Workplace Safety and Insurance Board
DECISION NUMBER: 20230013
OBJECTING PARTY: WORKER REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER (not participating)
HEARING: IN WRITING
HEARD by: S. VAGADIA, APPEALS RESOLUTION OFFICER
ISSUE
The worker objects to a Case Manager’s (CM) September 23, 2021 reconsideration decision that limited entitlement to a right shoulder contusion.
BACKGROUND
On July 15, 2019, the then 23 year old server slipped on a wet floor and fell, striking her right shoulder against a wall. Entitlement was granted to a right shoulder contusion. In June of 2020, the CM granted entitlement to a January 15, 2020 right shoulder surgery. Although there was evidence of pre-existing instability, the CM indicated the worker was fully functional prior to the accident. An October 28, 2020 CM decision noted the worker was scheduled for further right shoulder surgery (it took place in December of 2020) which was also approved.
A September 23, 2021 CM reconsideration decision indicated and found the following:
- The worker was awaiting right shoulder surgery prior to the workplace accident. This was due to a non-work-related accident. The specialist, prior to the workplace accident, also advised the worker not to work as a server due to her pre-existing injury.
- Consequently, entitlement in the claim was now limited to a right shoulder contusion, which fully resolved. The contusion did not aggravate the worker’s pre-existing condition.
- The other diagnoses and related surgeries were not work-related. Entitlement was rescinded accordingly. The resulting overpayment was made non-recoverable.
The worker objects to the above decision and the issue is now before me.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
November 3, 2008
ANALYSIS
The worker representative submitted the following:
- The motor vehicle accident (MVA) was in 2016, the accident at the gym was in 2017, and the fall on the stairs were all prior to the MRI and x-ray in October and December of 2018. The diagnostic tests were unremarkable.
- The above incidents required physiotherapy treatment but did not result in significant functional issues. They also did not require surgical intervention.
- In February of 2019, the orthopaedic surgeon looked to schedule surgery sometime in the future. A date was not established. The specialist also recommended the worker stop serving. However, the worker was able to continue to perform her job as a server. This changed after the workplace accident.
- The worker initially received medical attention at a hospital’s emergency room (ER) the night of the accident. She was diagnosed with a dislocation. She sustained a traction injury.
- The worker was able to function prior to the workplace accident despite her pre-existing condition.
- The workplace accident resulted in an exacerbation to her pre-existing condition culminating in the need for surgery.
- The worker was always upfront about her pre-existing condition.
- She never returned to her pre-accident state.
- Entitlement to the surgeries and related diagnoses should be restored.
I am unable to concur with the representative’s position. I find the worker sustained a contusion to her right shoulder due to the workplace accident. The surgeries proposed by her specialist were not due to the workplace accident. It was not a significant contributing factor. I note the following in arriving at my decision.
Policy 11-01-01 provides guidance. It outlines the necessary criteria for entitlement, which include a personal work-related injury, proof of accident, and compatibility between a diagnosis and accident history.
In this case, I will first speak to the state of the worker’s right shoulder prior to the date of accident. Towards the end of 2018, the family doctor referred the worker for an x-ray and MRI. The reason is unclear as unfortunately the clinical notes from that period are not in the claim file. Both the October 28, 2018 x-ray and December 17, 2018 MRI were unremarkable aside from mild osteoarthritic (OA) changes to the AC joint. There was no tear.
An orthopaedic surgeon assessed the worker on February 14, 2019. The findings were as follows:
- The worker injured her right shoulder five years ago in an MVA. She sustained a severe strain injury. Five months of physiotherapy treatment did not help. The worker had residual functional limitations but tried to manage as best as she was able.
- Two years ago the worker experienced significant right shoulder pain while working out at a gym with a 30-pound weight. She received additional physiotherapy treatment.
- Recently (the date is unclear) she fell down a set of stairs outside a house. She grabbed the railing with her right hand as she was falling. This caused her right arm to abduct and externally rotate. This recent accident further exacerbated her existing pain.
- Although the x-ray and MRI findings were unremarkable, the worker had a significantly limited range of motion (ROM). There was significant irritation with minimal manipulation. Her rotator cuff muscles were weak. She had significant anterior shoulder tenderness.
- Because of this, the specialist queried whether the worker had an anterior labral tear. The confirmed diagnosis was a severe strain with tendinopathy.
- The worker had “significant ongoing difficulties” despite conservative measures. Consequently, she wished to proceed with surgery.
- The specialist indicated the worker was to be scheduled for surgery in the future. It was planned to see her back shortly prior to the surgery date.
- In the interim, the worker was advised not to work as a server given her condition.
It is noteworthy the above findings and recommendations were made five months prior to the workplace accident. The reason for the delay in scheduling the surgery is unclear. Unfortunately, we do not have the clinical notes for this period. However, a psychiatrist’s October 3, 2019 narrative report provided a history of some of the events that took place from January of 2019 to the summer of 2019. The report also suggested the worker had (right) shoulder surgery due to the MVA five years earlier.
In a November 20, 2019 memo, the worker confirmed she had a pre-existing right shoulder issue due to the MVA. She indicated she required bi-monthly maintenance physiotherapy treatment due to that accident. However, she made no mention of the more recent right shoulder injury (that occurred at the end of 2018 or beginning of 2019) or the fact that she was assessed by an orthopaedic surgeon in February of 2019 and surgery was recommended at that time. These revelations were shared with the worker as outlined in a September 8, 2021 memo. The worker replied that she had no recollection of the February 2019 appointment, which I note was five months prior to the date of accident.
In reviewing the medical evidence from July 15, 2019, I note the following:
- The worker was seen at a hospital’s ER at approximately 12:30 am on July 16, 2019. Contrary to the worker’s (and representative’s) assertion, the medical evidence does not support the worker sustained a dislocation. The ER physician completed a Form 8 (initial healthcare report) and indicated the injury consisted of a right shoulder contusion. I note this was “checked/ticked off” in section 2 or the form, which provided an extensive list of possible injuries/findings including “dislocation”, which was not “checked/ticked off”. In section 4 of the form, the physician specifically wrote the injury was a contusion.
- A review of the hospital records supports the above assertion. There was no mention of a dislocation in the triage, Patient Order Summary or x-ray reports. I also place weight on these documents as far as the accident history is concerned. They stated the worker had a fall against a wall at work / her right shoulder went forward into a wall after slipping on the floor. This was also reiterated in a November 6, 2019 clinical note. It stated the worker slipped at work and hit her shoulder against a wall.
- A September 12, 2019 orthopaedic surgeon’s report indicated the worker was being seen for “follow up”. The possibility of the anterior labral tear was again identified. The workplace accident was also noted and the specialist indicated the worker sustained further injury to her right shoulder. Of interest to me is the lack of findings. The specialist already noted significant symptoms and findings in February of that year. The specific nature of the “further injury” (aside from a contusion) is unclear. The specialist decided to refer the worker for an MRI to provide insight.
- The findings from the October 30, 2019 MRI were comparable to those from the MRI in December of 2018. There was no tear.
- The orthopaedic surgeon assessed the worker again on November 7, 2019. Despite two MRI reports confirming the worker did not have a tear, the specialist felt there was evidence of a possible SLAP lesion and anterior labral tear. It was noted surgery was previously discussed and agreed to. It was apparently to have occurred in the summer of 2019. Therefore, it would be scheduled as soon as possible.
- The surgery took place on January 15, 2020. The operative report provided a diagnosis of recurrent right shoulder instability. It was noted this was an issue for a number of years. Curiously, the report also suggested the worker initially sustained her injury when she fell at work. I find the medical evidence does not support this assertion. The worker had a long history of symptomatic issues with her right shoulder that predated the workplace accident. This included the need for surgery due to significant subjective and objective findings in February of 2019. The cause was a recent accident where she fell down a set of stairs.
- There is also a disconnect with the statements the worker provided to the specialty clinic (a July 31, 2020 report is one example). The worker reported having no symptomatic issues with her right shoulder prior to the workplace accident. The orthopaedic surgeon’s February 14, 2019 report confirms otherwise. The specialty clinic was unaware of this report or its findings. I am therefore unable to place much weight on their conclusions, as far as work-relatedness is concerned.
- The worker had a third MRI on October 22, 2020. Once again, there was no evidence of a tear or significant tendinopathy. Despite this, the orthopaedic surgeon determined further surgery was required.
- The surgery took place on December 9, 2020. Curiously, the operative report suggested the recent MRI revealed rotator cuff tendinopathy as well as evidence of a possible superior labral tear. It is unclear to me how the specialist arrived at this conclusion based on my review of the MRI report. The surgery confirmed the worker did not have a tear (only inflammation).
The above review and analysis leads me to the following conclusions:
- The worker had a significant, pre-existing, symptomatic condition that resulted in the decision to proceed with right shoulder surgery in the months prior to the workplace accident. She had increased pain, a significantly limited ROM, significant irritation with minimal manipulation, weak rotator cuff muscles, and significant anterior shoulder tenderness. The worker was also advised not to work as a server pending her surgery.
- The medical evidence does not support the worker sustained deterioration to her pre-existing condition. The MRI reports in particular support this view.
- The accident history consisted of the worker slipping on water and striking her right shoulder against a wall. This resulted in a bruise / contusion. There is little to support compatibility between this diagnosis and the orthopaedic surgeon’s decision to proceed with two surgeries. This is especially so given surgery was already agreed to prior to the workplace accident.
Given the above, I concur with the decision to rescind entitlement to the surgeries and related diagnoses. I find the work-related accident resulted in a right shoulder contusion, which fully resolved.
CONCLUSION
As outlined in the above decision, I conclude entitlement is limited to a right shoulder contusion. The worker’s objection is denied.
DATED December 1, 2022
S. Vagadia Appeals Resolution Officer Appeals Services Division