20230132

REPRESENTED by:

HEARD by:

DATED:

NOVEMBER 9, 2023

The worker, through their representative, is objecting to the following decisions made by the case manager:

A decision of April 11, 2023 that denied entitlement to a right shoulder tear.
A decision of February 11, 2022 that determined the worker’s head, ear, neck, upper back, right shoulder and right upper arm bruise/contusion type injuries fully resolved by January 14, 2022.

In the Appeals Readiness Form of August 11, 2023, the worker representative identified entitlement to loss of earnings (LOE) benefits in both the February 11, 2022 and April 11, 2023 decisions. However, I note the case manager made no findings of fact concerning LOE benefits in either of the above decisions. The decisions addressed whether the worker’s injuries fully resolved and if entitlement to a right shoulder tear was in order.

In regards to the worker’s wage loss, I note entitlement to LOE benefits was accepted from September 28, 2021 to October 26, 2021. At that time, the worker returned to work to modified duties at partial hours. They were in receipt of partial LOE benefits from October 26, 2021 to November 1, 2021, at which time the worker resumed regular hours. As such, I find the issue of entitlement to LOE benefits is not within my jurisdiction. My findings will strictly address whether the worker’s head, ear, neck, upper back, right shoulder and right upper arm injuries fully resolved by January 14, 2022 and if entitlement to a right shoulder tear is in order.

On September 27, 2021, this personal support worker sustained multiple injuries when a resident, who weighed 200-lbs, attempted to get out of bed and fell on them. This caused the worker to fall over and hit

the bedside table, metal chair and a porter wheelchair. Initial entitlement was allowed for health care and LOE benefits for right shoulder rotator cuff tendinitis and head, ear, neck and upper back contusions.

The worker began attending physiotherapy treatment in October 2021. In a decision letter of February 11, 2022, the case manager concluded the worker’s head, ear, neck, upper back, right shoulder and right upper arm bruise/contusion type injuries fully resolved by January 14, 2022. The decision was reconsidered on June 3, 2022 and September 22, 2022, but the original decision was upheld.

Additional clinical information in July 2022 indicated the worker had a small high-grade partial thickness tear of the rotator cuff for the right shoulder. In a decision letter of April 11, 2023, the case manager was unable to establish compatibility between the small high-grade partial thickness tear of the rotator cuff and the accident history. Entitlement to a right shoulder tear was denied. The decision was reconsidered on April 24, 2023, but the original decision was upheld.

The worker objects to the decisions dated February 11, 2022 and April 11, 2023. The issues were referred to the Appeals Services Division for further consideration.

Operational Policy Manual

Published

11-01-01 Adjudicative Process

November 3, 2008

11-01-05 Determining Permanent Impairment

November 3, 2014

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Issue #1 – Is entitlement to a small high-grade partial thickness tear of the rotator cuff for the right shoulder in order?

For the reasons that follow, I find entitlement to a small high-grade partial thickness tear of the rotator cuff for the right shoulder is in order.

Worker position

In the submission of October 18, 2023, the worker representative contends that even though the right shoulder tear was not identified immediately did not mean it was not present. They referenced the computed tomography (CT) of December 13, 2021 and outlined differences between it and magnetic resonance imaging (MRI). The representative opines the worker continued to have issues with their right shoulder/arm beyond the maximum medical recovery (MMR) date selected by the case manager. As a result, the worker was referred for an MRI, which subsequently revealed a tear. They cite the clinical report of February 10, 2022 and MRI findings of July 25, 2022 in support of their position.

Employer position

The employer did not participate in this appeal, nor provide any submissions for my review.

Findings

The worker representative contends the right shoulder tear is compatible with the accident history in this claim. As such, I relied on policy 11-01-01 (Adjudicative Process) to help me reach a conclusion. In order to be able to allow an area of injury in a claim, there are five points that must be present. Policy 11-01-01 (Adjudicative Process) states all decision-makers use the same criteria for ruling on initial entitlement to benefits, namely, the "five point check system." An allowable claim must have, an employer, a worker, a personal work-related injury, proof of accident, and compatibility of diagnosis to accident or disablement history.

In reviewing the elements of the five point check for initial entitlement, I find the criteria of employer, worker, personal work-related injury and proof of accident are satisfied in this claim. I relied on the decision letter of October 14, 2021 that allowed initial entitlement to health care and LOE benefits for right shoulder rotator cuff tendinitis and head, ear, neck and upper back contusions arising from the workplace accident of September 27, 2021.

Based on the mechanism of injury reported in this case, the worker claims a chance event type accident. The Worker’s Report of Injury/Disease (Form 6) of September 27, 2021 states a resident, who weighed 200-lbs, attempted to get out of bed and was unable to support themselves. The resident fell forward onto the worker, causing the worker to fall over and hit the bedside table, metal chair and a porter wheelchair. The resident landed on top of the worker on the ground.

The worker representative argues the right shoulder tear is compatible with the accident history, stating it was always present and remained undiscovered until the MRI. The representative states degenerative changes can also be caused by the type of job performed and repetitive duties. However, as I stated above, the worker claimed a chance event type accident and not a disablement that is a gradual onset of working duties.

As such, the issue before me is whether the compatibility criterion is met. The question is whether the diagnosis of a small high-grade partial thickness tear of the rotator cuff for the right shoulder is compatible with the accident history in this claim.

After reviewing the information in the clinical record, I accept the worker representative’s position and find the compatibility criterion of the five point check is met. I find the diagnosis of a small high-grade partial thickness tear of the rotator cuff for the right shoulder is compatible with the accident history. I find the MRI findings of July 25, 2022 are causally linked to the September 27, 2021 workplace accident. I relied on the diagnostic imaging and clinical reporting between September 2021 and September 2022 to reach my conclusion. My reasons for why are outlined below.

In reviewing the case record, there is no clinical reporting to support a right shoulder injury prior to the workplace accident of September 2021. In this claim, the initial diagnosis for the right shoulder is a bruise, as indicated in the Health Professional’s Report (Form 8) of September 28, 2021. An x-ray was recommended for the right shoulder.

The x-ray findings of the same date revealed calcific density adjacent to the inferior rim of the glenoid, suggestive of calcific tendinopathy. The glenohumeral and acromioclavicular (AC) joints are well aligned. However, the AC joints show mild degenerative changes. No acute fracture is present. The findings are indicative of calcific tendinopathy. In reviewing the findings, I note no rotator cuff tear was identified.

However, I would not expect one to be seen in an x-ray image.

In the Shoulder Program of Care (POC) Initial Assessment Report of October 5, 2021 and subsequent Form 8 of October 7, 2021, the diagnosis of right shoulder rotator cuff tendinitis is provided. In my view, this supports the worker continued reports of issues with their right rotator cuff. In addition, I find the physical findings in both the Shoulder POC Initial Assessment and Outcomes & Summary Reports support ongoing issues with the right rotator cuff since the workplace accident of September 2021.

In reviewing the physical findings in the Shoulder POC Initial Assessment Report, I am satisfied the ongoing issue with the worker’s right shoulder is more than a bruise or contusion. Active range of motion was 90-degrees for abduction. Passive range of motion is 110-degrees for abduction and 50-degrees for internal rotation. Weakness is present in abduction and external rotation. The physiotherapist states there is mainly tendinitis in the supraspinatus and teres minor muscles. Tightness is contributing to poor neurodynamics, a protracted right shoulder and weakness.

Upon discharge from the Shoulder POC on December 2, 2021, I find it significant the worker continued to perform modified duties at regular hours. In the Shoulder POC & Outcomes Summary report, I note abduction is 95-degrees, flexion is 110-degrees, internal rotation is half the range of motion and cross abduction is 100-degrees with passive range of motion over the AC joint. External rotation is within functional limits. Strength is 4/5 for abduction, flexion and external rotation.

I interpreted these results to mean the worker continued to have issues with their right shoulder in terms of range of motion. My viewpoint is supported by the restrictions outlined by the physiotherapist for lifting, reaching, pushing/pulling and overhead work. Again, the physical findings outlined in the Shoulder POC Outcomes & Summary report appear to be more in line with an issue with the rotator cuff vs. a bruise.

Subsequently, the worker underwent a CT scan for their right shoulder on December 13, 2021. The CT findings revealed bilateral Bennett lesions of the shoulder, more pronounced on the right, also with mineralization of the anterior glenoid/capsule (suggesting capsule-ligamentous/Bankart spectrum injury). Mild degenerative changes of the sternoclavicular and AC joints is present. There is non-mass like triangular soft tissue along the anterior mediastinum, probable rebound thymic hyperplasia.

The CT scan also states that Bennett lesions are often associated with posterior internal impingement, including axillary nerve impingement, as well as injuries to the posterior labrum, posterior capsule/ posterior band of the inferior glenohumeral ligament, and infraspinatus. If clinically warranted, the findings could be further assessed by an MRI.

Medical literature states Bennett lesions of the shoulder refers to the mineralization of the posterior band of the inferior glenohumeral ligament. Of significance, I note these lesions are linked with posterior labral tears, a posterior undersurface rotator cuff tear and posterior subluxation of the humeral head. The literature goes on to state that Bennett lesions are generally more common in athletes that throw overhead. However, there is no information in the case record to suggest the worker performed overhead throwing as part of their work duties or hobbies.

I also reviewed the clinical notes from the physiotherapist from October 5, 2021 to January 13, 2022. In the January 13, 2022 clinical note, I find it noteworthy the worker wore a sling at work the entire week to prevent themselves from using their arm by accident. The worker was diagnosed with a Bennett lesion with mineralization in the glenohumeral. In my view, wearing a sling is not indicative of a bruise or rotator cuff tendinitis.

Of interest, during a conversation with the case manager on January 7, 2022, the worker reports using their right arm to stop a resident from slipping off a chair on January 1, 2022. They indicate this

aggravated their right shoulder injury and informed the employer. The worker also told their physiotherapist about it, as stated in the FAF of January 6, 2022. In my view, performing a motion in order to stop a person from slipping off a chair would not be sufficient to cause a tear in the rotator cuff.

The worker’s physician referred them to an orthopaedic surgeon. In the clinical report of February 10, 2022, the surgeon states there is anterior, posterior and lateral shoulder pain, along with pain into the right side of the neck that is provoked by light use. The worker reports their shoulder pain affects their activities of daily living and hobbies.

Upon examination, I note the orthopaedic surgeon found no obvious deformity or malalignment of the shoulder girdle. The range of motion is normal, with the exception for the hand behind the back. Passive range of motion is full, but there is tenderness over the anterior shoulder and crepitus on palpation.

Strength is 4/5 for the supraspinatus and infraspinatus. For the subscapularis and teres minor, the strength is 5/5. Of note, the surgeon reviewed the x-ray and CT scan findings as well.

I find it significant the orthopaedic surgeon opines the examination revealed a potential rotator cuff injury and notes the worker fell on their right shoulder at work. An ultrasound was recommended, along with ongoing physiotherapy and modified duties. Non-operative options were discussed. In my view, this supports the ongoing issue is related to the rotator cuff.

There are no ultrasound results in the case record and sparse clinical records between the February 10, 2022 report and MRI of July 25, 2022. It is unclear which treating health practitioner referred the worker for an MRI. Of note, the MRI revealed AC joint degenerative changes with diffuse supraspinatus tendinosis. There is a high-grade partial or a tiny focal full-thickness tear of the conjoined tendon/anterior infraspinatus tendon near the insertion site with a partial tear of the subscapularis and fluid in the subacromial subdeltoid bursa. The MRI also notes the previously suspected Bennett lesion can be best assessed with an arthrogram if needed.

The worker saw the orthopaedic surgeon again on September 1, 2022. In the clinical report of the same date, the surgeon was pleased to see no full-thickness tears of any significant size in the imaging. The surgeon notes the worker reported continuing pain diffusely around the shoulder and shoulder girdle that lasted over a year and resulted from the workplace accident.

The orthopaedic surgeon states the worker has good range of motion, with most of their pain being anterior, around the biceps and superiorly over the upper fibres of the trapezius. Rotator cuff strength is 4/5 for the supraspinatus and 5/5 for the infraspinatus and subscapularis. The surgeon recommended against surgical intervention, but states cortisone injections could be an option. The surgeon indicates the worker may benefit from permanent restrictions for their right shoulder in the future for heavy or repetitive over-shoulder level work.

I afford weight to the orthopaedic surgeon’s assessment in the February 10, 2022 clinical report of a rotator cuff injury following their examination. As they indicated in the September 1, 2022 report, the worker did not complain of any significant shoulder pain or issues prior to the workplace accident. There is insufficient available evidence to support the worker required, or had any restrictions for their right rotator cuff prior to the workplace accident based on the clinical record.

Furthermore, I note the worker continues to report ongoing right shoulder pain with lifting abduction and working overhead. This is documented in the clinical report of January 29, 2023 from their physician.

Upon examination, there is no muscle wasting, swelling, erythema, muscle atrophy, deformity, or skin

changes. Of significance, the worker’s range of motion is restricted in extension to 40-degrees and abduction to 110-degrees.

As such, after carefully considering the worker representative’s arguments, I find the compatibility criterion for the five point check is met. I find the diagnosis of a small high-grade partial thickness tear of the rotator cuff for the right shoulder is compatible with the accident history of September 27, 2021. While medical literature indicates that most rotator cuff tears occur without a specific traumatic event, it is important to note the mechanism of injury in this claim. The resident fell forward onto the worker, causing the worker to fall over and hit the bedside table, metal chair and a porter wheelchair.

I am satisfied that, in this claim, a rotator cuff tear occurred after direct trauma to the right shoulder, given the mechanism of injury. Following the workplace accident, I find it significant the worker continued to report ongoing right shoulder pain involving tenderness over the anterior shoulder and restricted range of motion in abduction, flexion and internal rotation. In my view, these are indications that an acute traumatic tear was present following the September 27, 2021 workplace accident.

While the MRI findings concerning the partial thickness rotator cuff tear comes almost 10-months after the workplace accident, I note the worker underwent diagnostic imaging in September and December 2021. However, I note the worker was also diagnosed with rotator cuff tendinitis in October 2021 and a rotator cuff injury in February 2022. In my view, given there was a small high-grade partial thickness tear of the rotator cuff present in the right shoulder, I would not expect it to have been evident in the x-ray of September 28, 2021 or CT scan of December 13, 2021. I note the orthopaedic surgeon referred the worker for an ultrasound, but the results are not in the case record.

Thus, for the reasons noted above and policy 11-01-01 (Adjudicative Process), I find the five point check is met. I am satisfied the diagnosis of a small high-grade partial thickness tear of the rotator cuff for the right shoulder is compatible with the accident history in this claim. I find initial entitlement to the small high-grade partial thickness tear of the rotator cuff for the right shoulder is allowed.

Issue #2 – Did the worker’s head, ear, neck, upper back, right shoulder and right upper arm injuries fully resolve by January 14, 2022?

For the reasons that follow, I find the worker’s head, ear, neck, upper back and right upper arm bruises fully resolved by December 2, 2021 with no evidence of a permanent impairment. I find there is insufficient available clinical evidence to support that MMR has been reached for the right shoulder. The operating area should request outstanding clinical reports, including diagnostic imaging and clinical notes, from the orthopaedic surgeon and physician from 2022 onward. Once the requested clinical information comes to file, the operating area can determine the nature and duration of ongoing benefits for the right shoulder.

Worker position

In the submission of October 18, 2023, the worker representative argues the worker continues to seek treatment for their injuries. They indicate the case record supports the worker continues to have restrictions for RTW and questions how the injuries could have resolved by January 14, 2022. The representative referenced the restrictions listed by the return-to-work specialist (RTWS) on January 6, 2022 and states a Functional Abilities Form (FAF) was expected for January 31, 2022. In their view, this meant the worker would have restrictions until at least January 31, 2022.

The representative pointed to another FAF dated January 24, 2022, which outlined restrictions continued to be in place for more than 14-days. The next appointment date was scheduled for March 21, 2022, which they opine is well after the MMR date identified by the case manager. They referenced a clinical report of February 17, 2022 from the physiotherapist. The representative contends the physiotherapist did not state the worker was discharged from their care, nor that the work-related injuries fully resolved and the worker could resume regular duties. They also cite clinical reports of September 26, 2022 and October 28, 2022 in support of their position.

Employer position

The employer did not participate in this appeal, nor provide any submissions for my review.

Findings

In order to determine if a worker has fully recovered from the work-related injuries, the information needs to show whether an ongoing work-related impairment exists. I relied on policy 11-01-05 (Determining Permanent Impairment) to help me reach my conclusion. The policy states an impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

The policy goes on to state that recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached. MMR means that a plateau in recovery has been reached and no further significant improvement is expected. To determine if MMR is reached, decision-makers consider whether recent clinical evidence indicates any change in the work-related injury, the worker is receiving or will receive treatment that is likely to improve the work-related injury, or the worker is receiving treatment or using medication to maintain the current level of recovery. Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.

After reviewing the available evidence in the clinical record, I am satisfied the worker’s head, ear, neck, upper back and right upper arm bruise/contusion type injuries fully resolved by December 2, 2021 with no permanent impairment. However, I am not persuaded there is sufficient evidence to confirm if MMR has been reached in regards to the right shoulder. I relied on the clinical reporting in the case record from September 28, 2021 to January 29, 2023 to reach my conclusion. My reasons for why are outlined below.

In regards to the worker’s head, ear, neck, upper back and right upper arm bruise/contusion type injuries, the clinical information in the case record is sparse. In the Form 8 of September 28, 2021, the worker’s head, ears, neck, upper back, right shoulder and right arm were identified as the areas of injury. They were diagnosed with multiple bruises.

I find the available clinical evidence supports the worker continued to experience neck, right shoulder and right upper arm pain beyond October 5, 2021. This is supported by the Shoulder POC Initial Assessment Report of October 5, 2021, Form 8 of October 7, 2021 and Musculoskeletal (MSK) POC Initial

Assessment Report of October 28, 2021.

In the Shoulder POC Initial Assessment Report and Form 8, the worker was diagnosed with rotator cuff tendinitis. However, I find there is no further clinical evidence to support ongoing issues with the worker’s head, ear and upper back bruise/contusion type injuries beyond October 7, 2021. My finding is supported by the lack of restrictions for the above areas of injury in the FAF of October 21, 2021 and MSK POC Initial Assessment Report of October 28, 2021.

I note the FAF outlines restrictions for the right shoulder and makes no mention of the neck. However, in the MSK POC Initial Assessment report, the worker was diagnosed with rotator cuff tendinitis secondary to neck and upper arm stiffness. In my view, this supports the worker continued to experience neck, right shoulder and right upper arm pain, but that the other work-related injuries fully resolved with no permanent impairment.

While the worker was discharged from treatment at the Shoulder and MSK POCs on December 2, 2021, I note they continued to perform modified duties at regular hours at that time. I am satisfied the worker’s neck and right upper arm bruise/contusion type injuries fully resolved with no evidence of a permanent impairment. There is a lack of clinical evidence beyond December 2, 2021 to support any restrictions in place for the neck and right upper arm.

In my view, both the above reports support ongoing restrictions for the right shoulder. The Shoulder POC & Outcomes Summary report states the employer was unable to accommodate some of the worker’s restrictions due to being short-staffed. As a result, the worker needed to help bathe and lift heavy patients. I note the range of motion findings are limited for abduction, flexion, internal rotation and cross abduction.

The MSK POC & Outcomes Summary report of December 2, 2021 states the worker is overexerting their upper body and it may delay recovery. The physiotherapist recommended the worker resume their regular duties by January 2, 2022. However, I note the worker continued to have limitations for lifting, bending/twisting repetitive movement, pushing/pull and working at or performing above shoulder activity. In my view, these restrictions are related to a right shoulder rotator cuff injury.

While the worker’s multiple bruises have fully resolved, I do not find the same applies to the right shoulder. It is important to remember the eligibility adjudicator accepted initial entitlement to right shoulder rotator cuff tendinitis, in addition to bruises/contusions for head, ear, neck, upper back and right upper injuries.

The worker continued to have restrictions for their right shoulder as outlined in the FAF of December 6, 2021. Subsequently, they underwent a CT scan for their right shoulder on December 13, 2021.

I accept the worker representative’s position that the worker’s right shoulder injury did not fully resolve by January 14, 2022. In reviewing the clinical notes from the physiotherapist from October 2021 to January 2022, I note their last session was January 13, 2022. While the worker was discharged from treatment at that time, I previously found it significant they wore a sling at work to prevent themselves from using their arm by accident. In my view, wearing a sling is not indicative of the resolution of a right shoulder injury.

Of note, the clinical note of January 13, 2022 states the FAF lasts an additional two weeks and the physiotherapist recommends the worker see their family doctor for ongoing FAF forms if needed.

Furthermore, restrictions continue to be identified for the worker’s right shoulder in the FAFs of January 6 and 24, 2022. The worker had restrictions for lifting up to 5-kg, working at or above shoulder activity and limited use of their right hand and arm to grip and push/pull. I find it compelling the worker is using a sling at work and still performing modified duties, as there is no available evidence to support the worker resumed their regular duties at that time.

I note the worker was referred to an orthopaedic surgeon. I afford weight to the clinical report from the surgeon dated February 10, 2022. I previously found it compelling the surgeon opines the examination revealed a potential rotator cuff injury. I am satisfied this supports ongoing entitlement to a right shoulder

injury. My viewpoint is further strengthened by the surgeon’s recommendation of further diagnostic testing, ongoing physiotherapy and modified duties. In addition, I previously found initial entitlement to a small high-grade partial thickness tear of the rotator cuff for the right shoulder is in order.

In summary, I find it significant no further restrictions were identified for those areas of injury beyond the MSK and Shoulder POC & Outcomes Summary reports of December 2, 2021. Thus, for the reasons noted above and policy 11-01-05 (Determining Permanent Impairment), I find the worker’s head, ear, neck, upper back and right upper arm bruise/contusion type injuries fully resolved by December 2, 2021 with no permanent impairment.

However, I find there is insufficient available clinical evidence to support that MMR has been reached for the right shoulder. The operating area should request outstanding clinical reports, including diagnostic imaging and clinical notes, from the orthopaedic surgeon and physician from 2022 onward. Once the requested clinical information comes to file, the operating area can determine the nature and duration of ongoing benefits for the right shoulder.

CONCLUSION

As I concluded above, I find:

Initial entitlement to the small high-grade partial thickness tear of the rotator cuff is allowed.
The worker’s head, ear, neck, upper back and right upper arm bruise/contusion type injuries fully resolved by December 2, 2021 with no permanent impairment.

There is insufficient available clinical evidence to support that MMR has been reached for the right shoulder. Once the requested clinical information comes to file, the operating area can determine the nature and duration of ongoing benefits for the right shoulder.

The worker’s objection is allowed in part.

DATED November 9, 2023

Ms. M. Rodrigues

Appeals Resolution Officer Appeals Services Division

Worker v. Employer, 2023 CanLII 112867

Case Summary

Issue #1 – Is entitlement to a small high-grade partial thickness tear of the rotator cuff for the right shoulder in order?

Issue #2 – Did the worker’s head, ear, neck, upper back, right shoulder and right upper arm injuries fully resolve by January 14, 2022?

CONCLUSION