WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190078
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Oral Hearing on April 25, 2019
HEARD by: L. Diaz, Appeals Resolution Officer
DATED: May 14, 2019
ISSUE
The worker objects to the Eligibility Adjudicator’s (EA) December 11, 2017 decision and October 5, 2018 reconsideration which denied initial entitlement to a right shoulder injury under the claim.
BACKGROUND
On October 31, 2017, the worker submitted a Worker’s Report of Injury/Disease (Form 6) advising that six weeks after he had returned to work as a Millwright following a one-year absence from non-compensable right shoulder surgery, his right shoulder started bothering him again. He asked his employer if he could ‘slow down’ his work, however, after almost resuming full hours of work, the worker reported he re-injured his arm. He was 63 years old at the time he claimed for benefits and had been with his employer for 22 years.
Prior to his claim for a right shoulder re-injury, the file information confirms the worker ceased working due to non-occupational right shoulder problems on June 20, 2016. He underwent non-compensable massive right shoulder rotator cuff tear repair on September 29, 2016. The worker returned to graduated hours of work, performing modified duties, on May 8, 2017.
On November 3, 2017, when speaking with the EA, the worker further advised that on either September 28 or 29, 2017, he was pulling two chains together when he felt pain in his right shoulder, though the worker denied speaking with the EA on this date. This same accident history was subsequently repeated by the worker to the EA, and is documented in memo A0009. The worker underwent further surgery on November 27, 2017, which he is claiming is due to having over-exerted himself at work.
Eligibility Adjudicator’s (EA’s) decision
In a December 11, 2017 decision, the EA determined the information supported that the worker’s non-compensable right shoulder condition had not fully healed, and concluded that the evidence did not demonstrate that the worker’s right shoulder injury arose out of his employment.
In a subsequent October 5, 2018 reconsideration decision, the EA indicated there was no new evidence of a right shoulder injury caused by the worker’s job duties. As a result, the EA re-confirmed the previous decision to deny entitlement to benefits for a right shoulder injury under the claim.
Worker’s position
On behalf of the worker, the worker representative contended that the worker sustained a subsequent tear to his right shoulder as a result of a workplace injury. He indicated the worker’s testimony confirmed he was working outside of his physical restrictions, and as a result, sustained a new injury to his right shoulder as a recurrence of a pre-existing condition.
Employer’s position
On behalf of the employer, the employer representative was of the view that the evidence confirmed the worker had sustained a spontaneous tear of the right shoulder which was directly related to his previous non-occupationally related condition for which the worker had undergone surgery.
AUTHORITY
The following Operational Policy Manual documents apply:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
ANALYSIS
I find the worker does not have entitlement to a right shoulder injury under the claim. In arriving at this decision, I had regard for the worker’s testimony, the arguments presented, the relevant file information, and for the applicable Policy.
Worker’s testimony
The worker testified that he is a Millwright, that his job duties involve fixing, repairing, and re-building machinery. As a Millwright, he is also required to change motors, fix chains, and do whatever is needed to keep the machines running.
He confirmed he first noticed right shoulder pain after he increased his hours of work beyond 2 hours per day. However, his right shoulder really only started bothering him when he increased his hours of work to 8 hours per day. He described his right shoulder as feeling ‘achy’. The worker then stated he approached his Supervisor A about reducing his hours of work. He advised him that his shoulder was sore. The worker complained that supervisor A gave him way more work than he should have, and that he was lifting more than he should have.
The worker then described injuring his arm during a task when he was re-attaching a chain. He reported that the chains were part of the humidifier system and were located at below chest level. The chains were ¾” wide. When he inserted a link to join both chains, he reported he felt a sharp pain in his right shoulder. Although he does not recall the precise date this occurred, he believes it may have been on either September 27 or 28, 2017.
When I asked the worker to specify the language he used when reporting his injury to his supervisor, he confirmed he stated words to the effect that ‘my shoulder is sore and I can’t work’. He also confirmed requesting that they reduce his hours of work again, as working 8 hours per day was too much for him. When he reached 12 hours of work per day, the worker advised that he was complaining all the time, so he’s certain his supervisor was aware of his sore shoulder.
The worker’s testimony then became somewhat confusing when he stated that it was after pulling the chains together his shoulder became really sore. I requested that the worker clarify when his shoulder first became sore, whether it was due to increasing his hours of work or whether it was due the chain incident he had just described. After some thought, the worker stated that his shoulder had become sore after increasing his hours of work to 8 hours per day, which would have been in early September 2017. He indicated that the incident with the chain occurred in late September 2017. He believes that the chain incident occurred on the Thursday and he reported it to his supervisor the following Monday because that’s when he recalled having asked his supervisor to reduce his hours of work.
When the worker was asked by the worker representative to clarify what Dr. LeBel meant when she stated in her report that he had not been compliant at 6 weeks post-surgery, the worker explained that he had taken his sling off post-surgery when he would lie down and Dr. LeBel had become upset with him for doing so. He stated that his neck was becoming sore and that he couldn’t wear the sling when reclining on the sofa.
With respect to requesting assistance with items that were beyond his limitations, the worker indicated that the other Millwrights were often busy, and as a result, he often would not ask for their assistance, especially since sometimes they were not working near him. One such difficult task was when he was moving a cam roller on a table – the worker stated it was quite heavy for him. He also described difficulty with fixing pistons weighing 40-50 lbs – he stated that he did this work because that’s what he was told to do.
Upon questioning by the employer representative, the worker confirmed he returned to work on May 6, 2017 to a graduated return to work plan at modified duties, starting at 2 hours per day. He indicated his right arm became so sore when he reached an 8-hour day. When he reached 6-8 hours of work per day, the worker advised that he began icing his arm because of the pain.
When the employer representative asked the worker why he had not indicated in his Form 6 that he injured his arm pulling chains together, the worker said he did not know why he didn’t. The employer representative pointed out to the worker the various dates listed in memos A0003 and A0005 for when the accident with the chain occurred. He read to the worker that memo A0003 recorded the worker wasn’t sure when the chain incident had occurred, and that in memo A0005, the worker provided three separate dates, the first being October 1, then October 2nd, then perhaps October 4, 2017. The worker further indicated to the adjudicator that he reported it to his employer on October 4, 2017. When the employer representative asked him to clarify on which date the injury occurred, the worker indicated he was not sure. The worker also advised that he did not recall the conversation with the Adjudicator in memo A0005.
Supervisor B’s testimony
Supervisor B confirmed he has been employed with his employer as a Maintenance Supervisor for six years. He indicated that he was the worker’s supervisor for two years, along with two other supervisors, Supervisor A, the Planned Maintenance Supervisor, and Supervisor C. The worker also had two other supervisors.
Supervisor B confirmed that the worker used hand tools, as part of his duties, which included wrenches and other tools typically found in a tool belt/pouch. The worker was informed to not lift anything outside of his physical precautions, though he concurred the worker could likely have been working on a cam roller. The worker was also instructed that if any task was outside of his physical restrictions, he was to inform his supervisor. Although he confirmed the supervisors were busy, he indicated there was always time for them to be available, particularly since they carried two-way radios, and they used golf carts to reach a particular location quickly.
Some of the worker’s testimony was repeated to Supervisor B, including the description of the chain incident. Supervisor B advised that the injury was never reported to him or any other specific incident. In addition, he indicated that at no time did the worker advise that any particular task was beyond his limitations. He advised he is unaware of who established the worker’s return to work plan. Supervisor B stated he spoke with the worker during the course of almost every shift as he reviewed with the worker which activities he would have worked on and would only provide him with tasks that he could complete.
Upon questioning by the worker representative, Supervisor B confirmed that health and safety reports, including injury reports, were available to the worker, and also to the designated floor health and safety person. With respect to the two-way radios, Supervisor B confirmed that although only the supervisors carry them, there are designated stations throughout the floor nearby for all employees to use. Once again, he confirmed he was unaware of an incident with linking the chains. However, Supervisor B acknowledged that at this point he couldn’t recall the nature of the work the worker was performing or his specific restrictions.
In closing, the worker representative argued that the worker had sustained a recurrence of a pre-existing condition when he was joining the chains, as described, and that prior to this incident he had been complaining of right shoulder pain. He referred to the worker’s testimony that supported that he had been performing more work than he should have and likely exceeded his physical precautions. As a result, he was requesting that the WSIB allow this recurrence under the claim.
The employer representative argued that the evidence supports the worker’s subsequent tear following his initial surgery was likely a spontaneous tear which was directly related to his previous injury and surgery. Furthermore, he disagreed that there was a specific incident at work to cause the tear or that the worker had been working outside of his physical limitations. He indicated that the worker’s testimony supported that he was a poor historian. The employer representative also pointed to the November 1, 2017 medical report by Dr. LeBel to support his position that the worker’s right shoulder tear was unrelated to his work duties.
In addition, he requested that I refer to a previously submitted article, which was attached to the Form 7, from PubMed which compared the clinical and structural outcomes of rotator cuff repairs in patients. In summary, he reported that the article supported that a rotator cuff re-tear rate increased significantly with increasing intraoperative tear size. Furthermore, the employer representative pointed to the medical information which supported the worker was diabetic, which would further delay the worker’s surgical healing.
The employer representative asserted that the employer implemented a very graduated return to work plan, commencing at 1 hour per week in May 2017, and that the worker did not increase to his full hours of work until late September 2017.
Review of relevant file medical reports
Although I have reviewed all of the medical reports submitted to file, only the most pertinent reports will be referenced below.
The file medical reports confirm that the worker has had ongoing right shoulder difficulties since 2014, with an atraumatic spontaneous onset of right shoulder pain. He underwent right shoulder rotator cuff repair on September 29, 2016 for a massive rotator cuff repair involving subscapularis and supraspinatus tendons with biceps tenodesis. The worker returned to work in early May 2017 to modified work, starting at 1 hour per day.
The worker returned to see Dr. LeBel, Orthopaedic Surgeon, on October 4, 2017. Dr. LeBel documented the worker had not been doing well since August. She recorded that he was increasing his hours by 1 hour a week and that the pain slowly started. He then increased his hours by 1 hour every 2 weeks. She noted that he was back to full hours in August and the pain had increased more since then. He complained of lateral shoulder pain with some loss of range of motion because of pain. The worker was worried that he tore his repair. Dr. LeBel then recorded the following:
Hearing this, I did tell the worker that this is not surprising to me. He was not compliant at 6 weeks and I did tell him back then. He was doing more than expected and did not let the tendons heal properly back then. It is possible that the tendons healed even in these conditions, but it is also possible that he tore his repair and now is suffering from this. There is no way for us to know now.
The worker underwent an MRI on October 26, 2017 which confirmed the following impression: post-surgical changes in the subscapularis, supraspinatus and infraspinatus tendons; interval appearance of high-grade articular surface tearing with possible full-thickness component in the posterior supraspinatus fibres in the region overlapping with infraspinatus fibres. This is contiguous with a long thin intermediate-grade interstitial tear within the infraspinatus tendon.
On November 1, 2017, the worker was seen by Dr. LeBel, Orthopaedic Surgeon, who indicated that the MRI confirmed the presence of a supraspinatus tear close to the repair. She further noted the following:
I was not really surprised when I saw this MRI today. I remember very well that at 6 weeks postop the patient was not very compliant and was not using the sling as recommended. I believe that he never allowed the repair to heal completely in the post-op period. I did have a very direct discussion with the worker about this. He tried to blame work for his tear. I did not agree with him. I told him that he most likely is the one who did the damage with the absence of healing but I agreed that the work most likely did not improve his pain and symptoms. He states that he went from 6 hours a shift in June and July to 9 hours in September and very quickly to 12 hours again in September. This might have been a little fast for him. He also states that he had an event in early September when he was doing regular duties and he was fixing a chain. He tried to pull the 2 ends of the chain together to link them and noticed sudden pain in the shoulder. It is possible that this is when he really tore it but originally there must not have been much healing locally. He understood that in the end.
The worker underwent further rotator cuff repair on November 27, 2017, with ongoing medical reports submitted to file showing his condition was improving.
Analysis
Policy 11-01-01, Adjudicative Process, records the following with respect to an allowable claim:
Five point check system
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system".
An allowable claim must have the following five points
an employer (see 12-01-01, Who is an Employer?)
a worker (see 12-02-01, Workers and Independent Operators)
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
Decision-makers may consider the following when examining proof of accident:
Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?
In reviewing the above criteria for an allowable claim, I find the points which require further scrutiny are ‘proof of accident’ and ‘compatibility of diagnosis to accident or disablement history’.
Proof of accident with respect to a specific accident
Having carefully reviewed the file information, and having regard for the worker’s testimony, I find ‘proof of accident’ has not been established for the reasons outlined below.
First, I found that the worker’s testimony was somewhat confusing with respect to when he began experiencing increased right shoulder and to what he was attributing this increased pain. Initially, his testimony was not clear as to whether it was due to his increased hours of work or whether his increased pain was related to the incident he described when linking the chain. However, he subsequently clarified that he started experiencing a significant amount of pain when he reached 8 hours of work per day, which he estimated was in early September 2017. He then confirmed that the incident with linking the chain would have taken place on September 27 or 28, 2017.
However, I have concerns with respect to the specific incident of linking the chain described by the worker. First, despite the fact that he submitted a Form 6 on October 31, 2017 to the WSIB, (the worker did not date his Form 6), which is approximately one month following his claimed specific incident, he did not report this incident on his Form 6, nor did he attribute his right shoulder pain to any specific incident having occurred.
Furthermore, when the worker was reassessed once again by Dr. LeBel on October 4, 2017, I note there was no mention of a specific incident occurring to cause his shoulder pain. Rather, Dr. LeBel recorded that the worker reported increased pain in August and that he attributed it to increasing his work hours. However, Dr. LeBel opined that the cause of the worker’s right shoulder problems was likely that he had not been compliant with instructions for his sling use post-surgery and that she had previously warned him of this. I note that the first mention of the worker reporting the incident with the chain was when he was re-assessed by Dr. Lebel on November 1, 2017.
In addition, although the worker indicated during testimony that the incident with the chain occurred on either September 27 or 28, 2017, I note he reported to Dr. Lebel in her November 1, 2017 report that the incident actually occurred in early September, which is inconsistent with his testimony. The lack of clarity surrounding a specific day for the incident occurring is also noted in the Adjudicator’s memo A0003 when the worker reported that it occurred on either October 1, October 2 or October 4, 2017.
When I questioned the worker at the hearing with respect to the words he used when reporting the incident/shoulder pain to his supervisor, he confirmed he stated words to the effect that ‘my shoulder is sore and I can’t work’. I find that this statement does not correlate with reporting a specific incident, particularly in light of the fact that the worker was already performing modified work for a non-compensable right shoulder injury.
In addition to the above reporting concerns, at the hearing the worker confirmed that the chain was located almost at waist level and the chain was relatively small, i.e. ¾ of an inch wide. He indicated that to repair the chain, he had to insert a new link to re-attach the two ends of the chain. Given that this accident history does not include at or above shoulder level work, that the worker’s forearms would have been positioned relatively parallel to the sides of his body, I am unclear as to how this accident history could result in a new tear of the rotator cuff. I accept that the worker likely experienced pain when performing the task of linking the chain, however, experiencing pain during an activity does not necessarily correlate with a new accident. The worker had already clearly been experiencing a significant amount of pain since August, according to the medical information submitted.
In summary, contrary to the worker representative’s assertion that the worker sustained a new accident at work, given all of the factors identified above, I do not find that ‘proof of accident’ has been established. As a result, I find ‘proof of accident’ for a right rotator cuff tear in relation to a specific incident is denied.
Compatibility of diagnosis to disablement history
With respect to the gradual onset of right shoulder problems reported by the worker, I note there have been several dates provided related to the onset of right shoulder pain. The worker’s completed Form 6 specified that six weeks after he returned to modified work, his right shoulder started bothering him again – this time-frame would therefore coincide with the onset of the worker’s right shoulder difficulties re-emerging in late June 2017.
However, the worker also reported and testified that he gradually began experiencing right shoulder pain in early September 2017. The file medical information, particularly Dr. LeBel’s October 4, 2017 report, confirms the worker reported to her that his right shoulder pain had started slowly. Dr. LeBel further documented that in August 2017, the worker had not been doing well, that his pain had increased since that time.
Dr. LeBel opined that the worker’s ongoing right shoulder problems were likely related to him having been non-compliant at 6 weeks with the use of his sling. She specifically recorded that he ‘was doing more than expected and did not let the tendons heal properly’. Although in her subsequent November 2017 report she indicated it was possible the worker could have re-torn his rotator cuff with the incident he described, she nonetheless believes the worker did not allow his repair to heal completely post-op and did not agree that it was work that caused the re-tear.
Despite Dr. LeBel’s November 1, 2017 report that indicated the worker advised he had returned to his regular job duties, neither the file information nor the worker’s testimony supports this was the case. Although the worker described performing two lifting/moving tasks that may have exceeded his precautions, I note that he did not disagree that assistance was available were he to have asked for it.
More importantly, in my view, the worker reported to Dr. Lebel in October 2017 a slow onset of right shoulder pain which progressively worsened. In my view, this accident history would not be compatible with a right rotator cuff tear, particularly in light of his significant non-compensable right shoulder condition for which he had been absent from work for almost one year and the fact that he was performing modified work. I note that his original right shoulder condition arose spontaneously, without a specific incident occurring, according to the medical reports. I find the evidence supports that it is more likely than not that the worker’s recurring shoulder problems were merely a continuation of his existing right shoulder problems and are not related to having participated in a lengthy and graduated return to work program.
Having carefully considered the file evidence, the testimony of both parties, and the arguments presented, and for the reasons provided above, I do not find the worker’s accident history is compatible with his diagnosis.
In summary, given that neither ‘proof of accident’ nor ‘compatibility of diagnosis to accident or disablement history’ have been established, I therefore do not find the worker has met the criteria for an allowable claim. Entitlement to a right shoulder injury is therefore, denied.
CONCLUSION
I conclude the worker does not have entitlement to a right shoulder injury under the claim.
The worker’s objection is therefore, denied.
DATED: May 14, 2019
L. Diaz
Appeals Resolution Officer
Appeals Services Division