The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 12, 2005, 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 worker is entitled to benefits and services beyond April 9, 2004.

Decision

That the worker is entitled to benefits and services beyond April 9, 2004.

Decision: Unanimous

Background

In August 2003, the worker submitted a claim to the Workers Compensation Board (WCB) for injuries to her right shoulder and neck. The worker stated she was taking linens from a shelf and felt pain in the front of her right shoulder and neck area on July 21, 2003. Later in the same shift, she lifted a full bucket of water and the pain became worse. When she returned to work after a day off, she felt pain when washing out a tub, i.e. pain in her right hand/finger area, up to her arm and shoulder. The worker stated that she waited to report an accident to her employer until August 12, 2003 as she thought her pain would get better and go away.

The employer's report of injury dated August 14, 2003, stated that the worker reported injuries to her right shoulder and neck on August 13, 2003 and that the injury occurred 3 weeks ago.

File information revealed that the worker has prior claims with the WCB for right shoulder and neck injuries.

The worker was examined by a physician on July 21, 2003. The diagnosis rendered was a right shoulder and neck strain. The physician also questioned the possibility of a rotator cuff injury.

A physiotherapy report was received dated August 20, 2003. The diagnosis rendered was a rotator cuff imbalance and impingement.

On September 19, 2003, the claim was accepted by the WCB on the basis of a right shoulder and neck strain and benefits were paid to the worker commencing August 13, 2003.

Following an examination on October 2, 2003, a WCB medical advisor noted that the worker had a long history of right shoulder and neck pain since 1990 which had been recently exacerbated by a relatively minor incident. He stated that the worker's degree of pain was out of proportion to what would normally be expected with the type of injury she sustained. The medical advisor stated that a detailed examination of the shoulder and rotator cuff was impossible to conduct because of the worker's pain complaints.

The worker was examined by an orthopaedic surgeon on November 26, 2003. In his report of November 27, 2003, the surgeon outlined details of the work injury that occurred on July 21, 2003. He stated that the worker "was holding two blankets in her left arm. She was holding a flat sheet in her right hand and when putting her right hand up to about shoulder level with the sheet in her hand, she apparently had a sharp pain in her shoulder and stated that her arm dropped." With regard to previous problems, the surgeon noted that the worker had sustained injuries in 1990 and 1992. "The patient states that for a long time she has had some discomfort over the anterior aspect of her shoulder. Actually she points just to the medial side of her shoulder, anteriorly where she would have that discomfort. This apparently has been there for a few years. The patient however has not had this sharp pain on her neck and laterally over her shoulder." The surgeon described his examination findings and stated that the worker did not present with a neurologic deficit to her right upper extremity but there was evidence of a possible partial tear of the right rotator cuff. An arthrogram was ordered.

In a further report to the WCB dated January 15, 2004, the orthopaedic surgeon commented on the CT arthrogram results of the right shoulder that had taken place on January 7, 2004. The surgeon commented that the worker had a positive impingement sign and that she demonstrated a tear of the right rotator cuff consistent with the time of her injury on July 21, 2003. It was felt that the worker would benefit from an acromioplasty and repair of the rotator cuff.

On February 2, 2004, a WCB senior medical advisor wrote to the orthopaedic surgeon and asked him to provide the WCB with his opinion as to what the benefits could be achieved in performing the surgery and whether or not the worker had a clear understanding of the probable outcome of the surgical procedure.

In a letter to the WCB dated February 6, 2004, the orthopaedic surgeon reported that he had seen the worker and her husband on February 4, 2004 and answered questions concerning the surgery. The surgeon stated that the worker understood the risks, benefits and the alternatives and that she wanted to proceed with the surgery scheduled for February 10, 2004.

In a letter to the WCB's senior medical advisor dated February 6, 2004, the orthopaedic surgeon stated, "We received your letter of February 2, 2004 on February 5, 2004. I saw this patient on February 4, 2004 and dictated the letter that day immediately after reviewing this patient. I trust this answers your concerns."

On February 10, 2004, the worker underwent an acromioplasty and repair of her right shoulder.

On February 12, 2004, primary adjudication referred the case back to the senior medical advisor asking whether the February 10, 2004 surgery would be authorized by the WCB. The answer was "unlikely". The medical advisor was also asked to outline the anticipated recovery norms for this type of surgery. The answer was "never - on balance of probabilities."

Follow-up reports were received from the orthopaedic surgeon dated February 19, 2004, February 20, 2004 and March 9, 2004. On March 24, 2004, the orthopaedic surgeon reported that the worker was unfit to return to work and that there were no residual complications resulting from the surgery.

On March 26, 2004, primary adjudication asked the WCB's healthcare branch to comment on the diagnosis and to comment on whether or not the worker had recovered from the effects of her compensable injury given the minor mechanism of injury. In a response dated April 1, 2004, the senior medical advisor stated that the worker had sustained a rotator cuff strain due to pre-existing degenerative changes. He was uncertain as to when the degenerative tear took place. He did not feel it had been caused by the compensable injury which was relatively minor. He stated that on a balance, he did not think the tear or surgery was related to the compensable injury and suggested that the results of the compensable injury had resolved.

On April 2, 2004, primary adjudication advised the worker that responsibility for the claim would end on April 9, 2004. The case manager stated:

"You were examined by an orthopaedic surgeon on November 26, 2003, and it was his opinion that there was evidence of a rotator cuff tear and an arthrogram was arranged. The results of the arthrogram confirmed a degenerative tear and surgery was recommended by your attending surgeon. On February 2, 2004, the WCB wrote to the surgeon advising that the surgery would not be authorized by the WCB.

Based on a review of the claim, it is my opinion that the tear was not caused by the minor event of lifting linen from a shelf. You likely sustained a strain related to pre existing changes at your shoulder. Given the time that has elapsed since this incident, it is my opinion that this strain has resolved. Any ongoing difficulties would be related to pre existing factors not related to the compensable injury."

In a letter to the WCB dated April 8, 2004, the orthopaedic surgeon stated that in his opinion, the conclusion reached that there was a degenerative tear was not based on medical evidence. He stated, in part, that the arthrogram did not show a degenerative tear and that the term degenerative appeared nowhere in the report. On May 12, 2004, a senior medical advisor wrote to the orthopaedic surgeon in response to his letter.

On September 23, 2004, a worker advisor, acting on the worker's behalf, appealed the WCB's decision of April 2, 2004 to Review Office. The worker advisor contended that the weight of medical evidence clearly established that the worker suffered more than just a strain to her right shoulder and that she suffered a complete tear of her right rotator cuff on July 21, 2003 as a result of the compensable incident.

Prior to considering the appeal, Review Office wrote to the treating orthopaedic surgeon for additional information. His response to Review Office is dated November 8, 2004. Review Office then referred the case to a WCB orthopaedic consultant for an opinion concerning the relationship between the worker's rotator cuff tear and the compensable injury. His response to Review Office is dated November 18, 2004.

In a decision dated October 29, 2004 (relayed to the worker on November 19, 2004), Review Office confirmed that no responsibility should be accepted beyond April 9, 2004. Review Office placed weight on the opinion expressed by the WCB orthopaedic consultant that the minor mechanics of the accident would not result in a rotator cuff tear. He felt that the worker already had a tear at the time of the injury and that the accident merely aggravated this condition. Review Office was of the opinion that the weight of evidence supported the conclusion that the worker had recovered from the effects of the aggravation and that her ongoing problems were attributable to her prior shoulder problems. In January 2005, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

It is unfortunate that there was no radiographic examination of the worker's right shoulder rotator cuff prior to July 21, 2003. It was the worker's evidence, however, that she was able to perform her regular housekeeping duties prior to the July 2003 incident without any difficulty other than occasional pain. It was not until approximately three weeks later that the pain and the right shoulder difficulties became so acute that the worker could no loner perform her duties.

The CT arthrogram of January 7, 2004 confirmed beyond any doubt that the worker had a full thickness tear of her rotator cuff. In the opinion of the worker's treating orthopaedic surgeon, the tear was consistent with the July 21, 2003 incident.

As to the mechanism of injury, the worker testified at the hearing that she was reaching above her head and shoulders with her right arm fully extended when she pulled back. It was at this juncture that the worker felt an acute sharp intense pain followed by extreme weakness in her right arm.

Both the employer's representative and the worker advisor presented well prepared arguments with respect to the possibility that the worker's rotator cuff tear pre-existed the July 21, 2003 incident. The employer's representative argued that this pre-existing rotator cuff condition was a degenerative tear and that it would not have been caused by the relatively minor work related incident. The worker advisor alternatively argued "that even if we were to accept there was a degenerative tear present prior to the July 2003 incident, and then that incident enhanced the pre-existing condition".

Regardless of whether or not the full thickness rotator cuff tear was pre-existing, one fact stands alone and that is that the worker could perform her regular work duties prior to the July 21, 2003 incident, but not afterwards, with the exception of the three week period prior to her stopping work.

Based on the weight of evidence we nevertheless find that the July 21, 2003 event in conjunction with the worker's subsequent work activities over the ensuing three week period in all probability aggravated her pre-existing condition and eventually led to the requirement for surgery. We further find that the worker is entitled to benefits and services beyond April 9, 2004. Accordingly, the worker's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 28th day of June, 2005