WORKPLACE SAFETY AND INSURANCE BOARD
RECONSIDERED DECISION
Decision Number: 20150051
Decision Date: April 21, 2015
Objecting Party: Worker
Represented by: Self-Represented
Respondent: Employer (not participating)
Hearing: Hearing in Writing
Heard by: C. Cirinna, Manager, Appeals Services Division
ISSUE:
This reconsidered decision will deal with the issue of left shoulder entitlement granted as a secondary condition in the Appeals Resolution Officer decision dated April 5, 2007.
BACKGROUND:
This worker was employed as a maintenance technician. In August 2001, he reported a gradual onset of right shoulder pain while installing and servicing air-conditioning units. The initial diagnosis was a strain, however medical testing later revealed a rotator cuff tear that was accepted as part of the entitlement.
Shortly after the injury, the worker returned to modified duties with the accident employer and continued working until he underwent surgery on December 13, 2002. Following his recovery from surgery, the worker returned to work with the accident employer in September 2003 performing modified job duties.
In early February 2004, the accident employer indicated it was no longer able to accommodate the worker's permanent shoulder restrictions. As a result, the worker was referred for Labour Market Re-entry (LMR) services and a job objective of customer service representative was selected. The LMR program called for the worker to participate in an academic upgrading and a job search training program. At the completion of LMR services on May 31, 2004, the worker was found capable of achieving entry level earnings as a customer service representative.
In April 2004, the worker was granted a 17% non-economic loss (NEL) award for the permanent impairment resulting from the right shoulder injury.
In a decision dated November 2, 2004, an ARO confirmed the quantum of the permanent impairment award for the right shoulder and also confirmed the job objective of customer service representative was suitable for the worker.
In July 2005, the worker requested that entitlement in this claim be extended to include the left shoulder, left wrist and left elbow as a result of over compensating due to his limited use of the right upper extremity. This request was denied in a decision dated February 8, 2006.
In January 2007, the worker underwent left shoulder surgery consisting of a rotator cuff repair, and distal clavicle resection.
In a decision dated April 5, 2007, an ARO allowed left shoulder entitlement as a secondary condition and granted loss of earnings (LOE) benefits from February 27, 2006 until the date of the decision. This decision also granted a further LMR assessment and denied entitlement in this claim for the left elbow and left wrist.
In May 2010, the worker was granted a 14% NEL award for the permanent impairment to the left shoulder. When combined with the right shoulder impairment, the worker had a whole person NEL award of 29%. In March 2011, the NEL award was increased to 31%.
In April 2009, the WSIB was informed by a third-party that in late 2004 the worker was married and moved to the United States, where shortly afterwards, he began to operate his own business. It was later confirmed the worker was in fact operating a business in a US State between 2005 and 2007, and the services offered were somewhat similar to his pre injury occupation. The worker had not reported any material change regarding his employment status in 2005, and this led to a number of further inquiries regarding his business activities in the United States. Questions were also raised about whether his left shoulder difficulties were in fact attributable to a secondary condition in this claim, or whether the left shoulder diagnosis was more attributable to his self-employment activities in the United States between 2005 and 2007.
Based on the significant new evidence that came to light regarding the worker’s employment situation, an internal reconsideration request was made by Operations in a memo dated November 17, 2014 asking that the Appeals Services Division (ASD) reconsider the ARO decision dated April 5, 2007. The standard of review for a reconsideration of this decision has been met, and the worker was advised of this decision. The ARO that issued the initial decision has since retired and therefore the reconsideration request has been assigned to me as an Acting Manager in the Appeals Services Division.
In a more recent decision dated October 24, 2014, the case manager concluded that the worker had the ability to resume his pre-injury job duties as demonstrated by his ability to operate a business that performed building maintenance duties in the US between 2005 and 2007. As a result of this decision, a substantial recoverable debt has been created. The worker is in the process of objecting to this decision and this is not an issue that is before me.
AUTHORITY
11-01-14 Reconsideration of Decisions
15-05-01 Secondary Condition Resulting from Work-Related Disability
22-01-02 Material Change in Circumstances-Worker
ANALYSIS
I contacted the worker on January 16, 2015 to advise him of the request by Operations to reconsider the ARO decision allowing left shoulder entitlement. The worker was given the opportunity to provide written submissions on whether the standard of review for reconsideration had been met. He indicated that he had already provided information to this effect to the case manager and had nothing further to add.
The worker was notified in a letter dated January 22, 2015 that the standard of review for reconsideration had been met. This decision was based on significant new information that came to light regarding his employment status starting in 2005, which, if reported, may have affected the outcome of the April 2007 ARO decision. The worker was given until February 20, 2015 to provide any further written submissions that he may have relating to the left shoulder entitlement issue.
The worker did provide a written submission on February 15, 2015. Virtually all of the information submitted by the worker is information that is already contained in the claim file. It is essentially the worker's position that he fully cooperated and provided full disclosure to the WSIB when asked about his employment income in the United States between 2005 and 2007. The worker maintains that although he established a business under his name while in the US and claimed the business income as his on his US tax returns, he did virtually no physical labour and had essentially established this business in order to guide and teach his son to perform maintenance work. The reason that the business and the income earned by the business was not claimed by his son is that he did not have a Social Security number and his residency status was such that he could not legally work in the US.
The issue that I must now address is whether the outcome of the April 2007 ARO decision would have been different had the worker reported his material change in circumstances as of early 2005 when he established a business in the United States and apparently began working.
Decision
The decision of the ARO dated April 5, 2007 which allows left shoulder entitlement as a secondary condition remains allowed. The accepted diagnosis is a left shoulder strain and tendinitis.
Once the worker was removed from the work environment, he recovered from the left shoulder symptoms that had been caused by increased use of his left upper extremity in order to overcompensate for his right shoulder difficulties. The left shoulder condition is considered to have fully recovered within 6 weeks of the date that he stopped working with the accident employer in February 2004.
The worker’s left shoulder difficulties diagnosed later in 2005 and the significant MRI findings diagnosed in February 2006 that subsequently led to surgeries are far more likely to have been caused by his self-employment activities in the US starting in early 2005.
Reasons for the Decision
There is no indication in the file, or any claim made by the worker that he sustained an injury to his left shoulder at the time of the original workplace injury. Instead, it is his position that following his return to work with the accident employer his limited ability to use his right upper extremity caused him to overcompensate with his left arm, which resulted in a gradual onset of left shoulder pain.
The worker performed suitable work with the accident employer for most of 2002, and for a further 5 months from September 2003 until early February 2004 when the employer indicated it was no longer able to offer this worker suitable job duties.
A WSIB ergonomics specialist viewed the worker’s modified job duties in December 2003 and noted the modified job duties offered to the worker were essentially the pre-injury job duties with the heavy and more awkward tasks being removed. The job was considered suitable at that time.
After his layoff in February 2004, the worker briefly participated in a LMR program. There is no indication in any of the LMR reports that the worker made any mention of left shoulder difficulties.
The worker attended a NEL assessment with a roster physician relating to his right shoulder in March 2004. As part of the overall assessment, the worker’s range of motion in the left shoulder was also examined. At that time, flexion of left shoulder was 180° and extension was 80°. Adduction and internal rotation were both recorded as 90°, while abduction and external rotation were recorded as 180°. The findings for the left shoulder were indicative of a normal range of motion. At the time of the NEL assessment the worker also completed a pain diagram and did not indicate any pain symptoms relating to the left shoulder.
The report from a shoulder specialist dated May 5, 2005 indicates the worker had developed problems of his left bicep and left wrist flexors due to overuse because of the right shoulder injury. Interestingly, this report does not make any specific reference to the left shoulder.
This same specialist also submitted a Health Professional’s Report (Form 8) dated May 5, 2005, which reiterates much of the same information contained in his narrative report, and does not specifically mention the left shoulder. This report provides restrictions that included no carrying, lifting or strenuous work with the left arm while doing physiotherapy treatment. It is worth noting that by this point in time the worker had not worked with the accident employer for about 15 months, and had been living in the US for about 6 months. It is difficult to determine how the worker would have developed these left upper extremity symptoms, if as he later claimed, he had not been involved in any work activity since February 2004.
The report from his treating doctor dated December 27, 2005 indicates the worker had developed an overuse injury in his left upper extremity due to compensating for the right shoulder injury. This report indicates he had developed tendonitis of the left biceps and flexor tendons of his left arm since June 2004. This report does make a passing reference to left shoulder pain but provides no diagnosis. It is worth noting that at the time of the recorded onset of the left upper extremity pain (June 2004) the worker had not been working for approximately 4 months, and by this time he was no longer involved in an LMR program.
An MRI of the left shoulder done on February 27, 2006 in the US found what was described as marked supraspinatus tendinopathy with partial undersurface tearing. At that point in time the worker had been operating his heating and air conditioning maintenance business in the US for about 1 year.
The doctor that performed the NEL assessment in March 2004 provided a report dated June 12, 2006 indicating the worker was claiming to have told him about left shoulder pain at the time of the NEL assessment. The doctor states that he had a "vague recollection" of the worker mentioning some left shoulder pain, however he reiterated his examination of the left shoulder showed a normal range of motion, although there may very well have been some left shoulder pain at that time.
In memo 123 dated August 21, 2006, the Medical Consultant indicates the first documentation of objective impairment in the left shoulder was not until May 2005. By this point it had been approximately 15 months since the worker had stopped working with the accident employer. The Medical Consultant goes on to note there was very little in the way of medical documentation and objective findings until the MRI report from February 2006.
A further MRI of the left shoulder done on March 8, 2007 indicates that when compared with the February 2006 MRI, the appearance of the rotator cuff was markedly worse, and involved a very prominent partial (almost full) tear, and there was now also a superior labral tear.
During the oral hearing in early 2007, the worker testified that from December 2002 until September 2003 he was a single father caring for 2 teenagers and did more cooking and laundry during this timeframe, which resulted in his left arm and shoulder getting tired. The worker also testified he used his left arm to hold railings to climb stairs, lift groceries and that after he stopped working on modified duties he continued to use his left arm for reaching and doing household chores. The worker testified that around the time of the NEL assessment was when the left shoulder began to bother him more.
When testifying with respect to the modified job duties performed with the accident employer the ARO decision stated; "The worker testified, and I accept the testimony that a lot of these duties involved overhead work that he tried to accomplish using his left arm and shoulder and that he only called the helper if the job could not be done with only one hand." This decision went on to state; "I accept the argument of the worker representative that the treatment for the right shoulder and pain medication most likely masked some of the symptoms and resulted in a delayed onset of complaints for the left shoulder."
The worker had testified the increased use of his left arm outside the work environment occurred primarily between December 2002 and September 2003 while he was a single father caring for his kids. During this timeframe he was recovering from the December 2002 right shoulder surgery and he would reasonably be expected to rely more heavily on his non-dominant left arm in order to perform many activities of daily living.
At the time of the oral hearing on March 9, 2007, the worker did not report any work or business activities that he was involved in starting in 2005. The worker also did not report the fact that he had lived in the US from late 2004 until early 2007. The worker indicates that he was not deliberately withholding this information from the WSIB but did not volunteer this information because he was not asked to do so.
While the worker may have developed an overuse injury of the left shoulder during 2003 while compensating for his right shoulder injury, he clearly did not find the symptoms he was experiencing sufficiently bothersome that they required medical attention. The fairly significant left shoulder findings noted on the February 2006 MRI in my view could not have been caused by the overuse of the left shoulder during 2003 and early 2004. Had these symptoms been present at the time of his layoff from employment in February 2004, he would almost certainly have needed to seek medical attention.
The timing of the medical attention sought by the worker for the left shoulder and the diagnosis made on the MRI of February 2006 makes it far more likely that these left shoulder difficulties were caused by his self-employment activities in the US starting in 2005.
The worker has indicated that during 2005 and 2006, although he was based in the US, he travelled back and forth between Canada and the United States and eventually returned to Canada permanently in early 2007.
The worker has acknowledged that he did claim business income on his US tax return totaling approximately $20,000 over the three-year period between 2005 and 2007. However, he maintains that although the business was established under his name, he did virtually no physical labour and essentially obtained the contracts and supervised/consulted his son who did all of the physical labour that was required. The worker indicates the reason for this arrangement is that his son did not have a valid Social Security number and therefore was not legally able to work in the United States.
It is difficult to verify the worker’s version of events related to the business income earned between 2005 and 2007. In the end, the fact remains that this was income personally reported by him and there is no indication the business had any other employees. Given these circumstances, the most plausible explanation is that the worker provided those services that allowed him to earn this income.
CONCLUSIONS:
Having assessed the totality of the available information, I have arrived at the following conclusions;
The decision of the ARO dated April 5, 2007 which allows left shoulder entitlement as a secondary condition remains allowed. The accepted diagnosis is a left shoulder strain and tendinitis.
Once the worker was removed from the work environment in early February 2004, he would have recovered from the left shoulder difficulties that had been caused by increased use of his left upper extremity in order to overcompensate for his right shoulder injury.
The worker’s left shoulder condition is considered to have fully recovered by mid-March 2004, which is about 6 weeks from the date that he stopped working with the accident employer.
The worker’s left shoulder symptoms first diagnosed in 2005 and the significant findings related to the left shoulder and the subsequent surgeries are far more likely to have been caused by his self-employment activities in the US starting in early 2005.
The worker's objection is therefore denied.
Dated at Toronto, Ontario, April 21, 2015.
C. Cirinna
Manager
Appeals Services Division