The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 11, 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 had recovered from his right shoulder injury by January 15, 2002; and

Whether or not responsibility should be accepted for the proposed right shoulder arthroscopic acromioplasty.

Decision

That the worker had recovered from his right shoulder injury by January 15, 2002; and

That responsibility should not be accepted for the proposed right shoulder arthroscopic acromioplasty.

Decision: Unanimous

Background

On December 15, 2000, the worker filed a claim with the Workers Compensation Board (WCB) for right elbow difficulties that eventually spread to his right shoulder and down into two fingers. He stated that his left elbow was now starting to bother him as well. The worker's job activities included painting, drywall taping and texturing. Based on initial medical reports, the worker was diagnosed with a right medial/lateral epicondylitis and left medial epicondylitis. On July 1, 2001, a WCB medical advisor diagnosed the worker with right rotator cuff tendonitis. The claim for compensation was accepted by the WCB and benefits were paid accordingly.

In a report to the WCB dated September 10, 2001, the treating physician commented that the worker had medial and lateral epicondylitis and was now experiencing bilateral shoulder symptoms secondary to it.

In a report to the WCB dated September 28, 2001, the treating physiotherapist noted that he instructed the worker to continue with his home exercise program for the right shoulder and elbows. He stated that the worker may benefit from further treatment of the shoulder and elbow as the right shoulder rotator cuff tendonitis was likely related to muscles compensating for persistent elbow symptoms.

In a report to the WCB dated January 15, 2002, an orthopaedic surgeon outlined his examination findings pertinent to the worker's right shoulder. He stated, "By history sounds like he probably had some cuff tendonitis but has been improved with some 11 weeks of rest."

In progress notes dated July 24, 2002, the orthopaedic surgeon reported that the worker was assessed concerning his right shoulder rotator cuff tendonitis and right medial elbow pain. He stated that the worker did not want to consider further non-surgical treatment and wished to have a right shoulder arthroscopy and arthroscopic acromioplasty in spite of his suggestion for a further injection. The surgeon asked for the WCB's approval for the surgery.

A WCB medical advisor examined the worker on September 25, 2002. The medical advisor referred to the orthopaedic surgeon's findings of January 15, 2002 and expressed the opinion that the WCB should not accept financial responsibility for the proposed surgery. This decision was relayed to the orthopaedic surgeon in a letter dated October 9, 2002.

On November 15, 2002, the worker underwent an MRI examination of his right shoulder and the results revealed mild AC arthrosis and no evidence for a rotator cuff tendon or labral tear.

In a report dated April 3, 2003, the orthopaedic specialist again asked the WCB's permission to perform a right shoulder arthroscopy, arthroscopic acromioplasty and arthroscopic distal clavicle excision as well as a right tennis elbow release.

On April 25, 2003, a WCB orthopaedic specialist reviewed the file information and expressed his view that the AC arthrosis was not work related and that surgery for this condition should not be a WCB responsibility. The orthopaedic consultant commented that since the worker had good range of motion in his shoulder, he doubted that the worker would be helped by an acromioplasty and excision at the end of the clavicle. On April 30, 2003, the treating orthopaedic specialist was advised of the WCB's decision to deny financial responsibility for the proposed surgical procedures.

In a report dated May 13, 2003, the treating orthopaedic surgeon's examination of the worker's right shoulder revealed a positive impingement sign. The surgeon stated that it was obvious that the worker's 20 years of repetitive overhead work as a drywall installer/taper and painter caused the worker's right shoulder rotator cuff tendonitis and tennis elbow. He again requested that the WCB accept financial responsibility for a right shoulder arthroscopy, arthroscopic acromioplasty and distal clavicle examination and a right tennis elbow release.

On June 2, 2003, a WCB medical advisor noted that he reviewed the medical report of May 13, 2003 and determined that no change would be made to his opinion cited on April 25, 2003.

A further report was submitted to the WCB by the orthopaedic surgeon dated September 9, 2003 requesting the WCB's permission to perform surgery to the worker's right shoulder and elbow. On September 19, 2003, the case manager advised the surgeon that the opinion regarding surgery remained unchanged.

On January 8, 2004, a second WCB orthopaedic consultant reviewed the file information and agreed that permission for surgery should not be authorized, as "the proposed surgery is to treat pain, i.e. a subjective more than objective situation."

On August 27, 2004, a Medical Review Panel (MRP) was convened and its report to the WCB is on file dated September 29, 2004.

In a decision dated December 9, 2004, primary adjudication advised the worker that it was the WCB's position that he had fully recovered from his right shoulder injury no later than January of 2002. Based on this decision, the WCB was unable to accept responsibility for the MRP's recommendation of accepting the arthroscopic acromioplasty on his right shoulder. On January 28, 2005, a worker advisor, acting on the worker's behalf, appealed this decision to Review Office. The worker advisor noted that in the worker's opinion, he had not fully recovered from the effects of his 2000 compensable right shoulder injury and that the WCB should accept ongoing responsibility.

On February 14, 2005, Review Office confirmed that the worker had recovered from any work related trauma incurred to the right shoulder and that the WCB should not accept responsibility for the proposed arthroscopic acromioplasty on the right shoulder. Review Office stated, in part, that it was not clear as to exactly what the diagnosis was for the worker's right shoulder as objectively, very little was found on the imaging studies performed. Following review of all the file evidence, Review Office agreed with the position taken by the case manager and the WCB's three physicians in that it does not relate the worker's right shoulder symptoms as of July 2002 to the worker's general job description from December 2000. In May 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

As noted, the Panel was asked to determine two issues. The first issue was whether the worker had recovered from his right shoulder injury by January 15, 2002. The second issue was whether responsibility should be accepted for the proposed right shoulder arthroscopic acromioplasty. The Panel found that the worker had recovered from his right shoulder injury and as a result, there is no basis for the WCB to accept responsibility for the proposed surgery

The worker advised that he had been employed with the same firm for 13 years performing drywall taping, texturing and painting. He indicted that the symptoms developed gradually in early 2000, with pain in his right elbow and shoulder and then numbness which would go down into his fingers and hand causing a loss of grip in his hand. He noted that when his arm flared-up his range of motion would decrease.

The worker described the treatment he received which included anti-inflammatory drugs, stretching, ice, cortisone injections, and physiotherapy. He advised that he has not had physiotherapy or other treatment since 2002.

With respect to his present condition, he advised that his right shoulder and elbow and left arm still bother him. The last time that his arm flared-up was in the past winter. He does not know what causes the arm to flare-up.

The worker expressed concern about the manner in which his claim has been managed by the WCB. He feels that he received mixed messages from the WCB. He is concerned that the decision to terminate his benefits was based on one examination by the treating orthopaedic surgeon.

With respect to the examination which occurred on January 15, 2002, the worker stated that he had good days and bad. On that particular day, he noted that his range of motion was "not bad".

He reported that he saw a WCB medical advisor on September 25, 2002. When asked what treatment he would recommend, the WCB medical advisor suggested that he use ice, rub his shoulder once in a while and do household chores.

The worker's representative noted that the worker has not responded to any conservative treatment and that the orthopaedic surgeon has indicated that the only option left for relief of pain and discomfort is surgical treatment. She noted the Medical Review Panel's opinion that the benefits of the surgery outweigh the risks of the proposed procedure. She also noted that the orthopaedic surgeon's opinion has supported a cause/effect relationship between the worker's current right shoulder condition and the compensable injury.

Analysis

Having considered all the evidence, including the worker's testimony at the hearing, the Panel finds, on a balance of probabilities that the worker recovered from the right shoulder injury by January 15, 2002.

In arriving at this conclusion, the Panel places significant weight upon the examination results and comments as noted by the worker's orthopaedic surgeon in a report dated January 15, 2002. The orthopaedic surgeon made the following observations regarding the worker's right shoulder:

"Inspection: Normal.
Range of Motion: Normal.
Palpation: Nontender today.
Impingement sign: Negative.
AC Joint Loading Test: Negative
Provocative Test for Rotator Cuff Tendonitis: Negative
Nontender trapezius. Nontender cervical spine.
ASSESSMENT: By history sounds like he probably had some cuff tendonitis but has been improved with some 11 weeks of rest."

We also note that a WCB medical advisor examined the worker on September 25, 2002. The medical advisor's impression regarding the right shoulder was as follows:

"It appears that there was marked improvements/resolution of [the worker's] right shoulder condition up to a January 15, 2002 orthopaedic assessment…In so far as [the worker] has remained off work since late October 2001, it is unlikely that the exacerbation of shoulder symptoms in the summer of 2002 and the currently provocative isometric tests are a consequence of workplace injury."

On April 25, 2003, a WCB orthopaedic consultant opined that the worker's "AC arthrosis is not work related and that surgery for same should not be the financial responsibility of the WCB."

The Panel agrees with this opinion. We find that these examination results strongly suggest that the worker recovered from the injury after the 11 weeks of rest in January 2002. We find on a balance of probabilities that the worker has recovered from the work injury.

With respect to the second issue, given our decision that the worker has recovered from his work related shoulder injury, the WCB cannot accept responsibility for the proposed surgery.

The appeal is declined on both 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 25th day of August, 2005