WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110001
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: January 13, 2011
ATTENDEES: Worker, Worker Representatives, Interpreter, Observer
ISSUE
The worker objects to the Case Manager’s (CM’s) decision dated June 15, 2009 in which ongoing entitlement for her left shoulder injury of October 25, 2007 was denied.
HOW THE ISSUE AROSE
On October 25, 2007, the worker was standing on a ladder and pulled a box of snowmobile covers, weighing 2-3 lbs, from the shelf. As she pulled the box toward her, she felt a sudden and severe onset of left shoulder pain. The employer accompanied the worker to a walk-in clinic where it was recommended that she attend the local Hospital Emergency Ward for further assessment. The Clinic physician queried the possibility of a dislocation of the humeral head; however the x-rays confirmed no abnormalities. The Health Professional’s Report (Form 8) completed by the worker’s General Practitioner (GP), Dr. Fang Hu, confirmed a diagnosis of left shoulder and neck sprain.
The worker returned to work the next day and the claim was approved for reimbursement of health care benefits. According to the Worker’s Continuity Report (REO6) she returned to modified work on the general floor in the Parts Department for approximately 2 months. Thereafter, she resumed her regular work in the Receiving Warehouse. The worker describes her job functions to include loading boxes onto shelves.
On February 17, 2009, the worker notified the employer that she wished to reopen her claim. The worker had recently been diagnosed with a tendon tear in the left shoulder and her physician would be submitting a form to the Workplace Safety and Insurance Board (WSIB) for review. The Employer’s Continuity Report (WREO7) indicates that the worker had not complained of any further shoulder problems since she resumed her regular job in the warehouse. She also did not report any further symptoms or difficulties, or require any time off work, as a result of the shoulder injury between October 2007 and February 2009.
An ultrasound dated December 6, 2008 now confirmed evidence of a full-thickness tear of the supraspinatus tendon in the left shoulder. There was no evidence or suggestion of a tear in 2007. This ultrasound also confirmed irregularities with the non-injured right shoulder to include mild supraspinatus tendinosis and minor cortical irregularity at the acromioclavicular joint and the head of the humerus. In addition to the supraspinatus tendon tear, the left shoulder ultrasound also identified mild thickening of the biceps tendon consistent with tendinosis and some fluid in the bicipital tendon sheath. There was also irregularity of the cortical head of the humerus and greater tuberosity of the humerus.
According to the statement provided by the Employer on March 13, 2009, since reporting the aggravation in February 2009, the Employer had now instructed the worker to avoid any activity which might further aggravate her shoulder. The worker was instructed to request assistance from co-workers for any lifting activities. The worker’s statement on March 18, 2009 indicated that she had been self-accommodating her left shoulder since the accident by limiting her use of the left arm. She reported that she had complained to co-workers and supervisors on several occasions during the continuity period as well as receiving regular medical treatment.
On March 26, 2009 a return to work (RTW) intervention was scheduled to review the worker’s modified work options. The WSIB’s Ergonomist evaluated the worker’s regular job duties as a Warehouse Assistant and was able to identify activities that would be suitable for the worker’s medical precautions. The RTW plan identified that the worker was capable of performing activities to include labelling (using a hand-held scanner to scan products to produce the price label), cleaning (wiping down product on the shelves), and facing (moving product forward on the shelves). The worker was also limited to working only at waist height.
On June 15, 2009, the CM reviewed the medical information and determined that, as there was no evidence of any substantial medical reporting during the continuity period, entitlement to the recurrence would be denied. Additional medical information was requested from the GP. As per the CM’s review dated June 23, 2009, there was an absence of medical attention from November 7, 2007 until October 29, 2008 (almost one year later). Given the lack of medical continuity, and the fact that the tendon tear was not identified until almost one year after the accident, the CM confirmed her decision to deny ongoing entitlement.
AUTHORITY
15-03-01 – Recurrences
11-01-13 – Benefit of Doubt
EXHIBITS
There were no new exhibits presented at the Hearing.
ASSESSMENT OF THE EVIDENCE
In reviewing this objection, I have had regard for the claim file information, relevant policy and legislation and for the new information and testimony presented during this hearing. On January 9, 2009 the worker underwent a Magnetic Resonance Imaging (MRI) scan of the left shoulder. The MRI scan confirmed a complete tear of the supraspinatus tendon, with associated articular surface tendinopathy and a partial articular surface area site of complete tear. There were also degenerative changes in the AC joint and it appeared there had been a previous surgery along the under surface of the acromion. There was a subacromial enthesophyte and it appeared that the coracoacromial ligament had been previously resected.
Dr. Fang Hu’s letter to the WSIB dated April 23, 2009 confirmed that, following the accident, the worker was seen in follow up on November 7, 2007. At that time, the worker presented with decreased range of motion and some tenderness. He concluded that she had sustained a shoulder sprain and he recommended physiotherapy and light duties for 2 weeks. There was no further medical attention sought until October 29, 2008. The worker reported that her shoulder pain had not improved, and that she had continued to perform her regular duties which involved repetitive lifting. On examination, the range of motion was significantly reduced, particularly with abduction. The MRI confirmed evidence of a tear, and while the worker was receptive to massage and chiropractic treatment, she was not keen on considering any shoulder surgery.
The GP concluded that the worker was not able to return to regular duties. It was anticipated that she would likely have permanent shoulder restrictions if she did not pursue surgery. The worker provided testimony to confirm that she has declined any offer of surgery. She cited reasons related to a prior negative experience with surgery (for an unrelated impairment) while in Kazakhstan, and as such, she did not wish to pursue any surgical consideration of the left shoulder now.
On September 28, 2009, the worker was seen by Orthopaedic Surgeon, Dr. Wang. Subjectively, the worker confirmed that her pain had persisted since the accident. She has not received any physiotherapy treatment. The shoulder x-ray confirmed osteopenia. He recommended that the worker commence physiotherapy for the supraspinatus tendon tear. She was to follow up with the surgeon in three months. There are no subsequent medical reports on file from Dr. Wang beyond this date.
The medical reports did not confirm any knowledge of a previous shoulder surgery as identified in the MRI scan. The worker’s representative was asked to address this issue. He requested an additional medical submission from the GP. Dr. Fang Hu’s report dated November 29, 2010 confirmed that the patient had been under his care since 2005. He also had access to the worker’s medical charts dating back from 2000. While the MRI suggested evidence of previous left shoulder surgery, he had examined the patient and found no evidence of any prior surgical procedures (i.e. no surgical scars). The patient also denied any prior surgery.
He confirmed that the patient’s symptoms increased after she resumed her regular work duties in 2007. She was not seen for any left shoulder symptoms between November 7, 2007 and October 29, 2008. She was also not seen during this period for any other unrelated medical issues. On December 10, 2008 he recommended that the worker reopen her claim with the WSIB. The worker did not pursue this however until February 2009.
Policy 15-03-01 states:
A worker is entitled to benefits for a recurrence of a work-related injury or disease.
A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity.
The worker presented testimony with respect to her shoulder complaints and limited functioning following the work accident. She confirmed that she had worked in the Warehouse since
June 2005. She would receive goods coming into the warehouse by truck and would carry the boxes to the shelves. If the boxes were lighter, she would carry them herself. If heavier packages were delivered, someone else would transport them to the storage area. She described that she would be required to lift as much as 30-40 kgs. The storage shelves would extend the height of the room. If boxes were too heavy to lift, they would be left on the floor. She would perform overhead activities and/or lifting for a minimum of 50% of her workday.
Following the work accident, she returned to work the following day, but was provided with light work where she was asked perform some copying and writing for the employer. She wore a sling, as prescribed by the Emergency Room physician. She continued on light work for approximately 2 weeks. After seeing her GP on November 7, 2007, he also recommended that she continue with light duties for an additional 2 weeks. Thereafter, the worker resumed her regular work duties.
She testified that she continued to protect her arm with the sling and attempted to perform her work duties by maintaining her arm close to her body. However, she was still climbing ladders and still moving stock to the shelves. The worker reported that she was financially reliant on her job and could not afford to stop working. From November 2007 to October 2008 she reports that she would complain to her supervisor and manager of her continuing shoulder symptoms. The employer simply recommended that she seek further medical attention if there was no improvement. She continued to perform her regular work tasks with significant pain, and attempted to manage her pain with prescription medications. Her work hours were also reduced in January 2008 and this afforded her more time to rest the shoulder when at home. She recalled requesting a transfer to the floor on three separate occasions but this was declined.
The worker believes she did seek medical attention between November 2007 and
October 2008, although the GP’s chart notes do not reflect this. Once the employer was notified of the tendon tear, they instructed the worker to avoid any activity which might further aggravate the shoulder. The worker’s pre-accident job was assessed by the WSIB Ergonomist and found to be inappropriate for her medical restrictions. The RTW Specialist provided the employer with recommendations for alternative job duties.
The employer initially offered modified work as identified by the Ergonomist and the RTW Specialist, but approximately 2 ½ months later, in June 2009, the worker was notified that they could not longer continue to accommodate her. The worker received Employment Insurance (EI) benefits for a period of six months thereafter, and later received Disability Benefits through Manulife Financial. She reported receiving a lump sum payment from Manulife Financial but is not in receipt of any benefits at this time. She could not confirm why benefits ceased.
The worker’s representative argues that the worker was committed to continuing to work, as she was dependent on her earnings. She would not have stopped working if the employer was willing to continue to offer modified work. She remained stoic in attempting to perform all aspects of activities assigned to her by the employer, despite progressively increasing pain. She only stopped working after the employer advised that they could no longer accommodate her and she was laid off.
The worker’s representative also contends that the worker was reliant on her GP and other treating agents to properly diagnose her injury and direct her care. The worker followed all instructions and directions provided by her GP and treating agents. Dr. Hu initially diagnosed a shoulder/neck strain, and treated the injury in a manner commensurate with a musculoskeletal type injury. It was not until her symptoms and pain had progressed that the worker sought further medical attention and, at the worker’s insistence, the GP pursued additional medical investigations through Ultrasound and MRI. The worker cannot be held accountable for these delays or the delay in properly diagnosing her injury.
Although medical continuity is not evident for the 11 month period between November 2007 and October 2008, I accept that medical compatibility has been established. The worker describes a left shoulder injury occurring on October 25, 2007. The worker’s initial symptoms were of such significance that the Walk-in Clinic physician questioned the possibility of a shoulder dislocation. The only medical investigation at the time was an x-ray, which likely would not have revealed evidence of a tendon tear. No further investigation was carried out until the worker returned to her GP in October 2008 and he ordered ultrasound and MRI scan to further assess the injury.
The Employer’s WREO7 report states that the worker did not complain to anyone of any further shoulder problems after resuming her regular work in November 2007. The worker contends that she did report ongoing symptoms to her supervisors, but that her concerns were not addressed. Some consideration must be afforded to the fact that the worker’s limited English skills may have resulted in less than effective communications with the employer, and the employer may not have appreciated the full scope of the worker’s symptoms and concerns. Understandably, the employer did not react until further written medical evidence was presented.
During her testimony, the worker denied any outside hobbies or activities which may have contributed to a new shoulder injury. Ultimately, no other incident or accident is identified to support further exacerbation of the left shoulder. Policy 11-01-13 states:
In determining any claim under the Act, the decision shall be made in accordance with the real merits and justice of the case, see 11-01-03, Merits and Justice. Where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.
In the absence of any other identifiable accident or incident that may have contributed to the exacerbation of the left shoulder, I find that it is more probable than not that the supraspinatus tendon tear resulted from the work accident of October 25, 2007, but the medical investigations performed immediately after the accident were not of a caliber to identify the true nature of the injury. The worker put forth a stoic effort thereafter to continue working despite the progressive deterioration of her shoulder, and eventually sought further medical attention when the symptoms became most problematic. I therefore conclude that the supraspinatus tendon tear resulted from the work accident of October 25, 2007.
CONCLUSION
The worker’s objection is allowed. I conclude that the supraspinatus tendon tear has resulted directly from the work accident and the worker is therefore granted ongoing entitlement in this claim.
It will be left to the Operating Area to determine what benefits shall emanate from this decision. Should Loss of Earnings benefits be granted, the Case Manager should have regard for the benefits received from Employment Insurance and Manulife Financial.
DATED January 14, 2011
R. Calvert
Appeals Resolution Officer
Appeals Branch