APPEALS RESOLUTION OFFICER DECISION
decision number:
20230003
OBJECTING PARTY:
Employer
REPRESENTED by:
employer representative
RESPONDENT:
worker (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
Helen Shaw, appeals resolution officer
DECEMBER 13, 2022
ISSUE
The employer is objecting to the allowance of initial entitlement for a left shoulder dislocation, in the Eligibility Adjudicator (EA) decision of February 10, 2022.
BACKGROUND
The worker was employed in plastic injection moulding and had been with the employer since September 2021. On January 7, 2022, the worker attempted to climb over an elevated cord that was approximately 1.5 feet off the ground. The worker caught their foot, fell forward on their left arm and shoulder and felt pain in the left shoulder. The worker sought medical attention that day and was diagnosed with a left shoulder sprain/soft tissue injury. The worker was 46 years old when the injury occurred. The worker returned to work and initially did not lose time from work. On January 11, 2022, initial entitlement was allowed for a left shoulder injury for health care benefits.
On January 19, 2022, the worker contacted the Workplace Safety and Insurance Board (WSIB) to report additional problems with the left shoulder. According to the worker, the left shoulder was dislocated in the incident on January 7, 2022 but popped back into place before the worker saw the doctor. The worker reported waking up with severe pain in the left shoulder on January 14, 2022, seeking further medical attention at hospital emergency that day and being diagnosed with a left shoulder dislocation. The worker saw a specialist on January 18, 2022 and began losing time from work. A Health Professional’s Report (Form 8) completed by the specialist on January 18, 2022 confirmed the diagnosis of left shoulder dislocation. It supported a return to regular duties on April 7, 2022.
The EA decision of February 10, 2022 updated entitlement to include a left shoulder dislocation and paid loss of earnings (LOE) benefits from January 18, 2022 to January 31, 2022.
In a letter dated May 30, 2022, the employer representative requested a reconsideration of the decision to allow entitlement for the left shoulder dislocation. The decision to allow healthcare and LOE benefits for a left shoulder dislocation was confirmed in a reconsideration decision dated June 6, 2022.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
November 3, 2008 September 1, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find entitlement remains in order for benefits related to a left shoulder dislocation. My reasons are explained below.
According to operational policy 11-01-01, an allowable claim must have the following five points:
- an employer
- a worker
- personal work-related injury
- proof of accident, and
- compatibility of diagnosis to accident or disablement history.
The employer representative submitted an Appeal Readiness Form dated July 13, 2022, with an attached submission. The employer has not disputed that there is an employment relationship with the worker and acknowledges there was an accident on January 7, 2022, when the worker tripped over a cable and fell on the left arm, injuring the left shoulder. The only issue for me to determine is the compatibility of the left shoulder dislocation.
It is the position of the employer representative that after the injury on January 7, 2022, the worker returned to their pre-injury job duties with no complaints or concerns reported and no request for modified duties. The employer representative argued that there was an incident at home on January 14, 2022, when the worker injured the fully functioning left shoulder in their sleep. The employer representative argued this resulted in the employer handling the lost time from January 18, 2022 as non-occupational. They argued that the employer could have provided modified work if they had known it was an occupational injury. It is their position that a left shoulder dislocation is not compatible with the workplace incident on January 7, 2022 and that entitlement in the claim should be limited to a left shoulder strain with no loss of earnings benefits.
The worker is not participating in the appeal and did not provide a Respondent Form.
I have considered the employer’s position, but I am satisfied it was appropriate to allow entitlement for a left shoulder dislocation.
The employer representative argued that the left shoulder dislocation is not compatible with the accident history, but I find their position is not supported by the evidence. The accident history reported by both the worker and employer was that the worker tripped over a cable and fell on the left arm and shoulder. In my view, a fall onto the left arm and shoulder could cause a left shoulder dislocation and the diagnosis is compatible with the accident history.
Furthermore, it was the worker’s evidence that there was a left shoulder dislocation at the time of the initial injury. The worker went for immediate medical attention at hospital emergency following the trip and fall, suggesting the worker believed the injury was significant enough to require immediate medical attention. On January 19, 2022, as documented in claim file memo A0002, the worker reported that the left shoulder was dislocated in the fall on January 7, 2022. According to the worker, while waiting at emergency the left shoulder popped back into place. By the time they met with the doctor, the shoulder was no longer dislocated and the Form 8 dated January 7, 2022 diagnosed the worker with a left shoulder sprain/soft tissue injury caused by tripping. Based on the worker’s statement, the left shoulder likely had a dislocation on January 7, 2022 but it was not recognized by the emergency room doctor because it had already popped back into place.
The employer representative argued that the left shoulder dislocation occurred as a result of an incident or event at home, but there is no evidence of a new incident at home. The worker reported that they woke up on January 14, 2022 with excruciating pain in the left shoulder. The worker went to the hospital again and was diagnosed with a left shoulder dislocation. Sleeping is not a new incident or accident, as there is nothing involved in that activity that is likely to cause a shoulder dislocation in an otherwise healthy shoulder.
The facts of this case suggest a more likely explanation is that the left shoulder dislocation occurred on January 7, 2022 when the worker tripped and fell at work. The worker reported that the shoulder dislocation corrected itself before they saw the doctor on January 7, 2022, resulting in the dislocation not being identified by the emergency room doctor. Because the shoulder dislocation was not identified on January 7, 2022, the worker resumed regular activities instead of observing typical precautions for a shoulder dislocation, such as reduced use of the left shoulder and use of a sling. A dislocation of the left shoulder that self-corrected on January 7, 2022 could leave the left shoulder vulnerable to further dislocation with minimal provocation, particularly if the worker resumed regular activities too quickly. That would explain why the worker could have sustained another dislocation at home a week after the original accident, from a normal activity like sleeping or rolling over in bed.
The employer representative argued that the worker did not complain of left shoulder problems between January 7, 2022 and January 14, 2022. In my view, even if there was an absence of ongoing left shoulder complaints during that time period, the second left shoulder dislocation happened only a week after the initial incident. It was unlikely the left shoulder would have fully recovered during that period and it was probably vulnerable to reinjury.
After considering all the evidence, I find it more likely than not that the worker sustained a left shoulder dislocation on January 7, 2022 and that the second dislocation on January 14, 2022 was related to the original accident. This is based on the worker’s statement that they experienced a left shoulder dislocation on January 7, 2022 and the absence of a new accident on January 14, 2022 to break the chain of causation.
Regarding the payment of LOE benefits, operational policy 18-03-02 states in part that if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
Based on the Form 8 dated January 18, 2022 and a Functional Abilities Form (FAF) dated February 2, 2022, the worker was not able to use their left arm and could not perform their pre-injury duties. The worker’s regular job duties doing mould set-up required the use of the upper extremities to push, pull and lift. A letter from the employer representative dated May 30, 2022 and their submission dated July 11, 2022 confirmed that modified duties were not arranged until February 1, 2022 because the employer was treating the lost time from January 18, 2022 as non-occupational.
The employer representative argued that they could have provided modified duties to the worker if they had known the worker was losing time from work due to an occupational injury, but I am not persuaded by their argument. The evidence supports that it was the employer’s decision to treat the lost time from January 18, 2022 as non-occupational, even though the worker was claiming it was related to the incident on January 7, 2022. The worker contacted the WSIB on January 19, 2022, as documented in claim file memo A0002, and also submitted a Worker’s Report of Injury/Disease (Form 6) on January 17, 2022. According to the worker, on January 17, 2022 the worsening left shoulder symptoms were reported to the employer as related to the incident on January 7, 2022, but the employer claimed it was a non-occupational injury.
Because the left shoulder dislocation prevented the worker from performing their regular job duties from January 18, 2022 and the employer did not provide suitable work from January 18, 2022 to January 31, 2022, I find it was appropriate to pay LOE benefits during that period.
In summary, I find the left shoulder dislocation is compatible with the workplace incident on January 7, 2022. Initial entitlement remains in order for the left shoulder dislocation, including healthcare benefits and LOE benefits from January 18, 2022 to January 31, 2022.
CONCLUSION
I conclude initial entitlement remains in order for the left shoulder dislocation, including healthcare benefits and LOE benefits from January 18, 2022 to January 31, 2022.
The employer’s objection is denied.
DATED December 13, 2022
Helen Shaw
Appeals Resolution Officer
Appeals Services Division