Public Decisions | The Appeal Commission

Decision #13/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 6, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on December 6, 2000.

Issue

Whether or not the claimant is entitled to further benefits after April 22, 1997 in relation to his compensable injury of March 6, 1996; and/or

Whether or not the claimant sustained a new accident in or about June, 1996.

Decision

That the claimant is not entitled to further benefits after April 22, 1997 in relation to his compensable injury of March 6, 1996; and

That the claimant did not sustain a new accident in or about June, 1996.

Background

On March 6, 1996, the claimant injured his upper back and left shoulder in a non-specific accident while performing the duties of a labourer in a window manufacturing plant. Initial medical information showed that the claimant was treated by a chiropractor on March 9, 1996, who diagnosed the injury as an infraspinatus muscle strain. The claimant also sought treatment from a general practitioner on March 11, 1996, who diagnosed trauma to the back muscles. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid during the claimant's absences from work.

In September 1996, file records indicate that a graduated return to work program had been arranged for the claimant, however, the claimant discontinued the program because of increased pain in his shoulder.

In October 1996, a rehabilitation medicine specialist described the claimant's signs and symptoms as being characteristic of myofascial pain syndrome. A treatment plan was prescribed which included trigger point injections followed by muscle strengthening and physical reconditioning exercises.

On January 6, 1997, a WCB medical advisor assessed the claimant to determine a specific diagnosis with regards to the claimant's physical condition and to provide suggestions regarding ongoing treatment plans.

During the interview portion of the examination, the claimant stated that while at work in June 1996, two or three frames had fallen/collided onto his left shoulder. Following examination, the medical advisor noted that the claimant had "evidence of impingement signs and weakness and signs referable to his neck with restrictions in his movement due to pain and tenderness to palpation in the shoulder and neck regions." An arthrogram of the left shoulder was recommended to evaluate the internal structures of the shoulder as well as cervical spine x-rays to rule out any sources of reference from the neck as a source of his pain to his shoulder.

Cervical spine x-rays were performed on February 10, 1997, and the radiological report indicated no abnormalities were demonstrated. The left shoulder arthrogram taken on February 10, 1997 revealed no rotator cuff tear or other abnormalities. A CT of the left shoulder arthrogram disclosed a SLAP type injury involving the capsule/labrum complex with extension to possibly involve the inferior aspect of the subscapularis. There was no evidence of any rotator cuff injury.

On February 20th and 28th, 1997, the above laboratory reports were reviewed by the medical advisor who had examined the claimant on January 6th. He stated that the findings on the CT arthrogram report were consistent with the injury of frames falling on the claimant's shoulder and that repetitive use would not cause a slap lesion.

As there was no indication on file that the claimant had sustained a further injury to his shoulder in June 1996, primary adjudication decided to obtain statements from the claimant, a co-worker and the employer in March and April 1997.

On April 15, 1997, the claimant was informed by Claims Services that benefits would be paid up to April 22, 1997 inclusive and final. In its decision, Claims Services referred to the statements that were received from the claimant's co-worker and employer. "The employer did not recall any new accident being reported, although the co-worker indicated he recalled you mentioning the accident but no specifics were given. Of significance, the physician and the physiotherapist you had been attending at the time do not have any record of you reporting this new accident history to account for your change in symptoms in early June 1996." Claims Services felt that the weight of evidence did not support the occurrence of a new injury at work in late May or early June 1996. Also, Claims Services found that the weight of evidence did not support a cause and effect relationship between the March 1996 work injury and the claimant's current difficulties which would warrant benefits beyond April 22, 1997. In accordance with this decision, vocational rehabilitation benefits and services were also discontinued. On May 5th and 8th, 1997, the claimant's solicitor appealed this decision to Review Office.

In the interim, a report was received from an orthopaedic surgeon dated May 21, 1997. The surgeon advised that the claimant had been seen in follow up concerning his left shoulder slap lesion. The claimant pointed to his pain as being posterior shoulder medial to the scapular border. According to the surgeon, "This was probably away from the area that would cause pain from a slap lesion." The surgeon further noted that the claimant was moving to Montreal.

On September 17, 1997, Review Office wrote to the claimant's solicitor indicating that there had been no further medical information submitted subsequent to the orthopaedic surgeon's letter dated May 21, 1997. Review Office asked the solicitor to provide clarification with respect to his position on the matter and to what the claimant was claiming.

On December 18, 1998, the solicitor submitted a report from the treating physician dated November 30, 1998, regarding the claimant's work related injuries. The solicitor stated that from his discussions with the treating physician, the physician considered the claimant's present condition to be work related and that the condition was the same as it was when the claimant had initially reported it to the WCB.

In a decision of February 19, 1999, Review Office determined the following:

That the claimant's ongoing left shoulder complaints and any loss of earning capacity after April 22, 1997 was not shown to result from a personal injury by accident arising out of and in the course of his employment;
That the claimant's further accident involving the left shoulder about June 1996 was not shown to have arisen out of or in the course of employment; and
That no further benefits were payable under the Workers Compensation Act (the Act) for problems the claimant said he continued to experience after April 22, 1997.

Considering the weight of evidence, Review Office could not establish that the claimant's subjective pain complaints in the left shoulder continued to be as a result of the work related accident suffered in March 1996. The medical evidence by March 1997 tended to indicate that the left shoulder symptoms had likely been exaggerated and/or misrepresented as they could not be explained by anatomical features of a muscle strain injury such as the claimant had sustained in March 1996. Review Office summarized by saying that it could not find sufficient evidence to show that the effects of a work-related accident reasonably or probably contributed to the claimant's ongoing loss of earning capacity after April 1997 or for the need of further healthcare treatments.

On March 16, 2000, the claimant's solicitor provided further information - a March 9, 2000, letter from the treating physician. The solicitor commented that following examination of the claimant on March 9th, the physician believed that the claimant's condition was a result of the accident that he incurred on March 6, 1996. The solicitor therefore requested a hearing to address the matter. On December 6, 2000, a hearing was held at the Appeal Commission.

Reasons

As the background notes indicate, the claimant sustained an injury that was initially diagnosed as an infraspinatus muscle strain. After several months of medical treatment including physiotherapy sessions, a WCB medical advisor examined the claimant, because of continued complaints of pain about his left shoulder with weakness as well as a decrease in range of movement. The medical advisor thought that it would be helpful to obtain a CT arthrogram of the claimant's left shoulder in order to evaluate the internal structures of the shoulder. According to the medical advisor, the claimant had advised him that a frame had fallen at work and collided onto his left shoulder.

On February 18th, 1997 the claimant underwent a CT left shoulder arthrogram. The results of this procedure revealed: "There is a SLAP type injury involving the capsule/labrum complex with extension to possibly (sic) involve the inferior aspect of the subscapularis tenson (sic) near its osseous attachment. There is no evidence of any rotator cuff injury." The medical advisor reviewed the arthrogram report and concluded that the evidence of a SLAP lesion would be consistent with an injury resulting from a frame falling on the claimant's shoulder, however, repetitive use of the shoulder would not cause a SLAP lesion.

The WCB interviewed the claimant with respect to the alleged incident involving the falling frame and obtained a sworn declaration from him on March 20th, 1997. He stated as follows:

During the above mentioned time frames the area of concern was my left shoulder. The pain is located in the area behind my left shoulder. The pain radiates up into my neck up to the back of my head. I also note that my left arm is numb and I suffer from a loss of grip strength. This problem manifested itself after the frame fell on my shoulder."

The WCB also obtained a statement from one of the named co-workers. He advised that he could not recall an incident where a frame struck any co-worker and that he did not recall ever lifting a frame off of a co-worker. It is rather interesting to note the claimant denied ever being hit in the shoulder by a falling frame. In fact, he testified at the hearing that the frame had actually struck him on the head.

A. Yes.

After taking into consideration the evidence as a whole and in particular the foregoing inconsistencies, we find that the weight of evidence does not support the claimant's contention that his continued left shoulder difficulties are causally related to the compensable injury of March 6th, 1996. There is absolutely no credible evidence of a new accident occurring, which would give rise to the claimant's left shoulder problems.

In addition, we further find that the claimant had, on a balance of probabilities, recovered from the effects of his compensable injury by the time benefits were terminated by the WCB. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 22nd day of January, 2001

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