Public Decisions | The Appeal Commission

Decision #79/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 23, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on October 23, 2001, and again on June 20, 2002.

Issue

Whether or not the worker had recovered from the compensable injury by September 16, 1999;

Whether or not the worker is entitled to additional wage loss benefits and medical treatment; and

Whether or not the worker's current shoulder problems are causally related to the compensable injury of July 21, 1999.

Decision

That the worker had not recovered from the compensable injury by September 16, 1999;

That the worker is entitled to additional wage loss benefits and medical treatment; and

That the worker's current shoulder problems are causally related to the compensable injury of July 21, 1999.

Decision: Unanimous

Background

While employed as an iron worker/rigger/fitter on July 21, 1999, the claimant was using a crowbar to pry a piece of machinery when the crowbar suddenly slipped, which caused an abrupt backward movement of his right arm. As a result of the incident, the claimant experienced sharp pain in his right shoulder muscle, but continued working as he thought the pain would go away. Subsequent file records revealed that the claimant worked with shoulder pain up until his lay off in November 1999 and in April 2000, after four days of light duties when he discontinued work due to upper right arm and shoulder pain.

In a July 5, 2000, report, the attending physician noted that when seen on August 4, 1999, the claimant had pain in his neck, which radiated between his shoulder blades and resulted in numbness and throbbing in his left arm for one week. It then radiated to his right shoulder. The physician felt that the claimant may have a muscle strain. The claimant was treated with Naproxen twice daily. When next seen on August 11, 1999, the claimant presented with paraesthesias of his left 3rd, 4th and 5th fingers as well as weakness in both arms. The physician considered that the claimant may have bilateral ulnar neuropathy and arrangements were made for a neurologist's assessment.

In a September 16, 1999, report, the attending neurologist wondered whether the pain in the claimant's shoulders was related to arthritis. Recommendations were made for an x-ray examination. Regarding the left hand numbness, nerve conduction studies and blood work were suggested.

On May 31, 2000, a second neurologist stated, in part, that the claimant "had significant osteo-arthritic neck disease, what would seem to be musculo-tendinis or arthritic right shoulder problems and as well proven bilateral nerve entrapment at the elbow." Recommendations were made for physiotherapy and/or steroid injection treatment of the shoulder.

In a July 25, 2000, decision, primary adjudication noted that in order to accept responsibility for time loss from work and treatment rendered, it must be found that the information established a relationship between the injury, the time loss and treatment being claimed. In this particular case, the claimant continued his regular duties to November 11, 2000, with an occasional mention of right shoulder pain. Medical treatment beyond September 16, 1999, was related to left sided complaints and neck symptoms which were not described as being caused by the workplace accident of July 21, 1999. Primary adjudication concluded that the claimant likely sustained a muscular injury as a result of his July 1999 work accident - and that the weight of evidence supported the opinion that he had recovered from his work injury by the time he was assessed by the specialist on September 16, 1999. The claimant was not entitled to wage loss benefits as he continued working beyond the normal recovery period for the diagnosis of a muscle strain. Primary adjudication further opined that the claimant's current disability was not the result of the workplace accident nor had it been enhanced or accelerated by the accident.

In September 2000, primary adjudication considered the case again in view of additional information that was gathered by the claimant and his employer with respect to work activities and medical treatment since the date of accident. A WCB medical advisor also reviewed the file and provided his opinion in a memo dated August 31, 2000. Based on this review, primary adjudication confirmed its initial decision that the claimant's current shoulder complaints were not directly related to the July 21, 1999, workplace injury. On September 29, 2000, the claimant appealed the decision and the case was forwarded to Review Office.

On October 20, 2000, Review Office took into consideration all of the evidence, which included a report by an orthopaedic specialist dated September 21, 2000, and a report from a physiotherapist dated September 28, 2000. Review Office also obtained an opinion from a WCB orthopaedic consultant on October 12, 2000. Review Office determined that no responsibility could be accepted for the claimant's current shoulder complaints based on the following rationale:

it was clear to Review Office from the original claim form and from the employer's testimony, that the claimant injured his right shoulder on July 21, 1999, from a crow bar slipping while he was exerting force against it. The only injury mentioned was to the right shoulder.
the attending general practitioner commented that the majority of the claimant's problems were unrelated to the shoulder injury and that the claimant was complaining of pain initially in his left shoulder and arm which then radiated to his right shoulder.
the September 16, 1999, specialist's examination report revealed no abnormalities whatsoever. Primary history was of left hand numbness along with problems in both shoulders and a neck problem of which the claimant had complained since 1967.
Review Office noted the neurologist's report of December 6, 1999. This reported outlined left sided complaints more than right sided shoulder complaints. The focus of attention was on the neck and the left side. It was eventually determined that the claimant had ulnar or elbow problems which would be unrelated to the claimed incident.

Given the lack of findings produced on the initial examinations concerning the right shoulder condition, Review Office found it very difficult to relate the worker's current right shoulder symptomatology to the claimed accident of July 21, 1999.

On April 25, 2001, a worker advisor submitted additional medical evidence for Review Office to consider, namely an orthopaedic specialist's report dated April 6, 2001. The worker advisor took the view that the claimant had not recovered from his right shoulder injury and that he continued to qualify for payment of medical treatment beyond September 16, 1999, and wage loss benefits beginning November 12, 1999.

Following consultation with a WCB orthopaedic consultant on May 22, 2001, Review Office determined on June 22, 2001, that the claimant had recovered from his workplace accident by September 16, 1999 and that he was not entitled to additional medical treatment or to payment of lost wages. Review Office also confirmed that the claimant's current shoulder problems were not related to the workplace injury.

Review Office again reiterated that the focus of treatment to the claimant in the early stages was on his left shoulder, arm and elbow problems and not right shoulder problems. Review Office was of the opinion that the claimant's right shoulder problems were more likely due to pre-existing degenerative changes in the acromioclavicular joint than to a tendonitis condition that might have resulted from a one time incident going back to July of 1999.

In June 2001, the worker advisor disagreed with the decision rendered by Review Office and she requested that an oral hearing be convened. The worker advisor submitted additional medical reports dated January 19, 2001, and November 30, 2000, for the Panel's consideration. On October 23, 2001, an Appeal Panel hearing was convened.

Following the hearing and discussion of the case, the Appeal Panel requested that the claimant be assessed by an independent sports medical specialist with regard to his right shoulder status. The examination later took place on May 9, 2002, and the examination report dated May 12, 2002, was forwarded to all interested parties for comment. On June 20, 2002, the Panel met to render its final decision on the issues under appeal.

Reasons

As the background notes indicate, the Panel requested that the claimant undergo an independent medical examination with respect to his right shoulder difficulties. This process took place on May 9th, 2002. Following his examination of the claimant, the independent medical examiner prepared and forwarded to the Appeal Commission a lengthy eight-page report. Although there is extensive medical evidence on file, we nevertheless preferred to attach more weight to this recent independent medical examination.

In particular, we took special note of the following comments:

Chronic right rotator cuff tendinopathy with subacromial impingement syndrome
Right bicipital tendinopathy
Mild right AC joint arthrosis
Potential right C7 radiculopathy
Chronic rotator cuff wasting
Rotator cuff and shoulder girdle muscle imbalance"

Later on in his report, the examining physician further stated:

"In my opinion, the most important probable cause of Mr. [the claimant's] current right shoulder symptoms are the two specific insults he mentions, one in 1988 and one in 1999. His history seems quite probable and consistent with my understanding of mechanics of the glenohumeral joint and the rotator cuff. Neither of Mr. [the claimant's] workplace incidents sounds as if they were minor; they sound quite significant. The history indicates that Mr. [the claimant] was relatively asymptomatic up until 1999. Therefore, in my opinion, the most probable current cause of Mr. [the claimant's] right shoulder symptoms is the 1999 incident in question. He describes a continuum of pain since that time, and has physical findings consistent with that diagnosis." After thoroughly weighing all of the evidence, we find, on a balance of probabilities, that the claimant had not recovered from the compensable injury by September 16th, 1999, and that the claimant's current shoulder problems are causally related to the July 21st, 1999, compensable injury.

According to the independent medical examiner's report, the two most significant diagnoses present on examination were "chronic right rotator cuff tendinopathy with subacromial impingement syndrome" and "right bicipital tendinopathy" and from which the claimant has not yet recovered. This situation has led to the worker's incurring a wage loss situation. As such, we further find that the claimant is entitled to wage loss and medical benefits. However, it should be noted that the claimant has taken extended winter vacations over the past two years.

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 4th day of July, 2002

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