WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20170010
OBJECTING PARTY: Worker
REPRESENTED by: Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
DATE: April 28, 2017
ISSUE
The issue is the denial of entitlement for right rotator cuff tear.
BACKGROUND
On October 7, 2013 the worker, who is now 60 years of age, was employed as a waste collector. He slipped off the top step of the truck and fell approximately five feet. Entitlement was granted for concussion and laceration as well as left elbow abrasion.
Entitlement was subsequently extended for right shoulder strain.
The worker received Loss of Earnings (LOE) benefits as follows:
October 8, 2013 – March 24, 2014
June 23 – August 9, 2014
Relevant Decisions
On August 1, 2014 the Case Manager (CM) denied entitlement for right rotator cuff tear.
On July 8, 2016 the matter was reconsidered and the original decision was upheld.
Worker’s Position
The worker representative argued that the pre-existing condition was asymptomatic before his fall. He contended that a massive rotator cuff tear would not insidiously appear and related the condition directly to the fall sustained. He submitted that his position was supported by medical evidence and a Tribunal decision rendered in another province.
Employer’s Position
The employer contended that the operating area rendered a correct decision in the denial of entitlement for right rotator cuff tear.
AUTHORITY
The most applicable WSIB legislation and policies are as follows:
Workplace Safety and Insurance (WSI) Act 1997
Policy 15-05-01 Secondary Conditions Resulting from Work Related Impairment/Disability
ANALYSIS
I have carefully considered the applicable legislation, policies, submissions and case evidence. I do not find in favour of the worker. A summary of my rationale follows.
Medical Evidence
The initial diagnosis dated October 7, 2013 from the physician at an urgent care clinic was as follows:
Head injury
Scalp laceration
Left elbow abrasion
On October 9, 2013 the primary practitioner provided a diagnosis of post-concussive syndrome. X-rays and a C.T. scan were to be arranged. The worker was authorised off work.
An ultrasound of the right shoulder dated November 28, 2013 revealed small calcific focus in the long head of the biceps tendon. The impingement test was negative.
The x-ray of the right shoulder dated November 28, 2013 noted slight narrowing of the inferior aspect of the shoulder joint with some early osteophytes and developing osteoarthritis.
The MRI of the right shoulder dated March 4, 2014 noted a massive rotator cuff tear with moderate to marked fatty atrophy of the supraspinatus and rotator cuff arthropathy and advanced acromioclavicular joint osteoarthritis.
On July 4, 2014 the worker attended a Specialty Clinic and was assessed by an orthopaedic surgeon and physiotherapist. The worker denied any prior right shoulder problems. The diagnoses were as follows:
Occupational
- Contusion/strain injury to right shoulder with exacerbation of pre-existing condition
Non-Occupational
Longstanding progressive rotator cuff arthropathy with a massive rotator cuff tear confirmed by the clinically evident infra and supraspinatus muscle wasting confirmed by MRI as suffering from marked fatty atrophy.
Osteoarthritis evident in the glenohumeral joint and with superior migration of the humeral head causing diminution of the acromial humeral space
That surgeon opined that the MRI showed that the rotator cuff had been present long enough to exhibit fatty deposits in the musculature with ‘significant’ retraction and superior migration of the humeral head which was‘ not’ consistent with an acute injury.
On July 22, 2014 the primary practitioner provided a diagnosis of massive right rotator cuff tear and the worker had limitations/precautions.
In the physiotherapist request for treatment extension dated October 16, 2014 the diagnosis was right supraspinatus tear.
On October 22, 2014 the primary practitioner provided the same diagnosis of massive right shoulder tear.
On May 25, 2015 the worker presented with a 6-7 week history of right shoulder pain. It was noted that he fell in the two years previously which referenced the compensable incident. Significant atrophy was noted as well as range of motion. Surgery was discussed and the worker wanted to consider whether to proceed.
The worker representative submitted a medical opinion from a physician with the Occupational Health Clinic for Ontario Worker’s Inc. dated January 8, 2016. On the date of that examination the worker denied any prior shoulder problems on page three of the report, and cited no problems in the ten years doing garbage collection. The impingement test was positive.
That physician commented on the natural history of fatty infiltration and noted it was variable and quoted studies in support of the contention that the onset was directly related to the fall sustained on October 7, 2013. It was noted that the mechanism of injury to the shoulder was difficult to reconstruct given the loss of consciousness on the date of injury. A specific account of the actual biomechanics was unavailable.
On March 17, 2016 the worker had a cortisone injection.
Clinical Notes – Primary Practitioner
On October 9, 2013 that the worker had ongoing headache bi-temporal, worse on left side and tender to the touch on the left side. There was slight tenderness of TMJ on the left side.
In the note dated October 23, 2013 headache and neck were much improved.
On November 6, 2013 headaches persisted, neurological examination was normal.
On November 27, 2013 the worker reported that the right shoulder had been painful since the fall. ++ Tender AC joint with positive scarf tests, Hawkins was negative. The worker had full range of motion without pain.
On October 28, 2015 the worker advised the physician that surgery was not offered which contradicted the note he received that surgery was offered.
Prior Medical Evidence
On December 13, 2010 the worker was assessed at a Specialty Clinic and it was noted that the right shoulder revealed very weak external rotation strength with some pain less subacromial bony crepitus. The diagnosis included ‘remote right shoulder proximal biceps rupture’. The worker was not symptomatic.
On February 18, 2011 it was noted by the specialist that the worker developed pain when exercising his right shoulder.
Other
In M #12 dated January 27, 2014 the worker confirmed a prior issue with the left shoulder which healed without surgery.
In the worker’s progress report (F 41) dated January 31, 2014 he reported concussion symptoms.
In M #14 dated March 6, 2014 the worker confirmed near resolution of the concussion and issues with the right shoulder.
In the independent physician review dated June 12, 2014 it was stated that the mechanism of the injury ‘could be’ compatible with the development of a rotator cuff tear; however, it was recommended that pre-injury clinical records be obtained and that an assessment at a Specialty Clinic would help clarify the relationship of the MRI findings to the accepted entitlement.
It was noted that the rotator cuff tear was superimposed on presumable longstanding tendinopathy and advanced degenerative changes in the shoulder.
In M#28 dated July 10 2014 the worker reported that he had fully healed with the exception of his right shoulder. The CM allowed entitlement for right shoulder strain only.
On June 22, 2014 a second independent physician review determined that rotator cuff tendinoses and tears are typically due to intrinsic degenerative processes and wear and tear over time. It was concluded that the injury mechanism was unlikely to result in a rotator cuff tear.
Summary
The difficulty in determining entitlement in WSIB cases is that