-shoulder activities with the right shoulder. A March 24, 2014, report diagnosed “chronic shoulder pain following an accident” and he continued to receive injections of a painkiller in the shoulder.
Medical experts could not identify the specific origin of the worker’s shoulder pain, but the tribunal found there was enough expert opinion to indicate the issue was ongoing and debilitating for the worker.
“What is significant for present purposes, in my view, is that it is not necessary to identify a specific pathology in order for a worker to be entitled to benefits for a permanent impairment,” the tribunal said. “In my opinion, the evidence is clear that following the workplace accident, the worker experienced a significant loss of function in his right shoulder.”
The tribunal found the worker reached maximum medical recovery from the injury suffered in the workplace accident but still had a “sustained loss of function” in his right shoulder. As a result, he had a permanent impairment that was entitled to ongoing loss-of-earnings benefits.
The tribunal upheld the earlier decisions denying benefits for osteoarthritis and the cyst in the worker’s shoulder but granting benefits for his tendonitis. It overturned the denial of benefits for permanent impairment from the tendonitis.
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