APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240054
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: K. MACMILLAN, APPEALS RESOLUTION OFFICER
ISSUES
The worker, through their representative, is objecting to the following:
The Eligibility Adjudicator’s decision of February 5, 2020 denying entitlement to the left shoulder, including the diagnosis of tendonitis; and,
The Case Manager’s decision letter dated August 13, 2020 determining that the work-related thoracic (upper back) strain reached maximum medical recovery (MMR) with no permanent impairment as of December 21, 2019.
BACKGROUND
On October 10, 2019, the worker was in the course of employment pulling a wheeled tote weighing approximately 22 pounds to 40 pounds. The worker dragged the tote from waist level for less than 20 metres when they experienced a burning sensation in the upper back area (left of the spine). Medical attention took place on October 22, 2019. The worker was diagnosed with a left upper back strain. A Workplace Safety and Insurance Board (WSIB) decision letter dated November 5, 2019 allowed initial entitlement to health care benefits for the upper back. The treatment within the Program of Care (POC) ended December 16, 2019.
On January 6, 2020, a WSIB Clinical Expert approved the chiropractic POC from October 21, 2019 until December 16, 2019, as well as the seven fee-for-service sessions provided between December 17, 2019 and January 6, 2020. The Clinical Expert approved six fee-for-service sessions starting January 8, 2020 until February 5, 2020 to assist with recovery. A letter confirming entitlement to chiropractic treatment from December 16, 2019 to February 5, 2020 was issued on January 7, 2020.
The Eligibility Adjudicator’s decision letter of February 5, 2020 confirmed that entitlement had been allowed for an upper back strain injury. The decision letter stated that there was no medical documentation regarding the left shoulder prior to the Functional Abilities Form (FAF) dated January 27, 2020. The Eligibility Adjudicator denied entitlement to health care benefits for the left shoulder on the basis that there was no medical evidence to support this area as a work-related injury until three months post-injury. On August 11, 2020, the Case Manager verbally suggested that the worker obtain an updated assessment for the thoracic region without starting treatment and to discuss the left shoulder with the family doctor to determine if further investigations were required. The decision letter of August 13, 2020 determined that the thoracic sprain/strain fully resolved by December 21, 2019. The Case Manager upheld the denial of entitlement to the left shoulder as the injury was not compatible with the pulling incident of October 10, 2019.
Correspondence from the employer representative dated March 15, 2022 notes that there is a left shoulder claim under case file xxxxxxxx listing the same accident date of October 10, 2019. The Case Manager’s reconsideration letter of April 28, 2023 reviewed the MRI of August 21, 2022 prior to confirming the denial of entitlement to the left shoulder. The Eligibility Adjudicator’s reconsideration letter dated March 22, 2024 noted that diagnostic imaging confirmed the presence of a C3-C5 disc protrusion.
The reconsideration letter outlined that the MRIs of March 18, 2022 and August 21, 2022 showed a superior labrum anterior and posterior (SLAP) tear as well as rotator cuff tendinosis without a discrete tear, and a small subacromial-subdeltoid bursal effusion. The reconsideration letter stated that SLAP tears may be caused by repetitive overhead motion, falling onto an outstretched arm, or the natural aging process. The Eligibility Adjudicator noted that the event of October 10, 2019 was a sudden onset of pain while the Worker’s Report of Injury in the new shoulder claim indicated repetitive duties as the cause of injury. The reconsideration letter upheld the denial of entitlement to the left shoulder as the diagnoses did not relate to the mechanics of pulling the wheeled tote on October 10, 2019.
The Appeal Readiness Form signed March 5, 2024 requested that the worker’s objection to the decisions of February 5, 2020 and August 13, 2020 be addressed as a hearing in writing. On April 3, 2024, the Appeals Coordinator confirmed that there was no active appeal under case file xxxxxxxx. The Respondent Form of May 14, 2024 confirmed agreement with proceeding with a hearing in writing. The worker’s objections to the denial of entitlement to the left shoulder and the MMR determination are now before me.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process 11-01-05 Determining Permanent Impairment
November 3, 2008 November 3, 2014
ANALYSIS
I find that the work-related injury is limited to the thoracic sprain/strain injury that fully resolved by the MMR date of February 5, 2020. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Procedural issue concerning documentation within case file xxxxxxxx
I am aware that the employer representative’s request for a copy of case file xxxxxxxx under Access was denied. The written submission of May 14, 2024 requests the Appeal Resolution Officer to review the medical information under case file xxxxxxxx and release it under Access. If there is no new information under this other claim, the employer representative requests the Appeals Resolution Officer to confirm in writing within the pending hearing in writing decision under the case file yyyyyyyy.
I have reviewed case file xxxxxxxx and note that the worker is claiming a repetitive strain injury under that claim as already discussed above. While I observe that there is a report from the physiatrist dated July 24, 2020 that is not within case file yyyyyyyy, I find that it does not provide any additional information that isn’t already contained within the physiatrist’s other reports that are within case file yyyyyyyy. Similarly, I find that the Health Professional’s Report of February 1, 2024 under case file xxxxxxxx does not contain any material information that is not provided within other reports within the case file before me. Therefore, it is my opinion that any relevant information within case file xxxxxxxx is already contained within case file xxxxxxxx and has been shared with the employer representative.
Worker representative’s position and remedy sought
The worker representative is seeking entitlement to a C3-C5 disc protrusion and a possible SLAP tear of the labrum of the left shoulder.
It is the worker representative’s position that although the initial diagnosis was a left thoracic sprain/strain, further diagnostic testing confirmed the two new diagnoses. The worker representative maintains that even if the worker has reached MMR for the thoracic sprain/strain, they continue to suffer from the other conditions identified by MRI.
The worker’s written submission of July 6, 2020 argues that the left shoulder ultrasound provides the diagnosis of calcific tendinosis and tendinosis of the rhomboid tendons from repetitive work causing upper back pain. The argument is made that the predominant injury resulted in injuries to the upper back and left shoulder area which is supported by the ultrasound and the doctor’s requisition to the physiatrist.
If the worker’s appeal is successful, the worker representative is requesting ongoing entitlement for a work-related injury, including the C3-C5 disc protrusion and SLAP tear of the left shoulder.
Employer representative’s position
The employer representative submits that entitlement to a left shoulder injury, including the diagnoses of calcification and rhomboid tendinosis, is not in order as these diagnoses are not related to the incident of October 10, 2019. The employer representative argues that the MRI and ultrasound results are more supportive of age-related degenerative changes than a work-related injury. With respect to the MRI of the cervical spine and upper thoracic spine, it is argued that the incident of October 10, 2019 would not reasonably result in such findings, especially without any acute symptoms for a period of three months.
It is the employer representative’s position that it must be assumed that the MMR date is February 5, 2020 even though the decision letter of August 13, 2020 does not reflect this date. While the employer representative agrees that the worker recovered from the thoracic strain, the actual date of MMR should be clarified.
1) Entitlement the left shoulder and neck
I am not persuaded that entitlement is in order for the left shoulder, including a possible SLAP tear or to a C3-C5 disc protrusion of the neck. Rather, I accept that entitlement is appropriately limited to a thoracic sprain/strain injury for the accident date of October 10, 2019.
Policy 11-01-01, Adjudicative Process, requires compatibility of diagnosis to 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.
The Health Professional’s Report of October 30, 2019 verifies the area of injury as the left upper back and confirms the diagnosis of a left upper back strain. The Employer’s Report of Injury signed on November 4, 2019 documents that the worker reported pain in the upper back after pulling a tote. The employer encloses confirmation that the tote weighs between 22 pounds and 44 pounds, and requires 2.5 pounds to push when full. Similarly, the Worker’s Report of Injury signed November 8, 2019 describes pain in the left upper back while pulling the tote. The FAF dated November 14, 2019 documents ongoing left upper back pain while the FAF of November 28, 2019 outlines an increase of back and neck pain. The clinical chart note of December 2, 2019 confirms a thoracic strain and neck pain.
The chiropractor’s POC assessment report submitted on December 3, 2019 lists the area of injury as being the left thoracic region. I observe that the Clinical Expert’s discussion with the chiropractor on January 6, 2020 relates to the thoracic and cervical (neck) regions. While the Clinical Expert authorizes further treatment, I must consider that this is documented as relating to the diagnosis of an upper back sprain/strain injury. As referenced by the Eligibility Adjudicator and employer representative, it is not until the clinical chart note of January 27, 2020 that a left shoulder condition is documented, consisting of rotator cuff tendonitis. The associated FAF of the same date indicates that the worker now has left shoulder pain, which I interpret as suggesting that onset of symptoms is fairly recent.
I appreciate that the doctor’s letter of February 14, 2020 explains that the worker has been having left shoulder pain since October 10, 2019 but did not present to them with left shoulder complaints until January 2020 as the upper back pain was more severe. Regardless, Policy 11-01-01 requires me to consider the most appropriate diagnosis. I observe that the left shoulder ultrasound of June 24, 2020 identifies calcific tendinosis in the infraspinatus tendon. The physiatrist’s reports dated April 5, 2021, June 30, 2021 and November 17, 2021 document performing injections over the entire left shoulder girdle. A report from the physiatrist dated January 12, 2022 recommends permanent restrictions.
As referenced by the worker representative, an MRI of the cervical/thoracic spine dated March 18, 2022 identifies mild degenerative changes with small central disc protrusions from C3-C5. The MRI of the left shoulder performed on the same date describes the suspicion of a SLAP tear of the labrum with paralabral cyst formation. An MRI of the left shoulder dated August 21, 2022 describes there being no significant progression in the extent of the known SLAP tear. The MRI provides a diagnosis of rotator cuff tendinosis without a discrete tear. The physiatrist’s report of September 26, 2022 documents further injections. A FAF completed by the physiatrist on July 24, 2023 states there are medically necessary restrictions for the left upper thoracic and shoulder girdle.
Once more, Policy 11-01-01 requires clinical compatibility of diagnosis with the accident or disablement history. I note that the accepted mechanism of injury in this claim is an onset of left upper back pain from pulling a wheeled tote less than 44 pounds fewer than 20 metres. I find that there is insufficient evidence of any sudden loading of the left shoulder, external trauma, or overhead activities relating to the workplace incident of October 10, 2019. On this basis, it is my view that clinical compatibility is not established between the mechanism of injury on October 10, 2019 and a left shoulder SLAP tear, calcific tendinosis, rhomboid tendinosis, or rotator cuff tendinosis without a discrete tear.
Further, I accept that there is no evidence of any left shoulder symptoms or associated complaints between the specific incident of October 10, 2019 and the doctor’s documentation of January 27, 2020. While I appreciate the argument that the left upper back symptoms were initially more significant, I find that there still must be evidence of left shoulder problems to establish continuity of symptoms for the three-month period between the date of injury and the date of first medical attention relating to the left shoulder.
In addition, I find that there is insufficient medical evidence or any clinical opinion to suggest that the small central C3-C5 disc protrusions are related to the worker’s symptoms and are not just simply an incidental finding from the MRI of March 18, 2022. In support of this determination, I find that the physiatrist’s report of September 26, 2022 does not support there being a cervical disc injury. Therefore, I am not persuaded that clinical compatibility is established between the workplace accident and the diagnosis of C3-C5 disc protrusions.
For all of the above-noted reasons, I find that the policy criterion of clinical compatibility is not present for either a left shoulder or cervical spine injury. Consequently, I accept that entitlement is appropriately limited to an upper back (thoracic) sprain/strain injury.
2) Maximum medical recovery
I accept that the work-related thoracic sprain/strain fully resolved by the end of authorized treatment on February 5, 2020.
I recognize the worker representative’s argument that the worker continued to have symptoms. The employer representative points out that the POC discharge report of December 21, 2019 indicates that the worker has not recovered from all symptoms. There is general agreement that the WSIB letter dated January 7, 2020 authorizes further chiropractic treatment to February 5, 2020.
Policy 11-01-05, Determining Permanent Impairment, defines the term maximum medical recovery (MMR) as a plateau in recovery at which point further significant improvement in the work-related injury is unlikely. Policy outlines that in order to determine that a permanent impairment exists, decision-makers must confirm that the ongoing impairment is a result of the work-related injury. Policy 11-01-05 directs decision-makers to review the clinical evidence in order to determine MMR and if there is any ongoing work-related impairment. A recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time that MMR is reached.
I am aware that the Clinical Expert authorizes further chiropractic treatment for the work-related diagnosis of upper back sprain/strain. While the clinical chart note of January 27, 2020 documents normal range of motion of the thoracic spine, I must consider that the doctor confirms the diagnosis of an ongoing thoracic strain. Similarly, the clinical chart note of February 3, 2020 lists an ongoing thoracic strain. That being said, I find that there is insufficient evidence of an ongoing work-related thoracic sprain/strain injury from February 5, 2020 onward. In particular, I find that the physiatrist’s injections into the left shoulder girdle is insufficient to establish an ongoing upper back sprain/strain injury in light of the MRI and ultrasound findings summarized above.
Therefore, it is my opinion that there is insufficient objective evidence of an ongoing work-related thoracic sprain/strain injury as of the end of authorized treatment on February 5, 2020. Consequently, I find that there is no evidence of an ongoing work-related impairment as February 5, 2020. As a result, and in keeping with Policy 11-01-05, I accept that MMR was reached for the work-related thoracic sprain/strain injury with no ongoing impairment on February 5, 2020.
CONCLUSION
I conclude the following:
- The request for entitlement to the left shoulder, including the diagnosis of tendonitis (both calcific and rhomboid), is denied.
There is no entitlement to a superior labrum anterior and posterior (SLAP) tear of the left shoulder or to the diagnosis of a C3-C5 disc protrusion.
The limitation of entitlement to a sprain/strain of the thoracic/upper back is confirmed.
- The work-related thoracic (upper back) sprain/strain reached maximum medical recovery (MMR) with no permanent impairment as February 5, 2020.
The MMR date is to be adjusted from December 21, 2019 to February 5, 2020.
The worker’s objection is allowed in part.
DATED June 24, 2024
K. MacMillan
Appeals Resolution Officer Appeals Services Division