The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 13, 2000, at the request of the claimant. The Panel discussed this appeal on July 13, 2000.

Issue

Whether or not responsibility should be accepted for the surgery performed on the claimant's left shoulder on July 19, 1999.

Decision

That responsibility should be accepted for the surgery performed on the claimant's left shoulder on July 19, 1999.

Background

During the course of his employment as a correctional officer on January 15, 1998, the claimant indicated that he sustained a left shoulder dislocation while repairing a flat tire.

On January 19, 1998, a sports medicine specialist diagnosed the claimant with a shoulder impingement. The specialist also noted that the claimant had a previous left shoulder operation 12 years ago. A referral was made to an orthopaedic specialist. The claim was accepted as a no time loss claim by the Workers Compensation Board (WCB) and medical costs associated with the injury were issued.

On June 24, 1999, the claimant contacted the WCB requesting that his claim be reopened as he was required to undergo surgery to his shoulder to repair damage directly related to the January 15, 1998, work injury. Medical information noted on file revealed the following:

• in a report addressed to a sports medicine specialist dated February 19, 1998, the orthopaedic specialist advised that the claimant's x-rays showed a reasonable glenohumeral joint. There was a type 2 hooked acromion. A bone scan showed some increased uptake in the glenohumeral joint compatible with degenerative changes. An MRI done two years ago showed no major tears. The orthopaedic specialist suggested that an arthrogram be arranged to make sure there were no tears.
• on April 16, 1998, the orthopaedic specialist reported that the claimant was having increased difficulties especially with feelings of instability in the shoulder together with a marked mismatch in external and internal rotators. The claimant was instructed to work at strengthening the external rotators in order to better balance the muscles about the shoulder.
• a left shoulder arthrogram report dated June 8, 1998, failed to demonstrate a supraspinatous tendon tear.
• on June 25, 1998, the orthopaedic specialist noted that the arthrogram results were negative. He injected the subacromial space with local anaesthetic and was of the opinion that if the claimant experienced a significant reduction in discomfort and improved function, then a decompression would be recommended.
• a July 19, 1999, operative report showed that the claimant underwent an arthroscopic stabilization and cuff decompression of the left shoulder.
• on September 1, 1999, a WCB medical advisor reviewed the medical reports at the request of primary adjudication. The medical advisor commented that the diagnosis with respect to the compensable injury was a "possible temporary aggravation of a chronic painful shoulder." The medical advisor was also of the view that the July 19, 1999, surgery was definitely not a direct result of the claimant's compensable injury. As well, multiple pre-existing conditions were prolonging the recovery period.
• on October 1, 1999, a WCB orthopaedic consultant was also asked to provide comments with respect to the medical reports noted on file. The consultant stated that there was evidence of degenerative changes in the glenohumeral joint which were likely causing the claimant's persistent symptoms. He did not see any evidence of enhancement of this problem as a result of the compensable injury. The consultant did not believe that the claimant had sustained a dislocation of his shoulder at the time of the January 15, 1998, compensable injury.

Compensation & Rehabilitation Services forwarded a letter dated October 7, 1999, to the claimant advising him that in the WCB's opinion, his current disability was the result of an underlying or pre-existing condition that was not enhanced or accelerated by the accident at work. Hence, no responsibility was being accepted for the July 19, 1999, left shoulder surgery. On October 7, 1999, the claimant appealed the decision and the case was referred to Review Office.

Prior to considering the appeal, Review Office wrote to two orthopaedic specialists for additional information. A signed statement was also obtained from the claimant together with an opinion from a WCB orthopaedic consultant on February 17, 2000.

In a decision dated February 25, 2000, Review Office confirmed that no responsibility would be accepted for the July 19, 1999, surgery that was performed on the worker's left shoulder.

Review Office noted that the first orthopedic specialist believed that the claimant had dislocated his shoulder on January 15, 1998, and that this resulted in the subsequent need for surgery, which consisted of a cuff decompression and a repeat stabilization procedure. The second orthopedic specialist, who treated the claimant in the latter part of 1995, indicated that the claimant had come to him with left shoulder complaints after pulling a small plant out of the ground. Examination at that time revealed no evidence of instability but a mildly tender rotator cuff with impingement pain. The claimant was booked for an arthroscopy because of a Type 2-3 acromion and ongoing rotator cuff symptoms.

Review Office commented on the fact that the WCB's orthopaedic consultant felt the evidence was unclear as to whether or not the claimant had sustained a subluxation/dislocation of the left shoulder on January 15, 1998. He did note, however, that the July 19, 1999, surgical report made reference that no joint instability was present. The consultant was of the opinion that the primary purpose for the July 19, 1999, surgery was to correct the impingement problem which had been proven to exist prior to the work injury on January 15, 1998.

Based on the above and after reviewing the claimant's statement, Review Office concluded that the surgery performed on July 19, 1999 was not causally related to the injury sustained on January 15, 1998. "Had the worker dislocated the shoulder on that date, shoulder instability would have been the expected result. However, no evidence of shoulder instability has ever been proven, just, evidence of arthritic changes in the shoulder, and impingement problems which pre-dated the at work injury, and for which surgery had previously been recommended."

On April 4, 2000, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

We are of the view that the WCB should accept responsibility for the claimant's left shoulder surgery, which was performed on July 19th, 1999. In coming to this conclusion, we attached considerable weight to several factors.

Firstly, we found the claimant to be an extremely credible witness. The claimant testified that he was perfectly aware of the difference between the symptoms associated with dislocations and impingement.

"I would also like to stress the fact that my shoulder was 100 per cent after my surgery from 14 years ago, and this injury I sustained January 15, 1998 enhanced my shoulder to the point where it needed more surgery. The surgery I'm asking you to claim is the stabilization procedure. I initially turned down the impingement correction, as I didn't want any doctor fiddling with what I thought I could deal with as far as pulling on the tendon, the impingement problem.

It is the stabilization procedure that I'm asking you to take responsibility for, if I'm using the right words. It is the impingement that was corrected at the same time as the stabilization. The doctors, the Workers Compensation doctor states it the other way, but I initially refused an impingement correction, as I don't think that it is necessary.

It is the impingement that was corrected during the stabilization procedure, not the other way around and I think that is proved by me initially turning down an impingement correction that Dr. [name of surgeon] was going to perform."

Secondly, the history of the compensable injury and the resulting symptoms are entirely consistent with the claimant's having experienced previous shoulder dislocations.

Q. Can you advise the Panel what the difference is, from
your perspective, between impingement and destabilization?

A. The dislocation was caused - the destabilization of the socket, it lost grip of the socket - - created a dislocation. The impingement was from a surgery I had 14 years ago. It was a bone, kind of like a bone spur - - that was digging into, creating a pulling, you know, in the tendon. The stabilization, this hook was just grasping tendons all the time. It had nothing to do with my dislocation. The actual dislocation is what I was - - I'm here before - - is what I want you to accept the claim for, I'm sorry.

Q. Okay. Now have you in the past ever experienced a dislocated shoulder?

A. Yes, I have.

Q. And so in January of 1998, the pain was similar to or the experience was similar to what you have had before?

A. Identical, yes.

Finally, there is the evidence of the treating orthopaedic surgeon. In his report provided to Review Office dated December 21st, 1999, he states as follows:

"Although one can say that there was a pre-existing condition, i. e. the recurrent dislocations in the shoulder, this was in fact effectively dealt with surgically. His shoulder whether operated on or not operated on can in fact dislocate and I think that this is what happened to this gentleman and resulted in subsequent need for surgery which consisted in part of a cuff decompression but also of a repeat stabilization procedure. He has rehabed his shoulder satisfactorily, has gone back to work but I think he has a legitimate claim to have this shoulder problem considered an outcome of the compensable injury."

We find based on the weight of evidence that the claimant's left shoulder surgery is, on a balance of probabilities, causally related to his compensable injury of January 15th, 1998. Therefore responsibility for this surgery should be accepted by the WCB.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of August, 2000