DECISION NUMBER:

20230014

OBJECTING PARTY:

WORKER

REPRESENTED by:

SELF

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

M. RODRIGUES, APPEALS RESOLUTION OFFICER

DATED: DECEMBER 9, 2022

ISSUES

The worker is objecting to the following decisions made by the case manager:

1. A decision of March 29, 2022 that determined the worker’s right shoulder sprain/strain injury fully resolved by January 10, 2022 with no evidence of a permanent impairment.

2. A decision of July 7, 2022 that denied entitlement to a recurrence for the right shoulder sprain/strain injury.

BACKGROUND

On December 17, 2019, this firefighter was pulling a combination tool (jaws-of-life) off the truck without unclipping the strap and injured their right shoulder. The worker reported their injury to the platoon chief later that day and resumed their regular duties. They sought health care three days later and were diagnosed with a right shoulder subluxation. Initial entitlement was accepted for health care benefits for a right shoulder sprain/strain.

In the Worker’s Continuity Report (Form REO6) of January 17, 2022, the worker reported ongoing pain in their right shoulder since the workplace accident. They reported receiving chiropractic, acupuncture and massage treatments one to two times per week.

In a decision letter of March 29, 2022, the case manager determined the worker’s right shoulder sprain/strain fully resolved by January 10, 2022 with no evidence of a permanent impairment. The case manager accepted that any ongoing issues in the right shoulder were related to the worker’s pre-existing conditions, which were likely aggravated by their heavy weightlifting rather than the workplace accident. The case manager found the worker’s pre-existing conditions were not consistent, nor compatible, with the original injury and denied entitlement to a recurrence for the right shoulder sprain/strain.

On June 30, 2022, the worker reported pain in their right shoulder after stepping off the front bumper of the Aerial 2018 in a reverse dip motion. In a decision letter of July 7, 2022, the case manager denied

entitlement to a recurrence for the right shoulder sprain/strain type injury. The case manager found that as the work-related right shoulder injury fully resolved, they were unable to accept a recurrence of this injury. The case manager noted that if the worker sustained a new injury to the same area of injury, then a separate claim should be filed.

By way of relevant information, a new claim XXXXXXXX was registered for the June 30, 2022 workplace accident. The claim was allowed for health care and loss of earnings (LOE) benefits for a supraspinatus partial tear of the right shoulder.

The worker objects to the decisions dated March 29, 2022 and July 7, 2022 and the issues have been referred to the Appeals Services Division for further consideration.

AUTHORITY

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment

November 3, 2014

15-02-05 Recurrences

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the worker’s right shoulder sprain/strain injury fully resolved by January 10, 2020 with no evidence of a permanent impairment. I find entitlement to a recurrence for the right shoulder injury is denied. The worker’s objection is denied.

Worker position

In the submission of July 5, 2022, the worker opined their right shoulder injury never resolved and they had a permanent impairment. They indicated this was supported by an upcoming arthroscopic surgery on September 8, 2022 with the potential to repair a superior labrum anterior and posterior (SLAP) or labral tear. The worker stated the MRI findings did not tell the whole story and that the damage would be assessed during the surgery. They opined had they not been injured at work in December 2019, there would be no need for the surgery and noted the diagnosis would be confirmed after the surgery.

The worker was also unable to lift heavy weights since the workplace accident, noting their doctor said they would not be able to work out like they did in the past. They stated heavy lifting should have no bearing on this decision because there was no damage to their joints, including the fact they never lost time due to working out. The worker opined that a pre-existing condition does not indicate it was the cause of the injury, nor that the injury was not work-related. They referenced policy 15-02-03 (Pre- existing Conditions) in support of their position.

The worker stated their pain and instability in their right shoulder resulted from the December 2019 workplace accident. They stated the partial tear of the supraspinatus was directly related to the shoulder instability they sustained. The worker attached the first page of an undated Health Professional’s Report (Form 8), stating the doctor identified the worker has chronic SLAP tears, when indicating whether there were any pre-existing or other conditions that may impact recovery. The date of injury in the Form 8 was June 30, 2022 and they stated the injury they sustained on that date was directly related to the December

2019 workplace accident. The worker requested the lost time from the September 8, 2022 surgery be accepted.

Employer position

In the submission of November 18, 2022, the employer representative argued the worker’s right shoulder injury fully resolved with no evidence of a permanent impairment. They opined the clinical evidence supports the worker experienced right shoulder pain prior to the December 2019 workplace accident, had a previous right shoulder injury and joint degeneration, which likely accounted for the ongoing symptoms.

The representative noted the worker had a prior right shoulder subluxation as a teenager and also dislocated the left shoulder six years ago. They referenced the clinical reports of February 21, 2021, March 16, 2021 and August 17, 2021. They opined worker admitted to having a pre-existing condition and that the work-relatedness between the pre-existing condition, work-related injury and worker’s injury must be examined based on the clinical information.

The representative referenced the diagnostic imaging, along with various clinical notes and reports from January 3, 2020 to January 10, 2022 in the case record. They argued there was a lack of clinical evidence to substantiate the work-related injury continued to contribute to the ongoing impairment, or that the pre-existing was aggravated by the work-related injury. They stated none of the treating health practitioners indicated the worker’s current shoulder issues were contributed to or accelerated by the December 2019 workplace accident.

The representative opined by the time of the claimed recurrences, it was likely the pre-existing conditions rendered the work-related impairment insignificant. They contend there was a lack of clinical compatibility in relation to the recurrences policy, as there was no deterioration of the work-related impairment. They referenced the January 10, 2022 clinical report, stating the work-related injury was superimposed upon those pain generators and was overwhelmed by them. The representative argued there was a break in continuity due to the lack of evidence to support the worker sought treatment between January 2020 and February 2021. They referenced policies 15-02-05 (Recurrences) and 15-02-03 (Pre-existing Conditions) in support of their position.

Policy

In order to determine if a worker has fully recovered from their work-related injury, the information needs to show whether an ongoing work-related impairment exists. This is detailed in policy 11-01-05 (Determining Permanent Impairment). The policy states an impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

Recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time maximum medical recovery (MMR) is reached. MMR means that a plateau in recovery has been reached and no further significant improvement is expected. To determine if MMR is reached, decision-makers consider whether recent clinical evidence indicates any change in the work-related injury, the worker is receiving or will receive treatment that is likely to improve the work-related injury, or the worker is receiving treatment or using medication to maintain the current level of recovery. Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.

In order to determine if entitlement can be granted as a recurrence in this claim, the worker must experience a significant deterioration that does not result from a significant new incident and is clinically compatible with the original injury. This is detailed in policy 15-02-05 (Recurrences). The policy outlines the circumstances under which a worker may be entitled to benefits for a recurrence of a work-related injury.

If the significant deterioration results from a significant new incident/exposure (work-related or not) a recurrence is not considered. Instead, if the significant new incident/exposure is work-related, a new claim is considered. If the significant deterioration occurs when there is no new incident/exposure or results from an insignificant new incident/exposure (work-related or not) a recurrence is considered. A significant new incident/exposure is one of some consequence or importance. An insignificant new incident/exposure is one of negligible consequence or importance.

To establish that the significant deterioration is clinically compatible with the original injury/disease, the WSIB must determine that the body parts and/or functions affected now are the same as, or related to, those affected by the original injury/disease, and there is a causal link between the significant deterioration and the original injury/disease.

Findings

Before I state my findings, it is important to stress the boundaries of my jurisdiction concerning this appeal. I noted the worker requested the lost time from the September 8, 2022 surgery be accepted in their submission of July 5, 2022. However, in the decisions of March 29, 2022 and July 7, 2022, the case manager made no findings of fact in regards to entitlement to the right shoulder surgery and LOE benefits in this claim. As such, I do not find those issues are within my jurisdiction and make no findings of fact on them. The worker will need to address these issues with the operating area, subject to any relative time limits. My decision will strictly be limited to whether the worker’s right shoulder sprain/strain injury fully resolved and if the criteria for a recurrence is met in this claim.

Did the worker’s right shoulder injury fully resolve by January 10, 2022?

I find the available clinical evidence supports the worker’s right shoulder sprain/strain fully resolved by January 10, 2020 with no evidence of a permanent impairment. I found the clinical note of January 3, 2020, MRI of January 4, 2020 and Functional Abilities Forms (FAFs) of January 6 and 10, 2020, persuasive in reaching my conclusion. In addition, I find the absence of clinical information from January 11, 2020 to February 4, 2021, with the exception of an MRI of April 1, 2020, to be significant. My reasons for why are outlined below.

In the clinical note of January 3, 2020, the doctor recommended the worker continue with modified duties until the results of the MRI, scheduled for January 4, 2020, were received. They indicated that depending on the findings, the worker could be referred to a specialist or return to regular duties. The doctor examined the worker’s shoulders, noting it was normal on inspection, as well as for range of motion and the neurovascular exam. There was no tenderness, but the arch was painful. The power was 5/5 and +2 on deep tendon reflex. The doctor stated the right shoulder injury was resolving. The worker stated they were performing physiotherapy exercises at home.

On January 4, 2020, the worker had an MRI taken of both their shoulders. In regards to the right shoulder, it revealed mild osteoarthritis (OA) changes at the acromioclavicular (AC) joint, but no rotator cuff tear was detected. Tendinosis of the supraspinatus and infraspinatus was present. There was a

probable loose body in the subcoracoid space, which could be confirmed with an x-ray or a computed tomography scan if it would impact management.

In the FAF of January 6, 2020, the doctor indicated the worker had full abilities with the exception of limited pushing or pulling with the right shoulder. They recommended the worker return to work (RTW) to regular duties with no restrictions by January 8, 2020 if the shoulder MRI was normal. In the subsequent FAF of January 10, 2020, the doctor revised the prior FAF and indicated the worker was capable of returning to work with no restrictions.

I find the recommendations of a RTW to regular duties by January 8, 2020, pending the MRI results, and the lack of restrictions beyond January 10, 2020 by the doctor to be compelling. I afforded weight to the January 10, 2020 FAF, where the doctor indicated the worker could RTW without any restrictions. I find it significant that no further diagnostic imaging, nor a specialist referral, were recommended after the MRI of January 4, 2020. I interpreted the January 10, 2020 FAF to mean the worker’s right shoulder sprain/strain had fully resolved from an organic standpoint with no evidence of a permanent impairment, given the worker was capable of returning to work with no restrictions.

Noting policy 11-01-05 (Determining Permanent Impairment), I am satisfied the available clinical evidence supports the worker’s right shoulder sprain/strain injury fully resolved by January 10, 2020 with no evidence of a permanent impairment. I find it compelling that no restrictions were identified in the January 10, 2020 FAF and that no further treatment, including referrals for diagnostic imaging or to a specialist, were recommended after the doctor reviewed the MRI results of January 4, 2020. I do not find the worker provided any available evidence to persuade me that a permanent impairment arose out of their right shoulder sprain/strain injury.

Furthermore, I find it significant there is a lack of clinical evidence in the case record from January 11, 2020 to February 4, 2021, with the exception of an MRI of April 1, 2020. Other than an MRI during that period, there is no available clinical evidence to support the worker sought treatment, was referred to any specialists, or underwent any further diagnostic testing, in regards to their work-related right shoulder sprain/strain injury.

I find the lack of available clinical evidence and restrictions beyond January 10, 2020, along with a RTW to regular duties, to be persuasive evidence of a full recovery. I find there is insufficient clinical information to support that a permanent impairment arose out of the worker’s right shoulder injury. Thus, I find the worker’s right shoulder sprain/strain injury fully resolved by January 10, 2020 with no permanent impairment.

Was there a recurrence of the right shoulder injury?

In order to consider entitlement to a recurrence of a right shoulder sprain/strain injury under the recurrence policy, the worker must experience a significant deterioration that does not result from a significant new incident/exposure and is clinically compatible with the original injury/disease.

I noted the worker is claiming a recurrence for ongoing pain in their right shoulder since the December 2019 workplace accident based on the Form REO6 of January 17, 2022. The worker then claimed another recurrence for June 30, 2022, when they reported pain in their right shoulder after stepping off the front bumper of the Aerial 2018 in a reverse dip motion.

In weighing the available evidence, I am not persuaded that all policy requirements are met as outlined in policy 15-02-05 (Recurrences). I do not find the criterion for clinical compatibility is met. In addition, I find

the available evidence supports a significant deterioration resulted from a new incident for the June 30, 2022 workplace accident. As such, I find entitlement to a recurrence of the right shoulder injury is denied. My reasons for why are outlined below.

I will first address the worker’s recurrence for the reported ongoing pain in their right shoulder since the December 2019 workplace accident based on the Form REO6 of January 17, 2022. With respect to clinical compatibility, the policy asks the decision-maker to consider whether the same body parts and functions affected now are the same as, or related to, those affected by the original injury, and if there is a causal link between the significant deterioration and the original injury.

To make these determinations, the WSIB considers the nature and severity of the significant deterioration, the original injury and any relevant non-work-related conditions that are present. The WSIB may also consider whether a worker has experienced continuing symptoms since the original injury.

Generally, continuing symptoms are an indicator of a causal link, though they are not required to establish a causal link. Indicators of continuing symptoms may include continuing clinical treatment, continuing workplace accommodations, or evidence that continuing symptoms were reported to health care providers, supervisors or co-workers on an ongoing basis.

As I previously stated, I found the worker’s right shoulder sprain/strain injury fully resolved by January 10, 2020 with no evidence of a permanent impairment. While the worker indicated they received chiropractic, acupuncture and massage treatment one to two times per week in the Form REO6, I previously found it compelling there was a lack of clinical evidence in the case record from January 11, 2020 to February 5, 2021. I determined there was no available clinical evidence to substantiate the worker sought treatment, or was referred to any specialists, during that period in regards to their work-related right shoulder sprain/strain injury.

I find the timeframe of almost thirteen months, between when the worker last saw their doctor on January 10, 2020 for their right shoulder, to when they sought health care again on February 5, 2021 for chiropractic and acupuncture treatment, to be significant. As I previously stated, other than an MRI of April 1, 2020, there was no available clinical evidence to support the worker sought health care for their right shoulder during that period.

Of note, the worker began attending chiropractic and acupuncture treatment on February 5, 2021. Clinical notes from the chiropractor were submitted for the period of February 5, 2021 to May 21, 2021. On February 5, 2021, the worker sought health care for right elbow tendinitis and right shoulder tendinosis. During the February 12, 2021 visit, the worker reported having right elbow and shoulder issues for years. They were diagnosed with right-sided rotator cuff tendinosis, likely the supraspinatus, with chronic AC joint separation and right-sided medial and lateral epicondylitis. Differential diagnoses of a rotator cuff tear and muscle sprain/strain were given.

The last clinical note of May 21, 2021 noted a follow-up was scheduled in two weeks. However, it is unclear if the worker continued attending treatment beyond that date, as there are no further clinical notes in the case record from the chiropractor.

The clinical information from mid-May 2021 onwards is sparse. I noted the worker saw their doctor again on May 13 and 19, 2021 based on the clinical notes submitted for those two dates. In the clinical note of May 13, 2021, the worker reported a flare up of right shoulder pain. They reported undergoing acupuncture/laser treatment at the time and were trying to be careful with their workouts. The worker was diagnosed with right frozen shoulder at that time. In the clinical note of May 19, 2021, range of motion findings were taken and a diagnosis of nerve impingement was queried.

In reviewing clinical notes from the chiropractor and doctor from February to May 2021, I find it interesting there were a four different diagnoses provided for the worker’s right shoulder. During that period, the worker was diagnosed with right-sided rotator cuff tendinosis, likely the supraspinatus, with chronic AC joint separation, along with a differential diagnosis of a rotator cuff tear, by the chiropractor. The worker was then diagnosed with a right frozen shoulder and a nerve impingement was queried by the doctor.

I noted the worker was referred to an orthopaedic surgeon, whom they saw on August 17, 2021. In a clinical report of the same date, the surgeon noted the worker had a prior history of right shoulder subluxation and consistent pain and stiffness, with a SLAP/labral injury being queried. They stated the worker had an MRI on April 1, 2020, which showed a Hill-Sachs lesion and tendinosis of the supraspinatus and infraspinatus. However, no rotator cuff was identified and the surgeon was curious as to whether the worker had a SLAP tear. They arranged for the worker to undergo an MR arthrogram. At that time, I find it compelling the surgeon did not provide a diagnosis for the worker’s right shoulder.

On November 30, 2021, the worker had an MR arthrogram for their right shoulder. There was no convincing evidence of a SLAP tear. It revealed tearing of the anterosuperior labrum from the 1:00 to 3:00 position. There were multiple loose bodies in the subscapularis recess, glenohumeral joint and long bicep tendon sheath. There was moderate glenohumeral joint OA and large humeral head osteophytes. Subchondral cystic changes of the AC joint were present. There was narrowing of the inferior glenohumeral joint with periarticular edema involving the inferior glenoid, along with loss of the glenoid articular cartilage posteriorly. There was also flattening of posterior aspect of humeral head suggestive of an old Hill-Sachs fracture.

On January 10, 2022, the worker saw another orthopaedic surgeon, who reviewed the MR arthrogram. In a consult report of the same date, the surgeon stated the worker had a multiple potential pain generators in their shoulder, which included the long head of biceps, early osteoarthritic changes, a query for posterior labral tear and potential shoulder instability. They noted the worker’s main complaint was shoulder pain vs. instability. A corticosteroid injection was recommended. I noted no diagnosis was provided by the surgeon at that time.

The worker saw their doctor on January 31, 2022. In the Health Professional’s Continuity Report (Form REO8) of the same date, in regards to the diagnosis, the doctor referenced the consult report. No restrictions were identified at that time.

I interpreted the above two reports of August 2021 and January 2022 from the two orthopaedic surgeons to mean no formal diagnosis was given to help explain the worker’s ongoing complaint of pain in their right shoulder.

Based the available clinical evidence, I am not satisfied the worker’s ongoing right shoulder pain is clinically compatible with the original diagnosis of right shoulder sprain/strain injury that was accepted in this claim. I find the lack of available clinical evidence and the non-medical evidence of a successful return to regular duties following the December 2019 workplace accident to be persuasive evidence that the worker did not require further restrictions for their work-related right shoulder sprain/strain injury. As I previously stated, I found the worker’s right shoulder sprain/strain injury fully resolved by January 10, 2020 with no evidence of a permanent impairment.

Policy 15-02-05 (Recurrences) is clear with respect to clinical compatibility. I find there is insufficient available clinical evidence to support a continuation of symptoms for the right shoulder between the full recovery of the right shoulder sprain/strain injury on January 10, 2020 and the cause of the worker’s ongoing right shoulder pain. I noted various diagnoses were given by the chiropractor on February 5,

2021 and by the doctor in May 2021. I am satisfied there was no formal diagnosis given by the two orthopaedic surgeons who assessed the worker in August 2021 and January 2022 for the right shoulder. I interpreted this to mean there was no consensus on a diagnosis for the worker’s right shoulder.

In this claim, while the right shoulder is the same area affected in both instances, I find the lack of a formal diagnosis for the ongoing right shoulder pain does not support a recurrence of the December 2019 workplace injury given the criterion for clinical compatibility has not been met.

I will now turn to the worker’s request for a recurrence of June 30, 2022. I am satisfied the available evidence supports a significant deterioration resulted from a new incident for the June 30, 2022 workplace accident. I relied on the worker’s account of the incident that took place on that date. In the employer’s correspondence of July 5, 2022, they noted the worker reported right shoulder pain after getting down off the bumper of the Aerial 208. I noted the worker was diagnosed with a right supraspinatus partial tear in the Health Professional’s Report (Form 8) of July 8, 2022.

I find the available evidence supports a worsening of the right shoulder occurred on June 30, 2022 due to a new incident. Policy 15-02-05 (Recurrences) states there must not be a new incident in order for entitlement to be extended under the recurrence policy. As such, I find the significant deterioration in the worker’s right shoulder resulted from a significant new incident that occurred at work. In addition, I find it compelling a new claim was established for the June 30, 2022 workplace accident and entitlement was accepted for a right shoulder supraspinatus partial tear. Thus, for the reasons noted above, I am unable to extend entitlement to a recurrence for a right shoulder injury this claim.

CONCLUSION

As outlined in the above decision, I conclude:

1. The worker’s right shoulder sprain/strain injury fully resolved by January 10, 2020 with no evidence of a permanent impairment.

2. Entitlement to a recurrence for the right shoulder injury is denied.

The worker’s objection is denied.

DATED December 9, 2022

Ms. M. Rodrigues

Appeals Resolution Officer Appeals Services Division