APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20240009
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
(NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
S. JOHNSON, appeals resolution officer
FEBRUARY 26, 2024
ISSUE
The worker objects to the Eligibility Adjudicator’s decision letter dated January 20, 2021 and reconsideration decision letters dated April 22, 2021 and January 15, 2024 that denied initial entitlement to a bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome.
BACKGROUND
On June 29, 2020, the worker developed a gradual onset of bilateral shoulder pain, right worse than left, they attribute to opening and closing the window to reach and grab paperwork, climbing into the transport truck cabin to examine the contents, and lifting and moving heavy goods. The worker is right hand dominant and performs the majority of tasks with the right hand and arm.
Initial entitlement was originally allowed for health care benefits for a bilateral shoulder strain injury.
In a telephone conversation with the Eligibility Adjudicator on September 28, 2020, the worker reported they received additional medical treatment that confirmed a new diagnosis of right shoulder deep vein thrombosis and thoracic outlet syndrome. The Eligibility Adjudicator requested all medical evidence and referred the worker’s case to Occupational Health Assessment Program (OHAP) to examine the issue of medical compatibility.
In the OHAP Initial Report dated January 12, 2021, the external physician opined medical compatibility between the diagnosis of thoracic outlet syndrome and the development of a right subclavian deep vein thrombosis and the Physical Demands Analysis Report dated January 2006 could not be established. In this review, the OHAP external physician also documented that, should the worker use the right arm to reach or perform repetitive overhead work activities which was not currently stated in the Physical Demands Analysis Report, then this could contribute to the development of the subclavian deep vein thrombosis requiring surgery on January 8, 2021.
In a decision letter dated January 20, 2021 and in reconsideration decision letters dated April 22, 2021 and January 15, 2024 the Eligibility Adjudicator denied initial entitlement to a bilateral shoulder strain and right subclavian deep vein thrombosis as medical compatibility was not established between the diagnosis and the worker’s duties.
This is the issue for determination.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
15-02-05 Recurrences
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
November 3, 2008
April 9, 2021
September 1, 2021
Appeals Services Division Practices and Procedures, February 2024
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
- Initial Entitlement to a Bilateral Shoulder Strain, Right Subclavian Deep Vein Thrombosis and Thoracic
Outlet Syndrome
I find initial entitlement to a bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome is allowed.
The Operational Policy Manual (OPM) Document No. 11-01-01 – Adjudicative Process – provides an analytical framework that decision-makers apply when considering a worker’s initial entitlement to benefits. This framework is known as the five-point check system that sets out 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.
There is no dispute all of the above five criteria in the OPM Document No. 11-01-01 – Adjudicative Process – were previously established to support the allowance of initial entitlement to a bilateral shoulder strain injury. In reaching this finding, I relied on the decision letter dated July 15, 2020 that originally allowed initial entitlement for the worker’s bilateral shoulder injury. There is no need to revisit previously resolved matters.
The issue to be resolved is the fifth criterion in the OPM Document No. 11-01-01 – Adjudicative Process - that states there must be compatibility of diagnosis to accident or disablement history. To recap, in the decision letter dated January 20, 2021, the Eligibility Adjudicator overturned the original decision to allow initial entitlement to the worker’s bilateral shoulder injury because the medical evidence submitted to the case record provided a new diagnosis of right subclavian deep vein thrombosis and thoracic outlet syndrome. This new diagnosis was not compatible with the worker’s disablement history and led to the denial of initial entitlement.
Worker Representative Submissions
In the Intent to Object Form dated March 30, 2021, the worker contends the decision to deny initial entitlement is flawed and based on a Physical Demands Analysis Report that is 15 years old and not reflective of their work duties. The worker highlighted poor ergonomics in the workplace and there are a high number of shoulder injuries at the work location.
In a submission attached to the Appeal Readiness Form dated September 4, 2023, the worker representative relied on the OHAP external physician’s review dated January 12, 2021. In this report, the OHAP external physician documented that if there was overuse of the right shoulder from repetitive reaching, then this could contribute to the development of a subclavian deep vein thrombosis requiring surgery on January 8, 2021. The OHAP external physician opined that, with certain anatomic variations, repetitive overhead and repetitive use of the shoulder can cause micro trauma and the eventual development of a deep vein thrombosis, which would require an operation to prevent recurrence. If the worker was performing these duties with the right arm at work, then this could certainly lead to the development of vascular thoracic outlet syndrome. The worker representative contends the issue of medical compatibility was established in this medical review.
In resolving the discrepancies in the OHAP external physician’s review dated January 12, 2021 that suggested the worker did not use their right arm at work, the worker representative submitted additional new evidence that included:
November 2, 2021 Occupational Health Clinics for Workers Inc. (OHCOW) Independent Ergonomic Assessment
February 6, 2023 OHCOW Consulting Physician Medical Assessment
The above medical evidence supports the presence of ergonomic risk factors that led to the development of a bilateral shoulder injury summarized below:
The worker is 6 foot 2 inches tall and works in an awkward position as the commercial trucks cannot pull up to the window due to the large mirrors.
The worker experienced a change in job mechanics approximately four months before the onset of the bilateral shoulder problem that involved working with commercial trucks.
The windows and doors at the booth exceed the recommended guidelines requiring the worker to perform extended reaches beyond the primary reach zones at the counter, front counter and booth workstations.
In addition to the horizontal and forward reaching rates (200 to 400 times per hour just at the window retrieving and returning documentation), the worker is required to perform truck searches, open vehicle hoods and other activities that involve extended reaching of the shoulder.
Forward reaching is a constant and frequent requirement in the worker’s job duties handling the commercial trucks while performing various tasks throughout the day.
Frequent lateral and side reaching on a constant basis to open and close the window.
The worker is right hand dominant and uses their right hand and arm to open the window, collect the documentation from travellers and return the documentation to the travellers. This involves constant abduction and external rotation of the right arm.
The right arm muscles contract more intensely to maintain the arm posture with flexion and abduction. This increases joint compression, reduced circulation and muscular discomfort.
The worker’s job duties illustrate the repetitive trauma to the right arm.
Based on all the above factors, the worker representative submits there is medical compatibility between the diagnosis of right subclavian deep vein thrombosis and thoracic outlet syndrome and the worker’s disablement history to support the allowance of initial entitlement.
Employer Participation
The employer is not participating in the worker’s appeal.
In a letter dated May 5, 2021, the employer was advised of the worker’s intention to appeal the decision letter dated January 20, 2021 at the Appeals Services Division. The employer was instructed to complete and return the Employer Participant Form to the WSIB within 30 days if they wish to participate in the Appeals Services Division process.
The Employer Participant Form was not completed and returned to the WSIB at the time I received the worker’s appeal for my review and determination.
Findings
I first examined the worker’s evidence regarding the nature and characteristics of the work duties they performed as a xxx that led to the development of their bilateral shoulder symptoms. In a telephone conversation with the Eligibility Adjudicator on December 4, 2020 (Memo A) and in an in-person interview with the OHCOW Ergonomist on September 7, 2021, the worker detailed with particularity the following:
They experienced a change in job duties in March/April 2020 where they went from working regular vehicles to commercial vehicles (large trucks).
The change in jobs means they have to reach further for information from the commercial vehicles.
They also perform other duties that include processing paperwork, examining and inspecting the commercial vehicles, arrest and seizure of items.
They are right hand dominant and stand 6 feet 2 inches in height.
I find there is not a discrepancy between the worker’s evidence and the employer’s evidence regarding the xxx job tasks and duties. In support of this finding, I relied on the employer’s Physical Demands Analysis Report dated January 9 and 12, 2006 for the xxx job that documented the following:
Frequent unilateral pushing and pulling to push the window up and close the window, open and close the vehicle doors and hatches and moving items within the vehicle. Maximum weights handled are 12 kilograms with average weights handled from four to eight kilograms. Although the left hand is commonly used, however this is optional (my emphasis).
Frequent bilateral floor to bench lifting and lowering up to 40 kilograms to search vehicles (empty and replace the contents of the trunk or within the vehicle during the inspection process).
Frequent bilateral bench to shoulder lifting and lowering up to 40 kilograms to examine baggage.
Frequent bilateral floor to shoulder lifting and lowering up to 20 kilograms to search vehicles.
Frequent horizontal (forward) shoulder reaching to process bridge travellers, open and close the window and reaching for bridge traveller identification. The worker may process up to 100 vehicles within one hour with an average forward shoulder motion approximately two to four times per vehicle (200 to 400 forward shoulder reaching motions per hour).
Frequent is defined as 34-66% of the shift.
Figure 2 is a photograph of a worker opening the window with the arm fully extended in a reach forward position to grab the window handle.
Figure 4 is a photograph of a worker opening the booth window with the right arm fully extended in a reach forward position to grab the window handle.
Figure 11 is a photograph of a worker at ground level with one arm fully extended above shoulder level and one foot on the truck step ready to pull themselves up into the back of the commercial truck.
Figures 12 and 13 are photographs of a worker performing a cab inspection with one arm fully extended to retrieve items in the cab truck.
It is instructive the above tasks and activities can be done with either hand or arm. Since the worker is right hand dominant, they performed all of the above activities with the right hand and arm regions. I find the photographs depicted in Figures 2, 4, 11, 12 and 13 are self-explanatory and in direct alignment with the worker’s description of the right arm motions and forces they used to retrieve documents from the commercial trucks at the window, open and close the window and inspect baggage and trucks (both cab and trailer).
The OHCOW Ergonomist’s report dated September 7, 2021 is consistent with the worker’s and the employer’s evidence. In this report, the OHCOW ergonomist documented the following ergonomic risk factors:
There is a large variance between booth workstations and the worker is 6 feet 2 inches tall that places them in the 95th percentile of males.
Several awkward shoulder postures were identified that included:
o shoulder abduction and 90 degrees of flexion at the car line when opening/closing the door
o shoulder abduction and 80 degrees of flexion when reaching out the window
o truck line work involves horizontal reaching due to the location of the work surface in front of the window
o trucks cannot pull up to the booth window due to the large mirrors on the trucks leading to extended reaches with forward trunk flexion
o the window handle placement requires awkward shoulder postures (abduction and flexion near 90 degrees)
o xxx are required to be seated at the window and forced to flex at the waist to address customers in their trucks or vehicles
o reaching beyond arm’s length and extended horizontal reaching is required to work the front and cash counter
o flexing forward is required to reach over the keyboard tray to receive and return documents to the counter
- The employer’s Physical Demands Analysis for the xxx job was reviewed and the OHCOW ergonomist identified the pushing and pulling, horizontal and forward reaching as ergonomic risk factors. The Physical Demands Analysis for the xxx job does not address shoulder abduction, which simultaneously occurs anytime there is a lateral reach, push or pull. As the arm is moved farther away from the body (abducting) the forces become greater and the shoulder joint must contract more to maintain the arm posture when flexed or abducted. This, in turn, increases joint compression, reduced circulation and muscular discomfort.
The OHCOW ergonomist opined the worker’s job exposed them to awkward shoulder postures that include extended reaches coupled with abduction, forceful exertions and repetition. Based on the epidemiological, biomechanical and physiological studies reviewed, the OHCOW ergonomist concluded it is evident this worker was exposed to ergonomic risk factors that led to their bilateral shoulder injury.
I accord significant weight to the OHCOW ergonomist’s report dated September 7, 2021. The report is objective, balanced and based on a complete and accurate understanding of the nature and characteristics of the work duties this worker performed as a xxx. The OHCOW ergonomist had the opportunity to conduct an in-person interview with the worker, obtain a full and complete history of the onset of their bilateral shoulder problems and complete a comprehensive review the employer’s Physical Demands Analysis Report.
I accept the OHCOW ergonomist’s evidence that supports the change in job mechanics to commercial trucks exposed the worker to frequent and awkward shoulder motions (pulling, pushing, horizontal and forward reaching) is the significant contributing factor that led to the worker’s bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome. The OHCOW ergonomist’s opinions are consistent with the OHCOW physician’s opinions. In a medical report dated February 6, 2023, the OHCOW physician expressed the following medical opinions:
The subclavian vein is prone to compression and injury when it passes in the confined space between the first rib and the clavicle. This occurs when the arm is externally rotated or abducted at extreme degrees. A recurrent cycle of trauma and thrombosis leads to fibrotic stricture, turbulent blood flow and clot formation.
The most significant aspect of this worker’s case is the horizontal and reaching forward to open and close the window with their dominant right hand and arm. The worker’s right arm would be abducted and externally rotated to receive the documents from the travellers. The frequency is 100 vehicles per hour that translates into the right arm abducted and rotated awkwardly 200 to 400 times per hour.
If the worker’s blood clot was due to a congenital cause, then they most certainly would have developed the deep vein thrombosis well before the age of 30. This is not the case. The worker was 51 years old when the right subclavian deep vein thrombosis developed.
The worker’s previous right biceps tendonitis dating back to 2016 appears insignificant based on normal right shoulder x-rays.
There is documented proof of repeated micro trauma to the right arm in the worker’s job as a xxx as a significant contributing factor to the development of Paget-Schroetter Syndrome (another name for thoracic outlet syndrome).
The OHCOW physician’s medical opinions are consistent with the overwhelming medical opinions expressed by the worker’s several treating health professionals (physician, vascular surgeon and cardiovascular and thoracic surgeon) during the continuity period from August 2020 to January 8, 2021. The worker participated in extensive medical assessments and consultations to eliminate any potential other source or cause for their right subclavian deep vein thrombosis and thoracic outlet syndrome that included CT scans to rule out malignancy, endoscopy and colonoscopy. The results of all tests were negative. Simply put, there is a complete absence of valid, cogent reliable clinical objective medical evidence to suggest the worker’s right subclavian deep vein thrombosis and thoracic outlet syndrome was due to something other than the change in job mechanics that exposed them to awkward and frequent right shoulder movements and postures.
I agree with the OHCOW physician’s medical opinion the worker’s previous right biceps tendonitis dating back to 2016 is insignificant. In support of this position, I relied on the physician’s clinical chart notes during the continuity period from February 11, 2016 to June 2020 that documented the worker was not seen or treated for the right biceps tendonitis condition since the last clinic visit on November 1, 2016. On this date, the physician documented the right shoulder ultrasound report dated October 15, 2016 was normal with the exception of some acromioclavicular joint degenerative changes. The worker reported their right shoulder was improving and they were encouraged to increase exercises. The worker was not seen or treated in medical attention from November 1, 2016 to 2020 for an ongoing right shoulder problem. I am of the view the worker’s right biceps complaints dating back to 2016 is a single stand-alone event with no clinical significance.
Based on the totality of the medical evidence before me, I find the change in job mechanics that exposed the worker to repeated micro traumas with extended forward reaching, external rotation, abduction and forward flexion of the arms, right more than left, is the significant contributing factor to their bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome. There is no medical evidence submitted to the case record to rebut this finding.
I conclude the fifth criterion in the OPM Document No. 11-01-01 – Adjudicative Process – has been established because the diagnosis of a bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome is compatible with the nature and characteristics of the work duties performed as a xxx for commercial trucks. Accordingly, I find all of the required elements have been met in the OPM Document No. 11-01-01 – Adjudicative Process – to allow initial entitlement to a bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome.
The Appeals Services Division Practices and Procedures, February 2024, Practice guideline 4.6: Jurisdiction of issues (page 57) states the WSIB has a legislated obligation to resolve appeals within their jurisdiction. The scope of an appeal is generally addressed based on the issue/decision that is under dispute. However, there are circumstances where whole person adjudication (related-issue adjudication) of an appeal and the expansion of the issue agenda is required. In doing so, the Appeals Services Division has exercised its powers of determining its own practices and procedures under section 131 of the Workplace Safety and Insurance Act. The Appeals Resolution Officer’s decision to expand jurisdiction in an appeal is an administrative decision and is not subject to the usual appeal rights.
This document provides the Appeals Resolution Officer with the following guidelines to determine expanding jurisdiction in an appeal:
Are there sequential issues?
What is the express language of the decision/issue under appeal?
Are the issues intertwined/interconnected?
Does the decision require benefits flowing to be determined?
Since I have allowed initial entitlement to the worker’s bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome, I find there are several sequential issues flowing from this decision that include entitlement to:
LOE benefits from August 12, 2020 to November 6, 2020
LOE benefits following the recurrence of November 10, 2020 to the date of the right shoulder surgery on January 8, 2021
right shoulder surgery on January 8, 2021 and LOE benefits
In reaching this finding, I relied on the expressed language in the Case Manager’s reconsideration decision letter dated January 15, 2024 that examined all of the facts and evidence about these sequential issues. All of these entitlement issues are connected to the decision to allow initial entitlement to the worker’s bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome.
The following is my analysis and findings regarding these sequential entitlement issues.
- Entitlement to Full LOE Benefits from August 12, 2020 to November 6, 2020
I find entitlement to full LOE benefits from August 12, 2020 to November 6, 2020 (non-inclusive end date) is allowed.
The OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – states if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
I accord significant weight to the contemporaneous medical reports submitted to the case record from August 12, 2020 to November 6, 2020 that supports the worker was medically authorized to remain off from work. In the clinic chart notes, the physician provided the worker with medical notes authorizing lost time from work until all tests, referrals and consultations were completed for the worker’s right subclavian deep vein thrombosis. The physician discussed return-to-work with this worker and did not recommend a return to any type of work.
During the continuity period from August 12, 2020 to November 6, 2020, the worker attended with the general surgeon, vascular surgeon, cardiovascular and thoracic surgeon and anticoagulation specialist for pre-operative consultation. The worker also participated in diagnostic studies that included x-rays, CT scan, upper extremity venous doppler and right arm venogram. They consented to a colonoscopy and endoscopy on November 23, 2020 to rule out any malignancy as the cause for their right subclavian deep vein thrombosis. The medical reports submitted to the case record details with particularity the legacy of tests and assessments in an attempt to determine the appropriate diagnosis, medical intervention and treatment plans required prior to engaging in safe return-to-work planning activities.
Based on the above, I conclude the required elements in the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – are met to allow entitlement to full LOE benefits from August 12, 2020 to November 6, 2020 (non-inclusive end date).
- Entitlement to Recurrence of November 10, 2020 and LOE Benefits
I find entitlement to the recurrence of November 10, 2020 is allowed.
The OPM Document No. 15-02-05 – Recurrences – states that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that:
does not result from a significant new incident/exposure, and
is clinically compatible with the original injury/disease.
Significant Deterioration
This policy states if the significant deterioration results from a significant new incident/exposure (work-related or not) a recurrence is not considered. Instead, if the significant new incident/exposure is work-related, a new claim is considered.
If the significant deterioration occurs when there is no new incident/exposure or results from an insignificant new incident/exposure (work-related or not) a recurrence is considered.
A significant new incident/exposure is one of some consequence or importance (e.g., falling from a
ladder). An insignificant new incident/exposure is one of negligible consequence or importance (e.g., reaching for an object on a shelf).
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the 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 suitable occupation.
While a worker may take an occasional day off from work, this is generally not indicative of a significant deterioration.
Clinically Compatible
This policy states that, to establish that the significant deterioration is clinically compatible with the original injury/disease, 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/disease, and
there is a causal link between the significant deterioration and the original injury/disease.
To make these determinations, the WSIB considers the nature and severity of the significant deterioration, the original injury/disease and any relevant non-work-related conditions that are present.
The WSIB may also consider whether a worker has experienced continuing symptoms since the original injury/disease. 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.
Findings
There is no dispute the first criterion in the OPM Document No. 15-02-05 – Recurrences – has been met as the evidence documented to the case record supports the recurrence of November 10, 2020 did not result from a significant new incident/exposure of some consequence.
In reaching this finding, I relied on the employer’s evidence. In a letter dated November 23, 2020, the employer documented the worker attempted to perform modified clerical duties from November 6, 2020 to November 10, 2020 (inclusive). On November 10, 2020, the worker reported with right arm and hand swelling, pain, discomfort and discoloration.
The worker received further medical treatment by way of telephone consultation with the physician on November 11, 2020. The worker reported they developed a significant increase in right arm pain following a return to modified work duties for five days from November 6, 2020 to November 10, 2020. In the Health Professional’s Report (Form 8) dated November 11, 2020, the physician medically authorized the worker to be off from work.
I also find the second criterion in the OPM Document No. 15-02-05 – Recurrences – has been met as the weight of the medical evidence supports a causal relationship exists between the deterioration in the worker’s right subclavian deep vein thrombosis and thoracic outlet symptoms and their attempt to perform modified work duties during the period from November 6, 2020 to November 10, 2020. Despite the modified clerical duties, the worker’s use of the right arm with any movements above 90 degrees caused increased pain, swelling and discoloration. Their symptoms progressively worsened to the extent they were unable to remain at work beyond November 10, 2020.
The worker’s evidence is consistent with the medical evidence. I find it significant the right arm venogram report dated November 18, 2020 and the vascular surgeon’s consultation report dated November 25, 2020 captures the extent and description of the degree of occlusion in the right arm. Once the worker’s right arm is elevated above 90 degrees, the dominant collateral draining vein is fully compressed and occluded. The vascular surgeon noted the worker requires rib resection and thoracic outlet decompression. In this report, the worker reported they tried to return to work yet developed symptomatic swelling in the right arm within five days.
I find the weight of the medical evidence supports the clinical considerations of compatibility in the OPM Document No. 15-02-05 – Recurrences – have been established to support the allowance of entitlement to the recurrence of November 10, 2020.
In determining the extent and duration of the worker’s entitlement to full LOE benefits beyond the date they stopped working on November 11, 2020, I relied on the medical evidence submitted to the case record that documented the worker’s active participation in pre-surgical assessments, tests and a colonoscopy and endoscopy on November 23, 2020 to rule out any malignancy as the source of the worker’s right subclavian deep vein thrombosis. In the Health Professional’s Report (Form 8) dated November 11, 2020, the physician medically authorized lost time from work.
The weight of the medical evidence supports the threshold criteria in the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – has been met. The worker was totally disabled and unfit to return to any type of work from November 11, 2020 up to the right shoulder surgery on January 8, 2021. Accordingly, I find the worker is entitled to receive full LOE benefits from November 11, 2020 to January 8, 2021.
- Entitlement to Right Shoulder Surgery on January 8, 2021 and Ongoing LOE Benefits
Since I have allowed initial and ongoing entitlement to a bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome, entitlement to the recurrence of November 10, 2020 and full LOE benefits from November 11, 2020 to January 8, 2021, I find entitlement to the right shoulder surgery on January 8, 2021 and ongoing LOE benefits for post-surgical recovery is allowed.
In reaching this finding, I relied on the overwhelming contemporaneous medical evidence submitted to the case record during the continuity period from August 12, 2020 to January 8, 2021 that documents the extensive medical treatment plans, interventions and tests for the worker’s consistent and ongoing complaints of right shoulder problems arising from the right shoulder subclavian deep vein thrombosis and thoracic outlet syndrome. During this period, the worker participated in extensive tests (bilateral shoulder ultrasound, upper extremity venous doppler, x-rays and right arm venogram) and attended several clinical consultations with the physician, general surgeon, cardiovascular and thoracic surgeon and vascular surgeon. The area and location of the worker’s right shoulder pain symptoms and complaints remained unchanged. The diagnosis of a right subclavian deep vein thrombosis and thoracic outlet syndrome also remained unchanged.
I accord significant weight to the operative report dated January 8, 2021 that supports the clinical considerations of compatibility in the OPM Document No. 15-02-05 – Recurrences – have been met to support entitlement to the surgery and lost time for post-surgical recovery. In this report, the orthopaedic surgeon documented the post-operative diagnosis was right-sided venous thromboembolism secondary to venous thoracic outlet syndrome. The surgeon performed a right transaxillary first rib section and right anterior and middle scalenectomies. The findings documented in the operative report dated January 8, 2021 are consistent with the findings documented in the extensive medical reports submitted to the case record from several health professionals during the continuity period from August 12, 2020 to January 8, 2021. There is no need to repeat this information.
In my view, to the extent the surgical procedure did not take place until January 8, 2021 is directly attributable to the extensive tests and clinical consultations required as well as the delays due to the COVID-19 pandemic situation that limited timely access to health care treatment.
I find the threshold criteria in the OPM Document No. 15-02-05 – Recurrences – has been established to support entitlement to the January 8, 2021 right shoulder surgery and ongoing full LOE benefits.
- Duration of LOE Benefits beyond January 8, 2021
I find the worker is entitled to receive full LOE benefits from January 8, 2021 to February 10, 2021.
I accord significant weight to the medical evidence from the vascular surgeon that supports the nature and seriousness of the worker’s right shoulder injury following the surgery on January 8, 2021 prevented them from returning to any type of work until February 10, 2021. In support of this finding, I relied on the following medical reports:
In the follow-up report dated February 1, 2021, the vascular surgeon documented the worker’s incision was well healed with some pulling in the axilla region. A long discussion about recovery and return-to-work was discussed with the worker. The vascular surgeon opined the worker shoulder not have restrictions after six weeks.
In the FAF dated February 2, 2021 and in a medical report dated February 8, 2021, the physician documented the worker was medically cleared to start a graduated return-to-work plan within restrictions of reduced shift length, three consecutive days per week, avoid repetitive right arm lifting and avoid overhead movements. The worker also requires stretch and walk breaks every hour during the defined work schedule. The worker will be reassessed on March 15, 2021 to determine their recovery and trial four hours of tool use during an eight hour work shift.
There is nothing in the medical evidence to suggest the worker received medical clearance to start return-to-work planning activities before the vascular surgeon follow-up appointment on February 1, 2021.
I find the threshold criteria in the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – has been established to support entitlement to the payment of ongoing full LOE benefits from January 8, 2021 to February 10, 2021.
I am unable to make a finding on the worker’s entitlement to LOE benefits beyond February 10, 2021 because there is a complete absence of information from the worker and the employer regarding return-to-work planning activities. There is also a complete absence of medical evidence beyond the medical report dated February 8, 2021 that recommended a graduated return-to-work plan to start on February 10, 2021.
CONCLUSION
I conclude:
Initial entitlement to a bilateral shoulder strain, right subclavian deep vein thrombosis and thoracic outlet syndrome is allowed.
Entitlement to full LOE benefits from August 12, 2020 to November 6, 2020 (non-inclusive end date) is allowed.
Entitlement to the recurrence of November 10, 2020 and full LOE benefits from November 11, 2020 to January 8, 2021 is allowed.
Entitlement to the right transaxillary first rib resection with anterior and middle scalenectomy surgery on January 8, 2021 is allowed.
Entitlement to full LOE benefits from January 8, 2021 to February 10, 2021 is allowed.
I direct the Case Manager to:
Contact the worker and the employer to obtain information about return-to-work planning activities beyond February 10, 2021.
Obtain all outstanding medical information beyond February 8, 2021 regarding the worker’s right shoulder post-operative recovery.
Review and adjudicate the worker’s entitlement to LOE benefits beyond February 10, 2021 and their post-operative recovery from the right shoulder surgery on January 8, 2021 once the outstanding information noted in points 1 and 2 above is received to the case record. The results of this review are to be communicated to all workplace parties in writing, subject to the usual right of appeal.
The worker’s objection is allowed.
DATED February 26, 2024
S. Johnson
Appeals Resolution Officer
Appeals Services Division