DECISION NUMBER:

20230131

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

(NOT PARTICIPATING)

HEARING:

TELECONFERENCE

HEARD by:

DATED:

C. GOEGAN, APPEALS RESOLUTION OFFICER

OCTOBER 25, 2023

ISSUE

The worker is objecting to the November 10, 2020 decision of the Case Manager denying entitlement to a recurrence of work-related forehead, neck and trapezius injuries.

BACKGROUND

On March 15, 2014, this then 35-year old production associate at a manufacturing plant was struck in the forehead by an 11 lb. “jig” that swung free from a metal hook. She sustained a forehead laceration and immediate medical attention. The Operating Area approved initial entitlement to health care benefits for the laceration as the worker initially returned to regular duties.

The worker subsequently reported neck and shoulder pain. They sought further medical attention on March 27, 2020 and a physiotherapist diagnosed whiplash associated disorder (WAD). The physiotherapist reported the worker had aggravated a pre-existing injury that was improving before the March 15, 2014 accident. The worker began performing modified duties with the employer and the physiotherapist later reported the worker had also sustained a trapezius strain. After conducting further inquiries concerning the details of the March 15, 2014 accident, the Eligibility Adjudicator concluded the accident caused neck and trapezius strains extended entitlement in the claim to include those diagnoses.

The worker remained on modified duties and attended physiotherapy treatment. She ultimately resumed her regular job duties and completed the physiotherapy treatment by July 8, 2014. In a July 24, 2014 decision, the Case Manager determined forehead, neck/whiplash and trapezius strain injuries had fully resolved with no ongoing impairment.

The employer contacted the WSIB in August 2020 to report the worker began attending physiotherapy treatment for a reported recurrence of neck and right shoulder symptoms. The employer submitted an Employer’s Report of Injury (Form 7) on August 17, 2020 and the Operating area established a new claim. The Eligibility Adjudicator denied initial entitlement to neck, right shoulder and right arm injuries in claim xxxxxxxx on September 1, 2020.

Following the denial of initial entitlement by the Eligibility Adjudicator claim xxxxxxxx, the Case Manager considered entitlement to a recurrence under claim yyyyyyyy. In a November 10, 2020 decision, the Case Manager denied entitlement to benefits for a recurrence. The Case Manager concluded the worker had attributed their symptoms to a significant new event. He also found the symptoms were not clinically compatible with the original injury.

The worker representative objected to the November 10, 2020 decision on July 29, 2021. The Case Manager determined the worker did not meet the time limit to object to the November 10, 2020 decision on August 12, 2021. An Appeals Registrar upheld the decision concerning the time limit on July 20, 2022. In a decision dated April 24, 2023, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) granted the worker an extension of the time limit to object to the November 10, 2020 decision.

Following the WSIAT decision granting a time-limit extension, the Case Manager reconsidered and upheld the denial of the recurrence on August 21, 2023.

The worker objected to the November 10, 2020 decision of the Case Manager and the matter was referred to the Appeals Services Division for consideration.

AUTHORITY

Operational Policy Manual

Published

11-01-01 – Adjudicative Process 15-02-05 - Recurrences

November 3, 2008

February 1, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the November 10, 2020 decision of the Case Manager is appropriate and the worker is not entitled to benefits for a recurrence of the March 15, 2014 forehead, neck and upper trapezius injuries. The reasons for my decision are explained below.

The Worker’s Position

At the hearing the worker representative submitted the following:

• The conditions suffered by the worker in the accident remain ongoing.

• The symptoms recurred in 2017 and progressed to the point that the worker had to attend physiotherapy treatment in 2019.

• A November 2021 report from the worker’s family doctor supports that the worker has chronic symptoms that are exacerbated by specific activities.

• The medical evidence from the physiotherapy clinic the worker attended contemporaneous to the accident and at the time of the recurrence supports the worker was treated for the same problem in 2019 that they had been treated for in 2014.

• While the worker returned to regular job duties in July 2014, clinical reporting from the treating physiotherapist does not establish the worker fully recovered from their injuries.

• When the worker returned to their regular job duties in 2014, they did not remain at work long enough to determine whether the March 15, 2014 injuries had resolved.

• The worker self medicated and self modified their job duties between 2016 and 2019.

• When the worker returned to work with the employer in 2016, they did not return to working at the full complement of workstations with the employer.

• There was no new accident in 2019 that prompted a recurrence of symptoms and there is a clear connection with the original injury based on the medical evidence from the physiotherapist.

The Claim File Evidence

Chart notes from Ms. Martyn, a physiotherapist at the West Side Physiotherapy Clinic from February 2, 2014 to March 4, 2014 described neck and bilateral shoulder symptoms as well as

headaches. Ms. Martyn noted hypertonicity in the upper fibres of the trapezius and diagnosed a postural syndrome.

A March 15, 2014 Health Professional’s Report (Form 8) from Dr. Cockburn had the diagnoses of a left forehead/right scalp abrasion laceration. The Form 8 indicated the worker could resume regular duties.

A March 27, 2014 Form 8 from Ms. Martyn, a physiotherapist, stated a jib hit the worker in the head and they and felt increased neck pain the next day. She indicated the accident aggravated an existing injury that was improving. She diagnosed the worker with a grade 2 whiplash associated disorder (WAD).

In a June 16, 2014 Physiotherapist’s Treatment Extension Request, Ms. Martyn continued to endorse the diagnosis of a grade 2 WAD. She described the symptoms as decreased right cervical rotation and a hypertonic trapezius. She also noted the worker remained unable to perform their full duties at work secondary to neck spasms.

A series of physiotherapy chart notes from Ms. Martyn from March 27, 2014 to June 30, 2014 described neck pain and the worker experiencing tiredness and nausea due to a pregnancy. A June 30, 2014 chart indicated the worker was a “little sore” in the posterior cervical spine area bilaterally.

A June 23, 2014 Employer’s Progress Report (Form 42) from the employer indicated the worker’s return to work plan was on track and they were currently off work for a non-work-related reason.

A July 8, 2014 chart entry from Ms. Martyn indicated the worker had returned to normal duty at work for a week with no significant increase in pain. Ms. Martyn also completed a July 8, 2014 Functional Abilities Form (FAF) indicating the worker would return to work without restrictions.

An October 7, 2019 Initial Assessment from Ms. Folkens, a physiotherapist had the clinical impression of overuse of the upper fibres of the trapezius bilaterally. The report indicated it was the same problem the worker had in 2014 where they experienced pain in the right and left shoulder area and pain in both sides of the neck. Ms. Folkens noted the worker worked on an assembly line and lifting aggravated their symptoms.

An October 15, 2019 chart note from Ms. Folkens stated the worker was sore in the upper fibres of the trapezius bilaterally, however, she described the active range of motion of the neck as full. A series of chart notes from October 22, 2019 to January 23, 2020 described a sore neck in the upper fibres of the trapezius.

An August 20, 2020 Form 8 from Ms. Harnish, a physiotherapist had the diagnosis of right rotator cuff pathology, tendinosis and a concurrent cervical strain. Ms. Hamish indicate the injury occurred as the result of repeated use of the right shoulder.

An August 24, 2020 Musculoskeletal Program of Care (MSKPOC) Initial Assessment Report from

Mr. Marahar, a physiotherapist, indicated the worker felt neck, upper back and right shoulder pain that was triggered by repetitive tasks on an assembly line. He identified the areas of injury as the neck, upper back and right elbow and diagnosed a repetitive strain injury.

In an August 24, 2020 Shoulder Program of Care (POC) Initial Assessment Report, Mr. Marahar diagnosed a repetitive shoulder strain, right lateral epicondylitis and a neck strain.

A series of physiotherapy chart notes from Mr. Marahar from August 27, 2020 to October 16, 2020 indicated the worker complained of neck, right shoulder and right elbow. A September 24, 2020 chart note had the diagnoses of right rotator cuff tendonitis, right elbow tendonitis and a neck strain. The chart notes contained few measurable clinical findings although the September 24, 2020 described the range of motion of the neck as 75% normal. An October 14, 2020 chart note indicated the worker wanted to stop treatment, as they were feeling better. While the note did not contain any measurements, it stated the range of motion and strength of the right shoulder and neck were near normal.

A September 29, 2020 ultrasound of the right shoulder described marked tendinosis involving the supraspinatus tendon with punctuate calcifications throughout.

A November 9, 2020 memo, the worker advised the Case Manager she originally recovered from her 2014 injuries and returned to regular duties. The memo also indicated the worker continued with their regular job and experienced no issues between 2014 and 2020. The worker indicated that after she reported her current issues to the employer she submitted a new claim that was denied.

Physiotherapy chart notes from Mr. Marahar from August 27, 2021 to October 16, 2021 indicated he treated the worker for right shoulder and neck pain radiating down the right arm as far as the wrist.

A November 20, 2021 letter from Dr. Geurtjens, the worker’s family doctor, to the worker representative indicated she became the worker’s doctor in January 2019. She indicated she was unaware of the 2014 injury until she completed a review of the worker’s chart. Dr. Geurtjens indicated the question of whether the worker had received physiotherapy for a recurrence was difficult to answer. She indicated that while some injuries could result in chronic symptoms, it was largely a subjective experience based on a patient’s perceived influences to their physical health. She indicated that repetitive strain could increase the risk of chronic injury and pain. Dr. Geurtjens stated the current working diagnosis she was treating the worker for was chronic tendinosis.

A February 4, 2022 letter from Ms. Folkens to the worker representative indicated that the worker presented to the West Side Physiotherapy Clinic in October 2019 with complaints of neck and shoulder pain that they reported was the “same problem as in 2014”. Ms. Folkens noted the worker had pain in both sides of the neck and the upper trapezius area of the shoulders. Ms. Folkens opined the nature of the pain appeared to be chronic and stated it did appear to be related to the prior WSIB claim from 2014.

A February 6, 2022 letter from Mr. Marahar to the worker representative indicated he treated the worker in August 2020 and August 2021 for neck, shoulder and radiating pain. He indicated the worker advised him the original injury was in 2014 and they never fully recovered. Mr. Marahar reported that in 2020 the worker had shoulder tendonitis, elbow epicondylitis and a neck strain. He noted that in 2020 they reported pain in the neck, shoulder and wrist with decreased mobility and nerve irritation.

An April 4, 2022 report from Dr. Sarco, a physical medicine and rehabilitation specialist, stated the worker described posterior neck and shoulder pain that began in 2014 after they sustained a workplace injury.

He noted x-rays of the neck were unremarkable and stated an ultrasound of the right shoulder showed calcific tendinosis of the supraspinatus tendon. He indicated a neck examination revealed self-restricted range of motion; however, noted passively the worker had full range in extension, lateral rotation and rotations.

A June 24, 2022 Employer’s Continuity Report (REO7) indicated the worker had performed their regular work duties from 2014 to 2022.

The Worker’s Testimony

The worker testified that they were 44 years old and had worked for the employer since July 29, 2013.

The worker testified about the accident and explained a jig struck them in the forehead in 2014. After the accident, they were off work for one week and returned to modified duties. When they returned to modified duties, they developed pain in their neck, upper back and right shoulder.

The worker testified she was receiving physiotherapy treatment for neck and right shoulder issues before the March 15, 2014 accident but did not remember exactly when those issues began. She attributed the pre-accident neck and shoulder issues to the general duties of her job working on an assembly line in the manufacturing of automotive parts.

The worker testified that she is 5’1” tall. She explained that in 2014 she worked on the assembly line and worked at a total of four out of a possible 13 stations. The worker indicated that the general duties of her job required working at different stations where she would pull down a screw gun from overhead and use it to install screws into automotive parts on a table situated at waist level. The worker explained the number of screws installed into the parts varied depending on the parts and the installation stations.

The worker testified that she did not work due to a maternity leave from December 2014 until January 2016. While away from work, the worker testified she was fine. When she returned to work in January 2016, she returned to work at four different workstations with different work processes. She

testified that when she returned to work in 2016 she experienced pain in the neck, upper back and right shoulder. She indicated she took Tylenol and Advil and sought medical advice from a doctor who recommended Robaxacet. The worker testified that the doctor also recommended massage therapy treatment and she attended one massage therapy treatment in 2017.

The worker testified that in 2020 she reported a worsening of symptoms because she felt increased pain. She testified that she presently has work restrictions and only works at 7 out of 13 workstations because of her restrictions.

Entitlement to a Recurrence

According to Policy 15-02-05 (Recurrences), a worker may be entitled to benefits for a recurrence of a work-related injury if the worker experiences a significant deterioration that:

• Does not result from a significant new incident, and

• Is clinically compatible with the original injury.

The policy defines a significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in clinical findings. Indicators of a significant deterioration may include the need for active (non-maintenance) clinical treatment, a change in functional abilities or a change in the ability to perform a job or a suitable occupation.

A significant new incident is considered to be one of some consequence or importance such as falling from a ladder. Conversely, an insignificant new incident is considered to be one of negligible consequence or importance, such as reaching for an object on a shelf.

Policy 15-02-05 (Recurrences) also states that in order to establish that a significant deterioration is clinically compatible with the original injury, the WSIB must determine that:

• The body parts and/or functions affected now are the same as, or related to, those affected by the original injury, and

• That there is a causal link between the significant deterioration and the original injury.

To make these determinations, the WSIB considers the nature and severity of the significant deterioration, the original injury and any relevant non-work-related conditions that are present. The policy indicates that the WSIB may also consider whether a worker has experienced continuing symptoms since the original injury, as generally, continuing symptoms are an indicator of a causal link, though they are not required to establish a causal link. Indicators of continuing symptoms may include continuing clinical treatment, continuing workplace accommodations, or evidence that continuing symptoms were reported to health care providers, supervisors or co-workers on an ongoing basis.

With respect to the original forehead injury, the diagnosis that resulted from the March 15, 2014 accident was a laceration. The March 15, 2014 Health Professional’s report (Form 8) from Dr. Cockburn indicated the worker received sutures for the wound. There was no medical evidence in the record beyond the March 15, 2014 Form 8 concerning the forehead laceration and the worker provided no further information concerning the laceration in their testimony. Accordingly, I conclude the forehead laceration healed and as there is no evidence of a significant deterioration, I find the worker does not have entitlement to a recurrence of the forehead laceration.

Turning to the neck and trapezius injuries, I find the worker is not entitled to benefits for a recurrence of the March 15, 2014 neck and upper trapezius injuries as I find the symptoms the worker reported in 2020 are not clinically compatible with the original injury. In reaching that conclusion, I took particular note of the following:

• The original accident involved an 11lb jig striking the worker in the forehead. There was no evidence the jig struck the worker in the right shoulder or arm or that the worker sustained a shoulder injury specific to the muscles or tendons of the rotator cuff.

• Ms. Martyn diagnosed the original injury as a Grade 2 WAD involving the neck and the trapezius. Despite receiving treatment for neck and upper trapezius pain before the accident, there is no evidence suggesting the worker sustained a more significant neck injury such as a cervical disc lesion or a fracture.

• It is my understanding that a Grade 2 WAD is a soft tissue injury that does not involve any neurological signs or symptoms and typically resolves with time. I find that to be consistent with the 2014 chart notes from Ms. Martyn that described a decreased neck range of motion and a hypertonic trapezius after the accident but did not describe any neurological findings or radiating symptoms down the arms.

• The 2014 chart notes from Ms. Martyn also indicate that by July 2014, the worker had recovered sufficiently to enable a return to their pre-injury job duties. The June 30, 2014 chart note stated the worker was “a little sore” in the neck and by July 8, 2014, Ms. Martyn reported a return to regular work had not produced any significant increase in pain.

• Following the worker’s return to pre-injury job duties, she was subsequently absent from the workforce entirely for a one year period while on a maternity leave until January 2016. The worker testified that while away from work, she was fine and I note there are no clinical records that support the worker experienced ongoing symptoms in 2015. In my view, a one-year period without the presence of ongoing symptoms is significant.

• The worker also testified that upon returning to work with the employer in January 2016, she returned to different workstations with different work processes and developed pain in the neck, upper back and right shoulder. The worker testified she took over the counter medications, sought medical advice in 2017 and attended one session of massage therapy the same year. While the worker testified she experienced symptoms after returning to work, I note there are no clinical records in 2016, 2017 and 2018 establishing she experienced ongoing neck and upper trapezius issues. There is also no information from the employer confirming the worker required ongoing job accommodations. Ms. Folkens opined that the neck and upper trapezius pain in 2019 appeared related to the 2014 injury and Ms. Hamish and Mr. Marhar included the diagnosis of a concurrent neck strain related to repetitive work in 2020. While I acknowledge the reports, I find the absence of information establishing the presence of ongoing neck and upper trapezius symptoms, as well as the absence of continuing accommodations from 2015 to 2018 is a significant period of time that is not supportive of clinical compatibility.

• In 2020, Ms. Hamish and Mr. Marhar also diagnosed the worker with rotator cuff pathology, tendinosis and lateral epicondylitis triggered by repetitive tasks on an assembly line. The September 29, 2020 ultrasound of the right shoulder described marked tendinosis involving the supraspinatus tendon and Dr. Geurtjens confirmed the working diagnosis was chronic tendinosis in her November 2021 report. As noted previously, an 11lb jig struck the worker in the forehead on March 15, 2014 and the original injury was a Grade 2 WAD involving the neck and upper trapezius. Given the mechanism of injury and the original diagnosis, I find the diagnoses of rotator cuff pathology, tendinosis, and lateral epicondylitis are not clinically compatible with the original injury.

• When Dr. Geurtjens responded to the request for information on November 20, 2021 concerning a recurrence, she completed a chart review and did not mention continuing neck and upper trapezius symptoms or clinical treatments in 2015, 2016, 2017 or 2018. When questioned specifically about a recurrence, she did not reference a neck or trapezius strain and stated the working diagnosis was chronic tendinosis. As noted above, I find tendinosis of the right shoulder is not clinically compatible with the original injury.

After considering the available information, I find the evidence establishes that the original injury was a forehead laceration and Grade 2 WAD of the neck and upper trapezius that occurred when an 11lb jig struck the worker in the forehead on March 15, 2014. The laceration resolved without any issues. The neck and upper trapezius injury was soft tissue in nature and after a period of physiotherapy treatment, the worker recovered sufficiently to return to her regular job duties by July 8, 2014.

The worker subsequently stopped working for one year because of a non-work-related reason and during the one-year period, there is no evidence she experienced ongoing neck or upper trapezius symptoms.

She returned to work in January 2016 and although the worker testified she developed symptoms and took over the counter medications, there is no clinical evidence establishing that the worker reported ongoing symptoms to health care providers or information from the employer that she required workplace accommodations for an additional three-year period 2016 to 2018.

While the worker received physiotherapy treatment in 2019 for neck and upper trapezius symptoms and the physiotherapist opined the symptoms appeared related to the 2014 injury, I do not find the opinion of the physiotherapist persuasive in establishing clinical compatibility given the absence of information demonstrating continuing symptoms for over four years after the original injury. With respect to the clinical information provided by the physiotherapists in 2020 and Dr. Geurtjens in 2021, I find the diagnoses of rotator cuff pathology, tendinosis, and lateral epicondylitis are not clinically compatible with the original injury, as the index accident did not involve an injury specific to the muscles or tendons of the rotator cuff or the elbow.

In conclusion, I find clinical compatibility is not established between the March 15, 2014 injuries and the neck/upper trapezius and right shoulder and elbow symptoms the worker reported in 2019 and 2020.

As I find clinical compatibility is not established, I find the November 10, 2020 decision of the Case Manager is appropriate and the worker is not entitled to benefits for a recurrence under Policy 15-02-05 (Recurrences).

CONCLUSION

I conclude the November 10, 2020 decision of the Case Manager is appropriate and the worker is not entitled to benefits for a recurrence of the March 15, 2014 forehead, neck and trapezius injuries.

The worker’s objection is denied.

DATED October 25, 2023

C. Goegan

Appeals Resolution Officer Appeals Services Division