Decision #148/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 23, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to benefits and/or services beyond July 17, 2003.

Decision

That the worker is entitled to benefits and services beyond July 17, 2003.

Decision: Unanimous

Background

In December 2002, the claimant filed a claim with the Workers Compensation Board (WCB) for a right shoulder injury that he attributed to the repetitious nature of his work duties as a labourer. The diagnosis rendered by a sports medicine specialist on January 12, 2003 was "acromioclavicular joint synovitis and rotator cuff tendonitis." On January 21, 2003, the claim was accepted by the WCB and benefits and services were paid to the claimant commencing December 19, 2002.

On July 6, 2003, the claimant underwent an MRI examination of his right shoulder region and the results were interpreted as follows:

1. Prominent AC arthrosis.
2. No abnormality rotator cuff or labra identified.

Based on a review of all the medical information on file which included the MRI examination results, the WCB determined that the initial workplace incident of December 2, 2002 was an aggravation of a pre-existing condition. Effective July 16, 2003, the WCB ended the claimant's benefits as it was felt that he had recovered from the aggravation and that his ongoing difficulties were related to his pre-existing condition.

On September 10, 2003, an orthopaedic surgeon outlined his opinion that the claimant's post traumatic arthrosis, on the basis of a repetitive trauma, was work related. Later documentation revealed that the claimant was scheduled for surgery to shave down the AC joint on November 19, 2003.

In a September 19, 2003 hand-written certificate, the treating sports medicine specialist outlined his opinion that the claimant's documented right shoulder problems were a by-product of the work duties that he performed in November 2002.

On October 3, 2003, primary adjudication asked a WCB orthopaedic consultant to review the medical information and to provide his opinion as to whether or not the claimant's Type II acromion and prominent AC arthrosis had developed due to his work activities or to another cause. The consultant's response to primary adjudication is dated November 9, 2003.

On November 19, 2003, primary adjudication advised the claimant that no change would be made to its earlier decision of July 17, 2003 based on the following rationale:

"Following a complete review of your claim, it is our opinion that there is no evidence that your strenuous workplace duties are the cause of your right A/C joint osteo-arthritis. The etiology of this condition may be multifunctional; natural aging processes, affects of remote injuries (sports, workplace etc.). The established symptomatic condition may take many years to become evident/problematic, at which point all activities (possibly including workplace activities) become increasingly difficult to perform.

It is our opinion that there is no longer a direct cause-effect relationship between your workplace injury and your current pre-existing condition…".

On February 6, 2004, the case was considered by Review Office following receipt of an appeal from a union representative dated December 3, 2003. The union representative argued that the claimant's shoulder problems started while he was fulfilling the requirements of his job duties and that it worsened over time.

In its decision of February 6, 2004, Review Office determined that the claimant was not entitled to further WCB benefits or services beyond July 17, 2003 based on the following rationale:
  • the condition of "prominent AC arthrosis" as shown on the MRI was not considered to be peculiar to or characteristic of a particular trade or occupation or to a particular employment.

  • there was insufficient evidence to confirm that the claimant was at a greater risk of contracting AC arthrosis through his employment than that risk associated with ordinary living.

  • acromioclavicular joint synovitis and rotator cuff tendonitis were the conditions directly related to the work injury. The underlying diagnosis of AC arthrosis already existed in the right shoulder and was considered a pre-existing condition.

  • the spasms and compensable diagnosis of acromioclavicular (AC) joint synovitis and rotator cuff tendonitis had resolved by March 2003 when the treating sports medicine specialist reported to a WCB medical advisor that the worker was capable of modified duties and was to return to work in 2 weeks time.

  • the MRI results provided sufficient evidence that the compensable injury had resolved and that the pre-existing condition was the only diagnosis remaining.
On March 11, 2004, the union representative disagreed with Review Office's decision and an oral hearing was requested.

Reasons

An MRI of the claimant's right shoulder was taken on July 6, 2003. This diagnostic imaging procedure revealed prominent AC (acromioclavicular) arthrosis. According to a WCB medical advisor, this condition pre-dated the claimant's compensable injury. However, the treating orthopaedic surgeon opined that on the basis of repetitive trauma the claimant's traumatic arthrosis was work related.

After having thoroughly considered all of the evidence, we are satisfied in concluding on a balance of probabilities that the compensable injury of December 2, 2002 resulted in an aggravation of a pre-existing condition, which eventually led to the necessity for the claimant's surgery. We find therefore that the claimant is entitled to benefits and services beyond July 17, 2003.

We note that the claimant continued to work following his injury right up until the time of his surgery. The claimant then spent the next 3 ½ months recovering from surgery after which he was authorized by the treating orthopaedic surgeon to return to work performing full duties. The claimant's appeal is hereby allowed.

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 2nd day of November, 2004

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