The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 11, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being February 21, 2002.

Issue

Whether or not the weight of evidence establishes a reasonable or probable cause and effect relationship between the worker's compensable injury of February 23, 2001 and ongoing difficulties that he is experiencing with his left shoulder; and

Whether or not the worker is entitled to wage loss benefits and/or services beyond June 15, 2001.

Decision

That the weight of evidence establishes a reasonable or probable cause and effect relationship between the worker's compensable injury of February 23, 2001 and ongoing difficulties that he is experiencing with his left shoulder; and

That the worker is entitled to wage loss benefits and/or services beyond June 15, 2001.

Decision: Unanimous

Background

In March 2001 the claimant filed an application for compensation benefits for a right shoulder injury that occurred on February 23, 2001 during the course of his employment as a truck driver. The claimant reported that the gates on his truck are hard to open in really bad weather and when he tried to force the gate open he felt a bad pain in his shoulder. He continued working until March 8, 2001 but the pain was too great and he went to see a doctor.

Initial medical reports revealed that the claimant was seen at a hospital emergency facility on February 27, 2001. The diagnosis rendered was a possible right shoulder bursitis or rotator cuff tear.

On March 8, 2001, the attending physician reported the area of injury to be both shoulders. Subjective complaints were "painful shoulders, difficult to lift arms." The objective findings revealed diminished abduction and external rotation to both shoulders, right worse than left. The diagnosis rendered was a chronic rotator cuff injury. The treatment plan included physiotherapy treatment and a referral to an orthopedic surgeon.

On April 16, 2001, the Workers Compensation Board (WCB) accepted the claim on the basis of a right rotator cuff strain and the claimant was issued wage loss benefits commencing on February 26, 2001.

A progress report from the attending physician dated May 2, 2001, noted the area of injury as left shoulder supraspinatus and infraspinatus tendonitis. The diagnosis recorded was "left side rotator-cuff degenerative changes as described above. Severed left long head of biceps."

In a memo to file dated May 31, 2001, a WCB adjudicator documented a telephone conversation she had with the claimant in which he requested the WCB to authorize physiotherapy treatment with respect to his left shoulder. When questioned about his left shoulder difficulties, the claimant stated his employer was aware that he was having problems with both shoulders and that his right shoulder difficulties were worse than his left, thus he received treatment for his right shoulder first. The claimant related his right/left shoulder difficulties to using both hands to rotate the crank on his truck, especially during the winter months.

On June 7, 2001, the claimant was advised by primary adjudication that the WCB was unable to accept responsibility for his left shoulder or arm difficulties for the following reasons:

• when speaking with a WCB adjudicator on March 26, 2001 the claimant indicated he was experiencing no difficulties with his left shoulder and that his left shoulder was okay. It was the right shoulder he was having difficulty with; and
  
  
• the worker's report, the employer's report and the hospital report did not reveal any information regarding left shoulder difficulties.

Primary adjudication also advised the claimant that his case had been reviewed by a WCB healthcare advisor and it was her opinion that the diagnosis of his right shoulder condition was a resolving rotator cuff strain with impingement. It was anticipated that the claimant would be fit to return to his regular duties by the middle of June 2001. Subsequent file correspondence revealed that the claimant was paid wage loss benefits for his right shoulder condition to June 15, 2001 inclusive and final. On June 11, 2001 the claimant requested primary adjudication to re-evaluate his claim as he was scheduled to undergo a left shoulder arthrogram on June 19, 2001.

In a June 28, 2001 report, the treating orthopaedic surgeon noted that the claimant was having continuing problems with his left shoulder and his right shoulder. The surgeon reported that the left shoulder arthrogram results demonstrated a rupture of the long head of the biceps which was evident clinically and that the claimant had a tear of the rotator cuff.

A WCB medical advisor reviewed the case on July 5, 2001 at the request of primary adjudication. The medical advisor's opinion was that the claimant's present left shoulder complaints were not related to the February 23, 2001 compensable injury. The medical advisor noted that the claimant reported chronic left shoulder pain and asked the adjudicator to obtain further information regarding a history of prior left shoulder complaints. On July 5, 2001, the claimant advised a WCB adjudicator that he had not seen a doctor for three years prior to February 2001 injury.

File records indicate that the employer was contacted on July 5, 2001. It was confirmed that the claimant mentioned left shoulder/arm difficulties sometime in the winter months but did not remember exactly what the claimant said. The employer recalled that the right shoulder was worse than the left.

In a decision dated July 15, 2001, Review Office found that the weight of medical evidence supported that the claimant sustained a right rotator cuff strain with impingement as a result of work activities performed on February 23, 2001. Review Office did not consider that a reasonable or probable cause and effect relationship existed between a left shoulder injury sustained on February 23, 2001 and the claimant's current left shoulder difficulties. It was confirmed that the claimant was not entitled to further payment of wage loss benefits and/or services beyond June 15, 2001. On August 30, 2001 a worker advisor appealed Review Office's decision and an oral hearing was held on December 11, 2001.

Following the hearing, the Appeal Panel met to discuss the case and requested additional information from a physiotherapist and the claimant's orthopaedic surgeon. On January 29, 2002, all parties were provided with the information that was obtained from the orthopaedic surgeon and two physiotherapists. On February 21, 2002 the Panel met again to discuss the case and took into consideration a submission from the worker advisor dated February 11, 2002.

Reasons

This case involves a worker who suffers from problems with both of his shoulders. His claim for compensation benefits was accepted in respect of the right shoulder only. A subsequent request for compensation for his left shoulder problems was denied. Review Office upheld this decision. He has appealed that decision to this Commission.

At issue is whether or not there is a relationship between his current left shoulder problems and his compensable injury. A second issue is whether or not he is entitled to compensation benefits beyond June 15, 2001.

For his appeal on the first issue to succeed, the Panel would have to determine - on a balance of probabilities - that his left shoulder problems are causally related to his workplace accident. Were we to come to this determination, it would follow that the second issue would succeed. Alternatively, the second issue could succeed were we to determine that, by June 15, 2001, he had not recovered from the effects of the injury to his right shoulder. We determined that the first issue should succeed and, thus, so should the second. In respect of the alternative determination, we make no finding at this time.

In coming to our decision, we made a careful review of the file and held an oral hearing, at which we heard testimony and argument from the claimant and his employer. Subsequent to the hearing, we sought further information from his treating medical practitioners.

To find a causal link between his work and his left shoulder problems, The Workers Compensation Act requires that the injury be caused by accident arising out of and in the course of his employment. There was considerable debate, in this case, as to whether or not his left shoulder problems did occur as a result of his employment. It was reported that he initially filed a claim for right shoulder problems and that it wasn't until somewhat later that he claimed left shoulder problems as well.

The compensable injury happened on February 23, 2001 and was attributed to overuse of his shoulders in driving large trucks and, in particular, the great effort required cranking open the gates at the bottom of the truck, especially in winter. In our review of his file, we noted that, on his first visit to his doctor, on March 8, 2001, his doctor reported that the claimant complained of chronic overuse injury to both shoulders and that it was difficult for him to lift his arms. He noted the objective findings that the claimant's "abduction external rotation [was] diminished, both shoulders R [greater than] L." (Our emphasis.)

Due to the greater problems with his right arm, this was the focus of his treatment over the next few weeks. Nonetheless, there is regular reporting throughout the file of problems with his left arm and shoulder. According to the testimony of a representative of the employer (also reported in the file), the employer was aware for some time that the claimant complained of problems with both shoulders.

The claimant was ultimately diagnosed as having a torn rotator cuff in his left shoulder and underwent surgery for its repair.

We placed considerable weight on the opinion expressed by the orthopaedic surgeon who treated the claimant. In a report to The Appeal Commission, dated January 28, 2002, he wrote:

"It is my opinion that the patient most likely did sustain the tear of the left rotator cuff February of 2001. It remains my opinion that the patient may have had a rupture of the long head of the biceps preceding this injury of February 2001. The patient most likely did, however, sustain a partial tear of the left rotator cuff with the injury at work February 23, 2001."

In respect of the rupture to the long head of his bicep, we note, from the file, that there is other evidence to support the position that this was a condition pre-existing the February 2001 accident. Accordingly, we conclude that this injury is not causally related to the workplace accident.

However, we are of the view that the nature of the rotator cuff tear is consistent with the job duties of the claimant. Furthermore, we accept the opinion of the orthopaedic surgeon and find that the preponderance of evidence supports that his left shoulder rotator cuff injury was caused by the accident.

As noted above, having come to this finding, we also conclude that the claimant is entitled to wage loss benefits and services beyond June 15, 2001.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of March, 2002