The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 31, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on October 31, 2000.

Issue

Whether or not responsibility should be accepted for the claimant’s right shoulder problems as being related to the compensable injury of February 17, 1997.

Decision

That responsibility should be accepted for the claimant's right shoulder problems as being related to the compensable injury of February 17, 1997.

Background

The claimant filed an application for compensation benefits indicating that he injured his right forearm and elbow on February 17, 1997, when he and a co-worker flipped over a trailer at work and the trailer slipped out of the co-worker's hands. The employer's report of injury noted that the trailer weighed approximately 75 pounds. On February 19, 1997, the attending physician diagnosed the claimant's condition as right tennis elbow. The claim was accepted by the Workers Compensation Board (WCB) and the claimant commenced receiving compensation benefits effective February 19, 1997.

With respect to the issue under appeal, the first mention of a right shoulder problem appeared in a progress report dated August 6, 1997, when the attending physician noted that the claimant had ongoing pain in his right elbow and shoulder. A change in diagnosis was noted in this report, i.e. right tennis elbow and right supraspinatus tendonitis.

On August 19, 1997, an orthopaedic specialist noted that the claimant had pain going into his upper arm, posterolaterally, and also pain around his shoulder and diagnosed rotator cuff tendonitis.

A report from a physical medicine and rehabilitation specialist dated November 14, 1997 indicated that prior to the injury of February 17, 1997, the claimant was working in auto detailing and that he apparently had pain in his rotator cuff and elbow at that time.

On March 6, 1998, a right shoulder MRI revealed minimal rotator cuff tendinopathy.

The claimant was assessed at the offices of the WCB on March 10, 1998. Following examination, the medical advisor outlined his opinion that there were no consistent objective findings to support the diagnosis of rotator cuff tendonitis and lateral epicondylitis. On the same day, a medical advisor specializing in pain management interviewed the claimant. The medical advisor concluded that the claimant would benefit from a short period of work hardening and that he would then be able to return to work at a job similar to his pre-accident occupation.

On April 24, 1998, Claims Services determined that, on a balance of probabilities, the claimant had recovered from the effects of the compensable injury which was diagnosed as lateral epicondylitis. It was also determined that the claimant's right shoulder problem diagnosed as rotator cuff tendonitis and the ulnar nerve neuropathy of the right elbow were not caused by the compensable accident and was not the responsibility of the WCB.

Subsequent to the above decision, a report was received from a sports medicine specialist dated July 15, 1999, regarding the claimant's right shoulder condition. The specialist noted that the claimant definitely had rotator cuff dysfunction based on the objective finding of cuff muscle body atrophy and suggested that the claimant undergo arthroscopic evaluation and acromioplasty.

In a decision dated September 17, 1999, the claimant was informed that his 1997 claim was accepted for right lateral epicondylitis only. There was no documentation to support that his right shoulder was injured at the time of the 1997 compensable accident.

On January 21, 2000, a worker advisor stated his position that the claimant's right shoulder problems were, on a balance of probabilities, the direct result of his February 17, 1997 compensable injury. In support, the worker advisor submitted additional medical reports for consideration as well as an operative report dated December 10, 1999 of a right shoulder arthroscopy.

Following review of all information on file and after consulting with a WCB medical advisor, Rehabilitation & Compensation Services wrote to the worker advisor on February 23, 2000. Rehabilitation & Compensation Services confirmed that the WCB was not accepting responsibility for the claimant's right shoulder problems. The file was then referred to Review Office for consideration.

On March 3, 2000, Review Office confirmed that no responsibility would be accepted for the claimant's right shoulder problems. Review Office stated in its decision that it consulted with a WCB orthopedist who felt that the mechanism of injury could have produced a tear of the supraspinatus tendon. The orthopedist also stated it was possible the right shoulder could have been over-looked due to a primary focus on the elbow injury.

Review Office further stated that while the claimant contended that his physician neglected to mention his right shoulder complaints after the February 17, 1997 accident, there was no mention of a shoulder injury on either the claimant's compensation form or in the employer's accident report. Review Office noted that in November 1997, a physical medicine and rehabilitation specialist remarked that the claimant's original onset of right shoulder problems clearly pre-dated the February 17, 1997 compensable injury. Review Office concluded that while it was possible that the claimant's right shoulder injury occurred on February 17, 1997, the available evidence indicated that this was not probable and accordingly the right shoulder problems were not considered compensable. In April 2000, the worker advisor appealed Review Office's decision and requested that an oral hearing be arranged.

Subsequent file memorandums show that the Appeal Commission's Scheduling Co-ordinator contacted the employer on May 3, 2000, to advise that a hearing would take place at the Appeal Commission on May 29, 2000. The employer's "Controller" advised that she would represent the employer at the hearing. A certified letter was sent to the employer on May 4, 2000 confirming the arrangements for the upcoming May 29, 2000 hearing.

On May 19, 2000, the employer's Controller telephoned the Appeal Commission advising that the employer was unable to attend the hearing on May 29, 2000. An alternate date was offered, however, the Controller indicated that the employer would not be available until the fall. The Controller was informed that the hearing would still take place as planned on May 29, 2000.

On May 26, 2000, the presiding officer and an appeal commissioner reviewed the file and it was agreed by both parties that the hearing scheduled for May 29, 2000, should be adjourned. The presiding officer requested that the employer be contacted to ascertain why he was unable to attend a hearing until the fall and whether he wished to submit written argument or participate by teleconference.

The owner of the accident employer was then contacted on May 29, 2000 by the Appeal Commission's Scheduling Co-ordinator. The owner of the firm insisted that the hearing be held in the fall as the company had offices in Calgary and Seoul, Korea and that he would be out of province and would be unable to attend a hearing until October 2000. The owner further indicated that he intended to bring two witnesses to the hearing and felt very strongly about this appeal and felt that it was necessary for the Panel to hear the employer's position as well as the testimony of the witnesses. The employer requested that the hearing be scheduled to take place on October 31, 2000, at 9:00 a.m..

The file notes that two certified letters were sent to the employer confirming the hearing scheduled for October 31, 2000. Both certified letters were returned as "Refused" to the Appeal Commission on June 9th and June 23, 2000. The letter confirming the hearing was then faxed to the employer on June 23, 2000.

On October 31, 2000, an Appeal Panel hearing took place at the Appeal Commission. As the employer failed to show for the hearing at 9:00 a.m., the Scheduling Coordinator telephoned the employer to find out if he was going to be late for the hearing. As documented to file, the employer was verbally abusive to the Scheduling Co-ordinator indicating that he had no time for the hearing and that he would not attend. The hearing therefore took place as scheduled on October 31, 2000, with the employer not being present.

Reasons

The issue in this appeal is whether or not responsibility should be accepted for the claimant’s right shoulder problems as being related to the compensable injury of February 17, 1997.

The relevant subsections of The Workers Compensation Act (the Act) in this appeal are subsections 39(2) that provides for the duration of wage loss benefits and 27(1) that provides for medical aid benefits.

Subsection 39(2) states:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

a) the loss of earning capacity ends, as determined by the board; or

b) the worker attains the age of 65 years.

Subsection 27(1) states:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

WCB policy relevant to this appeal is Section 44.10.20.10, Pre-Existing Conditions.

In this appeal we reviewed all the evidence on file and received during the hearing process. We find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant’s right shoulder problems are related to the compensable event of February 17, 1997 and therefore that WCB should accept responsibility for the claimant’s right shoulder problems and any consequences thereof as being related to the compensable event.

The claimant was injured at work on February 17, 1997 while working as an assembler. The claimant and a co-worker were flipping a heavy trailer when the co-worker let go of her end and the claimant hung onto the trailer with his right hand to prevent it falling. At that time the claimant’s right arm was fully extended overhead and it took a few moments before the co-worker could get hold of the trailer again when they were able to set the trailer down on a table. Immediately following this event the claimant indicated that he had problems with his right arm.

We note in the respective employer and worker reports to WCB filed at the time of the accident, the injury is recorded in both reports as involving the right forearm and elbow. The employer reported in part, “causing G. [the claimant] to jar his right arm,” and in his report the claimant indicated in part, “I overstretched arm.” WCB accepted responsibility for the injury based on the initial diagnosis of lateral epicondylitis of the right elbow and benefits were paid from the compensable event until May 1, 1998. At that time WCB considered the claimant to have recovered from the effects of the elbow condition as well as finding that the right shoulder problems were unrelated to the compensable event.

From a review of the Review Office decision of March 3, 2000 it appears that the basis for denying a relationship between the claimant’s right shoulder problems and the compensable event was that there was no mention of any right shoulder problems recorded in any of the initial medical reports from the attending physician and a consulting orthopaedic surgeon following the compensable event of February 17, 1997. Shoulder problems were first mentioned in a report from the attending physician, approximately six months after the compensable event on August 6, 1997, when a diagnosis of right supraspinatus tendonitis was made. Further in its decision, the Review Office appears to rely on the evidence of a WCB Physical Medicine and Rehabilitation specialist that the original onset of right shoulder symptoms clearly pre-dated February 17, 1997.

We respectfully disagree with the rationale of the Review Office decision as we find that the claimant’s right shoulder problems probably occurred at the time of the compensable event or in any event would be acceptable as an enhancement of a pre-existing condition at the time of the compensable event. In reaching this conclusion we noted the following evidence:

In his report dated August 6, 1997 the attending physician indicated in part:

“ ongoing pain to right shoulder and elbow” and “ongoing to shoulder pain with abduction” (emphasis added).

In a further report dated August 19, 1997 the attending physician indicated in part, “ pain to ant. and post to shoulder worse with abduction.” We also note a subsequent report from the attending physician dated January 3, 2000 in which he indicated:

“Although the accident occurred on February 17, 1997 the first mention of right shoulder injury appears in my notes on July 17, 1997… . Mr. [the claimant] insisted that he had told me of the right shoulder injury at the first visit after the injury on February 19, 1997. He claimed that his shoulder had been painful all along but that his right elbow symptoms were more severe. He felt that his shoulder pain was somehow related to the elbow with pain radiating up his arm. I was concerned primarily with his elbow as this was the focus of attention at the time. I must have neglected to mention the right shoulder in my initial reports because the patient and myself were both focused on the significant elbow pain. As well when I first referred patient to physiotherapy and to Dr. [consulting orthopaedic surgeon] I was asking for help with the elbow and not the shoulder.”

The claimant was examined by a consulting orthopaedic surgeon, on August 19, 1997, who noted the claimant had pain in his upper arm, posterolaterally, and also pain about his shoulder. The claimant was examined by a WCB orthopaedic medical advisor on August 7, 1997 who indicated in his report that the claimant, “ either jammed or overstretched his right arm.” We further note from his report with respect to the shoulder that he indicated:

“ In the case of his shoulder there is tenderness about the bicipital groove. He lacks about 25 [degrees] of abduction of the right shoulder, otherwise he has full range of movement. However he does have a painful arc from about 80 [degrees] to full abduction. He has pain on extremes of movement in all directions in the right shoulder… .

There are certainly atypical features about his history and the more subjective physical findings. The symptoms are suggestive of right lateral epicondylitis, olecranon bursitis, and right bicipital tendonitis with a painful arc syndrome.”

Subsequently the claimant was referred to a consulting specialist in Physical Medicine and Rehabilitation. In his report of November 14, 1997 the specialist indicated that:

“… prior to the injury of February 17, 1997 he [the claimant] was working in auto detailing. He apparently did have pain in his rotator cuff and elbow area with auto detailing but continued working with this and then decided to try assembly.

… . The injury occurred on February 17, 1997… . He noted increased pain present in his shoulder and elbow and he has been off work ever since.

… . There appears to be a prior history, that is prior to the work incident, of symptomatology related to the shoulder and elbow this occurring apparently with the work demands in auto detailing. There is no other reported history of injury other than the work injury of February 17, 1997. This appears to have resulted in an aggravation of symptomatology to the right shoulder and elbow area. Currently there appears to be evidence of ongoing impingement present with likely some rotator cuff tendonitis present. There appears to be additionally at the shoulder some degree of bicipital tendonitis and subacromial bursitis.

Subsequently, on February 5, 1998, the claimant’s file was reviewed by the WCB orthopaedic advisor who indicated that:

“ The claimant may have a shoulder injury and lateral epicondylitis as a result of the C.I. [compensable injury]. The shoulder injury may be a subacromial bursitis or tendonitis and possible impingement.”

An MRI [magnetic resource imaging] diagnostic test was performed on March 6, 1998 which revealed minimal rotator cuff tendinopathy and that the claimant had a type II acromion which was not seen to be impinging on the adjacent supraspinatus muscle.

As recovery was delayed, the claimant was subsequently assessed by two WCB medical advisors for general medical and pain management/psycho- social issues. We note, following his examination of the claimant, the WCB general medical advisor indicated: “As for his shoulder I believe it could have been a result of the injury judging from the mechanism.”

We further note that the second WCB medical advisor who assessed the claimant with respect to pain management and psychosocial issues indicated in his report of March 10, 1998: “ I believe that this man’s current disability is partly due to lingering organic pathology which is attributable to his workplace injury.”

The claimant was subsequently examined by another consulting orthopaedic surgeon who recommended arthroscopic evaluation and arthroscopy. The specialist indicated respectively in reports dated July 15, 1999 and September 2, 1999:

“ This gentleman definitely has rotator cuff dysfunction on the basis of the objective finding of cuff muscle body atrophy.”

“ Based on the fact that he has a tendinopathy plus a type II acromion, combined with the injury he sustained and the obvious wasting of his rotator cuff musculature, I do not think there is any reason not to scope him and perform an acromioplasty to get it functioning again.”

We note the claimant underwent a right shoulder arthroscopy and acromioplasty performed on December 10, 1999 and that the operative report indicated a diagnosis of right rotator cuff tendonitis with a partial thickness cuff tear at the insertion of the supraspinatus. We also note in his report of January 3, 2000 the attending physician indicated:

“It is obvious now that the patient had a rotator cuff tear all along and that this was not going to heal without surgical intervention. The rotator cuff tear fits perfectly with the history of injury. A 200-pound trailer was lifted and flipped over by the patient. He had sudden right arm pain. This is consistent with a tear and subsequent tendonitis of the right shoulder and tendonitis at the elbow. Given the claimant’s small frame and weight of 153 lbs it is not surprising to see such a significant injury.”

Subsequently a second WCB orthopaedic medical advisor was asked whether the injuries found at surgery could have been sustained at the time of the accident, and by the mechanism of accident and remained untreated for 41/2 months. We note the orthopaedic advisor indicated in a memorandum to file dated February 29, 2000:

“The partial tear of the supraspinatus tendon could have occurred with the reported mechanism of accident.

The initial focus was on the elbow by both the claimant and the attending physician. Any injury to the adjacent Rt. Shoulder was secondary and this can occur.”

Based on the weight of the evidence as outlined above, on a balance of probabilities, we find unanimously that the claimant’s right shoulder problems are related to the compensable event as a direct consequence of the compensable event of February 17, 1997 or as an enhancement of a pre-existing condition and that the WCB should accept responsibility for any consequences of the shoulder injury. Therefore the claimant’s appeal is allowed. The file will be returned to WCB for a determination as to entitlement to benefits as this issue was not before us.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 21st day of December, 2000