APPEALS RESOLUTION OFFICER DECISION
decision number:
20220050
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
employer representative
HEARING:
HEARING IN WRITING
HEARD by:
N. mazza, appeals resolution officer
ISSUE
The worker is objecting to the Case Manager’s (CM) decision of February 10, 2021, which determined the worker’s left shoulder dislocation reached maximum medical recovery (MMR) without evidence of an ongoing impairment, and denied entitlement for an arthroscopic labral repair and capsular shift/stabilization.
BACKGROUND
On December 1, 2020, this worker, reports injuring their left shoulder while attending a tactics training session. The worker struck a heavy bag during an exercise, causing their left shoulder to dislocate. The worker was able to self-reduce the dislocation and reported it to the employer that same day.
On December 2, 2020, the worker began losing time from work and sought virtual care with their physician. The assessment acknowledged a history of recurring shoulder dislocations. A referral for an orthopaedic assessment was completed and imaging of the left shoulder was ordered.
The decision of December 8, 2020 allowed the claim and loss of earnings benefits from December 2, 2020 onward, for a left shoulder injury. On January 14, 2021, the worker returned to their pre-accident position, performing their regular duties.
The worker attended a consultation with an orthopaedic specialist on January 25, 2021, and was recommended for arthroscopic repair and stabilization surgery.
The decision of February 10, 2021 determined that the worker reached MMR without evidence of a permanent impairment. The decision further denied entitlement to health care benefits for left shoulder surgery, determining that the recommendation was related to a pre-existing condition and not the result of the workplace injury of December 1, 2020. This decision was reconsidered and upheld on March 1, 2021.
AUTHORITY
Operational Policy Manual
Published
15-02-04 Aggravation Basis 14-05-03 Second Injury and Enhancement Fund (SIEF)
November 3, 2014 February 20, 2006
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that:
The worker’s left shoulder dislocation is accepted on an aggravation basis.
The worker is entitled to benefits for the recommended left shoulder surgery as a once only repair.
The aggravation ceased when the worker plateaued in their recovery following the shoulder surgery. There is no entitlement to a permanent impairment under this claim.
Worker’s Position
In the September 10, 2021 submission, the worker’s representative argues the left shoulder surgery, along with the corresponding lost time from surgery, should be allowed. It was recognised that the worker had recurring left shoulder dislocations; however, it was argued that the left shoulder had been asymptomatic since 2008. It was further argued that the condition of the worker’s left shoulder deteriorated following the December 1, 2020 accident and did not return to the pre-accident state; therefore, requiring surgical intervention.
The worker’s representative also notes a prior claim from a January 31, 2008 accident where the worker was diagnosed with a left anterior shoulder dislocation while participating in a tactics training scenario. A referral to a specialist was reported but an assessment was not completed. The worker was authorized to resume work within their restrictions with no overhead use of the left arm and activity as tolerated for two weeks.
Employer’s Position
In the March 7, 2022 submission, the employer’s representative states their position that the appeal should be denied. The employer argues that the December 1, 2020 injury would not be expected to cause an ongoing impairment or significantly alter the stability of the left shoulder. Instead, the representative argues that the accident resulted in a temporary exacerbation of the worker’s pre-existing left shoulder condition and resolved to its baseline level of function after clearance from Dr. Boeckner on January 13, 2021.
Review of Evidence
Medical records from 2015 to January 2021 were collected from Dr. Boeckner. A new patient interview was completed on April 27, 2016, which acknowledged a history for bilateral shoulder dislocations, twice on each side, with no surgery.
A chart note dated December 2, 2020 documented the worker’s report of a left shoulder dislocation by telephone. A referral for a specialist consultation was made and an x-ray was ordered. The worker acknowledged a referral for a specialist consultation in the past but did not attend an appointment.
An MRI of the left shoulder dated January 10, 2021 identified a Hill-Sachs deformity in keeping with the history of previous dislocations. There was no evidence of a rotator cuff tendon tear. Degenerative changes were noted.
A chart note dated January 13, 2021 documented a physical exam of the left shoulder with full range of motion and full strength. The assessment confirmed a recovery from the left shoulder dislocation and a return to work without limitations was authorized.
An orthopaedic consultation report dated January 25, 2021 with Dr. Al-Ahmed and reviewed with Dr. Pollock, confirmed a history of recurrent shoulder dislocations, the first being a traumatic dislocation 15 years prior. The assessment identified traumatic left shoulder instability and an arthroscopic stabilization surgery was recommended.
A medical opinion report dated February 4, 2021 with Orthopaedic Specialist Dr. Wasserstein reviewed the available medical records from December 1, 2020 to January 25, 2021. The medical opinion concluded that it is not likely that the self-reduced dislocation from the accident would cause significant structural damage, which would now require surgery.
A medical-legal report dated August 30, 2021 by Dr. Pollock addressed to the worker’s representative concluded that the December 1, 2020 accident resulted in a significant increase in symptoms and left shoulder instability, therefore, requiring surgery.
A follow-up medical opinion report dated November 26, 2021 from Dr. Wasserstein, re-examined the medical records along with the August 30, 2021 report from Dr. Pollock. Dr. Wasserstein concluded that the surgery for the Hill-Sachs lesion and labral repair was primarily related to the pre-existing condition, and that the contribution of the December 1, 2020 workplace accident was minimal in comparison to the long-standing bony changes. Therefore, the Hill-Sachs lesion are not acute, but chronic and related to prior injuries.
Assessment of Evidence
The issue before me is whether there is evidence to support that the worker’s left shoulder dislocation returned to its pre-accident state and whether the recommended surgical procedure is in order.
The worker’s representative argued that the December 1, 2020 accident caused a deterioration in the condition of the left shoulder, which did not return to its pre-accident state on January 13, 2021.
The worker’s representative highlights Dr. Pollock’s January 25, 2021 and August 30, 2021 reports, which confirm the presence of a pre-existing left shoulder condition and a history of recurring shoulder dislocations. However, it is argued that the evidence supports that the known condition remained asymptomatic for approximately 13 years, until the accident of December 1, 2020. Following the accident, the worker’s representative notes that the worker experienced a significant deterioration in the condition of the left shoulder, which led to a surgical recommendation.
The representative points out, if not for the accident of December 1, 2020, surgery would not have been required. The worker’s representative maintains that the workplace accident is therefore, a significant contributing factor to the need for surgery and the worker would not return to their pre-accident state without proceeding with the surgery. As such, it is argued that the worker did not achieve MMR on January 13, 2021 and that the surgical intervention should be allowed in this case.
The employer’s representative has argued that the worker did return to their pre-accident state on January 13, 2021, as supported by medical documentation. The employer’s representative argues that the worker’s surgical requirement was overwhelmingly attributed to their pre-existing condition, which would not be the responsibility of the claim.
Having regard for the worker and employer’s position, I would first point out that the entitlement in this case was established for a left shoulder dislocation. It was determined that the injury arose out of and in the course of employment on the December 1, 2020, when the worker struck a heavy bag as part of a mandatory tactics training program.
I note that the reported mechanism of injury, would not typically lead to a shoulder dislocation, however, in the presence of a pre-existing condition, it is generally accepted that the outcome of a minor disabling injury could be greater than that of the average person.
In this case, there is no dispute that the worker has a pre-existing left shoulder condition. The evidence supports that the worker first dislocated their left shoulder 15 years prior to the date of injury. It was acknowledged that this was a traumatic dislocation requiring reduction under conscious sedation.
The second dislocation to the left shoulder occurred in 2008, under similar circumstances to that of the accident of December 2020. A claim was established for an anterior left shoulder dislocation, which resulted from a workplace tactics-training course. The dislocation was self-reduced and the worker was referred for an orthopaedic assessment, which ultimately did not occur. The worker was determined to have left shoulder limitations for 14 plus days and was able to resume suitable work. There are no further documentations regarding the recovery of this injury.
Historical medical records were requested to examine the state of the left shoulder, prior to the workplace accident of December 2020, however, it was noted that the worker changed providers in April 2016. The records acknowledged recurring bilateral shoulder dislocations (two on either side), but no further information was available. The medical records do not identify any symptomatic left shoulder issues leading up to the December 1, 2020 accident.
Further, in the pre-accident state, there is no dispute that the worker was performing their full duties. A job duty description is not available to comment on the nature of the worker’s essential duties in their role as a law enforcement officer; however, the worker is employed on a full time basis performing 40 hours of work per week.
Having consideration for the arguments presented, I have reviewed WSIB policy 15-02-04, Aggravation Basis, which guides decision makers on how to weigh the impact, if any, of a pre-accident impairment on a minor work-related injury. The policy explains:
In cases where the worker has a pre-accident impairment and suffers a minor work-related injury/disease to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis.
Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.
The policy goes on to explain, the intent is to limit entitlement to the injury that is work-related. This policy is not applied in situations where there is no pre-accident impairment, or where the severity of the accident on its own would have resulted in additional impairment. The policy offers the following definitions:
Aggravation: is the temporary effect that a minor work-related injury/disease has on a pre-accident impairment requiring health care and/or leading to a loss of earnings.
Minor accident: is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury/disease.
Pre-accident impairment: is a condition that has produced periods of impairment/disease requiring health care and has caused a disruption in employment (lost time and/or modified work). Although the period of time cannot be defined, the decision-maker may use a one to two year timeframe as a guide.
Pre-accident state: is the worker's level of impairment and work capacity prior to the work-related injury/disease.
In considering the above I find that I am able to consider the worker’s left shoulder dislocation injury on an aggravation basis.
It is well established that the worker had a pre-existing left shoulder condition, which placed them at risk of recurrent dislocations. Based on the available information, that condition is not work-related. The pre-existing condition has produced periods of impairment requiring health care and has caused a disruption in employment. This is evident through the worker’s left shoulder dislocation claim in 2008. Of note, the mechanism of injury in the 2008 claim is identical to that of the worker’s December 2020 accident.
It may be argued that in spite of the worker’s history of dislocations, the shoulder appeared to be stable and was not symptomatic in the two years leading up to the December 2020 accident. Although this is the case, I would note that policy 15-02-04, Aggravation Basis, does not require the pre-existing condition to be symptomatic for a defined period prior to the workplace accident. Evidence must establish that a symptomatic medical condition pre-dated the accident and produced periods of disruption to their employment. I find that this criterion has been met.
The accident history described is minor in nature, which in the absence of a pre-accident impairment would not typically cause a disabling injury. The minor accident has led to an aggravation of the worker’s left shoulder and a temporary deterioration from their pre-accident state.
Based on these findings, I am able to establish entitlement on an aggravation basis. As it relates to ongoing entitlement, I now turn to an examination of the aggravation, in assessing whether the worker returned to their pre-accident state.
In reviewing the pre and post-accident evidence, I note that during the acute recovery period, there remains an abundance of evidence to support that the worker’s left shoulder deteriorated below their pre-accident state. The medical records from December 2, 2020 to January 12, 2021 document an increase in pain, reduced range of motion, reduced strength, limited functional abilities, a requirement for active treatment, and the inability to work.
I note that the worker was able to self-reduce the dislocation and clinical images do not support evidence of any acute structural or soft tissue damage resulting from the December 2020 accident. However, the imaging does identify relevant findings, which are recognized as pre-existing. This includes a Hill-Sachs deformity and degenerative changes.
The post-accident medical records document the steady improvement of the left shoulder over a six week period with the reduction of pain (with the exception of awkward positioning), full range of motion, full strength and ability to work without limitations by January 13, 2021. The worker’s physician determined that the worker recovered from their left shoulder dislocation on January 13, 2021. It was acknowledged that they would continue with their orthopaedic assessment as scheduled.
On January 14, 2021, the worker returned to their pre-accident work as a law enforcement officer without limitations.
The worker attended an orthopaedic consultation on January 25, 2021 and was determined to have traumatic multidirectional left shoulder instability. The assessment identified an anterior and posterior labrum injury and associated Hill-Sachs lesion. Based on the assessment a stabilization surgery was recommended.
Although the surgery was recommended to the worker following their return to pre-injury work, I do not discredit the significant contribution of the work-related accident to the recommendation for surgery.
The January 25, 2021 orthopaedic consultation, recommended a stabilization procedure. I find that the procedure is preventative in nature and specifically addresses the worker’s pre-existing condition. To support my conclusion, I note the medical opinions of the orthopedic specialists who reviewed the medical evidence in this case.
I note Dr. Pollock’s report of August 30, 2021, which explained that the prior dislocations would pre-dispose the worker to recurrent instability and subsequent dislocation. Dr. Pollock notes that the worker was stable for 13 years without recurrent dislocation. Dr. Pollock further notes that surgery was not required prior to the accident of December 1, 2020, therefore, in the absence of this accident surgery would not have been recommended.
I have also considered Dr. Wasserstein’s February 4, 2021 report. It is acknowledged that the worker had been recommended for an orthopedic consultation in the past but this was not followed up on. It is recognized that the current referral would not have happened if not for the accident of December 1, 2020; however, Dr. Wasserstein notes:
A similar surgery would likely have been recommended in the past if the referral had been followed up on. The claimed incident resulted in a temporary exacerbation of the pre-existing condition that has largely resolved. It is unlikely that a self-reducing dislocation from the reported mechanism would cause significant structural damage which would now require surgery, when before it did not.
In Dr. Wasserstein’s November 26, 2021 medical opinion, it is once again concluded that the recommended surgery is primarily related to the pre-existing condition. It is noted that the contribution of the December 1, 2020 accident was minimal in comparison to the longstanding body changes evidenced in the imaging.
Dr. Wasserstein further notes that the MRI clearly states that the labrum was “diminutive” and the Hill-Sachs lesion was deep, at 1.5 cm containing cysts at its base. Dr. Wasserstein recognized that it is not clinically possible for these characteristics to result from the December 1, 2020 accident. Instead, Dr. Wasserstein notes that these findings would relate to longstanding pathology related to pre-existing instability.
When considering the medical information and clinical opinions presented in this case it is clear that the worker had a significant, pre-existing left shoulder condition, which had not been medically assessed by a specialist prior to the December 1, 2020 accident. It is recognized that the worker would require the stabilization procedure to address the chronic left shoulder findings, which are non-occupational in nature. Therefore, although the surgery itself is not intended to repair a work-related injury, if not for the accident of December 1, 2020, the surgical recommendation would not have been made. For this reason, I can conclude that the accident of December 1, 2020 significantly contributed to the recommended procedure.
I acknowledge that the worker’s representative has identified WSIB policy 14-05-03 (Second Injury and Enhancement Fund (SIEF)), in support of their argument for surgical entitlement. The representative has requested consideration for surgical entitlement as a once only repair. The policy explains:
Some claims are allowed for a "once only repair", e.g., strangulated hernia or recurrent shoulder dislocation. Allowance of a claim on this basis recognizes that a work-related accident did occur, but that the resulting treatment and period of disability were due, at least in part, to a pre-existing condition.
I am in agreement with the worker’s representative, that entitlement to the recommended stabilization surgery can be considered as a ‘once only repair’, as outlined in policy 14-03-04. However, there is no entitlement to a permanent impairment under this claim. The surgery is needed to repair a pre-existing condition, the timing of that surgery is a function of the accident in this claim. If there is a residual impairment following the surgery, that impairment is not work-related. The worker’s aggravation will be determined to have ceased, once the worker plateaued in their post-surgical recovery.
Entitlement will be in order for the recommended surgical procedure, owing to the significant contribution of the December 1, 2020 accident and its role in addressing the worker’s pre-existing left shoulder instability. I make no findings in relation to the specific period of benefits flowing from the surgical intervention and defer this decision to the case manager.
CONCLUSION
I conclude that:
The worker’s left shoulder dislocation is accepted on an aggravation basis.
The worker is entitled to benefits for the recommended left shoulder surgery as a once only repair.
The aggravation ceased when the worker plateaued in their recovery following the shoulder surgery. There is no entitlement to a permanent impairment under this claim.
The worker’s objection is allowed.
DATED May 5, 2022
Nancy Mazza
Appeals Resolution Officer
Appeals Services Division