WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20172022
OBJECTING PARTY: Worker
REPRESENTED BY: Representative
RESPONDENT: Employer
REPRESENTED BY: Representative
HEARING: Hearing in Writing
DATE: May 18, 2017
ISSUES
The worker, through his representative is objecting to the following decisions by the Case Manager (CM) as outlined in the decision letter dated April 8, 2014:
Denial of ongoing left shoulder entitlement
Denial of initial entitlement for the right shoulder
BACKGROUND
On March 30, 2009, this now 59 year old teacher slipped on ice while exiting his truck in the staff parking lot. To stop himself from falling, the worker grabbed the steering wheel and door with his left arm which caused immediate pain in his left shoulder.
The claim was allowed for a left shoulder rotator cuff tear. Surgery was recommended, and on January 25, 2010, the worker underwent repair of the full thickness tear in the supraspinatus tendon. The worker was seen for follow up appointments at the WSIB Hand and Upper Limb Center (HULC), until he was discharged on September 13, 2010. At the time of discharge, the worker had zero pain and no physical restrictions. The worker also returned to his pre-injury job as a teacher. As such, the worker was considered to be at maximum medical recovery with no permanent impairment.
On February 28, 2014, the worker reported to the employer that he was experiencing problems with both shoulders which he related to the March 30, 2009 accident. As a result, this claim was reopened. It was at this time that the worker told the CM that he had also injured his right shoulder during the original accident. He reported that he has been having problems with his right shoulder ever since.
The worker stated that he did not originally report the right shoulder injury, as his left shoulder was more serious, and masked his right shoulder symptoms. The worker also stated that he had been experiencing increased left shoulder pain for approximately six (6) months.
In the decision dated April 8, 2014, the CM denied ongoing left shoulder entitlement due to both a lack of continuity, and an absence of clinical compatibility between the current findings and the accepted workplace injury. The CM also denied initial entitlement for the right shoulder due to a delay in reporting the injury and in seeking medical attention. These decisions were reconsidered, and upheld on October 7, 2016.
The worker representative’s objection to these two decisions forms the basis for this appeal.
AUTHORITY
Operational Policies:
11-01-01 Adjudicative Process
15-02-01 Definition of an accident
15-03-01 Recurrences (February 18, 2009)
15-05-01 Secondary Conditions - Resulting from Work-Related Disability/Impairment
ANALYSIS
In arriving at this decision, I have considered the information in the claim file, the submissions made by the worker representative, submissions made by the employer representative, and the appropriate Operational Policies.
- Does the worker have ongoing entitlement for his left shoulder?
For the following reasons, I find the worker does not have ongoing entitlement for his left shoulder.
The worker representative’s submission of April 8, 2017, states that the worker’s ongoing left shoulder condition should be allowed based on the following two arguments:
Although the worker’s surgery was successful for a period of three years, this does not mean that ongoing problems related to the left shoulder are not caused by the previous injury, especially when there are no other left shoulder injuries documented
The worker developed a lateral bony spur at the margin of the acromion. It is the representative’s position that the bony spur, which was detected in an x-ray four years post-surgery, was more likely caused by the surgical intervention of January 25, 2010, and not due to degenerative changes.
The employer representative also provided a submission dated March 13, 2017. In this submission, the representative states that ongoing entitlement for the left shoulder should not be allowed, as the medical reports on file support the worker made a full recovery with no further issues on September 13, 2010.
In order to address the worker representative’s first argument as noted above, I have considered the Recurrence policy 15-03-01.
According to policy 15-03-01, 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. In this case, the representative reported no new accident, and is claiming that the current left shoulder condition is a result of the original injury. In order to determine clinical compatibility, I have compared the current findings to those accepted at the time of the accident.
Entitlement in this claim was granted for a left shoulder rotator cuff tear. The resulting surgery of January 25, 2010 to repair the tear was also allowed. The worker attended post- operative treatment at the HULC and was discharged on September 13, 2010. At the time of the discharge, the worker had no restrictions and was considered to have completely recovered from the left shoulder tear, as well as the resulting surgery.
The CM requested the clinical notes from the worker’s family doctor, Dr. Nicholls on
March 24, 2014. The notes indicate that the worker was not seen for left shoulder complaints between the HULC discharge of September 13, 2010, and the worker’s visit with Dr. Nicholls on December 11, 2013. This supports over a three year gap of no medical attention for the left shoulder.
I also note that although the worker representative stated that the worker had no prior documented left shoulder injuries, the MRI report of September 22, 2009 showed evidence of an old healed fracture of the left clavicle. It is unclear when the worker fractured his clavicle, but clearly the worker has had a previous injury to the upper left extremity.
Furthermore, the same MRI report noted mild irregularity of the greater tuberosity consistent with chronic impingement, as well as mild to moderate osteoarthritis of the AC joint. It should be noted that the operating area never accepted entitlement to either of these two findings, and therefore for the purpose of this appeal they are deemed to be pre-existing.
Based on the information noted above, I am not persuaded that the worker’s current left shoulder condition is related to the left rotator cuff tear accepted in this claim. I note that the worker was considered fully recovered with no ongoing left shoulder issues at the time of discharge from HULC. There is a lack of continuity between the time the worker was discharged from the HULC in 2010, and the first complaint of ongoing left shoulder pain in 2013. As noted above, the MRI of September 22, 2009, also supports non compensable left shoulder conditions.
For these reasons, I find that the left shoulder condition fully recovered as per the discharge report from the HULC on September 13, 2010. As such, I am unable to establish clinical compatibility, or continuity between the injury accepted in this claim and the worker’s current left shoulder condition.
The worker representative’s second argument, is that the bone spur shown on the
January 31, 2014 left shoulder x-ray, was a result of the January 25, 2010 left rotator cuff repair surgery. To support this position, the representative has attached an article from:
Caring Medical, by Dr. Ross Hauser, titled “Bone spurs in the Shoulder”.
The above noted article states that bone spurs are abnormal bony overgrowths that extend out from the normal bone. Bone spurs develop from underlying joint instability caused by: traumatic injuries, repetitive motion injuries, or genetic ligament laxity. The article also indicates that bone spurs can develop after surgery.
To address this issue, I note policy 15-05-01 titled “Secondary Conditions”, which states that workers who sustain a secondary condition that is causally linked to the work-related injury, will derive benefits to compensate for the further aggravation of the work-related impairment, or for new injuries. In this case, the representative is claiming that the left lateral bony spur at the margin of the acromion is a result of the surgery on January 25, 2010.
Unfortunately, the January 25, 2010 operative report is not on file. I have however, reviewed the left shoulder x-ray report dated January 31, 2014. This report provides the following findings:
There are three metallic suture anchors in the greater tuberosity, presumably from the prior cuff repair
Normal glenohumeral alignment
Lateral bony spur at the margin of the acromion. This can predispose to impingement in some patients
No other abnormalities
Although the worker representative has provided an article to support the argument that the lateral bony spur is related to the worker’s compensable surgery. I am more inclined to accept the opinion of the Medical Consultant (MC) on file. The MC, Dr. Jamie Rusen, is an orthopedic surgeon, specialising in shoulder conditions. Dr. Rusen reviewed all of the medical reports on file, including the noted x-ray report and stated:
“Acromial spurs from secondary to repetitive traction of the coracoacromial ligament, and the incidence of acromial spurs increases with advanced age. The worker’s job duties are considered light, and as per m#22 the case manager has confirmed there has been no activity in this claim since 2010, when the worker had been deemed to have reached MMR with no PI. It is my orthopaedic opinion, the evidence would support the January 31, 2013 x-ray report findings of a “lateral bony spur at the margin of the acromion” is an age related degenerative finding, and is not compatible with the compensable acute, traumatic rotator cuff tear, or the subsequent surgical repair.”
While there is no dispute the worker suffers from a current left shoulder condition, as evidenced by the medical reports on file, I see no medical report that relates the worker’s left shoulder acromial spur to the worker’s compensable left shoulder impairment, or the compensable surgery. In the absence of a medical report speaking to causation, I have placed more weight in the opinion of the WSIB medical consultant who specializes in shoulder injuries, and specifically addresses the acromial spur in relation to the worker’s rotator cuff repair surgery.
For the reasons noted above, I find that the acromial spur is not a result of the workers rotator cuff surgery, accepted in this claim.
- Is there initial entitlement for the right shoulder?
For the following reasons, I find that the worker does not have initial entitlement for the right shoulder.
The worker representative submits that the worker did sustain a right shoulder injury in the March 30, 2009 accident. It was due to the severity and symptomatic left shoulder injury that the right shoulder was not recognized.
The employer representative submits that it is unreasonable to accept initial entitlement for the right shoulder noting the delay in medical attention, and the delay in reporting. The employer representative argues that proof of accident has not been established.
The worker contacted the CM on March 24, 2014, and advised that his right shoulder was also injured in the accident accepted under this claim. The worker stated that on March 30, 2009, while stepping out of his truck, he stepped on a patch of ice. To stop himself from falling, the worker grabbed onto the steering wheel with his right arm, and onto the car panel with his left arm. The worker stated that he weighs approximately 200 pounds, and had his full body weight held by both arms to prevent him from falling. The worker stated that his right shoulder and bicep were injured as a result of this accident. The worker stated however, that his left shoulder was more seriously injured, and took precedent over his right side. Although the worker was able to return to his pre-injury job after his surgery, his right shoulder has continued to bother him. The worker also stated that his right bicep is objectively misshaped, and has been since the date of this accident.
The worker representative references the more detailed description of the March 30, 2009 accident provided by the worker on the Intent to Object Form, dated October 4, 2014.
The worker stated that at the time of the accident, he was exiting from a high four wheel drive pick-up truck in his employer’s parking lot. The worker described turning his body to the left to exit the truck from the driver seat when his feet slipped out on the ice. The worker grabbed the steering wheel with his right hand, and the door panel with his left hand. The worker was able to prevent himself from falling to the ground by extending his right arm upwards to support his body weight. As the fall caused his left rotator cuff tear, the worker stated that it is not unreasonable to conclude that the fall also ruptured the right bicep tendon.
While I note the above description provided, I cannot ignore that this accident description has been provided five years after the date of accident. The contemporaneous evidence makes no reference to any right shoulder injury. I have reviewed the Worker’s Report of Injury (Form 6), completed by the worker on April 9, 2009. This report only mentions an injury to the left shoulder. The Employer’s Report of Injury (Form 7), dated April 1, 2009, states that the worker reported that he slipped on ice while getting out of his pick-up truck. The worker reported that he wrenched his shoulder trying to hold on to the door as he fell. The reported injuries as a result of this accident were to both the left shoulder and low back.
Attached to the January 25, 2017 Respondent Form submitted by the employer, was the Employee Accident Report signed by the worker and dated March 30, 2009. This report only indicates injuries to the low back and left shoulder.
The medical reports on file also do not support any complaint of right shoulder problems until December 2, 2009. It was at this time, that the right shoulder discomfort was mentioned in the HULC report. My review of the medical reports also indicate that there were no further complaints of right shoulder pain until January 4, 2010, and then not again until
December 11, 2013.
Policy 11-01-01 states that a five point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, and proof of an accident including compatibility of the diagnosis to the accident or disablement injury. When considering proof of an accident, consideration is given to whether a disablement occurred, and if it is compatible with the accident described. In this case, I am unable to establish proof of accident for the right shoulder injury.
While I can appreciate in theory how the severity of the left shoulder injury could have overshadowed, and masked the worker’s right shoulder symptoms, I am not prepared to accept that this would account for a period of five years, of the worker not reporting that his right shoulder was injured in the accident accepted in this claim.
I note that the worker had several opportunities to discuss any right shoulder complaints with his family doctor, treating physiotherapist or with the CM. The worker had many follow up appointments with numerous healthcare practitioners over the years, and therefore, one would expect that as the left shoulder condition was resolving, the right shoulder symptoms would be more noticeable and reports would be made by the worker supporting how the right shoulder was injured on the day of accident. I have also reviewed the various memoranda on file which have documented conversations between the worker and the CM, but none of these conversations make any reference to a right shoulder injury that occurred on the date of accident.
Based on the above evidence, I am unable to establish proof that the right shoulder was injured at the time of the March 30, 2009 accident. As such, I find the worker does not have initial entitlement for the right shoulder injury.
The worker representative’s submission of April 8, 2017, states that if the ARO upholds the decision to deny initial entitlement to the right shoulder injury, the representative is requesting that the right shoulder be ruled on as a secondary injury resulting from overcompensating for the injured left shoulder.
Although the worker representative claims that the right shoulder injury is a result of overcompensating for the injured left shoulder, I note that the worker’s description of the accident provided on October 4, 2014, states that he has been having pain in his right shoulder since the day of the accident, March 30, 2009. I also note, that there are no medical reports on file to support that the right shoulder injury was a result of overcompensating for the left. As per policy 15-05-01, a secondary condition can be considered for entitlement if a causal link can be established to the work-related injury. In this case, I am unable to establish a causal link noting that the worker stated his right shoulder pain dated back to March 2009. For these reasons, I do not find that the right shoulder condition is a result of overcompensating for the injured left shoulder accepted in this claim.
CONCLUSION
The worker does not have ongoing entitlement for his left shoulder injury including the left lateral bony spur.
Entitlement for the right shoulder is denied as a result of the March 30, 2009 accident, and as a secondary condition.
The worker’s objection is denied.
MAY 18, 2017
K. Gordon,
Appeals Resolution Officer
Appeals Services Division