DECISION NUMBER:

20220023

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT:

WORKER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

HELEN SHAW, APPEALS RESOLUTION OFFICER

DATED:

FEBRUARY 25, 2022

ISSUE

The employer is objecting to the denial of relief under the Second Injury and Enhancement Fund (SIEF), in the Case Manager decision of November 9, 2020.

BACKGROUND

The worker was employed as a truck driver. On August 27, 2019, the worker was rolling a 100 pound cylinder off a truck when they lost control of the cylinder, tried to catch it with the right hand and felt a tearing pain in the right shoulder. The worker was 57 years old when the injury occurred.

An MRI of the right shoulder on December 13, 2019 confirmed full thickness tears of the subscapularis and supraspinatus tendons. In a decision dated January 22, 2020, entitlement was allowed for the rotator cuff tears, including surgical repair.

The worker initially did not lose time from work, as modified duties were provided. Arthroscopic surgery was performed on July 17, 2020 to repair the torn tendons. Full loss of earnings (LOE) benefits were paid from July 16, 2020 to September 21, 2020 for the surgery and post-operative recovery.

It was determined that the worker had reached maximum medical recovery for the right shoulder injury by July 23, 2021, with a permanent impairment. On August 12, 2021, the worker was rated with a 7% non- economic loss (NEL) benefit for the right shoulder.

On October 19, 2020, the employer representative requested SIEF relief. Entitlement for SIEF was denied in the decision dated November 9, 2020, as the claim was not prolonged by a pre-existing condition. The denial of SIEF relief was confirmed in a reconsideration decision dated October 15, 2021.

AUTHORITY

Operational Policy Manual

Published

14-05-03 Second Injury and Enhancement Fund (SIEF)

February 20, 2006

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find there is no entitlement for SIEF relief. My reasons are explained below.

According to operational policy 14-05-03, if a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre- existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Both physical and psychological disabilities are included.

Pre-accident disability is defined as a condition, which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition, which only becomes manifest post-accident.

In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.

The employer representative provided an Appeal Readiness Form dated August 24, 2021, with an attached submission. It is the employer’s position that the accident should be considered minor in severity and that the pre-existing condition was moderate in significance. They are seeking 75% SIEF relief.

The worker is not participating in the appeal and did not submit a Respondent Form.

Severity of Accident:

According to the operational policy, the severity of the accident is evaluated in terms of the accident history including the following components:

• mechanics (lift, push, pull, fall, blow, etc.)

• position (kneeling, standing, sitting, squatting, bending, etc.)

• environment (lighting, temperature, weather conditions, terrain, etc.) The severity of the accident history is defined as follows:

• Minor: expected to cause non-disabling or minor disabling injury

• Moderate: expected to cause disabling injury

• Major: expected to cause serious disability probable permanent disability.

The employer representative noted some inconsistencies in the accident reporting regarding the weight of the cylinder and the positioning of the worker’s hand when trying to stop the cylinder. They argued the accident was minor in severity.

I find the accident was moderate in severity. The accident involved the worker trying to stop a rolling propane cylinder, weighing 100 pounds or more, from rolling off the back of a truck. A fracture clinic report dated September 3, 2019 noted the accident involved a forced external rotation of the right shoulder. Noting the sudden movement required to catch the rolling cylinder and the amount of force applied to the right shoulder by trying to catch the 100 pound propane cylinder, I find a disabling injury of the shoulder could be expected.

Significance of Pre-existing Condition:

When reviewing the medical and other information present in the claim file, the decision maker considers whether the information suggests that a pre-existing condition is present and whether it:

• contributed to the work related accident, or

• prolonged or enhanced the work related disability.

If it is likely that such circumstances exist, a recommendation to apply the SIEF is made, as well as the rate at which to do so. The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist.

The employer representative argued there was evidence of pre-existing degenerative changes in the right shoulder. They noted that the right shoulder MRI on December 13, 2019 showed extensive insertional tendinopathy adjacent to the full thickness tear in the supraspinatus, advanced degenerative changes in the acromioclavicular (AC) joint, some subcortical degenerative changes in the greater tuberosity and early glenohumeral joint degenerative change. The employer representative argued that the thinning of the subscapularis tendon supports the presence of degenerative disease in the tendon in the same area as the tear occurred. They argued that the surgery treated both the work related tears and degenerative changes in the right shoulder, as the surgery included debridement and acromioplasty. It is their position this is evidence of an enhancement of the work injury.

The employer representative also argued there was a prolonged recovery from the injury, noting the worker required narcotic pain medication for many months after the surgery. They argued that the normal healing time for such an impairment is from four to six months after the surgery.

It was accepted by the Case Manager that the workplace accident was compatible with the full thickness rotator cuff tears and there is no evidence to suggest that a pre-accident disability in the worker’s shoulder contributed to the workplace accident. There is no indication in the medical records to establish a prior history of right shoulder disability.

I acknowledge there is evidence of some degenerative changes in the right shoulder, based on the MRI. Evidence of degenerative changes is not sufficient to establish entitlement for SIEF relief, unless it is established that those degenerative changes prolonged or enhanced the work related disability. The worker was 57 years old when the injury occurred. Some degenerative changes would be expected at that age and would not necessarily establish that the worker was liable to develop an injury of greater severity than normal.

In assessing the significance of pre-existing degenerative changes, I have specifically considered the findings from the operative report dated July 17, 2020. The accident-related findings included the rotator cuff tears and the biceps tendon had subluxed out of its groove. Beyond the accident-related conditions, the operative report did not identify such significant degenerative findings as were suggested in the MRI

report. There were normal articular surfaces on the glenoid and humerus, with no specific reference to significant degenerative changes in the glenohumeral joint. The bursa needed to be debrided, but that could have been a post-injury development, as opposed to a pre-existing condition. Approximately 11 months passed from the date of injury to the surgery, which means there was an opportunity for the development of post-traumatic changes in the right shoulder. Regarding the acromioplasty, I note it is not unusual to perform an acromioplasty to facilitate a rotator cuff repair and it does not lead me to conclude that the acromioplasty was necessarily performed to treat a pre-existing condition. I find the operative report does not establish compelling evidence that the injury and recovery were enhanced or prolonged by a pre-existing condition.

The worker was assessed by an orthopaedic surgeon at the Upper Extremity Specialty Program on February 28, 2020. No prior history of right shoulder problems was noted and no relevant non- occupational diagnosis was identified. The report considered the right shoulder rotator cuff tears to be consistent with the workplace accident.

When considering if the period of recovery was prolonged, it is necessary to consider the severity of the work related injury. The employer representative argued that the normal healing time for an injury such as the one sustained by the worker is from four to six months after the surgery, but I find their position is not supported by the medical evidence and opinions in the claim file. The worker sustained two significant full thickness tears of the subscapularis and supraspinatus tendons. A post-operative report from the Specialty Program dated September 18, 2020 indicated the worker might take a year to recover from the surgery. The worker reached maximum medical recovery by July 23, 2021, which is approximately a year from the surgery date and is consistent with the recovery period anticipated by the orthopaedic surgeon at the Specialty Program. I note the worker did not make a full recovery from the injury, but that is not unusual noting the worker sustained two full thickness rotator cuff tears. Noting the worker reached maximum medical recovery within the time period anticipated by the Specialty Program, I find the period of disability was not greater than what would be expected.

A Return to Work (RTW) plan dated October 5, 2020 anticipated the worker would return to work on regular duties by February 1, 2021. In memo, XXXX dated February 24, 2021, the worker confirmed they had resumed regular driving duties, but still required a helper for heavier lifting of cylinders weighing 100 pounds or more. I do not consider this to be evidence of a prolonged recovery, as the worker had to progress to very heavy lifting in order to resume all of the pre-injury duties.

In summary, I find a prior disability did not cause or contribute to the accident and the injury was not prolonged or enhanced by a pre-existing condition. There is no entitlement for SIEF relief.

CONCLUSION

I conclude there is no entitlement for SIEF relief. The employer’s objection is denied.

DATED February 25, 2022

Helen Shaw

Appeals Resolution Officer Appeals Services Division