The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 16, 2002, at the request of the employer's advocate. The Panel discussed this appeal on April 16, 2002.

Issue

Whether or not the costs associated with the worker's current left shoulder complaints have been charged to the appropriate claim file.

Decision

That the costs associated with the worker's current left shoulder complaints have been charged to the appropriate claim file.

Decision: Unanimous

Background

On August 18, 2000, the claimant submitted an application for compensation benefits relative to left shoulder pain. In a letter attached with his application, the claimant made reference to a 1997 Workers Compensation Board (WCB) claim for a left shoulder injury. At that time, he received physiotherapy treatment, which he felt was effective due to the fact that he was in a supervisory position and did not have to perform any physically strenuous work. He continued in this supervisory position for the next 18 months, but in September 1999 (while working with a different company) he went back to working with tools. After two weeks of various activities such as pulling on pipe wrenches and climbing scaffolding, he started to feel pain in his left shoulder. The claimant provided details regarding his medical treatment, which included cortisone injections and assessment by an orthopaedic surgeon, etc.

A brief review of the 1997 claim showed that the WCB had accepted responsibility for medical treatment pertaining to the left shoulder condition as a no time loss situation. On January 17, 2000, the WCB advised the claimant that any ongoing problems with his left shoulder would not be considered as being related to the 1997 compensable injury. "It is noted that x-rays taken in November 1999 show degenerative changes in both shoulders. The WCB does not accept responsibility for degenerative changes."

In a letter from the attending physician dated February 14, 2000, it was noted that the claimant had had longstanding shoulder tendonitis and bursitis since being under his care from 1995. These conditions were directly related to his occupation and the repetitive strain imposed on his shoulders. According to the physician, the degenerative changes shown on shoulder x-rays were directly related to an ongoing repetitive strain condition. His symptomatology was mixed between soft tissue and degeneration.

Further medical reports revealed that the claimant was diagnosed with bilateral subacromial bursitis with AC arthrosis. An MRI of the left shoulder dated August 25, 2000 demonstrated a small complete peripheral tear of the supraspinatous tendon. The claimant also displayed tendonosis of the supraspinatous tendon and bicipital tendonitis.

On October 4, 2000, the employer was notified by the WCB that the claimant's left shoulder difficulties were related to the work duties he performed during the period September 1999 to December 1999 and that his claim would be accepted for medical treatment. Wage loss benefits would be issued based on medical evidence of disability.

A left shoulder arthroscopy performed on October 23, 2000 was accepted as a WCB responsibility.

On November 7, 2000, the employer was advised by primary adjudication that there was evidence of a pre-existing condition which contributed to the claimant's time loss from work. As a result, 50% of the total costs of the claim would be removed from the firm's experience.

On March 8, 2001, an MRI of the right shoulder showed a small complete tear of the anterior aspect of the supraspinatous tendon.

Following consultation with a WCB medical advisor, primary adjudication informed the claimant on June 19, 2001, that the medical cause for his right shoulder symptoms had not been identified. It determined the claimant had now recovered from his November 1999 left shoulder injury and any further requirement for restrictions would be related to a pre-existing (degenerative) problem of the shoulder. This decision was rescinded by primary adjudication on September 4, 2001 based on recent additional medical information. The WCB determined that the cause of the claimant's ongoing left shoulder symptomatology was related to the surgery performed and accepted by the WCB on October 23, 2000.

On October 3, 2001, an advocate for the employer argued that the claimant's ongoing difficulties and ongoing restrictions with respect to his work capabilities should have been accepted and paid under his previous 1997 claim. The case was forwarded to Review Office for consideration.

In a decision dated November 30, 2001, Review Office determined that the costs involved in the 1999 claim would remain as charged. Review Office noted that the mechanism of trauma in both of these claims was the use of wrenches and that the torque involved in such work can place a high degree of strain on the shoulder. After reviewing both files and taking into consideration the significant pre-existing problems which predated both claims, Review Office could not determine exactly when the majority of the damage to the claimant's left shoulder had occurred. Review Office did not feel that it had sufficient evidence to reach a conclusion that there should be a transfer of the 1999 claim costs to the 1997 claim file.

Review Office was satisfied that the claimant's bilateral shoulder condition was significant enough in the mid 1990's for him to seek and to receive medical treatment and injections from an orthopaedic specialist. This, along with the point that the MRI tests performed on both shoulders found significant bilateral damage, further complicated the matter when trying to isolate a specific point in time when the majority of the damage had occurred. On December 12, 2001, the employer's advocate appealed Review Office's decision and an oral hearing was arranged.

Reasons

WCB policy 44.10.20.50.01 deals specifically with recurring effects of injuries. It establishes the difference between a new accident and the recurring effects of a previous injury. The policy defines a new accident as follows:

"If the current loss of earning capacity results from an accident which has no relationship to a previous injury, in that it does not evolve from injury to the same body part or anatomical site as the original injury; or, the worker's condition is not consistent with the details of the accident and the diagnosis as established in the original claim, then the current loss of earning capacity will be considered to result from a new and separate accident."

The evidence confirms that prior to his going to work with the appellant employer, the claimant was employed in a significantly less physical job. The claimant went from a supervisory position to one involving physically strenuous activities such as pulling on pipe wrenches and climbing scaffoldings. When the claimant started out with the appellant employer, he was asymptomatic. He reported increased difficulties that he was experiencing to his supervisor.

We find that in accordance with the above quoted WCB policy that the claimant suffered a new and distinct accident with the appellant employer. We further find that the worker's left shoulder complaints and associated costs have been charged to the appropriate claim file. Therefore the employer'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 14th day of May, 2002