DECISION NUMBER:

20220055

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT:

WORKER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

Dated:

S. JOHNSON, APPEALS RESOLUTION OFFICER

JUNE 17, 2022

ISSUE

The employer objects to the Case Manager’s decision letter dated April 28, 2021 and reconsideration decision letter dated March 4, 2022 that denied entitlement to Second Injury and Enhancement Fund (SIEF) relief.

BACKGROUND

On February 16, 2019, this registered nurse lifted the patient’s heavy and oedematous legs up from the side of the bed. The worker then pulled onto the bed pad to position the patient in the centre of the bed. In the course of this event, the worker felt a sudden onset of sharp left shoulder pain.

The worker received first medical treatment on February 19, 2019. In the clinic chart note for the visit on February 19, 2019, the physician documented the worker was seen with pain in the left anterior shoulder region. The worker was seen in follow-up on February 20, 2019. In the Health Professional’s Report (Form 8) dated February 20, 2019, the physician diagnosed the worker with a left shoulder and upper arm strain. Conservative medical treatment was prescribed that included a left shoulder ultrasound, physiotherapy, medications and functional restrictions on lifting, operating heavy equipment, operating a motor vehicle, pushing, pulling and use of the upper extremities. A left shoulder ultrasound report dated February 21, 2019 observed a partial thickness supraspinatus tear.

Initial entitlement was allowed for the worker’s left shoulder and upper arm strain and partial thickness supraspinatus tear.

The case record documents the worker missed time from work from February 18, 2019 to

February 25, 2019. On February 25, 2019, the worker returned to work to modified duties that included medication administration, assisting with admission and discharges and other administrative duties. The worker was able to self-pace their work duties and take micro breaks as required.

The Eligibility Adjudicator denied entitlement to loss of earnings (LOE) benefits from February 18, 2019 to February 25, 2019 as it was concluded the worker was able to perform the modified duties.

The worker attended the WSIB Upper Extremity Clinic from June 5, 2019 to October 2, 2019 to assist with their recovery and return-to-work outcomes. Medical treatment plans included physiotherapy and cortisone injections. In the WSIB Upper Extremity Clinic Report dated October 2, 2019, the physician specialist opined the worker reached 80 percent recovery with no further recovery anticipated. The occupational discharge diagnosis was a left shoulder rotator cuff strain and partial thickness rotator cuff tear with resolving impingement and bursitis. No further active medical treatment plans were recommended or required other than a home program of exercises and permanent functional restrictions that included limited lifting, carrying, pushing and pulling, above chest level work on an occasional basis and repetitive use of the left arm away from the body on an occasional basis.

On October 22, 2019, the worker was placed at a flu clinic administering injections. They experienced a worsening of their work-related left shoulder condition. The worker described they had to raise their left arm at a 90 degree angle to hold the patient’s arm to administer the injection with their dominant right hand. The Case Manager allowed entitlement to the recurrence and authorized full LOE benefits from October 26, 2019 to January 2, 2020. On January 2, 2020, the worker returned to suitable work duties as a hand hygiene auditor that involves observing nurses and personnel to ensure they are washing their hands before going in and out of rooms.

In a case review dated January 7, 2020, the Case Manager concluded the worker reached maximum medical recovery on January 2, 2020 with evidence of a permanent impairment in their work-related left shoulder rotator cuff strain with partial thickness tear injury. In the Non-Economic Loss (NEL) Evaluation Report dated February 12, 2020, the NEL Clinical Specialist granted entitlement to a 1 percent whole person impairment for the permanent impairment in the worker’s left shoulder region.

In a letter dated April 22, 2021, the employer representative requested entitlement to SIEF relief.

In a decision letter dated April 28, 2021 and in a reconsideration decision letter dated March 4, 2022, the Case Manager denied entitlement to SIEF relief as it was concluded there was no evidence to support a pre-existing condition caused or contributed to the injury, enhanced the injury or delayed the worker’s recovery.

This is the issue for determination.

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.

The WSIB’s policy for applying SIEF states in part:

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.

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

Severity of Accident:

I find the work incident of February 16, 2019 is minor in severity for SIEF rating purposes.

The Operational Policy Manual (OPM) Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – sets out the approved definitions 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 This policy goes on to describe the accident history components as follows:

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

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

• environment (lighting, temperature, weather conditions, terrain, etc.)

Employer Representative Submission:

In a submission attached to the Appeal Readiness Form dated December 22, 2021, the employer representative submits the work incident of February 16, 2019 is minor in severity for SIEF rating purposes for several factors summarized below:

• The worker did not fall to the ground and did not land directly onto their left shoulder region.

• The worker experienced a sharp onset of left shoulder pain while performing their regular job duties moving a patient’s oedematous legs onto the bed and pulling the bed pad to position the patient in the centre of the bed.

• There is no evidence of traumatic bony injuries nor the requirement of other emergency personnel or immediate surgical intervention to suggest the accident itself was significant in nature.

The employer representative contends the above factors all support the position the work incident of February 16, 2019 is expected to cause non-disabling or minor disabling injury.

Worker Submission:

In a letter dated June 3, 2021, the worker was advised of the employer’s intention to appeal the decision letter dated April 28, 2021. The worker was instructed to complete and return the Worker Participant Form to the WSIB within 30 days if they intend to participate in the appeal process or not.

The Worker Participant Form was not completed and returned to the WSIB at the time the employer’s appeal was referred to me for my review and determination.

Findings:

I agree with the employer representative’s position the work incident of February 16, 2019 is minor in severity for SIEF rating purposes. In reaching this finding, I relied upon the worker’s evidence. In the Worker’s Report of Injury/Disease (Form 6) dated February 21, 2019, the worker documented they attempted to lift the patient’s oedematous legs onto the bed and pulled on the bed pad to position the patient in the centre of the bed. The patient was unable to assist with the lift. In the course of this event, the worker experienced a sharp pain in their left shoulder region.

I find the worker was not exposed to additional perils of risk at work on February 16, 2019 such as being struck by a great deal of trauma, force or momentum or falling from a significant height. The mechanics of the work incident of February 16, 2019 involved lifting a patient’s oedematous legs and positioning the patient in bed. The worker’s body position and work environment involved standing in a static position at ground level beside the patient’s bed while attempting to position the patient into bed.

Based on the above, I find the work incident of February 16, 2019 meets the approved definition of a minor accident in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – as it is expected to cause non-disabling or minor disabling injury.

Significance of Pre-Existing Condition

I find there is no evidence to support a prior disability caused or contributed to the work incident of February 16, 2019.

I also find there is no evidence to support the period resulting from the work incident of February 16, 2019 was prolonged and/or enhanced due to a pre-existing condition.

Employer Representative Submission:

In a submission attached to the Appeal Readiness Form dated December 22, 2021, the employer representative contends the worker has significant pre-existing conditions of degenerative changes in the tissues and obesity which predisposed them to be much more vulnerable to the development of a

work-related left shoulder rotator cuff tear. These pre-existing conditions enhanced the work-related left shoulder disability and unduly prolonged the worker’s recovery. In support of this position, the employer representative relied upon the WSIB Upper Extremity Program Report dated July 10, 2019 that documented the following:

• Barriers to recovery included pre-existing age related changes in the tissues.

• Clinical examination observed the worker was five feet five inches in height and weighed approximately 160 pounds. The worker’s calculated body mass index (BMI) was 26.6 and a BMI over 25 is considered to be overweight. Therefore, the worker is overweight or obese.

The employer representative referenced the internet medical article extracted from www.ncbi.nlm.nih.gov/pubmed/24906904 entitled The Association between Body Fat and Rotator Cuff Tear: The Influence on Rotator Cuff Tear Sizes, Journal of Shoulder Elbow Surgery 2014, published November 23, 2014 (11), pages 1669-1674 that documented obesity may increase the risk of a rotator cuff tear and influence the tear size. The results of a case-control design study concluded obesity is a significant risk factor for the occurrence and severity of a rotator cuff tear.

Based on the above, the employer representative requests entitlement to SIEF relief. The degenerative tissue changes and obesity predisposed the worker to the development of a rotator cuff tear. These pre-existing conditions also enhanced the work-related disability and unduly prolonged the worker’s recovery.

Findings:

I examined the first criterion in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – that states if a prior disability caused or contributed to the compensable accident, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule I to the SIEF. This policy goes on to provide the definition of a pre- accident disability as a condition, which has produced periods of disability in the past requiring treatment and disrupting employment. I find this criterion has not been met.

In reaching this finding, I relied upon the worker’s evidence that does not support a prior disability at the time of the work incident of February 16, 2019. In the Worker’s Report of Injury/Disease (Form 6) dated February 21, 2016, the worker documented they have no history of a prior similar left shoulder disability. The worker’s evidence is consistent with the employer’s evidence and the medical evidence. I have taken particular note of the following:

• In the Employer’s Report of Injury/Disease (Form 7) dated February 21, 2019, the employer documented they are not aware of any prior similar or related problem, injury or condition since the worker was hired as a registered nurse on April 19, 2004.

• In the Health Professional’s Report (Form 8) dated February 20, 2019, the physician documented the worker has no history of a prior similar left shoulder condition.

I accept the case evidence that consistently and accurately documents the worker has not experienced a pre-accident disability that required medical treatment or disrupted their employment during the 15 year continuity period from the date they were hired with this employer on April 19, 2004 to the date of the work incident on February 16, 2019. I find the facts and circumstances surrounding the work incident of February 16, 2019 does not meet the definition of a pre-accident disability in the OPM Document

No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006). Accordingly, the first criterion in this policy has not been met as there is no evidence to suggest a pre-accident disability caused or contributed to the work incident of February 16, 2019.

I then reviewed the second criterion in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – that states 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 to the SIEF. This policy provides the definition of a pre-existing condition as an underlying or asymptomatic condition, which only becomes manifest post-accident.

This policy sets out 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. The objective of this policy is to provide employers with financial relief when a pre-existing condition enhances or prolongs a work-related disability.

The issue to be resolved is whether a pre-existing condition prolonged or enhanced the worker’s period of recovery following the work incident of February 16, 2019.

The principle argument put forth by the employer representative is the combined effects of the worker’s degenerative tissue changes and obesity placed them at significant risk than the average person, enhanced the period of disability and unduly prolonged their recovery. I am unable to agree with this position. I acknowledge the WSIB Upper Extremity Clinic Reports dated July 10, 2019, August 23, 2019 and October 2, 2019 consistently documented the barriers to recovery and/or return-to-work included the following:

• Medical factors (injury-related) – nature of injury

• Medical factors (pre-existing) – age related changes in the tissues

• Workplace factors – nature of pre-injury job demands

I am unable to agree with the employer representative’s position the age-related changes in the tissues were of clinical significance that impacted the worker’s recovery and enhanced their work-related left shoulder injury. To the extent the worker was 79 years old at the time of the work incident of

February 16, 2019 is not justification in and of itself to support a pre-existing condition. There is nothing in the WSIB Upper Extremity Clinic Reports dated July 10, 2019, August 23, 2019 and October 2, 2019 that provides an explanation of the age-related changes in the tissues are and how these changes are impacting the worker’s recovery from their work-related left shoulder rotator cuff tear injury. It is instructive that, in all of these three reports, the physician specialist documented there were no “relevant non-occupational diagnoses” (emphasis added by this Appeals Resolution Officer). In my view, if there were any relevant non-occupational diagnoses, then it is expected, at the very least, that the physician specialist would have documented this information in the report. This is not the case.

I prefer the left shoulder ultrasound report dated February 21, 2019 that observed a partial thickness intrasubstance tear involving the mid fibers of the supraspinatus tendon, calcific tendinosis of the biceps tendon and a small amount of fluid in the subacromial subdeltoid bursa. In my view, the calcific tendinosis with a small amount of fluid in the subacromial subdeltoid bursa are of little clinical significance. In support of this finding, I relied upon the WSIB Upper Extremity Comprehensive Assessment Report dated June 5, 2019. In this report, the physician specialist reviewed the left shoulder ultrasound report dated February 21, 2019 and opined the worker’s clinical history, findings and mechanism of injury are consistent with a left shoulder partial thickness rotator cuff tear and subacromial impingement and bursitis. The physician specialist did not express a medical opinion to suggest the presence of a relevant non-occupational diagnosis or other pre-existing condition.

I reviewed the employer representative’s argument and medical resource document in support of the position the worker’s BMI is a pre-existing condition that enhanced the work-related left shoulder disability and prolonged their recovery. I am unable to agree with this position. It is instructive the approved definition of a pre-existing condition in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (published February 20, 2006) – is an underlying or asymptomatic condition which only becomes manifest post-accident. In my view, obesity, like other behaviours such as smoking, poor diet and lack of exercise, may be a risk factor relevant to the determination of causation yet it does not constitute a condition pre-existing or otherwise. Obesity does not become manifest following an accident or injury and does not constitute a pre-existing condition for SIEF rating purposes.

I find on a balance of probabilities that the recovery and claims period was not enhanced or prolonged due to a pre-existing condition.

I find the threshold criteria in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (published February 20, 2006) – have not been met. The evidence does not support a pre-existing disability caused or contributed to the work incident of February 16, 2019 or that the worker’s period of recovery was prolonged or enhanced by a pre-existing condition.

I find entitlement to SIEF relief is denied.

CONCLUSION

I conclude entitlement to SIEF relief is denied.

The employer’s objection is denied.

DATED June 17, 2022

S. Johnson

Appeals Resolution Officer Appeals Services Division