Worker v. Employer Estate, 2025 CanLII 144156

20260003

REPRESENTED by:

HEARD by:

DATED:

JULY 14, 2025

ISSUES

The worker is objecting to the following under case file A:

The Case Manager’s decision of March 8, 2024, denying entitlement to degenerative changes in the lower back and right shoulder; and,
The Case Manager’s decision dated March 8, 2024, determining that maximum medical recovery (MMR) for the right shoulder/upper arm and lower back was reached on May 1, 2009 with no permanent impairment.

The worker is also objecting to the following under case file B:

The Case Manager’s decision dated August 26, 2016, determining that the left shoulder MRI findings of August 9, 2015 are not causally related to the workplace accident of October 8, 2009; and,
The Case Manager’s decision letter of November 8, 2024, determining that the work-related left shoulder strain fully resolved.

BACKGROUND

On November 18, 2008, under case file A, the worker was employed as a Creel Hand when they unexpectedly slipped and fell in a parking lot, injuring their right shoulder/upper arm and lower back.

Accommodated work was provided. Entitlement was allowed for a low back strain and right upper extremity strain. The worker resumed pre-injury duties on February 2, 2009. Correspondence from the worker dated March 3, 2009 confirmed that there had been no lost time. Entitlement to chiropractic treatment was extended until May 1, 2009.

On October 8, 2009, under case file B, the worker felt a sudden onset of left shoulder/elbow pain while lifting and loading cones. The Eligibility Adjudicator’s decision letter dated December 24, 2009 authorized entitlement for left shoulder/elbow strains as an unexpected result disablement injury. Loss of earnings (LOE) benefits were paid for the one lost shift of October 9, 2009. The worker resumed modified duties on October 13, 2009.

A Case Manager’s decision letter dated May 5, 2010 stated that there was no evidence to support an ongoing work-related injury and that there was no further authorization for treatment without additional medical documentation. The worker began a non-work-related absence on August 16, 2010, prior to returning to regular duties on September 20, 2010. Short-term disability (STD) benefits began on

May 29, 2012. Long-term disability (LTD) benefits began on September 26, 2012, and continued until May 2024. The worker contacted the Case Manager in August 2016 to report ongoing shoulder issues.

The administrative decisions dated February 19, 2025 and February 28, 2025 determined that the worker’s objections would be resolved as a hearing in writing. The issues are now before me.

AUTHORITY

Operational

Policy Manual

Published

11-01-01

Adjudicative Process

November 3, 2008

11-01-05

Determining Permanent Impairment

November 3, 2014

15-02-03

Pre-existing Conditions

November 3, 2014

15-02-04

Aggravation Basis

November 3, 2014

15-02-05

Recurrences

November 3, 2014

15-05-01

Resulting from Work-Related Disability/Impairment

February 15, 2013

and April 9, 2021

ANALYSIS

I find that ongoing entitlement to a work-related injury involving either shoulder or the lower back is not in order. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision, including the worker representative’s written submissions dated December 27, 2023 and March 26, 2025.

Worker representative’s position and remedy sought

The worker representative is seeking a determination that further entitlement is in order. The written submission of March 26, 2025 suggests that the worker’s symptoms and injuries are the result of the work-related claims in November 2008 and October 2009. It is argued that any degenerative findings noted in the medical reporting are either the result of 30 years of heavy work or permanent aggravations of the respective work accidents. In the view of the worker representative, these work-related conditions resulted in ongoing symptoms and the start of lost time in May 2012 due to the inability to perform the work duties. The worker representative maintains that language issues and a limited understanding of the Workplace Safety and Insurance Board (WSIB) process explains any perceived difficulties in the worker’s evidence and reporting.

It is the worker representative’s position that there has been no analysis as to whether the degenerative findings would have been caused or aggravated by the specific work accidents, including as a (gradual onset) disablement. The argument is made that the recognized workplace accidents were at a minimum a significant contributing factor in the ongoing impairment.

An alternate argument is presented that entitlement is in order for bilateral upper extremity injuries as a gradual onset disablement arising from the long-term performance of physically demanding work. The worker representative highlights that entitlement to Canada Pension Plan Disability (CPP-D) benefits were allowed on appeal, with entitlement being retroactive to September 2012. The worker representative points out that the worker’s CPP-D application specifically relates back pain, bilateral carpal tunnel syndrome (CTS), and bilateral knee pain to their work duties.

If the worker’s appeal is successful, the worker representative is requesting ongoing entitlement to bilateral shoulder and back impairments dating from 2009/2010, including recognition of permanent impairments. The written submission of March 26, 2025 requests entitlement to permanent impairments for a psychological injury and chronic pain disability (CPD), as well as consideration of entitlement as a (gradual onset) disablement injury from the work duties. Finally, the worker representative requests entitlement to full LOE benefits from May 30, 2012 to age 65 (February 27, 2024), less any applicable assignments.

Employer’s position

The Participant Forms issued to the employer on June 11, 2024 and January 3, 2025 were not returned. The employer has not provided any specific arguments or written submissions with respect to the issues currently under appeal.

Jurisdiction

I appreciate the worker representative’s request for entitlement to psychotraumatic disability and CPD. The written submission of December 27, 2023 points out that a psychiatric report dated July 10, 2014 determined that the worker was totally and permanently disabled. The written submission summarizes psychological reports dating from July 10, 2024 to September 23, 2016, as well as two psychological reports from November 2018.

Even so, the administrative decision dated February 28, 2025 determines that the jurisdiction in this current appeal is limited to the four issues listed above and does not include the following:

Psychotraumatic disability or CPD;
Entitlement to a permanent impairment or non-economic loss (NEL) determination; or,
Full LOE benefits to age 65.

Therefore, the scope of my decision will not include entitlement to psychotraumatic disability, CPD, entitlement to a permanent impairment/NEL, or the request for full LOE benefits to age 65.

I additionally appreciate that the worker representative is requesting consideration of entitlement on a gradual onset disablement basis as a result of a history of heavy physical work with the employer.

However, I must consider that the written submission of December 27, 2023 verifies that there is no specific evidence on record addressing the specific physical demands of the worker’s employment duties. I find it material that the Case Manager has not yet rendered a decision rendered a decision regarding entitlement on a gradual onset disablement basis arising from the work duties. As a result, I find that this issue is not properly before me at this time.

Entitlement to degenerative changes in the lower back and right shoulder under case file A

I am not persuaded that entitlement to degenerative changes in either the lower back or right shoulder is in order. The worker representative submits that the degenerative changes are caused or aggravated by the specific work accidents.

Policy 11-01-01, Adjudicative Process, requires clinical compatibility of diagnosis with the accident or unexpected result disablement history. To put it another way, the medical diagnosis must be shown to have resulted from, or been caused by, the work-related mechanism of injury. Policy 15-05-01, Resulting from Work-Related Disability/Impairment, outlines that benefits are only payable if it is established that the secondary conditions are causally linked (or related) to the work-related injury.

Policy 15-02-03, Pre-existing Conditions, requires a determination regarding the work-relatedness of the ongoing impairment. In order to do so, the relationship, if any, between the pre-existing condition, the work-related injury, and the worker’s impairment, is to be considered based on the clinical evidence.

Decision-makers are to consider if the clinical evidence demonstrates that the significance of the

pre-existing condition is so great that it overwhelms the impact of the work-related injury, rendering it insignificant. When this occurs, policy states that the work-related injury cannot be considered to be of sufficient significance in comparison to the pre-existing condition for benefits to continue.

Policy 15-02-03 provides the possibility of a pre-existing condition being aggravated or exacerbated as a result of the work-related injury. At the same time, I find that there must still be sufficient evidence that the work duties made a significant contribution to the claimed physical injury, even if it is not the sole factor or the most significant of all the potential factors. Similarly, Policy 15-02-04, Aggravation Basis, requires decision-makers to first determine entitlement by applying Policy 11-01-01 prior to considering entitlement to benefits on an aggravation basis. The intent of Policy 15-02-04 is to limit entitlement to the injury that is work-related.

In this case, the mechanism of injury on November 18, 2008 relates to a slip and fall in a parking lot. An Adjudicator documents on January 8, 2009 that the allowed diagnoses are a low back strain and a right upper extremity strain. An x-ray report of the right shoulder dated January 10, 2009 identifies mild osteoarthritis in the shoulder and acromioclavicular joints. Importantly, the x-ray report states that this finding may be the result of an old injury. As the slip and fall injury only predates this x-ray by approximately two months, I am not persuaded that the degenerative findings are causally related to, or worsened by, the workplace injury. In support of this viewpoint, I note that the Functional Abilities Form (FAF) completed on January 31, 2009 clears the worker for full duties by February 2, 2009. Furthermore, the chiropractic treatment extension request of March 16, 2009 confirms that a complete recovery is expected and that there are no factors delaying recovery. The chiropractor’s progress report dated

April 8, 2009 confirms that there are no complicating factors.

There is general agreement that the CPP-D medical report of August 10, 2013 lists the first condition as chronic back pain and that there is a MRI of the cervical spine dated August 2, 2016. I appreciate that on August 9, 2016 the worker verbally informs the Case Manager that they have pain in both shoulders, the left upper arm, and the back. On the same date, the employer verbally confirms that the worker returned to full regular duties and had been deemed fit to work approximately one to 1.5 years ago. I recognize that the physician’s report of May 11, 2023 discusses severe chronic lumbar pain since falling at work in 2008, and bilateral shoulder pain since 2009 after pulling heavy objects at work. Nevertheless, I find that the Case Manager’s decision letter of March 8, 2024 relating to the right shoulder flows from the slip and fall injury on November 18, 2008 and not the separate workplace accident of October 8, 2009.

To summarize, I am not persuaded that the degenerative changes or chronic physical pain in the lower back and/or right shoulder were caused by the slip and fall injury at work on November 18, 2008. In my opinion, there is insufficient objective clinical evidence to establish that degenerative changes are causally related to the strain injuries accepted as being work-related by the Adjudicator in 2009.

Therefore, it is my view that entitlement to the requested degenerative changes is not in order under either Policies 11-01-01 or 15-05-01. Moreover, I find that there is insufficient objective clinical evidence to establish that the degenerative changes in either the lower back or right shoulder were aggravated or exacerbated by the workplace accident of November 18, 2008. Accordingly, I find that the work-related entitlement cannot be extended to include the requested degenerative changes of the right shoulder and/or lower back.

Maximum medical recovery for the right shoulder/upper arm and lower back under case file A

I accept that the work-related right shoulder/upper arm and lower back strain injuries fully resolved by May 1, 2009.

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 to determine that a permanent impairment exists, decision-makers must confirm that the ongoing impairment is a result of the work-related injury. The term impairment refers to a physical or functional abnormality or loss, including disfigurement, which results from a workplace injury.

As discussed above, the FAF of January 31, 2009 confirms the ability to resume full duties by

February 2, 2009. The treatment extension request of March 16, 2009 indicates that a complete recovery is expected by May 1, 2009. The chiropractor’s extension request of April 8, 2009 verifies that improvement is expected over the following four to six weeks. I find that there is insufficient objective clinical evidence of any ongoing right shoulder issues after May 1, 2009 until the physician’s narrative report of May 11, 2023. In particular, I find that the narrative report of May 11, 2023 does not establish that there is an ongoing work-related right shoulder strain or lower back strain. Finally, I observe that neither shoulder is included in the summary of the diagnosed conditions listed within the CPP-D medical report dated August 10, 2023.

Policy 11-01-05 directs decision-makers to review the clinical evidence 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.

Based on the above-noted clinical evidence, I accept that there is no evidence of an ongoing

work-related right shoulder/upper arm and/or lower back injury as of May 1, 2009. Therefore, in keeping with Policy 11-01-05, it is my opinion that MMR was reached with no permanent impairment for these three areas of injury on May 1, 2009.

Left shoulder MRI findings under case file B

It is my view that the clinical findings documented within the left shoulder MRI report of August 10, 2016 are not related or the result of the workplace injury dated October 8, 2009.

As discussed above, Policy 15-05-01, Resulting from Work-Related Disability/Impairment, outlines that benefits are only payable if it is established that the secondary conditions are causally linked (or related) to the work-related injury.

Policy 15-02-05, Recurrences, requires there to be a significant deterioration that is clinically compatible with the original injury and does not result from a significant new incident. To put it another way, the current diagnosis must be related to, or the result of, the workplace accident or injury. To make this determination, decision-makers are to consider the nature and severity of the significant deterioration, the original injury, and any relevant non-work-related conditions that are present.

Policy 15-02-05 defines the term significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. While not required to establish a causal link, policy provides the authority for decision-makers to consider if there were continuing symptoms as demonstrated by ongoing treatment, the reporting of complaints, or continuing workplace accommodations.

The worker representative’s written submission of December 27, 2023 outlines that the accident history of October 8, 2009 involved the worker twisting their left shoulder while lifting a 15-pound cone. There is general agreement that the claim was allowed for a left shoulder and left elbow strain with a return to work after one lost shift on October 9, 2009. As summarized by the worker representative, an MRI of the cervical spine dated August 2, 2016 shows mild to moderate degenerative changes, while clinical notes dated November 18, 2018 identify arthralgias.

The MRI report of August 10, 2016 (relating to the left shoulder MRI performed on August 9, 2016) identifies the following:

Marked tendinosis of supraspinatus tendon;
Moderate tendinosis of infraspinatus tendon associated with a tiny delaminating partial tear and possible also associated with mild calcific tendonitis;
Mild tendinosis and tiny insertional tear of subscapularis tendon; and,
Moderate tendinosis and a tiny partial interstitial tear of the long head of the biceps tendon.

The worker’s verbal statement of August 16, 2016 requests reopening the claim for treatment of the left shoulder and that there has been pain on and off over the years. The Shoulder Program of Care initial assessment report of August 18, 2016 provides a diagnosis of biceps tendon tear and a partial thickness rotator cuff tear/tendonitis, as well as rotator cuff tendinitis. Once more, the physician’s narrative report of May 11, 2023 refers to bilateral shoulder pain since 2009 after pulling heavy objects at work.

When reviewing the evidence, I find it material that the MRI of the left shoulder takes place more than six years after both the accident date for a sudden onset left shoulder/elbow strain and the worker’s subsequent return to full duties. It is also my view that the accident history of lifting and loading cones weighing approximately 15 pounds is not clinically compatible with the mild to marked findings identified within the left shoulder. As a result, I am not persuaded that the criteria of a clinically compatible significant deterioration required under Policy 15-02-05 is established. For similar reasons, I find that secondary entitlement is not in order under Policy 15-05-01 as I do not accept that the clinical conditions shown on the left shoulder MRI in August 2016 are causally related to either the accident history of October 8, 2009 or the resulting strain injury of the left shoulder/elbow. Consequently, I find that there is insufficient evidence to establish entitlement to the left shoulder tendinosis/tendonitis (including the associated tear) shown within the MRI performed in August 2016.

Did the work-related left shoulder and left elbow strain fully resolve under case file B?

The worker representative’s written submission of December 27, 2023 requests consideration of both the left shoulder and left elbow. I am aware that the Case Manager’s decision letter of November 8, 2024 states that the work-related left shoulder strain fully resolved while not mentioning the left elbow.

However, I note that this decision letter upholds the prior decision dated August 26, 2016, and references the decision letter of May 5, 2010 denying ongoing entitlement to either the left shoulder and/or left elbow. I observe that the decision letter of May 5, 2010 documents that the worker received treatment for the 12-week period associated with the expected usual healing time and that it was now seven months after the accident date of October 8, 2009. Thus, I accept that the issue before me relates to the question of if both the left shoulder and left elbow fully resolved under case file B.

As mentioned above, the decision letter of December 24, 2009 authorizes entitlement to a strain injury of the left shoulder/elbow as an unexpected result disablement, with LOE benefits approved for the one lost shift of October 9, 2009. On April 16, 2010, a Nurse Consultant documents that the worker has returned to regular duties and approves the extension of chiropractic treatment to April 8, 2010 for the left shoulder. The Case Manager then documents on May 5, 2010 that MMR is accepted to have been reached with no permanent impairment effective April 8, 2010. Based on the evidence summarized above, I find that there is insufficient objective clinical evidence relating to any shoulder or elbow condition from April 9, 2010 until August 2016.

Therefore, I find that there is no evidence of an ongoing left shoulder or left elbow strain injury as of the end of authorized treatment on April 8, 2010. In accordance with Policy 11-01-05, I accept that MMR was reached with no permanent impairment for the work-related left shoulder and/or left elbow injury as a result of the workplace accident under case file B. For this reason, I find that there is no ongoing entitlement to the left shoulder/elbow and that the work-related strain injury fully resolved.

CONCLUSION

I conclude the following under case file A:

There is no entitlement to degenerative changes in the lower back and/or right shoulder.
Maximum medical recovery (MMR) for the right shoulder and lower back was reached with no ongoing impairment (including a work-related permanent impairment) on May 1, 2009.

I conclude the following under case file B:

There is no entitlement to the left shoulder MRI findings of August 2016 as they are not causally related to the workplace accident of October 8, 2009.
The work-related left shoulder and left elbow strains fully resolved as of April 8, 2010, with no work-related permanent impairment.

The worker’s objection under case file A is denied.

The worker’s objection under case file B is denied.

DATED JULY 14, 2025

Kevin MacMillan

Appeals Resolution Officer Appeals Services Division