The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 3, 2000, at the request of the claimant. The Panel discussed this appeal on April 3, 2000.

Issue

Whether or not the claimant's left shoulder complaints are causally related to the compensable accident of July 17, 1997.

Decision

The claimant's left shoulder complaints are not causally related to the compensable accident of July 17, 1997.

Background

The claimant submitted an application for compensation benefits reporting injuries to his right leg, both ears and right side of back when he fell 20 feet through the floor at a construction site landing on machinery. The date of accident was July 17, 1997. Subsequent medical information revealed the following:

• on July 22, 1997, an emergency physician reported that the claimant had an open wound to the right thigh and was referred to a plastic surgeon.
• the plastic surgeon, on August 11, 1997, stated the claimant still had an opening in his right lateral lower thigh and that stitches were removed. The claimant complained of pain in his lower back and his right knee.
• on October 16, 1997, the claimant was treated by an orthopaedic specialist who suspected that the claimant injured his anterior cruciate ligament and that there might be an associated meniscal injury. On December 22, 1997, the claimant underwent surgery and the postoperative diagnosis was "partial tear of the anterior cruciate ligament, chondromalacic changes of the medial femoral condyle." By February 3, 1998, the orthopaedic specialist stated that the claimant's left knee condition improved significantly and that physiotherapy was finished. The claimant returned to regular duties in February 1998.

On June 7, 1999, the claimant spoke with a Workers Compensation Board (WCB) adjudicator regarding shoulder problems which he related to the July 17, 1997, accident. The claimant stated that his shoulder problems began a few months after the accident. It started with a dull ache and progressed from there. The claimant advised that he saw his family doctor and that he had mentioned to the doctor all along that he had shoulder problems but in November 1998 he definitely knew there was something wrong with his shoulder. The family physician took x-rays and he was referred to an orthopaedic specialist. The orthopaedic specialist arranged for an MRI on May 7, 1999, and it was determined that surgery was required. The claimant stated there was no new accident at home or at work to account for his shoulder difficulties.

In a letter dated June 11, 1999, the family physician reported that another physician saw the claimant at the clinic on January 7, 1991 after a tobogganing accident where he fell on his left shoulder. The claimant was diagnosed with a left shoulder separation of the AC joint. Tylenol #3 was given for pain relief. The left acromioclavicular joint showed no abnormality and left shoulder x-rays showed no fracture or dislocation. In a follow-up examination on January 21, 1991, the claimant was diagnosed with left AC joint strain and deltoid strain. The claimant was referred to physiotherapy. The claimant was also assessed on November 4, 1993 for left shoulder pain. Examination showed some crepitus in the left shoulder and discomfort over the deltoid insertion. He was treated with Flexeril and was referred to an orthopaedic surgeon.

When seen on November 28, 1998, the family physician noted that the claimant complained of achy shoulders which creaked and grinded. The claimant admitted to waking up at night with some discomfort and occasional paraesthesia of his arm and fingers. Left shoulder x-rays showed no fracture or dislocation. A prominent spur was seen arising from the inferior aspect of the acromioclavicular joint which caused slight narrowing of the rotator cuff outlet. There was no abnormal calcification about the joint and no other significant bone or joint abnormalities were identified.

Reports from the orthopaedic specialist dated February 17, 1999, showed that the claimant was assessed for bilateral shoulder pain. The specialist stated that the claimant's left side was more chronic and was more troublesome than the right. The claimant thought he might have injured his left shoulder some eight years ago. The left shoulder had been doing well until the last year. The specialist indicated that the claimant had difficulty lifting both arms up with any heavy weight. Following examination, it was suspected the claimant may have chronic impairment syndrome with possible cuff tear and arrangements were made for a left shoulder MRI.

A MRI report dated May 1, 1999, revealed the following impression:

1. moderate joint effusion;
2. large complete tear of supraspinatous and infraspinatous associated with retraction and severe atrophy; and
3. bicipital tendinitis.

On August 10, 1999, Rehabilitation & Compensation Services advised the claimant that there was no medical information confirming an injury to his left shoulder at the time of his fall in July 1997. File documentation did not confirm that the claimant received any treatment to his shoulder until after 1998 and early 1999. At the time of treatment to the left shoulder, the history mentioned to the doctors was of bilateral shoulder pain. Given the lack of information confirming any injury occurring to the left shoulder in July 1997, no responsibility would be accepted for any treatment to the shoulder.

In a letter to Review Office dated September 16, 1999, the claimant indicated he had serious "discomfort and pain" with his shoulder since the accident. The office staff, the men he worked with and the employer were all aware of his shoulder difficulties. The reason for not seeing a doctor at first was because the medication he was using for his leg and knee masked the pain in his shoulder. He said he also experienced soreness and discomfort in other areas of his body and fatigue since the accident.

On October 8, 1999, Review Office confirmed the decision not to accept responsibility for the claimant's left shoulder condition. Review Office stated that the evidence was clear in that no mention of any shoulder injury was made following the July 17, 1997, accident until November 19, 1998, a 16 month gap. Review Office stated that physicians were provided with a history of shoulder problems dating back to 1991. When the physicians indicated the history of the left shoulder condition they did not mention the July 17, 1997 accident on their original reports. Review Office indicated it was clear that the accident was not being described to these physicians when the claimant was asked for the history of the shoulder problem. It was noted that the initial medical report mentioned bilateral shoulder trouble, and not simply the left shoulder. There was a 16 month gap in reporting the symptoms to any physician and the first time the shoulder condition was brought to the attention of the WCB was in June of 1999, 23 months after the date of accident. The claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue in this appeal is whether or not the claimant's left shoulder complaints are causally related to the compensable accident of July 17, 1997. The relevant subsection of The Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.

In this case the claimant has requested consideration with respect to accepting responsibility for his left shoulder complaints as being related to the compensable event and therefore entitling him to further benefits. In order to grant the claimant's appeal the panel must find based on the weight of evidence that the shoulder condition is related to the compensable event of July 17, 1997.

In this appeal we reviewed all the evidence on file and given at the hearing and find that weight of the evidence, on a balance of probabilities, supports a finding that the claimant's left shoulder problems are not causally related to the compensable accident of July 17, 1997.

We note from the evidence that the claimant sustained multiple injuries as a result of his fall on July 17, 1997. The medical evidence received from various physicians who attended the claimant reveal injuries recorded as sustained to the claimant's right thigh, right knee, right chest, low back as well as to the left ear. The claimant's most severe injuries noted were a penetrating laceration to the right thigh which required debridement and that sustained to his right knee which required later surgery.

In reviewing the evidence, we note that it was not until February 17, 1999, approximately 18 months post accident, that an attending orthopaedic surgeon first references bilateral shoulder problems in a narrative report. We take specific note of the orthopaedic surgeon's comments in his February 17, 1999 report where he states with respect to the claimant's shoulders:

"The left side is more chronic and is more troublesome for the patient. He thinks he might have injured his left shoulder some eight years ago."

We further note a second attending orthopaedic surgeon's report, based on a examination of November 26, 1993, where the specialist states:

"Patient was tobogganing sometime probably early February 1991. He fell and hurt his left shoulder. Since then he has had some continuing discomfort."

We also note according to the family physician's report of June 11, 1999 that following the compensable accident of July 17, 1997, it was not until November 28, 1998 that the claimant presented with complaints of "bilateral achy shoulders" but that there is no reference made by the physician to any relationship to the compensable event.

In the same report the family physician does make reference to the claimant's 1991 tobogganing accident and to subsequent visits in 1993 for shoulder complaints. We concur with the Review Office with respect to the left shoulder that the claimant did not provide a history to his attending physicians which included reference to a relationship to the event of July 17, 1997 which, in our view, undermines a cause and effect relationship between the claimant's current left shoulder symptoms and the compensable event of July 17, 1997.

We find, on a balance of probabilities, that the claimant's left shoulder condition did not occur as a result of the compensable event of July 17, 1997. As the first evidence suggesting shoulder complaints did not come to light for an extended period after July 17, 1997, we find that the accident did not aggravate or enhance the claimant's pre-existing shoulder condition. Therefore the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of June, 2000