The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 23, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 23, 2001.

Issue

Whether or not responsibility should be accepted for the claimant's left shoulder surgery; and

Whether or not the claimant is entitled to wage loss benefits during the convalescence period following the left shoulder surgery.

Decision

That responsibility should not be accepted for the claimant's left shoulder surgery; and

That the claimant is not entitled to wage loss benefits during the convalescence period following the left shoulder surgery.

Background

In April 1996, the claimant filed an application for compensation benefits stating that he experienced a soreness in the left side of his neck from lifting and boning hams on April 15, 1996. Information obtained from the employer indicated that the claimant was boning hams and felt a kink or stiffness in his neck and shoulder. There was no particular accident.

A doctor's first report dated April 17, 1996 documented the claimant's diagnosis as a neck strain. The pre-existing condition delaying recovery was "recurrent myofascial pain". The claim was accepted by the Workers Compensation Board (WCB) as a non-specific neck strain. The claimant returned to work on April 22, 1996 and was referred for physiotherapy treatments.

In January 1997 the attending physician reported that the claimant was still having posterior neck and upper shoulder pain and had been receiving trigger point injections, which seemed to alleviate his symptoms for a period of time, but did not totally resolve his discomfort.

X-rays were taken of the cervical and thoracic spines on January 6, 1997. The impression read as follows: "Mild to moderate spinal degenerative changes and minor associated malalignments as described. Possible long standing minor compression deformity of the T8 vertebral body as described."

On January 20, 1997, a WCB medical advisor examined the claimant's cervical spine, cranial nerves and musculature of the neck. The claimant complained of recurring episodes of muscle pain in his neck, particularly both trapezius muscles. The claimant stated that his pain was precipitated by work. Examination findings revealed some areas of pinpoint tenderness and minor myofascial bands. He had good range of movement in his cervical spine. There was no indication of any cranial deficit nor of any radiculopathy. The claimant was referred to an acupuncturist for treatment.

A report from the acupuncturist dated March 6, 1997, assessed the claimant with sleep disturbance and myofascial pain of both trapezeii. By July 11, 1997, it was noted that the claimant was doing better overall with lessened pain in the trapezii and decrease in headaches. He continued to have intermittent exacerbation of pain at work. The claimant was discharged from treatment and was advised to see his attending physician for trigger point injections if he had exacerbations of neck and shoulder pain.

On March 2, 1998, the attending physician reported that the claimant was seen for office visits between July 18, 1997 and February 17, 1998. He stated that the majority of visits had been for shoulder pain, left acromial clavicular pain and persistent myofascial pain of his shoulder girdles. The claimant was diagnosed with left acromial clavicular joint inflammation and recurrent myofascial pain. The physician stated that the claimant's symptoms were undoubtedly caused by his repetitive work activities.

A Chiropractor's First Report dated March 23, 1998, diagnosed the claimant with cervicogenic dyskinesis, degenerative disc disease at C4-5 with myofasceitis trigger points.

On March 27, 1998, a WCB medical advisor was asked to provide comment as to whether or not there was a relationship between the claimant's current findings and the compensable injury. In a memo dated April 1, 1998 the medical advisor responded, in part, as follows:

"The symptoms and complaints of this claimant seem to be centered over L shoulder at this time. There may well be pre-x [pre-existing] acromioclavicular arthrosis as well as muscular pain. I think this is the same complaint with a slightly different perspective. Restrictions no repeat lifts above shoulder level greater than 20 lbs."

A report was received from a second physician dated May 4, 1998, who had started seeing the claimant in March 1998. The claimant was diagnosed with chronic pain syndrome secondary to myofascial pain syndrome and capsulitis.

On June 17, 1998, a WCB chiropractic consultant reviewed the case at the request of primary adjudication. The chiropractic consultant was of the opinion that the claimant's ongoing problems had a causal relationship to the compensable injury.

An orthopaedic surgeon assessed the claimant in July 1998. It was recommended that the claimant undergo an arthroscopy to remove the osteophytes and possibly excise the lateral clavicle. X-rays of the shoulder showed mild AC arthrosis as well as moderate sized osteophytes beneath the AC joint.

In a letter dated August 12, 1998, the orthopaedic surgeon was advised that the WCB was unable to accept financial responsibility for the surgical procedure. It was the WCB's view that the claimant's primary pathology was degenerative disease, which was noted in the cervical and thoracic spine regions as well as locally in the shoulder. This represented a pre-existing condition and could not be directly related to the effects of any compensable injury in the workplace.

The case was further reviewed by the WCB's healthcare services branch in August and September 1998. In a letter dated October 22, 1998, primary adjudication advised the claimant that the weight of evidence did not, on a balance of probabilities, support a causal relationship between his current difficulties and the original compensable injury. "We are in agreement with our Healthcare Department that the compensable injury likely caused an aggravation of a pre-existing condition which has since resolved and any ongoing problems would be related entirely to your pre-existing condition."

On June 16, 1999, a union representative disagreed with primary adjudication's decision of October 22, 1998, and submitted additional information from the claimant's orthopaedic surgeon dated December 23, 1998 and June 1, 1999. The orthopaedic surgeon reported that the claimant had undergone an arthroscopy of the left shoulder with debridement of a labrale lesion, acromioplasty, and excision of the lateral clavicle on April 29, 1999. The intraoperative findings included a superior labrale lesion (type 1), mild fraying of the undersurface of the rotator cuff in keeping with rotator cuff tendinitis, a thickened coracoacromial ligament and moderate sized chromial osteophyte, in keeping with impingement, and degenerative changes of the AC joint. The orthopaedic surgeon was of the opinion that the clinical diagnosis and operative findings were consistent with an overuse syndrome, which could "certainly be related to his work in the meat packing plant."

Based on the above findings, the union representative was of the view that the claimant's condition arose out of his work activities and therefore requested that the WCB continue its responsibility in the form of medical services and wage loss benefits beyond October 22, 1998.

On September 3, 1999, Review Office determined that the claimant was entitled to partial wage loss benefits from August 1997 to August 1998 and that no responsibility should be accepted for the claimant's left shoulder surgery. It further determined that the claimant was not entitled to wage loss benefits during the convalescence period following his left shoulder surgery.

Review Office was of the opinion that the claimant had a degenerative condition of his shoulder, which was unrelated to his employment. It considered that the degenerative condition was simply a function of his advancing age, just as the degenerative condition in his neck. Neither condition was particular or characteristic of the type of work that the claimant was performing. The nature of the claimant's work as a ham boner caused him symptoms by way of aggravating the degenerative changes in his shoulder. Review Office considered that his work would in no way hasten the development or worsen this condition. If the claimant ceased performing activities, which aggravated the degenerative changes, then his shoulder would return to its baseline condition.

Review Office stated that the surgery was performed to relieve the effects of the claimant's pre-existing condition. The fact that the claimant's symptoms were alleviated and that he was less limited in the activities he could perform, did not entitle him to compensation benefits. On January 26, 2001, the union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

As the background notes indicate, the claimant underwent surgery to his left shoulder on April 29th, 1999. This surgical procedure involved an arthroscopy of the left shoulder with debridement of a labrale lesion, acromioplasty and excision of the lateral clavicle. The intraoperative findings included: "a superior labrale lesion (Type I), mild fraying of the undersurface of the rotator cuff in keeping with rotator cuff tendinitis, a thickened coracoacromial ligament and moderate sized chromial osteophyte, in keeping with impingement, and degenerative changes of the AC joint." It was the claimant's contention that there was a cause and effect relationship between this procedure and his work injury. Therefore it should be accepted as a responsibility of the WCB.

The claimant described his injury on the Worker's Report of Injury form as follows: "While at work on April 15/96 about 2 p.m. I could feel the left side of my neck getting sore. I feel that with this extra pushing and lifting on top of bonning (sic) my share of hams, I strained my neck muscles. As the day went on my neck was getting worse, so I reported to my supervisor at 4 p. m. and went to the Dr. He gave me a treatment of freezing and I went back to work to finish out the day. The next morning my neck was stiff and hurt to turn my head." The treating physician diagnosed the claimant's condition as a "neck strain" and that recovery may be affected because of "recurrent myofascial pain".

At the time of the compensable injury there was no shoulder x-rays ordered. It should also be noted that the claimant presented with no subjective complaints regarding any internal shoulder derangement to either his treating physician, his physiotherapist or the WCB medical advisor, who examined the claimant on January 20th, 1997. In his examination notes the medical advisor recorded the following comments:

"This claimant has complained of recurring episodes of muscle pain in his neck, particularly in both trapezius muscles. The claimant states that these are continually precipitated by his work and the position in which he works. Today's examination reveals some areas of pinpoint tenderness and minor myofascial bands. However, the claimant did have good range of movement of his cervical spine. The claimant has no indication of any cranial nerve deficit, nor of any radiculopathy."

On a referral by the WCB medical advisor, a specialist in pain and stress management examined the claimant on February 24th, 1997. The specialist reported his findings back to the WCB medical advisor in a letter dated March 6th, 1997.

"Vital signs were stable. General exam was normal. Examination of the nervous system was normal. There was full range of motion of both shoulders. There was reasonable range of motion of the back and neck. His trapezeii were very tight on both sides with many trigger points throughout the upper, middle and lower portions. There was no bony tenderness about the spine."

The specialist considered the claimant would do well with a course of acupuncture on a limited basis. The claimant attended for ten treatments between March and July of 1997. At no time during these sessions was there any mention of any anterior shoulder problems.

By August 1997, the claimant had switched to a job, which was less strenuous. We note that the claimant performed this new job for a little over one year to August 1998. The first time that an acromial clavicular problem appears on file is in a letter from the treating physician to the WCB dated March 2nd, 1998. "The majority of the office visits have been for shoulder pain left acromial clavicular pain and persistent myofacial pain of his shoulder girdles. When he first presented with this problem in July [1997] he had marked tenderness over the left acromial clavicular joint especially with movement. When he was re-examined on July 21st, he still had vocal tenderness and pain with resisted abduction. The vc tenderness has persisted. He has full range of movement of his shoulder but he has pain abducting his shoulder when it is held in front of his body. His diagnosis is left acromial clavicular joint inflammation and recurrent myofacial pain." (Emphasis ours)

An orthopaedic surgeon examined the claimant on July 20th, 1998:

"On examination of the left shoulder, there is no wasting or scapular winging. There is tenderness maximally over the acromioclavicular joint, but also over the anterior aspect of the acromion. Range of motion of the shoulder is full. Impingement signs are negative, but the cross arm adduction test for his AC joint is strongly positive. I don't detect any rotator cuff weakness. Neurologic examination is normal.

X-rays of the shoulder show mild AC arthrosis as well as moderate sized osteophytes beneath the AC joint. This man has some symptoms of rotator cuff impingement, although this seems to be localized to his AC joint, and I suspect that the majority of his problems arise from this area."

After having considered all of the evidence, we reached the conclusion that the claimant merely temporarily aggravated his pre-existing shoulder condition as a consequence of his compensable injury. In making this finding, we preferred to attach more weight to the opinion expressed by the WCB medical advisor in his letter to the treating orthopaedic surgeon dated August 12th, 1998. "[T]he overwhelming evidence would indicate that the primary pathology in this man is that of degenerative disease which is noted in the cervical and thoracic spine regions as well as locally in the shoulder and as such this represents a pre-existing condition and cannot be directly related to the effects of any compensable injury in the workplace."

In light of the foregoing, we find that the WCB should not accept responsibility for the claimant's left shoulder surgery. It necessarily follows therefore that the claimant would not be entitled to wage loss benefits during the period of his convalescence after the surgery. The claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 20th day of June, 2001