DECISION NUMBER:

20240041

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

VIDEOCONFERENCE – MAY 24, 2024

HEARD by:

D. BOWKER, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES:

DATED:

INTERPRETER

MAY 31, 2024

ISSUES

The worker is objecting to the case manager’s November 22, 2023, decisions that denied initial entitlement to bilateral shoulder and cervical spine injuries, secondary entitlement to a cervical spine injury and entitlement to loss of earnings (LOE) benefits beyond September 11, 2009.

BACKGROUND

On May 2, 2005, this construction labourer injured their back while performing their regular job duties. This claim was established following an investigation for an L5-S1 disc herniation. The worker did not make a full recovery from their injury and received a 26% non-economic loss rating in recognition of the permanent impairment to their low back.

The worker did not return to work with the employer and is in receipt of partial LOE benefits to age 65 based on their ability to earn $9.50 per hour and work for 40 hours per week in a direct-entry suitable occupation or business.

In June 2019, the worker requested entitlement to a bilateral shoulder injury as a secondary condition resulting from their work-related back injury. The case manager denied entitlement to the worker’s bilateral shoulder injuries a secondary condition and the worker appealed this decision. The appeals resolution officer’s July 15, 2022, decision upheld this decision and noted initial entitlement was not properly before them as this had not been determined by the operating area.

The worker representative requested initial entitlement to the bilateral shoulders. They also requested consideration of either initial or secondary entitlement to the cervical spine and a decision the worker was unemployable as a result of their injuries.

The case manager’s November 22, 2023, decision found there was no initial entitlement to bilateral shoulder injuries as the available clinical evidence did not document an injury to the shoulder at the time

the worker was injured and there was no mention of the worker complaining of shoulder pain in any of the medical reports. The case manager further determined there was no entitlement to the cervical spine as there was no mention of a cervical spine injury and there were no clinical reports linking the worker’s neck pain as arising from the low back L5-S1 disc herniation.

As there was no additional entitlement to the requested areas of injury, the case manager found there was no entitlement to full LOE benefits and deferred to the appeals resolution officer’s July 15, 2022, decision the worker was capable of working full-time in a direct-entry suitable employment or business.

The objection to the decisions there was no entitlement to bilateral shoulders, cervical spine or LOE benefits forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

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

November 3, 2008

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker. My reasons follow.

Worker Position

The worker representative submits the worker was involved in a significant accident resulting in strain to their neck and upper body. The representative submits entitlement ought to be allowed and the worker’s entitlement to LOE benefits reviewed.

The representative submits the main issue in this appeal is the accident history and notes the worker testified they jumped while carrying 2 buckets of tools, landing flat footed on the frozen ground with an immediate onset of pain.

The representative notes the medical consultant reviewed the heavy lifting of the job and confirmed that caused the herniation, but the eligibility adjudicator did not review the worker’s actual account of what happened on the date of accident due to conflicting information between the worker’s statement they jumped and other co-workers stating this did not occur.

The worker representative submits there is a need to go back and review the actual accident history, the worker’s statement, and their sworn testimony they jumped with arms outstretched and holding heavy items as this, on the balance of probabilities, should demonstrate clear compatibility between the worker’s ongoing symptoms and the MRI findings.

The representative maintains the impact of landing flat footed with their arms outstretched would have been significant enough to cause damage to the worker’s neck and shoulders, therefore causing the worker to have entitlement to neck and shoulder injuries.

In the alternative, the worker representative is seeking secondary entitlement to a neck injury as a result of the back injury. The representative submits compensating for the back injury caused the worker to sustain more wear and tear on their neck.

Worker Testimony

The worker testified through the assistance of a X language interpreter they immigrated to Canada in 1992 and worked in construction jobs they found through friends. At the time of the injury, they had worked for the employer for approximately 2 years, doing restoration work.

The worker testified their work was frequently at heights and outdoors. The worker stated they primarily worked on apartment buildings.

The worker testified on the date of accident they were working on scaffolding that went from the ground to the roof of the building. They noted they did not leave the scaffolding on the ground at the end of the day as there was equipment on the scaffold that could be stolen. The worker stated when the scaffolding was stored for the evening it was usually stored off the ground so they would use a very long ladder that reached to where they were working to return to the ground.

On the day of accident. the helper responsible for setting up the ladder to lower the worker and their co- workers to the ground was gone at the end of the day. The worker testified their supervisor directed them to tie the scaffolding to the second floor and to jump from the second floor where they were working to the ground.

The worker testified they suggested leaving the scaffolding on the roof and taking the elevator rather than jumping down but the supervisor was in a rush and directed them to tie up the scaffolding and jump.

The worker stated there was a company rule specifying tools could not be left behind on a jobsite. They gathered their tools into a bucket to take with them. They noted they did not want to jump as they felt this was a bad idea. They jumped to the ground while holding 2 buckets and carrying tools on their waist in a pouch.

The worker testified they were two floors above the ground when they jumped. They noted at the time they jumped, it was a winter day with snow on the ground and they landed onto soil. The worker stated that when they jumped, they did not want to break the buckets, so they jumped with their arms outstretched, holding the buckets up to prevent them from touching the ground.

The worker noted they had dizziness and pain after they jumped from the building. The worker stated following their injury they were on parental leave as their child had just been born and they had some time off work. They subsequently went to their doctor for their pain and were referred for an MRI.

The worker testified their physician advised them they had injured 3 discs in their back and had a bad injury. The worker then filed a WSIB claim, and it was initially denied. They explained a WSIB claims investigator came to their home to interview them and the provided additional information regarding their back injury, including job duties that involved carrying heavy buckets of tar, filling containers with rocks.

The worker confirmed to the investigator they jumped while carrying tools and the WSIB claims investigator confirmed that caused a back injury, leading to the establishment of their claim.

The worker testified from the day of the accident onward, they have had pain all over their body. The worker noted that although they had an MRI of their lumbar spine and not their neck and shoulders, they have always had pain in their neck and shoulders.

The worker stated that although they had continuous pain in their shoulders, they did not have an MRI until many years after their accident. The worker stated they initially thought the pain in their back was

radiating from their back into other areas. They noted their pain has worsened over the years and approximately 5 years ago, they went for an MRI and became aware this was not radiating pain but an actual injury to the shoulders.

The worker testified they do not like to speak about their condition because the MRI does not show their pain or the persistence of their pain. The worker noted they find it difficult to discuss as it makes them feel quite emotional.

The worker testified their shoulder pain is constant, intense and interrupts their sleeping. The worker noted they had to sleep on pillows. They explained getting out of bed was difficult and activities such as washing their face took a long time due to numbness in their fingers and hands. The worker described difficulty gripping or grasping due to numbness in their fingers.

The worker stated they were referred to a neurologist for further investigation and was told the problems with their hands were not due to their back but an issue with their neck. The worker stated the neurologist advised their symptoms in the neck were the same as the ones in their shoulders.

The worker testified they have always had pain in their neck and shoulders. They stated they did report it to their chiropractor and their treatment included traction to address their neck pain. They indicate they have always had numbness in their hands since the injury. The worker noted it took time for them to speak to their physician about their numbness as they thought it came from their back and spine.

The worker testified the medications they were taking for their back pain was also relieving their neck and shoulder pain. They noted they continue to take medication to manage their pain. They demonstrated they use an ice pack, Deep Relief cream and they take Tylenol, and antidepressants to manage their pain every day.

The worker testified taking Tylenol numbed their pain but did not alleviate it completely. The worker stated they were seen by many specialists for their back pain and the last specialist they saw advised the worker they had the internal composition of a 90 year old.

Assessment of the Evidence

Based on my review of the claim file, the worker’s testimony, and policies 11-01-01 Adjudicative Process and 15-05-01 Resulting from Work-Related Disability/Impairment, I find there is no initial entitlement to bilateral shoulder injuries. I further find there is no initial or secondary entitlement to a neck injury.

When deciding on initial entitlement in a claim for WSIB benefits, Policy 11-01-01 Adjudicative Process

states 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 there is an employer, a worker or that the worker sustained a personal work-related injury. This appeal turns on whether the criteria for proof of accident can be satisfied. Proof of accident means the injury is a result of a work-related accident and is demonstrated by the relationship between

the work activity and the onset of the condition. The closer the reporting, medical attention, and layoff from work to the onset of the injury, the greater the causal relationship.

According to WSIB policy 15-05-01 Resulting from Work-Related Disability/Impairment, workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for new injuries. In order to consider entitlement to a secondary condition, there must be evidence this condition was caused by the workplace injury.

I have reviewed all the available medical evidence on the claim record. The clinical evidence at the time the worker was injured reflects the worker was seen for complaint of lower back pain radiating into their right leg. The worker consistently described the mechanism of injury as jumping from a height and experiencing pain in their lower back and legs. The Worker’s Report of Injury (Form 6) only indicated an injury to the lower back.

Subsequent progress reports received from the worker indicated the worker was experiencing a back injury, herniated discs, and sciatica.

On February 6, 2006, the WSIB claims investigator met with the worker and conducted an in-person interview. The worker reported constant pain in their low back and right leg. There was no report of any other areas of injury during this interview.

I note the worker was assessed by their family physician, multiple specialists, a physiotherapist, a chiropractor, psychologists, psychiatrists and through the Regional Evaluation Centre. There are no reports of an injury or pain to the shoulders or neck in any of these assessments. I do note there are indications the worker was presenting with a chronic pain syndrome as a result of their back injury but as there is no entitlement to a chronic pain diagnosis, this issue is not before me.

There is mention the worker was experiencing neck pain when they were seen in the fracture clinic by Dr. Kilman on December 20, 2006. Dr. Kilman’s notes from that assessment indicated the worker was experiencing neck pain with extension and lateral bend.

At an April 11, 2007, assessment, the worker was reporting neck pain and headaches to Dr. Killman. The worker’s diagnosis remained chronic mechanical low back pain.

Physiatrist Dr. Hajek documented the worker was experiencing severe migraines possible related to neck stiffness secondary to lack of exercise due to their back injury on May 7, 2007. There was no further information about the worker’s neck and no further information about the worker’s migraines.

On August 1, 2019, the worker’s physician Dr. Fernandez referred the worker to Dr. Leroux for assessment of bilateral rotator cuff tendinosis and bilateral hand numbness with possible carpal tunnel syndrome. There are no chart notes or reports available to me to explain when the worker began complaining of shoulder pain or how Dr. Fernandez arrived at this diagnosis.

The May 1, 2020, MRI of the worker’s shoulders indicated hypertrophic tearing of the supraspinatus tendons, degenerative tearing of the superior and posterior labrum bilaterally and bilateral osteoarthritic changes of the acromioclavicular joints.

Orthopaedic surgeon Dr. Leroux’s December 21, 2020, consultation report diagnosed hypertrophied supraspinatus tendon insertions with a full-thickness tear on the right side and a partial-thickness tear on

the left. Dr. Leroux felt the worker was a surgical candidate, but the worker wanted to try a course of physiotherapy.

X-rays and ultrasounds of the worker’s bilateral shoulders taken on October 22, 2021, indicated bilateral osteoarthritis, tenosynovitis, full thickness tears of the supraspinatus and a right full thickness tear of the right subscapularis tendon.

The worker saw Dr. Dubravka on September 6, 2022, for assessment of numbness and paraesthesia of the bilateral upper extremities. The worker reported experiencing right shoulder pain since 2005. The neurological examination was unremarkable. Electrodiagnostic testing showed evidence of bilateral sensorimotor median neuropathy at both wrists.

The case manager referred the worker’s claim to the medical consultant to assess whether the worker’s bilateral shoulder injuries were causally related to the 2005 workplace injury. The medical consultant reviewed the claim file on June 21, 2022, and provided the clinical opinion the worker’s bilateral shoulder injuries were not causally related to the 2005 work accident. The medical consultant noted there was no mention amongst multiple specialty assessments, independent evaluations and family physician records of any injury or complaint related to either shoulder until the May 1, 2020, MRI of the shoulders.

In this case, I must agree with the medical consultant. I cannot establish proof of accident for the neck or shoulder injuries as there was no reporting of or medical attention for these areas of injury until many years after the workplace injury.

As the only two notations of neck pain and occurred more than a year after the worker’s injury, it is difficult for me to establish the worker was experiencing ongoing neck pain. I further note Dr. Killman did not diagnose a neck injury but indicated the worker’s pain was occurring in the context of their back pain. I remain unable to establish a causal link between the workplace injury in 2005 and the neck pain reported in 2007.

The worker representative has submitted reviewing the accident mechanics of the worker jumping with arms outstretched and loaded with heavy buckets of tools will satisfy the compatibility between the workplace injury and the findings on the worker’s diagnostic imaging.

I must respectfully disagree with this. Accepting this mechanism of injury does not satisfy proof of accident as the significant delays between the worker’s reports of pain and their medical attention continue to make establishing a causal link difficult.

I found the worker to be a forthright and credible historian in their testimony but there is no corroborating evidence to support ongoing injuries to the worker’s shoulders and neck.

Similarly, while the worker representative has submitted the worker’s neck injury could have resulted as a secondary condition while compensating for their back injury, there is no clinical opinion correlating this. I have not been directed to any clinical evidence to confirm that compensating for their low back injury caused the worker to sustain an injury to their neck.

For these reasons, I am unable to allow entitlement to injuries to the workers neck and bilateral shoulders.

As I am unable to establish entitlement to these areas of injury and the worker’s entitlement remains unchanged at this time, I am unable to review the worker’s entitlement to LOE benefits beyond September 2009.

CONCLUSION

The worker’s objection is denied. I find there is no initial entitlement to bilateral shoulder injuries. I further find there is no initial or secondary entitlement to a neck injury.

DATED MAY 31, 2024

D. Bowker

Appeals Resolution Officer Appeals Services Division