The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 23, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on October 23, 2003.

Issue

Whether or not responsibility should be accepted for the claimant's ongoing right shoulder problems including the surgical procedure performed March 14, 2003.

Decision

That responsibility should be accepted for the claimant's ongoing right shoulder problems including the surgical procedure performed March 14, 2003.

Decision: Unanimous

Background

On November 8, 2002, the claimant reported that while performing his regular duties as a mason/toolcrib operator he felt pain in his right shoulder. A report received from the employer concerning this injury stated that the claimant attributed his right shoulder pain to a previous 1994 work related accident.

On March 12, 2003, the claimant informed a Workers Compensation Board (WCB) adjudicator that he had been a brick layer for 30 years and that in 1994 he sustained a contusion injury to his shoulder when he was hit with a paddle mixer. Since that incident, the claimant indicated that his shoulder had always caused him trouble, but the pain was never bad enough that he needed to see a doctor. On the day of accident, November 7, 2002, the claimant said he was tossing fittings into bins with his right arm and that this motion led to the development of pain in his shoulder. The claimant advised the adjudicator that he had been treated by a specialist and that he was scheduled to undergo right shoulder surgery on March 14, 2003.

Initial medical information on file consisted of a right shoulder x-ray report and a letter by the treating orthopaedic surgeon dated March 20, 2003. The surgeon outlined his examination findings of the claimant's right shoulder condition between October 16, 2001 and March 14, 2003. In summary, the orthopaedic specialist diagnosed the claimant with a right shoulder rotator cuff tendonitis and acromioclavicular joint osteoarthritis. He noted that the claimant underwent surgery on March 14, 2003 which was described as a "right shoulder arthroscopy, arthroscopic acromioplasty and arthroscopic distal clavicle excision."

Following consultation with a WCB medical advisor on March 27, 2003, a WCB case manager wrote to the claimant on March 31, 2003. The claimant was advised that the WCB was accepting responsibility for his November 7, 2002 workplace accident as an aggravation of a pre-existing shoulder condition. The claimant was advised that no responsibility would be assumed for the March 14th surgery as it was the opinion of the medical advisor that the reason for the surgery was related to degenerative changes in his shoulder and not to the incident that occurred on November 7, 2002. On May 8, 2003, a worker advisor appealed this decision and submitted new medical information dated May 1, 2003.

On June 2, 2003, primary adjudication advised the claimant that the new medical information did not warrant a change to the previous decision. The case manager noted that the orthopaedic specialist offered an opinion that the claimant's shoulder problems were related to his work duties as a bricklayer, but the specialist did not provide any medical evidence to support his opinion. On June 6, 2003, the worker advisor disagreed with this decision and the case was forwarded to Review Office for consideration.

In a decision dated August 22, 2003, Review Office noted the worker advisor's position that the surgeon felt the claimant's rotator cuff tendonitis and AC joint pain were the result of his performing repetitive work in a given trade for 20 to 40 years. Review Office stated that it had obtained the opinion of a WCB orthopaedic consultant who stated that the claimant's right AC degenerative arthritis gave rise to impingement leading to rotator cuff tendonitis. The consultant was unaware of any studies that linked the development of AC joint arthritis to an occupation and noted that many individuals who did not perform repetitive work also developed this condition.

Review Office accepted that the rotator cuff tendonitis developed secondary to acromioclavicular joint arthritis, but was not satisfied that the pre-existing arthritic changes were caused by repetitive work activity. Review Office therefore confirmed that responsibility should not be accepted for the claimant's ongoing right shoulder problems including the surgical procedure that was performed on March 14, 2003. The worker advisor later appealed this decision and an oral hearing was arranged.

Reasons

In a memorandum dated August 18th, 2003 a WCB orthopaedic consultant outlined what he believed to be the most probable diagnosis to account for the claimant's ongoing right shoulder complaints. "Rt [right] AC [acromioclavicular joint] degenerative arthritis giving rise to impingement leading to rotator cuff tendonitis. X-ray noted AC arthritis & attending O.S. [orthopaedic surgeon] findings confirm."

We reviewed the claimant's job duties at length and are satisfied, on a balance of probabilities, that these duties resulted in an aggravation of his pre-existing rotator cuff tendonitis. This condition was initially treated conservatively without success and thus surgery was ultimately carried out.

The weight of evidence leads us to conclude that responsibility should be accepted for the claimant's ongoing right shoulder problems including the surgical procedure performed March 14th, 2003. Accordingly, the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of December, 2003