Worker v. Employer, 2022 CanLII 74699

APPEALS RESOLUTION OFFICER DECISION

Decision Number: 20220090

Objecting Party: Worker

Represented by: Worker representative

Respondent: Employer, not participating

Hearing: Hearing in Writing

Heard by: Kim Mcdonnell, Appeals Resolution Officer Dated: March 25, 2022

ISSUES

The worker, through their representative, has objected to the Eligibility Adjudicator’s January 28, 2020 decision. That decision found the worker was not entitled to the diagnosis of a right rotator cuff tear and limited entitlement to a right shoulder and right biceps strain.

The worker, through their representative, has objected to the Case Manager’s April 29, 2020 decision. That decision found the worker had fully recovered from the right shoulder and right biceps strain as of May 29, 2019 without evidence of a permanent impairment.

BACKGROUND

On February 9, 2019, this then late-thirties year-old worker report a popping sensation in their right shoulder while reaching to hang laundry above shoulder level. The worker sought health care with their family doctor and they were diagnosed with a right biceps/shoulder strain. The claim was accepted for the same. At the time of the incident, the worker had been with the employer since May 2002 and they had been a laundry aide for the past 10 years.

The worker started physiotherapy and returned to work that limited at or above shoulder work. On June 24, 2019, the worker’s family physician provided a Functional Abilities Form that stated the worker had undergone a right shoulder ultrasound that showed a full-thickness tear of the supraspinatus tendon.

On July 7, 2019, the Case Manager requested prior medical notes from the Health Center. In the January 28, 2020 decision letter, the Case Manager stated they had requested prior medical notes from the worker’s family doctor, but to date, the WSIB had not received the requested information. The Case Manager could not establish that the rotator cuff tear was compatible with the accident history. The Case Manager went on to confirm entitlement for a right shoulder and right biceps strain injury only.

In the April 29, 2020 decision, the Case Manager found the worker’s ongoing issues with the right shoulder was due to the full-thickness tear and concluded the right shoulder and right biceps strain had resolved without evidence of a permanent impairment. Loss of earnings (LOE) benefits was not paid in the claim at any time to date.

AUTHORITY

Legislation Workplace Safety and Insurance Act (WSIA), Section 13(2) (Published 1997)

Operational Policy Manual 15-02-01 Definition of an Accident (October 12, 2004) 11-01-01 Adjudicative Process (November 3, 2008)

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker is entitled to the diagnosis of a right rotator cuff tear as the result of the February 9, 2019 workplace injury. The worker reached MMR for the right shoulder and right biceps strain without evidence of a permanent impairment as of May 29, 2019 (the date of the first right shoulder ultrasound). The worker’s objection is allowed.

Worker’s Position

On October 5, 2021, the worker’s representative provided an Appeals Readiness Form (ARF) along with a copy of a medical review completed by Dr. Pysklywec outlining the compatibility of the rotator cuff tear with the mechanism of injury. I have reviewed the report in detail below.

Employer’s Position

The employer is not participating in this appeal.

Evidence

On February 11, 2019, the worker was assessed by their family doctor. The clinical note indicated that the worker had felt a pop in their right shoulder when reaching to hang laundry. The pain increased over the next few hours and the worker had difficulty lifting their arm. They were feeling somewhat better and had increased range of motion of the right shoulder. The pain was mostly over the biceps now. The doctor noted the worker’s duties consisted of lifting and overhead reaching while working in the laundry room.

On February 12, 2019, the employer provided an Employer’s Report of Injury (Form 7) and stated that the worker had reported the injury from February 9, 2019 on February 10, 2019 because they were hoping that their shoulder would feel better the next day (Sunday).

On February 21, 2019, the worker was reassessed by their family doctor who noted the worker was at work completing modified duties. The worker was doing well and they were taking frequent breaks as needed. The worker reported switching up their tasks during the day so they were not doing the same thing repetitively with the right arm for too long.

On March 29, 2019, the worker followed up with their family doctor and reported they had started weight training at physiotherapy. They were currently doing five-pound biceps curls.

On May 27, 2019, the worker underwent a right shoulder ultrasound that showed a probable subtle delaminating full-thickness tear of the mid-right supraspinatus tendon measuring 10 mm in width by 19 mm in length. There was no evidence of impingement.

On July 10, 2019, the worker was assessed by orthopaedic surgeon Dr. Alolabi at the Sports Medicine Centres. I found the following information contained in the consult note:

• The worker was a laundry worker at a long-term care facility.
• At the time of the accident, they had been hanging laundry and performing a motion that they had done for many repetitions over the past two decades. They felt an instant, sharp pain, to the anterior part of the right shoulder. The worker reported pain radiated to their neck and down the arm.
• The worker had participated in physiotherapy from February 2019 until June 2019 but, unfortunately, the focus had been on the biceps, as this was thought to be the injury at the time. Not much attention had been paid to the rotator cuff.
• On examination, the physician found active flexion 180°, external rotation 50°, internal rotation to the high lumbar spine, and 5/5 supraspinatus strength in resistant forward elevation. Infraspinatus strength was 4+/5 with pain.
• Dr. Alolabi stated, “This patient’s presentation is consistent with a supraspinatus full-thickness tear and their description of the mechanism of injury appears congruent.”
• The doctor recommended physiotherapy with a focus on strengthening the rotator cuff and discussed both surgical and non-surgical management with the worker. The worker declined a cortisone injection of the time.

On July 11, 2019, the Case Manager requested prior medical notes from the Family Medical Center.

On September 19, 2019, the worker followed up with Dr. Alolabi who found the worker had not been able to resume physiotherapy since ongoing treatment had been denied by the WSIB. The doctor reviewed the recent x-rays that showed mild acromioclavicular (AC) joint arthritis as well as a full-thickness supraspinatus tear measuring 16 mm x 6 mm. The worker stated they were interested in a surgical repair and the doctor recommended the worker seek approval through their WSIB Case Manager, including a referral to an orthopaedic specialty clinic.

On December 4, 2019, the Case Manager requested prior medical notes from the Family Medical Center.

On April 30, 2021, the worker’s representative requested the Occupational Health Clinics for Ontario Workers (OHCOW) review the WSIB file material provided to determine the work relatedness of the right shoulder full-thickness tear as well as their ongoing impairment.

On June 15, 2020, an Eligibility Adjudicator (EA) reconsidered entitlement to a rotator cuff tear. The EA upheld the decision to deny the tear and stated that the May 27, 2019 and the September 6, 2019 ultrasounds had nearly identical findings. The EA stated that the radiologist had found a delaminating full-thickness tear of the supraspinatus tendon on the background of moderate tendinosis, moderate subscapularis tendinosis, and mild infraspinatus tendinosis. The EA stated that those descriptors were used to communicate the damage to the three rotator cuff tendons including the visual appearance of chronicity. The EA stated, “Had the damage looked recent, it would have been described using different descriptors, such as “acute” or “recent”.”

The EA went on to state that delaminating tears were usually found in situations where chronic inflammation over an extended period of time had caused the damage tissue to separate as it failed. Using the term “tendinosis” suggested that the supraspinatus tendon had been damaged well before February 9, 2019, even if it had not been formally diagnosed. Chronic damage was inconsistent with an injury arising from a single, specific incident such as the worker’s February 9, 2019 accident.

On September 10, 2021, the OHCOW provided a review of the file. I found the following information contained in the report:

• Dr. Pysklywec had reviewed the WSIB file and interviewed the worker.
• Dr. Pysklywec was Fellow of the Canadian Board of Occupational Medicine with over 20 years of occupational medicine experience as well as a physician and various industrial settings. The physician had a theoretical and practical understanding of the mechanisms a musculoskeletal injury and arthritis.
• The worker had been employed with the accident employer for the past 20 years. For the last 10 years, they had been a laundry aide. Before that, they had been in housekeeping.
• As a laundry aide, the worker described physical work. They started the laundry, loaded the laundry into machines, transferred it to dryers, and then folded and hung the clean clothes. The loads weighed 30 to 80 pounds. The individual items were fairly light and there was more repetition than heavy lifting. The worker had been required to hang personal items overhead. This overhead work had been performed hundreds of times.
• On the day of the injury, the worker recalled hanging clothes. To do this, the worker stood in the middle of three laundry carts that circled them and grabbed items and hung them on bars that were just above their shoulder height. There were hundreds of items to hang.
• The worker reached down to grab an item and then put the item up on the bar by lifting their right arm just above 90°. There was repetition, forward arm elevation above 90°, as well as abduction. There was little resistant weight as the items are rather light.
• Over the next number of months, the worker continued on modified work and attended physiotherapy. The therapy did not really help to any significant degree.
• On October 8, 2020, the worker underwent a right shoulder MRI that showed a 12 mm complex full-thickness tear of the anterior supraspinatus tendon as well as a partial-thickness tear of the subscapularis tendon was secondary subluxation of the long head of the biceps. There was mild-to-moderate rotator cuff tendinopathy underlying the findings.
• On December 17, 2020, the worker underwent a right shoulder arthroscopy, capsular release, and rotator cuff repair with Dr. Khan.
• The worker had reported healing fairly well from the surgery. They were currently at the point where they estimated they had regained 90% of normal range of motion and 60 to 70% of strength. The worker had unfortunately not been able to have regular physiotherapy because they could not afford to do this.
• The worker had not worked for quite some time and they were hoping to discuss turning to work with the surgeon.
• The worker’s past medical history included hip dysplasia and right knee surgery.
• The worker reported little in the way of a prior right shoulder history. The worker vaguely recalled a work-related issue relating to the right shoulder from approximately 2013. They recalled having a WSIB claim and being on modified work for about two weeks before returning to regular work. There was no residual issue with the shoulder beyond that.
• Besides the above, the worker had no history of a shoulder injury, illness, or issues. The worker could not recall accidents or trauma to their shoulder. The worker did not partake in sports or recreation of any significant sort. There were no recreational activities that would dispose the worker to upper extremity overuse.
• It was evident that there was a sudden event that occurred on February 9, 2019 to account for the right shoulder issues.
• From a biomechanical perspective, it was quite plausible that hanging the laundry by lifting hundreds of items up overhead could cause a rotator cuff tear. As the worker was lifting the item above shoulder level, they felt a pop and sudden pain in their shoulder. From a clinical perspective, it seemed evident that was when they tore the rotator cuff.
• The repetition of elevation with some abduction was primarily borne by the supraspinatus tendon. Cycling through this hundreds of times would eventually lead to mechanical wear and eventual failure, manifesting as a tear.
• The clinical history strongly implicated the February 9, 2019 incident in causing the worker shoulder issues. They simply had no major shoulder problems before, had an injury at work was subsequent pain, and encountered issues ever since.
• To say the injury was coincidental and not cause for the condition was unlikely. The worker had no other social or recreational risk factors that would otherwise indicate shoulder risks. They had no significant underlying or degenerative conditions, nor did they have “grumbling symptoms” (my quotes) of a chronic underlying shoulder issue.
• The assessor further noted that Dr. Alolabi felt that the worker’s description of the mechanism of injury was congruent with the supraspinatus full-thickness tear.
• Dr. Pysklywec could not identify any other important risk factors for the development of the shoulder condition. They did have a remote shoulder injury in 2013, which they had difficulty recollecting. The doctor stated that that injury seemed short-lived and did not lead to persisting symptoms.
• The assessor noted that soon after the injury, the bar for hanging clothing items had been lowered by approximately 5 inches so that other workers would not have similar shoulder issues. Thus, it had been recognized that the repetitive elevation and hanging was of an ergonomic risk.

In summary, Dr. Pysklywec stated that biomechanical consideration would implicate the repetitive shoulder elevation in causing a rotator cuff tear. The supraspinatus tendon was largely responsible for abduction and elevation. This was the posture that the worker felt a pop in the right shoulder.

Furthermore, the clinical history was consistent with the lack of symptoms before the day of injury. The worker was completely functional before February 9, 2019. The history then defined a specific event that was consistently reported whereby they felt a pop in some pain in their shoulder while lifting the clothing. They have had an ongoing disability to the shoulder ever since. Besides the work injury, there does not appear to be another important factor that would suggest a causative agent for rotator cuff issues.

It was the impression of Dr. Pysklywec that the injury at work was a major factor in causing their right shoulder rotator cuff tear. Dr. Pysklywec concluded, “The clinical history and biomechanics compellingly implicate that incident as the source of their shoulder pathology.”

On November 16, 2021, an Eligibility Adjudicator (EA) reconsidered the decision to deny the rotator cuff tear and reviewed the new information provided in the OHCOW report and upheld the previous decisions. At that time, the decision had been reviewed and upheld on January 28, 2020, May 6, 2020, June 15, 2020, and July 10, 2020.

Policy

Policy 15-02-01 (Definition of an Accident) states in part

Accident includes

• a wilful and intentional act, not being the act of the worker
• a chance event occasioned by a physical or natural cause, and
• a disablement arising out of and in the course of employment

The definition of disablement includes

• a condition that emerges gradually over time
• an unexpected result of working duties.

Disablement injuries are adjudicated differently from a chance event or willful act type injuries. For chance event or willful act types of claims, there is a presumption clause in the Workplace Safety and Insurance Act that does not apply in a disablement situation.

WSIA Section 13(2) states

If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

Policy 11-01-01 (Adjudicative Process) states in part

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."

An allowable claim must have the following five points

• an employer
• a worker
• personal work-related injury
• proof of accident, and
• compatibility of diagnosis to accident or disablement history.

If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.

Findings

I find the worker has met the criteria outlined in policy 11-01-01 (Adjudicative Process) for entitlement to a right rotator cuff tear. My rationale for the decision is as follows.

There is evidence of an employer and a worker. This has not been disputed. The worker had been an employee since 2002.

Personal work-related injury

There is evidence of a personal work-related injury.

Policy 15-02-01 (Definition of an Accident) states that a disablement type accident includes an unexpected result of working duties. At the time of the injury, the worker was at work performing their regular duties. They reported feeling a pop in their shoulder when they raised their right arm above shoulder level to hang laundry on a bar.

Given this injury was the result of a disablement type accident, the presumption in the WSIA Section 13(2) does not apply. The onus is on the worker to show that the accident arose out of the worker’s employment and in the course of their employment.

Both conditions in the presumption have been met.

The accident arose out of the worker’s employment. In making this finding of fact, I relied on the medical expertise of both Dr. Alolabi and Dr. Pysklywec. Both physicians are specialists. Dr. Alolabi is an orthopaedic surgeon and Dr. Pysklywec is an expert in the field of occupational medicine. Dr. Alolabi stated that the rotator cuff tear was congruent with the worker’s presentation and the mechanism of injury. I considered Dr. Alolabi’s opinion to be unsolicited. At the time of Dr. Alolabi’s initial assessment, the worker had not yet been denied entitlement to a rotator cuff tear. The surgeon had considered the worker’s presentation and concluded that the rotator cuff tear arose from their employment through their own deliberation.

The accident arose in the course of employment. In reaching this decision, I placed weight on the report from the OHCOW. I accept that the worker’s representative solicited Dr. Pysklywec’s opinion. I understand why the representative requested the OHCOW to review the file and provide an opinion. The worker had presented with a clear and consistent recollection of their injury, they related their shoulder condition to one specific movement on February 9, 2019, they had not had right shoulder issues in the six or seven years leading up to the accident, and they had been denied entitlement on four occasions.

Dr. Pysklywec reviewed the worker’s claim file and interviewed the worker. The physician’s report is thorough. The reported detailed the mechanism of injury and related that mechanism to the rotator cuff tear. It addressed the ergonomic issues of elevation and abduction in relationship to the stress placed on the supraspinatus tendon. Dr. Pysklywec also discussed other possible activities that might have contributed to or accounted for the rotator cuff tear with the worker and found none. There was no other activity that the worker could recall that might have contributed to the right shoulder condition other than their work.

The worker was in the course of their employment when they tore their rotator cuff. The worker was at work during a regular shift and performing their regular work when the injury occurred. The worker lifted their right arm to hang laundry and they felt a pop followed by pain that increased over the next hours and days. The rotator cuff injury occurred during the course of the worker’s employment.

I am satisfied there is evidence of a personal work-related injury.

Proof of accident

I find there is proof of accident. The claim was accepted for a right shoulder and biceps strain injury. Proof of accident has already been established. The worker reported immediate pain and sought medical attention two days after the injury. Given that the worker’s injury occurred on a Saturday and they sought medical attention on a Monday, there is no significant delay in seeking medical attention. Reasonably, the worker’s family doctor would not have office hours on the weekend and the worker might have thought their pain would either get better or resolve in a matter of days or hours.

Compatibility of the diagnosis of a rotator cuff tear with the mechanism of injury

I find the diagnosis of a rotator cuff tear is compatible with reaching above shoulder level in this claim.

On the balance of probabilities, the worker’s job duties contributed to the wear and tear on their rotator cuff. I accept that the MRI showed evidence of a degenerative right rotator cuff. The tear was found on the background of tendinosis or degeneration. They were right hand dominant and they had been performing laundry tasks for a long-term care facility for about 10 years. Overall, laundry is a heavy physical task. The worker most likely washed and dried heavy items such as bedding, small rugs, drapes, and tablecloths in addition to lighter items such as clothing. The worker reached forward and laterally on a constant basis while performing their duties. They had to reach into the washer and dryer to place and retrieve the laundry items, sort the items, and hang them to dry. They most likely lifted and carried at least 30 pounds on a frequent basis.

I concluded the worker’s right shoulder condition prior to the accident was asymptomatic. The wear and tear on their right shoulder had not prevented them from working prior to the injury and they stated they had no pain or mobility issues with their shoulder.

I am persuaded that the worker’s rotator cuff tear happened as the worker described on February 9, 2019. The worker reported a clear mechanism of injury in which they elevated their right arm above shoulder level and felt a pop. They have consistently reported this accident history since the date of injury. There is no evidence in the file to doubt that this accident occurred.

Based on my above rationale, the worker has met the five-point check system criteria and they are entitled to the diagnosis of rotator cuff tear as a result of the February 9, 2019 workplace injury.

MMR right shoulder and right biceps strain – May 29, 2019

I find the worker recovered from the strains as of May 29, 2019. As of that date, the worker’s condition was best described as a rotator cuff injury rather than a strain injury. There was no reason to continue addressing strain injuries when the rotator cuff tear was responsible for the worker’s symptoms.

Return to operations

The operating area is requested to update the entitlement in this claim to include a right supraspinatus tendon full-thickness tear.

Please gather medical information, including five years of prior medical information, the surgical report, and subsequent medical notes, in order to make ongoing decisions in the claim. Please consider referring the worker to a Specialty Program to determine the need for further treatment and an assessment of functional abilities.

Please gather earnings information from the employer in order to determine entitlement to LOE benefits.

Please refer the claim to Return to Work Services to determine job suitability.

All of the decisions regarding the benefits flowing from the allowance of a right rotator cuff tear are subject to the usual rights of appeal.

CONCLUSION

The worker’s objection is allowed.

DATED March 25, 2022

Kim McDonnell Appeals Resolution Officer Appeals Services Division