Workplace Safety and Insurance Board
DECISION NUMBER: 20240044
OBJECTING PARTY: WORKER
REPRESENTED by: SELF
RESPONDENT: EMPLOYER (NOT PARTICIPATING)
HEARING: HEARING IN WRITING
HEARD by: K. MACMILLAN, APPEALS RESOLUTION OFFICER
ISSUE
The worker is objecting to the Case Manager’s decision of June 28, 2023 to deny entitlement to a left shoulder injury.
BACKGROUND
On May 13, 2022, the worker was in the course of employment carrying a bucket of hot tar when they unexpectedly lost their balance as they were stepping into freshly laid waterproofing. The worker dropped the bucket and the hot tar splashed onto their left arm. There was immediate medical attention. Surgery for the full-thickness burn to the left inner arm was performed on May 19, 2022. An Eligibility Adjudicator’s decision letter dated June 3, 2022 allowed entitlement to health care benefits, as well as loss of earnings benefits from May 16, 2022 to June 3, 2022. A Case Manager authorized entitlement to a C8-T1 nerve root injury to the left forearm in a decision dated May 31, 2023. The Appeals Resolution Officer decision of January 9, 2023 authorized entitlement to loss of earnings benefits for the inclusive period of July 5, 2022 to July 24, 2022.
A Case Manager’s decision letter dated June 21, 2023 allowed entitlement to Adjustment Disorder with Mixed Anxiety and Depressed Mood. The Case Manager’s decision letter of June 28, 2023 outlined the following determinations:
- Maximum medical recovery (MMR) for the left arm burn was reached on May 4, 2023 with no ongoing impairment;
- The left arm nerve injury reached MMR with no permanent impairment on February 2, 2023;
- The psychological condition reached MMR with no ongoing impairment as of June 1, 2023; and,
- There was no entitlement to a left shoulder injury due to a significant delay in seeking medical treatment for the condition, and because full range of motion was documented on July 12, 2022.
The first reconsideration letter of September 11, 2023 stated that compatibility was not established between a left shoulder injury with the incident of May 13, 2022 as the Case Manager accepted that the mechanism of injury involved the splashing of tar onto the left forearm and finger. The letter outlined that there was a 31-week gap between the date of injury and the first report of left shoulder symptoms on November 14, 2022. A 54-week gap was noted between the incident and when the worker stated that they had reached out and grabbed the flexible chain at the time of injury to prevent themselves from falling. The Case Manager upheld the decision of June 28, 2023 as the accepted mechanism of injury did not establish a left shoulder injury. The Appeal Readiness Form signed January 19, 2024 confirmed that the worker would self-represent and was requesting that their objection to the denial of entitlement to a left shoulder injury be addressed as a hearing in writing. The issue is now before me.
AUTHORITY
Operational Policy Manual
- 11-01-01 Adjudicative Process (Published November 3, 2008)
- 15-02-01 Definition of an Accident (Published October 12, 2004)
ANALYSIS
I find that entitlement is in order to a work-related left shoulder injury as diagnosed within the orthopaedic surgeon’s report of October 17, 2023. 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’s position
The worker argues that they injured their left shoulder during the original accident of May 13, 2022. The written submission of July 11, 2023 highlights that entitlement has already been granted for a C8-T1 nerve root injury of the left arm that the Case Manager determined to be compatible with the accident history.
Entitlement to the left shoulder
I accept on a balance of probabilities that the worker’s left shoulder injury is the result of the workplace accident of May 13, 2022.
Policy 15-02-01, Definition of an Accident, provides the authority for decision-makers to consider factors that may be relevant to establishing proof of accident including if an accident situation exists. Policy 11-01-01, Adjudicative Process, 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. On account of these policy directives, I will first consider the mechanism of injury relating to the workplace accident of May 13, 2022.
What is the accepted accident history?
When assessing the evidence, I note that the hospital emergency report of May 13, 2022 documents exposure of the left upper extremity to scalding tar two hours ago. The Employer’s Report of Injury signed May 17, 2022 describes the worker carrying a bucket of hot tar when they stepped into freshly laid waterproofing. The employer indicates that due to the sticky nature of the hot tar, the worker’s shoes got stuck on the waterproofing, causing them to lose their balance and drop the bucket which resulted in the hot tar splashing onto the left arm. The physiatrist’s assessment report of September 28, 2022 documents an accident history of tripping on a bucket of tar and the tar splashing up. The physiatrist confirms that the worker is to have an EMG as there is a suspected involvement of the C8 to T1 nerve roots.
I observe that the worker’s verbal statement of October 19, 2022 verifies having the nerve test which apparently indicates some damage to the C7 and C8 nerve going up to the shoulder. The worker explains that originally the health care professionals thought that the damage was underneath the scar tissue, but that it has now been determined that it is above the burn site. The worker goes on to explain that the nerves were damaged when they used their left hand to grab the fence to stop themselves from falling after their arm was burned. Importantly, I note that the Burn Specialty Program’s report dated November 22, 2022 documents that the EMG of October 6, 2022 indicates a C8-T1 nerve root injury which is consistent with a fall at the time of injury. This same clinical interpretation is listed within the Burn Specialty Program’s report of May 2, 2023 which lists the C8-T1 nerve root injury as being work-related.
The psychiatric initial assessment of May 16, 2023 documents an accident history of the worker bracing themselves from falling over and hurting their shoulder. The orthopaedic surgeon’s report dated October 17, 2023 describes the worker being contacted by tar before they fell to the ground, injuring the left shoulder. A fall at work is listed as the history within the left shoulder MRI report of May 19, 2023. The Case Manager’s subsequent decision letter of May 31, 2023 notes that the worker reported a burning/prickling sensation in the left forearm during an assessment on September 28, 2022 and that the EMG of October 6, 2022 identified the C8-T1 nerve root involvement prior to the formal work-related diagnosis on November 22, 2022.
In summary, I accept that the evidence supports that the worker’s shoes became stuck in the fresh waterproofing on May 13, 2022, causing them to lose their balance and drop the bucket of hot tar, which then splashed up onto their left arm. I observe that the first indication of the worker reaching out to grab the fence to prevent themselves from falling is October 19, 2022, which is the same month that the EMG is performed confirming the C8-T1 nerve root injury. I note that the Case Manager’s decision letter of May 31, 2023 accepts entitlement to the C8-T1 nerve root injury which the Burn Specialty Program indicates is consistent with a fall at the time of injury. Further, I find it reasonable that the initial focus of the health care professionals and worker relate to the full-thickness burn requiring surgery as this was initially thought to be the cause of the worker’s other left upper extremity symptoms. Accordingly, for all of the above-noted reasons, I accept on a balance of probabilities that the accident history of May 13, 2022 includes the worker reaching out to grab the fence with their left arm in order to avoid falling onto the fresh waterproofing.
Clinical compatibility
It is my view that the policy requirement of clinical compatibility to accident history is established.
I am aware that the burn surgeon’s report of July 12, 2022 documents full range of motion of the shoulder joints and that the physiatrist’s report of September 28, 2022 confirms that there is full abduction. However, the Burn Specialty Program’s treatment report of November 14, 2022 documents limited strength with overhead movements of the left upper extremity which had not previously been tested. The report explains that there is full left shoulder strength with flexion, albeit in the presence of pain. Abduction of the left shoulder results in strength testing of 4+ out of a possible 5.
The MRI of the left shoulder dated May 19, 2023 is then requested to rule out a rotator cuff tear as the worker is unable to lift the left arm above shoulder level. The resulting clinical impression includes supraspinatus tendinosis without a tear. The orthopaedic surgeon’s report of October 17, 2023 documents reduced forward elevation, abduction, and external rotation compared to the right shoulder. The report provides the orthopaedic surgeon’s opinion that the worker’s left shoulder symptoms are due to traumatically induced supraspinatus tendinopathy and subacromial bursitis with associated capsular pathology secondary to the work injury. The follow-up report of February 20, 2024 indicates that the image-guided left subacromial subdeltoid bursal injection of local anaesthetic and cortisone had been helpful but has since worn off. A referral is made for a surgical consultation for arthroscopic management of a left rotator cuff injury., The report of February 20, 2024 includes the notation that the worker requires modified duties avoiding impact activities, overhead activities, climbing and any repetitive or forceful use of the left shoulder against resistance.
When weighing the clinical evidence, I afford the most weight to the clinical opinion of the assessing orthopaedic surgeon. Therefore, I accept that the policy requirement of clinical compatibility is established between the grabbing of the fence on May 13, 2022 to avoid falling and the orthopaedic surgeon’s work-related diagnosis of supraspinatus tendinopathy and subacromial bursitis with associated capsular pathology. Additionally, I note that the report of February 20, 2024 confirms that the worker requires left shoulder limitations and has been referred to another orthopaedic surgeon for an opinion regarding potential arthroscopy. As a result, the Case Manager is requested to attempt to obtain all outstanding medical reporting prior to determining if there is an ongoing work-related left shoulder injury beyond the date of February 20, 2024.
CONCLUSION
I conclude that entitlement is in order to the left shoulder for the work-related diagnosis of supraspinatus tendinopathy and subacromial bursitis with associated capsular pathology.
There are work-related left shoulder restrictions as of February 20, 2024 consisting of avoiding impact activities, overhead activities, climbing and any repetitive or forceful use of the left shoulder against resistance.
The Case Manager is requested to obtain all medical reporting dating after February 20, 2024 prior to determining ongoing entitlement to the left shoulder.
The worker’s objection is allowed.
DATED May 13, 2024
K. MacMillan Appeals Resolution Officer Appeals Services Division