The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 2, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the current shoulder symptoms are related to the compensable accident of December 1996;

Whether or not responsibility should be accepted for the right shoulder surgery performed on June 25, 2003; and

Whether or not the worker is entitled to wage loss benefits beyond June 7, 2002.

Decision

That the current shoulder symptoms are related to the compensable accident of December 1996;

That responsibility should be accepted for the right shoulder surgery performed on June 25, 2003; and

That the worker is entitled to wage loss benefits beyond June 7, 2002.

Decision: Unanimous

Background

In December 1996, the claimant slipped and fell at work and reported injuries to her right elbow, shoulder and neck. On December 30, 1996, the claim was accepted by the Workers Compensation Board (WCB) on the basis of a right elbow contusion.

Over the course of the claim, the worker was assessed by a number of physicians with respect to her right elbow complaints and was examined for neck and shoulder difficulties.

In an examination report dated January 11, 2002, a WCB medical advisor summarized that the worker's current symptomatology related primarily to pain over the right shoulder girdle between the right superior shoulder and base of the neck, which was aggravated by reaching movements of the right arm. The worker's symptomatology also included headaches which depended on the intensity of the right upper shoulder girdle symptoms.

Following his examination of the worker, the medical advisor stated, in part, "A review of the information on file in conjunction with today's examination findings has not revealed a probable structural pain generator, emanating from the December 6, 1996 workplace incident, that would account for the [worker's] reported symptomatology and demonstrated limitation of right shoulder mobility".

On March 15, 2002, the WCB advised the worker that no responsibility could be accepted for her claim beyond June 7, 2002. It was the WCB's position that there were no physical or psychological diagnoses related to the compensable accident to explain the worker's pain and that her elbow injury from the compensable accident had resolved long ago. Primary adjudication further stated:

"Your original hospital reports from December 2, 1996 indicate a contusion to the right elbow. Your current symptoms are related primarily to the shoulder, neck and head. No reports speak of shoulder difficulties until August 18, 1997 when you seen (sic) a Physiatrist. At that time you had minor restrictions in the shoulder. From August 1997 up until the examination on January 11, 2002 at WCB, all other shoulder examinations were normal. It was thought that there maybe (sic) a myofascial component to your pain. This is not supported by the examination of January 11, 2002 or by the lack of response to treatment specifically aimed at the myofascial pain."

On April 25, 2002, primary adjudication confirmed the above decision and made the following comments:

"…I must advise you that the treatment you have received regarding your neck and shoulders, on a balance of probability should not have been covered by the WCB…the first call in exam at WCB on March 24, 1997 shows a shoulder injury. The symptoms and finding at that exam do not support or resemble the findings from the January 11, 2002 exam. As such, it has been concluded that the current symptoms are not related to the original compensable injury…it has been concluded that the MRI you are being scheduled for is unrelated to the compensable injury, given that your shoulder and neck injury had resolved very shortly after your 1996 injury. …"

In November and December 2002, the worker submitted new information for the WCB to consider. The following is a brief summary of each report:

• October 1, 2002 MRI right shoulder report: A posterior labral tear was suspected complicated by paralabral cyst. There was no evidence of rotator cuff tear.
  
  
• March 21, 2002 - a physiotherapist outlined his treatment dates and findings from 1997.
  
  
• July 22, 2002 - an occupational health physician stated, in part, "…she continues to have prominent symptoms of pain and activity restrictions involving her right shoulder and neck that limits the use of her right arm. This pattern developed within a few months of her December 6, 1996 injury when she fell to her right side on her right arm. The time sequence and physical exam findings are very consistent with regional myofascial pain syndrome…"
  
  
• November 21, 2002 - the occupational health physician stated that the MRI findings of the right shoulder may well be related to the worker's December 1996 injury.
  
  
• February 12, 2003 bone scan results - the report revealed "very minimal increased uptake in the right AC joint, of uncertain clinical significance."
  
  
• March 17, 2003 - treating orthopaedic surgeon recommended shoulder arthroscopy. He stated, "Clinically there is a symptomatic AC joint arthritis and chronic subacromial bursitis which would ultimately be treated arthroscopically with decompression…."

On June 13, 2003, a WCB orthopaedic consultant reviewed the file information and commented on the bone scan results and MRI examination. He stated, "I feel that if a labral tear or injury to the acromioclavicular joint had occurred at the time of the work related injury the claimant would have had definite physical findings, especially a restricted range of motion of the shoulder. These examinations have been very well summarized by [WCB medical advisor] in his report of January 11, 2002. I therefore doubt that any serious injury has occurred to this claimant's right shoulder as a consequence of her work injury of December 6, 1996. I therefore also do not believe the proposed surgery to the right shoulder should be the responsibility of the WCB."

On June 24, 2003, the WCB informed the worker that no responsibility would be accepted for her right shoulder surgery and that no change would be made to the decision of April 25, 2002. The case was forwarded to Review Office for further consideration.

On August 15, 2003, Review Office confirmed that the worker was not entitled to payment of wage loss benefits beyond June 7, 2002; that the worker's current symptomatology was not considered related to the December 6, 1996 accident; and that no responsibility should be accepted for the right shoulder surgery.

Review Office noted that all initial medical information focused on the worker's right elbow which was stated to have been contused and that findings of right shoulder and neck problems began to emerge later on. It further noted that the functioning of the right shoulder and neck areas seemed to have deteriorated over the past six years plus. Review Office concurred with the observations made by the examining medical advisor and with the WCB orthopaedic consultant. Review Office felt that the worker's current right shoulder problems and the proposed surgery was not a consequence of the December 6, 1996 compensable accident.

On March 26, 2004, a worker advisor asked Review Office to consider several reports that were obtained from the treating orthopaedic surgeon. In particular, the worker advisor relied upon the orthopaedic surgeon's report of March 23, 2004.

On May 5, 2004, Review Office referred the file to a WCB orthopaedic consultant to review the new medical information and to provide his comments. In a response dated May 6, 2004, the consultant stated, "…the changes in the Rt shoulder are degenerative in nature & not post traumatic or work related. The claimant developed too many symptoms with too many diagnoses & onset of the later symptoms were too delayed to be explained by the CI in 1996."

In a decision dated May 7, 2004, Review Office confirmed its previous decision. It relied on the opinion expressed by the WCB orthopaedic consultant, namely, that the findings described in the June 25, 2003 surgery were pre-existing and degenerative in nature and were not caused by this accident. Review Office concurred with this observation, particularly noting the earlier reports barely mentioned the worker's right shoulder as a problem and, in any case, the examination of it was unremarkable. It was Review Office's opinion that it was not reasonable to conclude that the worker's current and ongoing right shoulder difficulties were caused by the slip and fall on December 6, 1996. On September 29, 2004, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

We were asked to consider three issues arising from the worker's December 1996 workplace injury. The first issue was whether the worker's current shoulder symptoms are related to the workplace accident of December 1996. We did find, on a balance of probabilities, that the current symptoms are related to this accident.

The second issue was whether responsibility should be accepted for the worker's right shoulder surgery which was performed on June 25, 2003. We found a relationship exists between the surgery and workplace injury and therefore responsibility should be accepted for the surgery.

The final issue was whether the worker is entitled to wage loss benefits beyond June 7, 2002. We found that the worker is entitled to wage loss benefits in an amount to be determined by the WCB.

Evidence and Argument at Hearing

The worker attended the hearing and was represented by a worker advisor who made a submission on behalf of the worker. The worker also answered questions posed by her representative and the Panel.

The representative reviewed the medical and other file information and concluded that the preponderance of evidence on file confirms that the worker has not recovered from the December 1996 workplace injury. She noted that the WCB initially accepted responsibility for the injury and continued to accept responsibility until June 2002.

The worker provided details of her employment and specifically her duties at the time of the December 1996 injury. She described the accident and the injury to her right side including her shoulder. She stated that her injury has not resolved since the accident. She described the June 2003 surgery and her condition since the surgery. She advised that she can perform her pre-accident duties with the possible exception of operating the auto scrubber. She also advised that she is currently working at two jobs.

Analysis

To answer the three issues we considered whether the shoulder injury arose from the December 1996 accident. We reviewed the full claim file and found that the worker suffered an injury to her shoulder on December 2, 1996. We note the worker reported the right shoulder injury in her first report to the WCB dated December 16, 1996. At that time she described her accident as "I slipped on grease + water - falling on my right elbow, hitting my elbow, shoulder + head." She noted that she injured her right elbow, shoulder and neck.

While the early medical treatments focused on her elbow, we note there was reference to her shoulder in a memo to file dated February 26, 1997. As well, a WCB medical advisor who examined the worker in March 1997 found the worker to have mildly positive impingement signs on the right shoulder. In May 1997, a physiotherapist noted the shoulder condition. Having considered all of the evidence we found that the worker continued to have complaints regarding her shoulder to the date of surgery.

First Issue:

With respect to the first issue, we did find, on a balance of probabilities, that the worker's current shoulder symptoms are related to the December 1996 workplace injury. In arriving at this conclusion we place significant weight on the worker's continued reporting of shoulder symptoms and on the reports of the treating orthopedic surgeon dated October 17, 2003, March 4, 2004 and March 23, 2004. In his March 23, 2004 report the orthopedic surgeon comments:

"…the AC joint condition continued, unimproved, after the December 1996 injury. My impression is that her shoulder condition was triggered by the accident, which she never fully recovered with respect to her AC joint after that injury, and that there was further wear and tear over the years to the joint injured in December 1996."

The diagnosis for the shoulder condition has varied over the years. We consider that the diagnosis offered by the treating orthopedic surgeon after the June 2003 surgery confirms the relationship between the injury and the workplace accident. At that time the diagnosis offered by the treating orthopedic surgeon included a posterior labral tear and paralabral cyst. As well arthroscopic findings of superior labral tearing, acromioclavicular joint arthritis, chronic bursitis and tendonitis and impingement, right shoulder.

Second Issue:

With respect to the second issue, we did find, on a balance of probabilities that the WCB should accept responsibility for the right shoulder surgery performed on June 25, 2003. We found that the worker's symptoms commenced with the workplace injury and continued to the surgery. We note there were signs of impingement as early as 1997 and that the treating orthopedic surgeon reported arthroscopic findings of impingement in his report of October 17, 2003. We also note that since the surgery, the worker reports a significant improvement in her right shoulder. This supports the view that the surgery was necessary and was related to the original workplace accident.

Third Issue:

On the third issue we found the worker is entitled to wage loss benefits beyond June 7, 2002. The worker's evidence is that she could not perform her pre-accident duties at the time her benefits were terminated. The worker advised that she found employment that did not require her to use her right shoulder but that it did not pay the same salary as her pre-accident employment. She also advised that she feels she can now perform her pre-accident duties with the possible exception of operating the scrubber.

The worker's appeal is allowed on all issues.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of January, 2005