DECISION NUMBER:

20220102

OBJECTING PARTY:

DUAL OBJECTION

WORKER: REPRESENTED by:

WORKER

WORKER REPRESENTATIVE

EMPLOYER:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

VIDEOCONFERENCE

HEARD by:

DATED:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

JULY 27, 2022

ISSUES

The employer is objecting to the following:

1. The Case Manager’s decision letter of May 7, 2020 allowing initial entitlement to the left shoulder and loss of earnings (LOE) benefits from April 22, 2020 to June 11, 2020;

2. The Case Manager’s decision letter dated May 25, 2021 authorizing entitlement to the diagnosis of left shoulder adhesive capsulitis; and,

3. The Case Manager’s decision letter of May 25, 2021 authorizing entitlement to a permanent left shoulder impairment.

The worker is objecting to:

4. The Case Manager’s decision of September 24, 2021 denying secondary entitlement to the right shoulder.

Both the employer and the worker are objecting to:

5. The Case Manager’s decision dated October 28, 2021 granting entitlement to 50% cost relief under the Second Injury and Enhancement Fund (SIEF).

BACKGROUND

In December 2019, the worker started to notice increasing left shoulder symptoms while performing their job duties. The worker left for a one-month vacation on February 14, 2020. Upon their return, the worker was required to self-isolate for two weeks due being symptomatic during the global pandemic. The

worker contacted their family doctor’s office and was directed to attend a walk-in clinic within a local hospital. On April 6, 2020, the worker contacted the family doctor’s office again and was scheduled for a telephone appointment on April 7, 2020.

X- rays and an ultrasound took place on April 8, 2020. After self-isolating, the worker returned to work on April 20, 2020. The worker performed two hours of duties on April 21, 2020 prior to being advised by their family doctor not to work. The employer offered modified duties on April 22, 2020. The Eligibility Adjudicator’s decision letter dated May 7, 2020 allowed initial entitlement for left shoulder tendonitis. The Eligibility Adjudicator authorized LOE benefits from April 22, 2020 based on the family doctor’s recommendation. The worker returned to modified duties on June 11, 2020.

The Case Manager’s decision letter dated May 25, 2021 allowed entitlement to left shoulder adhesive capsulitis and a permanent impairment based on the Workplace Safety and Insurance Board (WSIB) Upper Extremity Speciality Program’s discharge report of May 20, 2021. An 8% non-economic loss (NEL) benefit for the left shoulder was confirmed on May 31, 2021. The Eligibility Adjudicator’s decision letter dated September 24, 2021 denied entitlement to the right shoulder as a secondary condition from overcompensating for the left shoulder injury. The Case Manager’s decision letter of October 28, 2021 authorized 50% SIEF cost relief after determining that the pre-existing type II diabetes was a risk factor for developing adhesive capsulitis.

The administrative decision of May 27, 2022 authorized an oral hearing for the dual objections. An administrative letter dated June 8, 2022 confirmed that the appeal would be conducted by videoconference. The dual objections from the employer and worker are now before me.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

11-01-05 Determining Permanent Impairment 11-02-02 Lost Time Claims

November 3, 2008

November 3, 2014

January 2, 2015

14-05-03 Second Injury and Enhancement Fund (SIEF) 15-02-01 Definition of an Accident

15-02-02 Accident in the Course of Employment

15-05-01 Resulting from Work-Related Disability/Impairment

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

February 20, 2006

October 12, 2004

October 12, 2004

April 9, 2021

January 2, 2018

ANALYSIS

I find that initial entitlement to a work-related left shoulder injury is not appropriate. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

It is the worker representative’s position that any apparent delays in reporting or medical attention must be considered in light of the global pandemic. The worker representative presents that the job activities performed by the worker are consistent with the permanent left shoulder impairment. In worker

representative’s view, the worker aggravated the right shoulder by compensating for the more predominant left shoulder injury. The worker representative argues that the worker could perform all job functions prior to December 2019. In the opinion of the worker representative, any applicable SIEF cost relief may be as low as 0% but should be no higher than 50%.

Employer representative’s position

The employer representative argues that initial entitlement is not in order as the left shoulder condition did not arise out of and in the course of employment. The employer representative maintains that the progression of symptoms while on vacation supports that the left shoulder condition is not work-related. In the employer representative’s view, the worker was capable of performing modified duties effective April 22, 2020, which would not add sufficient stress to result in a secondary right shoulder injury. The written submission of May 31, 2022 requests SIEF cost relief of 75% to 100%.

1. Initial entitlement to the left shoulder and loss of earnings benefits

I am not persuaded that initial entitlement for the left shoulder, including LOE benefits, is in order.

Policy 11-01-01, Adjudicative Process, sets out five factors that must be present in order to allow a claim:

• Is there an employer?

• Is there a worker?

• Was there a personal work-related injury?

• Is there proof of accident?

• Is there compatibility of diagnosis to disablement history?

There is no dispute that the first two criteria are met. Policy 15-02-02, Accident in the Course of Employment, states that a personal injury by accident occurs in the course of employment if the factors of place, time, and activity suggest that the accident was work-related. There is general agreement that the worker felt symptoms in December 2019 while performing assigned job duties. I accept that the third criterion listed under Policy 11-01-01 is satisfied as the Employer’s Report of Injury signed April 24, 2020 does not provide any evidence contesting the factors of time or place.

Policy 15-02-01, Definition of an Accident, outlines that the term accident includes both a chance event and a disablement. Policy clarifies that a chance event is an identifiable unintended event which causes an injury. An injury itself is not a chance event. By comparison, a disablement includes a condition that emerges over time and an unexpected result of working duties.

In the case before me, there is general agreement that there is no specific incident. It is the worker’s testimony that they started having pain in December 2019 that would shoot down the left arm. Over the course of approximately a week, the worker noticed that the little bit of pain began to progressively get worse. The pain became more consistent to the point that in January 2020 the worker could not use a hammer and required people to help them. According to the worker, they continued to work performing tasks such as trouble-shooting and biding their time until the pre-scheduled one-month vacation starting on February 14, 2020.

Policy 15-02-01 requires the disablement to arise out of and in the course of employment. I will now review the next two factors listed under Policy 11-01-01 in order to determine if the disablement injury occurred in the course of employment and arose out of the worker’s employment.

i) Proof of accident

I am not persuaded that a disablement situation exists.

Policy 11-01-01 provides the authority for decision-makers to consider factors that may be relevant to establishing proof of accident including if a disablement situation exists and if there was any delay in seeking health care attention.

I acknowledge the worker’s testimony explaining how they thought that the left shoulder symptoms would resolve as they were about to leave on vacation. I also recognize the impact of the global pandemic on the worker’s ability to seek medical attention post-vacation. That being said, I must consider the employer representative’s arguments that the worker’s testimony providing new information with respect to a significant change in duties has only come to light approximately three years later. In response, the worker representative suggests that the worker never had an opportunity to provide this information as they were never specifically asked if there was a change in the job.

Within testimony, the worker describes a job change in 2015 from being on the road to being in-house. The worker explains that it was similar work but that it was more demanding as it required fixing everything, including an overhead garage door in the warehouse. According to the worker, the job became more demanding in part as they were the only in-house person performing the tasks during a time of growth. In particular, the worker identifies December 2019 as a period in which it became very busy with a lot of overhead work (one to 1.5 hours per nine hour shift), changing of tires, and repairs. The worker describes being a height of 5’9” tall, using both hands to perform tasks (including drilling), and continuing to use chisels and punches to loosen seized wheel bearings while working in awkward positions.

Nevertheless, I note that the worker provides verbal confirmation on two separate occasions dated April 29, 2020 and May 5, 2020 that there had been no job changes, nothing unusual in the last few

months, and no changes in their schedule or duties. In fact, I observe that the worker’s verbal statement of April 29, 2020 describes a typical day of work as “road service work” and does not mention working in a permanent in-house position. Further, I must consider that the physical demands analysis for the job of road service technician provided by the employer states that above-shoulder lifting, shoulder carry, and above-shoulder level reaching are not required. In contrast, it is the worker’s testimony that the job is impossible to perform without above-shoulder activities.

Overall, I afford the most weight to the information dating closest to the date of injury, including the physical demands analysis provided with the Employer’s Report of Injury dated April 24, 2020. In making this finding, I note that the worker’s verbal statement of April 29, 2020 indicates that they have always performed the same job since October 1988 with no changes in the work prior to the onset of pain. On this basis, I accept that there is insufficient evidence to establish there being a disablement situation on or about December 2019. Accordingly, I find that proof of accident is not established as required under Policy 11-01-01.

ii) Clinical compatibility

I find that the policy criterion of clinical compatibility is not established. Policy 11-01-01 requires clinical compatibility of diagnosis with disablement history. To put it another way, the medical diagnosis must be shown to have resulted from, or been caused by, the worker’s job duties.

What is the left shoulder diagnosis and is it compatible with the disablement history?

I accept that the most appropriate diagnosis is left shoulder calcific tendonitis.

The x-ray of April 8, 2020 identifies bilateral (both shoulders) rotator cuff calcific tendinopathy. The ultrasound of the left shoulder performed on the same date identifies calcific tendinopathy and mild bicipital tendonitis. The WSIB Upper Extremity Program’s comprehensive assessment report dated August 6, 2020 documents a gradual onset of left shoulder pain that has worsened over the past few months and is accompanied by a loss of range of motion. The report provides the diagnosis of left shoulder calcific tendonitis and potential early onset adhesive capsulitis. The reports from the WSIB Upper Extremity Program dated March 9, 2021 and May 20, 2021 diagnose left shoulder calcific tendonitis. Given the confirmation from the medical imaging and the Specialty Program, it is my opinion that Policy 11-01-01 requires clinical compatibility of the disablement history with the diagnosed calcific tendonitis of the left shoulder.

It is my understanding that calcific tendonitis results from the thickening of the tendon due to calcific deposits. I recognize that any movement of the shoulder, including overhead tasks, would be painful in the presence of calcific tendonitis. However, as discussed above, I do not accept that a disablement situation exists or that there was an increase in overhead activities leading up to December 2019. For this reason, I find that experiencing left shoulder pain while in the course of employment is insufficient evidence that the nature of the work duties caused the disablement. In other words, I find that there is insufficient evidence that the work duties are a significant contributing factor to the development or progression of the diagnosed calcific tendonitis.

In reaching this determination, I note the worker’s testimony that the left shoulder pain worsened while off work during the one-month vacation in early 2020. The worker describes a progressive worsening after the first two weeks of vacation with the shoulder hanging down while walking. The worker also indicates not being able to place any pressure on the shoulder and having to change positions in bed. Again, the report of August 6, 2020 documents worsening pain while performing modified duties as a delivery driver with no loading or unloading of parts. It is the worker’s testimony that they had been performing these modified duties since June 11, 2020.

To summarize, I find that there is evidence that the left shoulder symptoms worsened during a period when the worker was not exposed to the work duties in question. I also accept that the left shoulder symptoms worsened while performing the modified duties of delivery driver (which did not involve any overhead activities). As a result, I am not persuaded that there is a connection between the work duties performed and the development of left shoulder calcific tendonitis. Consequently, I find that initial entitlement is not in order for the left shoulder as the policy criterion of clinical compatibility is not met.

Loss of earnings benefits

I find that entitlement to LOE benefits from April 22, 2020 to June 11, 2020 are not in order as there is no work-related left shoulder injury. Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), and Policy 11-02-02, Lost Time Claims, require the wage loss to be a result of a workplace injury. In this case, I accept that the lost time is the result of a non-work-related condition and that the work duties were not a significant contributing factor. Therefore, it is my view that there can be no entitlement to LOE benefits.

2. Left shoulder adhesive capsulitis

I acknowledge that the Shoulder Program of Care Contact Form dated June 18, 2020 identifies the clinical signs of adhesive capsulitis in the left shoulder. The WSIB Upper Extremity Program’s assessment report of August 6, 2020 confirms the possibility of early onset adhesive capsulitis. I am aware that the report dated May 20, 2021 from the Specialty Program does not list adhesive capsulitis as a diagnosis. In any event, I find that the possible adhesive capsulitis is causally connected to the

non-work-related diagnosis of calcific tendonitis. On account of this connection, I find that there can be no entitlement to adhesive capsulitis.

3. Entitlement to a permanent left shoulder impairment

I find that entitlement to a permanent left shoulder impairment, including the associated NEL benefit, is to be rescinded.

Policy 11-01-05, Determining Permanent Impairment, requires the permanent impairment to be

work-related. For the reasons previously stated, I find that there is no work-related left shoulder injury. By extension, there can be no entitlement to a permanent left shoulder impairment or NEL benefit.

4. Secondary entitlement to the right shoulder

It is the worker’s testimony that the right shoulder symptoms started in March 2021 and that they had been performing modified duties since June 11, 2020. As I have documented above, x-rays performed on April 8, 2020 identify rotator cuff calcific tendonitis in both shoulders. The worker representative indicates that while there may be evidence of some problems with the right shoulder prior to March 2021, the right shoulder still became aggravated from compensating for the left shoulder.

Regardless, Policy 15-05-01, Resulting from Work-Related Disability/Impairment, provides the authority to entitlement for a secondary condition when it is established that a causal link exists between it and the work-related injury. Further, I accept that the modified duties performed from June 11, 2020 onward (or nine months prior to the onset of right shoulder symptoms) did not involve any overhead activities.

Therefore, I find that there is no work-related right shoulder injury under case file 31513200 as it is my opinion that the right shoulder condition was neither caused by compensating for a work-related left shoulder injury nor the modified work duties performed due to the left shoulder condition.

5. Cost relief under the Second Injury and Enhancement Fund

I find that entitlement to SIEF cannot be in order as there is no work-related entitlement in this claim.

Policy 14-05-03, Second Injury and Enhancement Fund (SIEF), provides the authority to transfer compensation and health care costs from the employer to the SIEF. However, there must be entitlement in the claim in order to consider if the period resulting from the work-related accident becomes prolonged or enhanced due to a pre-existing condition. Therefore, I find that the question of entitlement to SIEF or the amount of the previously authorized 50% SIEF is no longer an issue as I accept that necessary criteria for entitlement to a work-related left shoulder injury are not met.

CONCLUSION

I conclude the following:

1. Initial entitlement for a work-related left shoulder injury is denied.

There is no entitlement to loss of earnings (LOE) benefits from April 22, 2020 to June 11, 2020.

2. Entitlement to the diagnosis of left shoulder adhesive capsulitis is not in order.

3. There is no work-related left shoulder permanent impairment.

The employer representative’s request for rescinding entitlement to the non-economic loss (NEL) benefit for the left shoulder is granted.

4. Secondary entitlement to the right shoulder under case file 31513200 is not in order as there is no initial entitlement to the left shoulder.

5. The question of entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF) is resolved on the basis that there is no work-related left shoulder injury.

The worker’s objection is denied. The employer’s objection is allowed.

DATED July 27, 2022

K. MacMillan

Appeals Resolution Officer Appeals Services Division