Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20190098 Objecting Party: Worker Represented by: Worker Representative Respondent: Employer Represented by: Employer Representative Hearing: Hearing in writing Heard by: C. Marr, Appeals Resolution Officer Dated: August 23, 2019
Issues
The worker is objecting to the following decisions, all made by the Case Manager (CM):
- The determination that the worker recovered from her compensable right shoulder injury by April 20, 2018 with no ongoing work-related impairment dated May 23, 2018.
- The denial of entitlement to loss of earnings (LOE) benefits after July 30, 2018 dated October 23, 2018.
- The denial of entitlement to benefits following the surgery performed on the worker’s right shoulder dated October 23, 2018.
Background
On September 30, 2017, this personal support worker injured her right shoulder and elbow while transferring a resident with a co-worker. The co-worker slipped, causing the resident’s weight to be placed on the worker. The worker had a previous work-related injury to her right shoulder on August 1, 2017 under a separate claim.
As explained in correspondence dated May 23, 2018, the CM determined that the worker’s compensable right shoulder injury resolved by April 20, 2018 with no ongoing or permanent work-related impairment.
The worker stopped working as of July 30, 2018. The worker claimed to have ongoing restrictions that the employer reportedly would not accommodate.
The worker underwent surgery on her right shoulder on October 25, 2018.
The CM sent a letter to the worker on October 23, 2018 stating that LOE benefits after July 30, 2018 were not in order as the worker’s compensable injury had resolved by April 20, 2018. Entitlement to benefits related to the surgery was also denied for the same reason.
Worker’s Position
The worker argues in part that she has had many work-related injuries to her right shoulder. She had to work outside of her restrictions in the post-accident period. She submitted statements from co-workers to confirm this. She required surgical intervention for her injury and did not recover until after the procedure.
Employer’s Position
The employer representative argues in part that the Medical Consultant’s (MC) opinion was based on incomplete information. The surgical report showed that the worker did not have a torn biceps tendon, but rather the absence of a tendon. The clinical evidence does not support that the worker sustained a significant shoulder injury in the workplace accident. She does not have a permanent work-related impairment.
Authority
Operational Policies
11-01-05 Determining Permanent Impairment 15-02-03 Pre-existing Conditions 17-01-02 Entitlement to Health Care 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
Analysis
1. Maximum Medical Recovery
I find that the worker achieved maximum medical recovery (MMR) from her compensable right shoulder strain by April 2018 with no ongoing or permanent work-related impairment.
WSIB Operational Policy 11-01-05 Determining Permanent Impairment states in part:
A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached.
A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
MMR means that the worker has achieved a plateau in recovery and no further significant improvement is expected.
The worker argues in part that she has had many work-related injuries to her right shoulder. She had to work outside of her restrictions in the post-accident period. She submitted statements from co-workers to confirm this. She required surgical intervention for her injury and did not recover until after the procedure.
The issue before me is whether the worker’s compensable injury resolved by approximately April 2018 and if there is clinical evidence of an ongoing or permanent impairment resulting from the work-related injury.
Under this claim, the worker injured her right shoulder and elbow when she was assisting to transfer a resident. Her co-worker twisted her foot, causing the resident’s weight to be shifted to the worker. She injured her right arm and shoulder trying to prevent the resident from falling. The shoulder injury was the most disabling for the worker.
The worker first sought medical attention at the hospital the day after she was injured. The clinical evidence from this examination does not support that she had a significant injury. There was some pain and tenderness on palpation of the right scapula, trapezius and biceps. Range of motion (ROM) of the right shoulder, elbow and wrist was normal. She could abduct the shoulder without pain. Testing of the tendons and rotator cuff was normal. The worker was diagnosed with a soft tissue or muscular injury to her right arm, primarily to the trapezius and possibly the biceps.
An MRI of the right shoulder performed on November 1, 2017 did not show any acute pathology related to the workplace accident. There was minimal degenerative change in the acromioclavicular (AC) joint. There was no evidence of a rotator cuff tear. The biceps tendon was not visualized, so a tear of this tendon could not be ruled out. There was some degenerative tearing of the labral tissue.
The worker was assessed by an orthopaedic surgeon at the Shoulder and Elbow Specialty Clinic on December 11, 2017. At that time, ROM of the right shoulder was only slightly reduced in some planes compared to the uninjured left side and normal ranges. The worker had some tenderness of the AC joint and bicipital grove. Special testing of the rotator cuff joint was normal. Strength of the rotator cuff was full. Further recovery was expected following a cortisone injection and additional physiotherapy treatment.
When the worker was reassessed at the Specialty Clinic on March 26, 2018, ROM of the right shoulder was within normal limits. The orthopaedic surgeon was unable to identify the cause or source of the worker’s subjective pain complaints and pain levels. The MRI did not show any pathology that would explain her pain. The surgeon recommended permanent restrictions for the worker’s right shoulder, as no further functional recovery was expected. However, this was based more on her subjective complaints rather than an actual organic injury.
A WSIB Medical Consultant (MC) reviewed the available medical record on April 20, 2018. The MC suspected that the worker might have sustained a biceps tendon tear in the workplace accident. This will be discussed in more detail below. Nonetheless, even if the worker did sustain such an injury, it would have resolved by approximately six months post-accident, according to the MC.
A different orthopaedic surgeon assessed the worker on September 18, 2018. The worker reported a five-year history of anterior shoulder pain. The specific workplace accident of September 30, 2017 was not reported to this surgeon, or at least was not documented in his reports. The worker continued to have full ROM of the shoulder with only a slight reduction in abduction. She had full power in the rotator cuff and special tests were negative. Arthroscopic surgery was proposed to get a better look at the shoulder joint and possibly repair a torn biceps tendon.
The surgery was performed on October 25, 2018. During the procedure, the worker was found not to have a long head biceps tendon. This presumably is a congenital condition. The rotator cuff tendons were all intact. The surgeon performed a bursectomy and some debridement of the under surface of the acromion. In my opinion, there was no pathology or injury identified during the surgery that could be directly related to the workplace accident.
As noted by the employer representative, the MC did not have access to the operative report when he conducted his review and provided his opinion. Certainly, his opinion on the nature of the worker’s injury, a suspected torn biceps tendon, would have been different.
When the surgeon saw the worker on November 13, 2018, the surgeon explained that the worker had some tendonitis that could be related to a repetitive strain injury. This was also based in part on the worker reporting a five-year history of symptoms. A repetitive strain injury is inconsistent with the mechanism of the workplace accident that resulted in this claim.
Policy 15-02-03 Pre-existing Conditions states in part that entitlement to benefits for a work-related injury will not be denied due to the existence of a pre-existing condition. A pre-existing condition is defined under the policy as follows:
A pre-existing condition is any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions. The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.
The worker has entitlement to benefits for a right shoulder strain under this claim. The clinical findings were insignificant beginning from the first assessment of her injury on October 1, 2017. She consistently had full or near full ROM of the shoulder with full strength and no clinical evidence to suggest a rotator cuff injury. This was confirmed by the imaging studies and the arthroscopic surgery performed on the shoulder. The worker made subjective complaints of pain that the surgeon at the Specialty Clinic could not explain based on the clinical findings. The worker’s pain does not constitute an organic impairment.
The worker also has a pre-existing condition as defined under policy 15-02-03. I am not speaking to her prior work-related injury, but the absence of a long head biceps tendon. The surgeon who operated on the worker and discovered this condition did not comment specifically on how this may have been contributing to her symptoms. However, as stated above, her symptoms were not explained by the muscle strain injury sustained in the workplace accident.
Policy 15-02-03 also states that when a pre-existing condition is present, the decision-maker must determine whether there is an ongoing work-related impairment:
When assessing the impact of the pre-existing condition on the worker’s ongoing impairment, the decision-maker determines whether the work-related injury/disease continues to be a significant contributing factor. To make this determination, the decision-maker considers the significance of the work-related injury/disease and the pre-existing condition, relative to each other.
In some cases the clinical evidence may demonstrate that the significance of the pre-existing condition is so great it has overwhelmed the impact of the work-related injury/disease, rendering it insignificant. When this occurs, the work-related injury/disease cannot be considered to be of sufficient significance in comparison to the pre-existing condition, for benefits to continue.
To determine if a pre-existing condition has overwhelmed the work-related injury/disease, decision-makers consider whether the worker’s current level of impairment would continue despite the work-related injury/disease and whether the work-related injury/disease on its own would cause a similar level of impairment. If the work-related injury/disease is causing a similar level of impairment, it is still considered a significant cause of the ongoing impairment.
The Case Manager (CM) identified the April 20, 2018 review by the MC as the MMR date. I will confirm this decision. The clinical evidence does not support that the worker had an ongoing work-related impairment beyond this date. The objective medical findings support that she achieved MMR from her work-related right shoulder strain and that this injury fully resolved. Any ongoing impairment and her subjective complaints is more reasonably attributable to the pre-existing condition.
2. LOE Benefits After July 30, 2018
The worker is not entitled to loss of earnings (LOE) benefits after July 30, 2018, as I cannot determine that her wage loss after this date was due to her work-related injury.
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that a worker’s entitlement to LOE benefits ends when the worker is no longer impaired as a result of the compensable injury.
The employer reportedly stopped accommodating the worker’s right shoulder condition after July 30, 2018, and would not accept recommendations provided by her family doctor. The worker was off work as of this date.
As explained above, I determined that the worker’s compensable right shoulder strain resolved by approximately April 20, 2018 with no ongoing work-related impairment. Therefore, her wage loss after July 30, 2018 is not due to the compensable injury and LOE benefits are not in order.
3. Surgery
The worker is not entitled to benefits related to the surgery performed on her right shoulder on October 25, 2018. This procedure was not required to treat the work-related injury.
Policy 17-01-02 Entitlement to Health Care states in part, “a worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.”
As explained in detail above, the surgery performed on the worker’s right shoulder was not required for the work-related muscle strain injury. As the MRI suggested there may have been a torn biceps tendon and the worker reported a five-year history of symptoms, exploratory surgery with a possible biceps tendon repair was offered to her. The surgeon found what appears to be a congenital absence of the long head biceps tendon. An injury related to the workplace accident under this claim was not identified or treated during the procedure.
Therefore, the worker is not entitled to benefits related to the surgery performed on her right shoulder.
Conclusion
- The worker achieved MMR from her work-related right shoulder injury by April 20, 2018 with no ongoing or work-related permanent impairment.
- The worker is not entitled to LOE benefits after July 30, 2018.
- Entitlement to benefits related to the October 25, 2018 surgery is not in order under this claim.
The objection is denied.
DATED: August 23, 2019
C. Marr Appeals Resolution Officer Appeals Services Division