WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190099
OBJECTING PARTY: Employer
REPRESENTED by: Self-Represented
RESPONDENT: Worker (not participating)
HEARING: Hearing in Writing
HEARD by: S. van Veen, Appeals Resolution Officer
DATED: August 13, 2019
ISSUES
The employer’s objections to the following decisions, have been referred for consideration.
The e-adjudication decision of the Operations Division, dated January 17, 2018, allowing initial entitlement for injuries sustained in a January 14, 2018 motor vehicle accident.
The Case Manager’s October 22, 2018 decision to allow entitlement for an April 2018 left shoulder recurrence, for a diagnosis of adhesive capsulitis/frozen shoulder.
The Case Manager’s November 27, 2018 decision to allow entitlement for loss of earnings (LOE) benefits commencing October 18, 2018, and left shoulder surgery on November 20, 2018.
The Case Manager’s January 14, 2019 decision to accept the Specialty Clinic’s January 2019 recommendations for a psychology/pain assessment and a graduated return to work, starting at two hours per day.
BACKGROUND
A claim was established in January 2018 for this 39 year old worker, employed since 2017 as a Registered Practical Nurse (RPN), for a community health care agency. The worker reported that on January 14, 2018, while she was driving in between clients, she was involved in a motor vehicle accident (MVA). The worker described that she rear-ended a vehicle that had stopped quickly in front of her, resulting in injury to her neck, left shoulder and upper back. She sought emergency medical care, on the date of injury, and was diagnosed with left shoulder and cervical sprain/strain injuries. The worker lost one shift off work on January 16, 2018 and then resumed her regular duties.
The claim was e-adjudicated upon initial filing and a January 18, 2018 Operations Division decision advised of the allowance of the claim for initial entitlement to health care benefits.
The worker claimed a recurrence of her left shoulder and neck injuries as of April 9, 2018.
In a June 1, 2018 decision (not under appeal), the Case Manager (CM) granted entitlement for LOE benefits for lost time on January 16, 2018. However, a claimed further period of LOE benefits from April 9, 2018, due to continued left shoulder symptoms, was denied. While it was accepted the worker had continued left shoulder symptoms with development of adhesive capsulitis/frozen shoulder, it was determined the clinical evidence did not support that as of April 9, 2018, the worker was completely unfit for modified duties with her employer.
In a subsequent October 22, 2018 decision to the employer, the CM issued a formal decision respecting the worker’s claimed April 2018 left shoulder recurrence. The CM granted entitlement for the recurrence and continued health care benefits, as it was determined clinical evidence established continuity of medical attention and compatibility of the recurrent left shoulder condition (adhesive capsulitis/frozen shoulder), in the absence of any new incident.
In the interim, the worker had continued to work on modified duties until October 17, 2018, when she was off work, due to claimed deterioration in her left shoulder condition. She went on to have left shoulder surgery on November 20, 2018. The worker returned to graduated modified duties on January 14, 2019, in accordance with the recommendations of the Specialty Clinic assessors.
In a November 27, 2018 decision, the CM accepted entitlement for a significant worsening of the worker’s compensable left shoulder injury, with adhesive capsulitis/frozen shoulder, and an inability to work as of October 18, 2018. The CM granted entitlement to full to LOE benefits extending from October 18, 2018 and entitlement to left shoulder surgery on November 20, 2018.
In the further January 14, 2019 decision, the CM accepted the January 9, 2019 Specialty Clinic’s recommendations for treatment to include a psychology/pain assessment and a graduated return to work (RTW), commencing at two hours per day, as of January 14, 2019.
Employer’s Position:
The employer appeals the January 17, October 22, November 27, 2018 and January 14, 2019 decisions. The employer argues that following the January 14, 2018 MVA and until her claimed April 2018 recurrence, the worker worked her regular duties, did not advise of any ongoing issues or that she was in any medical treatment. She did not advise of the need for any restrictions or need for modified duties until April 2018. In addition, the clinical diagnosis in April 2018 that eventually required surgery, was left shoulder adhesive capsulitis/frozen shoulder, which the employer argued had no relationship with the earlier strain diagnosis and was not compatible with the accident history. Thus, the employer submitted that the evidence did not support allowance of an April 2018 recurrence, October 2018 lost time or November 2018 left shoulder surgery. Moreover, the employer contested the Specialty Clinic’s January 2019 treatment recommendation that included referral for psychology/pain assessments and the limitation of a graduated return to work commencing at only two hours/day work shift, when full-time modified duties were available.
The worker did not complete a Respondent Form and provided no further submission beyond the file records.
AUTHORITY
Operational Policies:
11-01-01 Adjudicative Process
15-02-05 Recurrences
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
I have considered the evidence on file, submission, applicable policy and legislation. For the reasons set out below, I confirm the allowance of initial entitlement for the January 14, 2018 MVA injuries; the granting of an April 2018 left shoulder recurrence; payment of full LOE benefits as of October 18, 2018; entitlement to left shoulder surgery; and endorse the January 14, 2019 Specialty Clinic’s recommendations for further assessment and a graduated RTW.
1. Initial Entitlement:
Policy 11-01-01 provides that an allowable claim must have the following five points, known as the “five point check system,”
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to the accident or disablement history.
In establishing proof of accident, decision-makers may consider the following,
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 this case, the worker is employed as an RPN. The description of duties on file notes that the RPN is responsible for a variety of direct client care tasks and the worksite varies, as the work is performed in the clients’ homes. On January 14, 2018, the worker was driving between her clients and in the process was involved in an MVA, where she rear-ended another vehicle. She reported having experienced immediate pain affecting her neck, left shoulder and upper back. She reported the accident and injuries to her employer on the date of injury, when she also sought initial medical attention in emergency hospital.
The employer submitted an Employer’s Report of Injury (Form 7) which confirmed the worker’s immediate reporting of the MVA accident and associated injuries, while in the course of driving for the purpose of her employment duties as an RPN. The Form 7 also documented the worker’s immediate medical attention. The employer did not indicate any concerns with the worker’s claim on the Form 7, nor in the January 18, 2018 discussion with the CM. The employer also did not forward any appeal arguments relative to the allowance of initial entitlement for the MVA injuries, initially allowed as sprains/strains.
The emergency hospital records confirm the worker was seen on January 14, 2018, with neck, left shoulder and chest pain, following an MVA that day. The report confirmed the worker’s and employer’s documented account of injury that she had driven into the car in front of her while she was going to see a patient at home. The assessment determined she had diagnoses of cervical and left shoulder sprain/strains and she was authorized two days of rest, with return to regular duties on January 17, 2018.
The evidence supports proof of a workplace accident on January 14, 2018, with a consistent accident history, immediate reporting, immediate medical, immediate layoff and clinical compatibility of the diagnosed conditions to the accident history. As the policy conditions for an allowable claim are met, initial entitlement for the originally diagnosed cervical and left shoulder sprain/strain, is confirmed.
2. April 2018 Recurrence:
Policy 15-02-05 provides that a worker may be entitled to benefits for a recurrence of a work-related injury if the worker experiences a significant deterioration that does not result from a significant new incident, and is clinically compatible with the original injury.
The worker confirmed she was right hand dominant and had no prior left shoulder or neck claims, injuries or issues/conditions. The balance of the file records similarly do not identify any prior similar issues. The worker maintained that after the MVA through to the claimed April 2018 recurrence, she experienced continued symptoms, without further incident, in her areas of injury particularly her left shoulder. There is some suggestion based on discussion with the worker’s direct manager (memo A0021) that following the workplace injury, the worker performed her regular duties for a couple of weeks. There were then some limited efforts to accommodate by trying to get her assigned lighter clients, without consistency.
In the interim, the clinical records reveal that following her injury, the worker commenced chiropractic treatment at a Shoulder Program of Care (POC) and Musculoskeletal POC, on January 31, 2018, for the cervical and left shoulder sprain/strain. The POC initial report noted findings in the left shoulder included weakness, painful arc and loss of motion. She had functional limitations in carrying, lifting, reaching, pushing/pulling, repetitive work, overhead work, shoulder level work and keeping the extremity away from the body. The worker was to attend treatment 3 times per week for 8 weeks.
On March 28, 2018, the chiropractor’s request for an extension of treatment, was approved for an additional 6 sessions over 4 weeks, extending to April 27, 2018. It was noted the worker had been in an MVA and sustained multiple injuries. According to the chiropractor, the range of motion (ROM) of the neck and left shoulder had improved 90% but the worker still lacked endurance to handle her pre-accident work with her left shoulder. The results of a recent ultrasound were pending. It was noted that, “the IW [injured worker] was trying to keep up with her regular work hours, but this is still difficult. The chiro feels her strength and endurance should continue to improve over the next 4 weeks with some additional treatment.” In approving extended treatment, the WSIB Nurse Consultant considered that while the worker was progressing in her recovery, she still had further gains to make with respect to her strength/endurance.
On April 9, 2018, the worker contacted the CM advising of further problems with her left shoulder. There is no indication in the file records of any additional incident since the date of injury.
The worker’s physician, Dr. Sweet, submitted reports dated April 9 and April 16, 2018 which noted the worker had been injured in a workplace MVA, on January 14, 2018. She had been seen in emergency on the date of injury and followed by Dr. Sweet on March 13, April 6, 9, and April 16, 2018. In the latest assessments, Dr. Sweet noted the worker had left shoulder bursitis with capsulitis and a whiplash injury to her neck, from the compensable MVA. She had left shoulder pain with reduced range of motion (ROM) and had been referred to see an orthopaedic surgeon, Dr. Fleming.
On April 12, 2018 Dr. Fleming reported the worker was a community nurse with three months of left shoulder pain following an MVA, where she rear-ended a car. She presented with worsening, constant sharp pain with movement from the neck down to the left shoulder. The orthopaedic assessment determined the worker had post-traumatic adhesive capsulitis/frozen shoulder and a cortisone injection to the shoulder was administered. In the review of April 26, 2018, Dr. Fleming reported the worker had a “frozen shoulder, post MVA.”
The foregoing establishes the worker’s continuity of symptoms in addition to continuity of active treatment and assessments from the date of injury to April 2018, being directly and clinically associated with the MVA injuries. Dr. Fleming specifically noted the worker’s development of post-traumatic adhesive capsulitis/frozen shoulder from her compensable left shoulder injury. In the absence of any significant new incident, I find the evidence establishes that the claimed April 9, 2018 left shoulder recurrence is accident-related and that the adhesive capsulitis/frozen shoulder resulted from the initial shoulder injury. As the conditions set out in the recurrence policy are met, the allowance of an April 2018 recurrence is confirmed.
3. Entitlement to LOE benefits from October 18, 2018 and left shoulder surgery on November 20, 2018:
Policy 18-03-02 states that if the nature or seriousness of an injury completely prevents the worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in the health care measures as prescribed by the attending physician.
The file records reveal the worker did not attain appreciable benefit of her continued neck and left shoulder symptoms, from the chiropractic treatment, which extended from January to April 2018 and from two cortisone injections with Dr. Fleming. She went on to receive physiotherapy treatment from July 2018 to at least November 2018 with similar lack of improvement, 10 months post-injury. The medical reports through this interval indicate the worker had developed left adhesive capsulitis/frozen shoulder and required modified work. By July 26, 2018, Dr. Sweet reported the worker could not use her left arm for work duties.
Through the CM’s discussion with the worker and her direct manager in October 2016, it was revealed that to that point, efforts had been made to accommodate the worker’s pre-injury duties by attempting to assign the worker lighter clients and those not requiring more complex care. However, the clients were assigned through a company planner and often did not entail suitable work. The worker indicated that even though she had restrictions, she was given clients that required full use of her arms, such as heavy clients sitting in a wheelchair and requiring lower leg wound care and dressing changes. The worker described that it was only once she arrived at the client’s home that she was able to determine their needs and often the client’s family was also there. Even though she knew there were lifts to be performed such as moving limbs and changing bandages, which would be difficult for her, with the client needing care and their family present, she felt a sense of stress and duty to carry out the needed tasks.
According to the worker, it was while performing two such lifts on October 12, 2018 that she aggravated her injury and she subsequently required a change in her pain medication, which the worker indicated made her dizzy.
On October 16, 2018, the physiotherapist reported that continued work had failed and the worker now had severe loss of left arm tolerances together with radiculopathy symptoms. She was also to start on some new pain medications. The physiotherapist considered the worker was physically unable to return to any work.
On October 17, 2018, Dr. Sweet similarly noted that the worker had tried working but her work refused to honour the restrictions and her shoulder was worse. She had very little abduction in the left arm. She had adhesive capsulitis now with neck muscle strain and was waiting on an MRI. The worker was prescribed a trial of Tramacet for her pain, with discussed side effects. In view of her symptoms, findings, and the adjustment in the pain medication, Dr. Sweet reported the worker would be unable to drive and was unfit for any work for at least 14 days.
The October 16, 2018 correspondence from the employer notes that light sedentary office (one handed) and self-paced duties were then offered to the worker as well as interpreting in the clinic. Transportation as needed would be provided.
The worker went on to attend a comprehensive medical assessment at the WSIB Upper Extremity Specialty Clinic, on November 7, 2018, in part at the request of the employer. The orthopaedic assessment, with Dr. Yousif, noted that the worker was now 10 months post-injury with continued significant ongoing pain and impairment. She had no improvement from previous chiropractic, physiotherapy treatments or injections. It was confirmed that, “she had developed left shoulder posttraumatic adhesive capsulitis from her motor vehicle accident which is seen clinically from her examination.” It was determined the worker would benefit from a manipulation under anaesthetic with a left shoulder scope to regain her ROM and function of her left shoulder. Dr. Yousif endorsed the worker’s inability to work and made arrangements for surgery.
Left shoulder surgery was carried out on November 20, 2018 by Dr. Yousif. The operative report noted the operation was performed for the worker’s left shoulder injury due to the MVA. Surgery included left shoulder arthroscopy, major debridement, extensive surgical release acromioplasty, subacromial decompression, and manipulation under general anaesthesia.
The foregoing clinical evidence endorses the worker’s development of post-traumatic adhesive capsulitis of her left shoulder from the MVA accident, with continued symptoms. While the worker endeavoured to continue working post-accident, the duties were not appropriately accommodated, leading to aggravation and deterioration of her left shoulder condition and a change in her pain medication. Notwithstanding the employer’s October 2018 offer of office work, I find that the clinical evidence from the worker’s physician, physiotherapist and Specialty Clinic orthopaedic surgeon, consistently support that from October 17, 2018, the worker was rendered totally impaired by her compensable left shoulder capsulitis/frozen shoulder and that she required surgery for this condition, which was performed on November 20, 2018. The surgery is thus, accepted as compensable. With regards to LOE, in accordance with policy, as the medical evidence supports that the nature and seriousness of the worker’s left shoulder injury completely prevented her from returning to any type of work and, as the worker co-operated in the health care measures as prescribed by her attending physicians, the payment of full LOE benefits from October 18, 2018, is confirmed.
4. Specialty Clinic’s January 2019 recommendations for further assessment and graduated RTW:
On January 9, 2019, the worker was seen in follow up by the surgeon, at the Specialty Clinic. This was two months after her surgery for post-traumatic left shoulder adhesive capsulitis. Dr. Yousif reported the worker was still experiencing ongoing left shoulder ROM and functional limitations with high levels of pain reported. She was scared of hurting herself more and worried that her workplace would not follow her restrictions. The assessment determined that the worker’s functional abilities and restrictions were as follows:
not able to drive
no above shoulder work
limited use of the left shoulder
no lifting over 2 pounds
no pushing and pulling
breaks every 30 minutes as needed
would be suitable for light office work if available
the worker could commence a graduated modified return to work, effective January 14,
2019, starting with two hours per day for 2 weeks, then progress to four hours as able.
In terms of treatment, it was recommended the worker continue with functional therapy treatment working on passive ROM and increasing strength and overall function. Additionally, an expedited psychology and pain assessment were recommended to help the worker cope with her ongoing pain and functional limitations due to her left shoulder injury. The hope was that these additional assessments would aid in the worker’s recovery and overall functioning.
In keeping with the Specialty Clinic recommendations, the worker commenced a graduated return to work, on modified sedentary office duties with her employer on January 14, 2019. The employer has continued to pay her full wages.
Contrary to the employer’s disagreement, the Specialty Clinic’s findings and recommendations were based on assessment of the worker’s condition two months following compensable left shoulder surgery, and carried out by the operating surgeon, who was familiar with the worker’s injury and sequelae. I accept and place weight on the January 2019 Specialty Clinic’s assessment, findings and the recommendations that the worker was then only fit for a graduated return to sedentary work, within specified restrictions, commencing at two hours per day. I also accept the orthopaedic recommendation that the worker would benefit from a psychology and pain assessment to help her cope with post-operative pain and functional limitations due to her left shoulder injury, with the hope of aiding in her recovery and overall functioning. Thus, I accept the January 2019 Specialty Clinic recommendations for a graduated RTW and need for the further assessments, as appropriate for the continued left shoulder impairment. No clinical evidence to the contrary has been presented.
Policy 18-03-02 also provides that workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. Examples include but are not limited to:
workers who return to work at reduced hours or wages, and
workers who are capable of work in a suitable occupation (SO) at earnings that are
less than pre-injury average earnings.
In keeping with policy relating to the payment of partial LOE benefits, the worker would normally meet the conditions for entitlement to partial LOE as of her graduated RTW, noting her continued participation in her medical rehabilitation and RTW. However, her employer has chosen to pay her full wages instead.
CONCLUSIONS
The decision granting initial entitlement is confirmed.
Entitlement for an April 2018 left shoulder recurrence, for a diagnosis of adhesive capsulitis/frozen shoulder, is confirmed.
Entitlement to full LOE benefits from October 18, 2018 extending to January 14, 2019, is confirmed.
Entitlement for left shoulder surgery on November 20, 2018, is confirmed.
The Specialty Clinic’s January 2019 recommendations for a psychology/pain assessment and a graduated return to work, starting at two hours per day, are confirmed.
The employer’s objection is denied.
DATED: August 13, 2019.
S. van Veen
Appeals Resolution Officer
Appeals Services Division