Worker v. Employer, 2022 CanLII 89424

20220104

REPRESENTED by:

N/A

HEARD by:

DATED:

N/A

JULY 20, 2022

ISSUE

The employer objects to the Case Manager’s (CM) decision dated August 19, 2021, which accepted entitlement to a full-thickness rotator cuff tear, and partial-thickness tear of the infraspinatus with an interstitial tear.

BACKGROUND

On February 25, 2021, this receiver was lifting a pallet weighing 15 to 20 pounds overhead, when it slipped. They noticed an onset of pain in their right shoulder when this occurred.

The worker’s claim was initially accepted for a strain/sprain injury to the right shoulder. Entitlement to a right shoulder tear was denied as the Eligibility Adjudicator determined that a partial shoulder tear

pre-existed the date of injury.

On June 24, 2021, the worker had an MRI, which identified a focal full-thickness rotator cuff tear, partial-thickness articular sided tear of the infraspinatus with interstitial tear and moderate osteoarthritis.

The CM reviewed the claim file information and further to the MRI results, and requested a medical consultant opinion regarding the delineation of the findings. In a decision dated August 19, 2021, the CM advised that entitlement was expanded to include the focal full-thickness rotator cuff tear, and

partial-thickness articular sided tear of the infraspinatus with interstitial tear, as they were considered compatible with the mechanism of injury. The CM denied entitlement to the conditions of tendinopathy and osteoarthritis.

The worker participated in eight (8) weeks of treatment through the Upper Extremity Specialty Program (UESP). The worker was discharged following this treatment with no further assessments recommended, and full functional abilities were noted.

The CM issued a decision letter on February 9, 2022, confirming that the worker had fully recovered from the workplace injury, with no evidence of an ongoing or permanent impairment.

In a decision dated March 15, 2022, the CM reconsidered a previous decision to deny entitlement to cost relief in the claim, and determined that 50% Second Injury Enhancement Fund (SIEF) cost relief was applicable.

The employer’s objection to the August 19, 2021 decision, which accepted the worker’s right shoulder tears, forms the basis for this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-01, Adjudicative Process

15-02-03, Pre-existing Conditions

November 3, 2008

November 3, 2014

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on my review of the evidence, I find that the worker has entitlement to the partial-thickness infraspinatus tear of the right shoulder. Additionally, I find that the worker’s supraspinatus full-thickness tear was pre-existing and was not caused by the workplace accident. My reasons for the decision are outlined below.

The employer representative provided a written submission dated December 10, 2021, which outlined their position. The submission also referenced the decision dated April 20, 2021, pertaining to the issue of SIEF cost relief in the claim; however, this is a separate issue that is not properly before me and has been further addressed by the Operating Area. In terms of the issue of entitlement to the supraspinatus and infraspinatus tears, they submit that the worker had a history of chronic shoulder pain and was not asymptomatic prior to the workplace accident. Although the assessment of August 25, 2021 indicated the worker had a previous ultrasound that showed a partial thickness tear of the supraspinatus and infraspinatus, this was not correct, and in actuality, the July 2020 ultrasound report indicated a full thickness tear. Additionally, the absence of a partial tear of the infraspinatus tendon in the July 2020 ultrasound report, and the presence of it in the 2021 MRI, does not mean that it was not there in 2020, given that an MRI offers a higher definition of shoulder pathology than an ultrasound. They dispute the opinion provided by Dr. Turchin regarding compatibility as the absence of the tear on the ultrasound does not mean that it did not exist at that time. They also note that the doctor would be unable to conclude the tear had progressed without being able to view the actual ultrasound. Further, they argue that as the doctor from the UESP indicated that it was difficult to comment on whether there was a worsening of the worker’s shoulder condition, they therefore dispute the CM’s conclusion that the tears were compatible with the work accident. They contend that if the tear was evident in 2020, it was also there at the time of the accident, and there is no objective evidence to support that the tears were worsened. Thus, the tears should be considered non-occupational in nature as they pre-existed the workplace accident, and they request that entitlement to the tears be rescinded. The submission also referenced medical articles pertaining to the condition of tendinosis, and the diagnostic accuracy of the ultrasound for rotator cuff tears, to support their positions.

The worker is not participating in the appeal and did not provide any submissions or outline their position regarding the matters at hand.

Policy 11-01-01, Adjudicative Process, is the policy that decision–makers use to determine whether the criteria has been met for the allowance of entitlement in a claim. It is not sufficient that some criteria are met; all must be met in order to establish initial entitlement. The criteria as required by this policy are:

An employer
A worker
Personal work-related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history

Compatibility means there is a causal relationship between the diagnosed injury and the accident described.

Initial entitlement has been established in the claim; however, the issue of compatibility of the

right shoulder full thickness tear and the infraspinatus partial tear remains the issue. The employer has not argued that entitlement should be denied, however they disagree with the acceptance of the right shoulder tears, on the basis that the tears were not compatible with the mechanism of injury. Further, they note the full-thickness tear was pre-existing and the partial thickness tear may have pre-dated the workplace accident as well.

To establish compatibility, it is necessary to determine that the medical diagnosis resulted from or was caused by the workplace accident.

I have considered the accident history details provided by the worker. The accident history was clarified with the worker in communication with the CM on July 30, 2021, and detailed that the worker was lifting a pallet overhead with both arms, when it slipped and fell. I find it noteworthy that when providing clarification, the worker did not outline the details of the pallet hitting their leg, and pushing it off, when relaying the details of how their shoulder was injured. I accept the accident history as fact, and find that the mechanism of injury is in alignment with the information considered by the medical consultant in the Occupational Health Assessment Program report of August 6, 2021. I note that the medical consultant provided the opinion that tearing or a progression in tearing of the shoulder would be compatible with the accident history. I accept this opinion and find it plausible that a shift of weight of approximately 15 to 20 pounds to one side when lifting overhead would be compatible with not only a strain/sprain injury to the shoulder, but could also cause tears in the shoulder.

Policy 15-02-03, Pre-existing Conditions, states the following:

Entitlement for a work-related injury/disease will not be denied due to the existence of a pre- existing condition. Once initial entitlement is established, the decision-maker considers the impact, if any, of pre-existing conditions on the worker’s ongoing impairment.

The policy goes on to state,

A pre-existing condition is any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions. The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.

I have reviewed the medical documentation in the claim file, specific to the objective clinical findings regarding the worker’s right shoulder tears. I note the following as relevant to my decision:

The January 9, 2020 ultrasound of the right shoulder specific to the Supraspinatus Tendon stated the following: “There is a focal full thickness tear of the anterior most tendon fibers, measuring

4 mm long axis by 4 mm short axis. The remainder of the tendon is intact. Moderate heterogeneous echotexture and irregularity consistent with moderate tendinosis.”

The January 9, 2020 ultrasound of the right shoulder specific to the Infraspinatus Tendon stated the following: “Mild heterogeneous echotexture and irregularity consistent with mild tendinosis. The tendon is grossly intact without any discrete tear.”
The June 24, 2021 MRI of the right shoulder specific to the Supraspinatus Tendon stated the following: “There is focal full-thickness tear involving the anterior insertional supraspinatus tendon fibers with fluid signal intensity defect measuring 0.4 cm [9:7]. There is background of severe tendinopathy with heterogeneous intermediate signal intensity in the mid to posterior tendon fibers.”
The June 24, 2021 MRI of the right shoulder specific to the Infraspinatus Tendon stated the following: “Focal partial-thickness articular sided tear of the mid insertional fibers with extension into a low-grade interstitial tear extending to the mid fibers. Severe tendinopathy with heterogeneous intermediate signal intensity.”

The medical consultant provided the opinion that, “[a]s the worker’s pain increased and function decreased subsequent to the overhead lifting mechanism I would consider the new finding of a focal partial-thickness articular sided tear of the mid insertional fibres of the infraspinatus and the focal full thickness tear of the supraspinatus tendon (on the basis of a likely progression in tearing from 2020) to be compatible with the accident history/work-related in nature.”

Based on my assessment of the evidence, I find that the objective evidence does not support a progression in the tear of the supraspinatus tendon. The employer representative has argued that as the worker had evidence of a full-thickness tear in the ultrasound prior to the injury, and as this is a

full-thickness tear, questioned how the medical consultant could say that it has progressed without review of the actual ultrasound. The representative noted in their submission that the MRI did not quantify the size of the tear; however, I find that this was not the case as outlined above. That being said, I note that the measurement for the tear in the ultrasound is the same measurement as demonstrated in the MRI. Considering this, I find that the objective evidence does not support a progression of the supraspinatus tear. In my view, it is significant to point out that both the ultrasound and the MRI demonstrate a

full-thickness tear, however the tendon itself remained intact.

In terms of the infraspinatus tendon, the representative contends that although the ultrasound did not show a partial tear, it was likely to have been there prior to the workplace accident based on the other degenerative findings for the shoulder; however, the ultrasound may not have detected this. I acknowledge that the UESP physician indicated that it was difficult to provide a definitive opinion regarding whether the worker’s shoulder was worsened by the workplace accident. However, I am in agreement with the medical consultant’s opinion that the partial-thickness tear of the mid-insertional fibers of the infraspinatus tendon is a “new finding”. Despite the representative’s submission in this regard, it remains that the ultrasound did not show any evidence of a discrete tear. The representative has not provided a medical opinion to the claim file to support that the infraspinatus tear was likely degenerative in nature and pre-existed the work-related accident. While their position is well argued, I am unable to place more weight on the representative’s speculation than I am on the opinion provided by the medical consultant who has also considered the degenerative findings in their analysis.

I have considered the representatives’ submission that the worker had a significant right shoulder impairment requiring medical treatment prior to the work accident. The claim file information supports that the worker had prior right shoulder pain, had an ultrasound, and received a cortisone injection approximately seven (7) months prior to the workplace accident. I do not find evidence to support that the worker was unable to perform their regular job duties – which are physical in nature – at the time of or

in the months prior to the February 25, 2021 event. Further, there is no information from the workplace parties or the worker’s family physician to indicate that the worker was having significant symptoms in their shoulder at the time of the accident, requiring modified duties, time off work, or additional health care treatment. Alternatively, the evidence supports that the worker had a worsening of pain and a decrease in function after the lifting accident.

Consequently, in light of my findings above and based on my assessment of the evidence, I find on the balance of probabilities, that the workplace accident caused the worker’s right shoulder partial-thickness infraspinatus tear. As such, I find that the diagnosis is compatible with the mechanism of injury, and entitlement to this partial tear is accepted, in keeping with Policy 11-01-01. I find that the worker’s

full-thickness supraspinatus tear was evident prior to the workplace accident, but was not symptomatic. I find that the objective medical evidence does not support a progression of the tear or worsening of the tear, and thus entitlement to the tear of the supraspinatus tendon is rescinded.

CONCLUSION

I conclude that the worker has entitlement to the partial thickness tear of the infraspinatus tendon in the right shoulder. There is no entitlement to the pre-existing supraspinatus full-thickness tear, as it did not result from the workplace accident.

The employer’s objection is allowed in part.

DATED July 20, 2022

A Meadows

Appeals Resolution Officer Appeals Services Division