The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 9, 1998, following receipt of an appeal from the employer's representative. The Panel discussed this case on November 9, 1998, and again on January 15, 1999.

Issue

Whether the claimant's left shoulder problems are related to his accident of October, 1996; and

Whether the claimant is entitled to benefits for the effects of his left shoulder problems.

Decision

That the claimant's left shoulder problems are not related to his accident of October, 1996; and

That the claimant is not entitled to benefits for the effects of his left shoulder problems.

Background

While employed as a meter technician on October 17, 1996, the claimant stated that he fell down a flight of stairs incurring injuries to the right neck and shoulder, the lower back, both ankles and right shin, right hand, right cheek bone, face and head. When seen by a hospital physician on the same day of injury, the diagnoses were a right shoulder AC (acromio-clavicular) strain, possible rotator cuff injury and sprain to the right ring finger. The claimant subsequently underwent physiotherapy treatments to the right shoulder and was seen regularly by his family physician. On November 13, 1996, the claimant returned to alternate duties. A progress report from the family physician dated January 9, 1997, indicated that the claimant still complained of right shoulder pain and also pain to the left shoulder and right ankle.

In a letter dated December 4, 1997, the claimant stated that he was re-opening his claim with regard to medical attention/appointments in connection with his left shoulder. The claimant indicated that at the time of his original injury, his right shoulder was causing him much more pain than the left and that he felt that pain killers masked the injury to his left shoulder. As his right shoulder healed the pain in his left shoulder became more prominent.

Following the request to re-open his claim, the Workers Compensation Board (WCB) obtained additional information from the claimant in the form of a signed statement dated January 22, 1998. Medical information was obtained from the family physician dated October 27, 1997, and March 30, 1998, in which he described the claimant's left shoulder complaints between December 5, 1997, and March 23, 1998. A report dated April 28, 1998, from an orthopaedic specialist showed that the claimant was initially examined for his left shoulder on December 10, 1997, and again on January 15, 1998.

On July 6, 1998, following consultation with a WCB medical advisor, Claims Services accepted responsibility for the claimant's left shoulder problems and left shoulder restrictions were outlined. On August 17, 1998, an employer representative appealed this decision on the basis that there was no indication that the claimant's left shoulder was injured at the time of the compensable accident until 3 months later and that a definitive diagnosis of the left shoulder had not been established.

In a decision dated August 28, 1998, the Review Office confirmed that the claimant's left shoulder problems more likely resulted from his October 1996, work-related accident than from some other more probable cause. This decision was reached by Review Office based on the following factors:

• "The nature of accident was consistent with trauma to multiple muscular sites, including the left shoulder region.
• Medical findings in the claimant's left shoulder were compatible with this type of soft-tissue trauma.
• There was no evidence to support another more probable cause for the claimant's left shoulder injury, prior to or after the work-related accident in October 1996.
• Medical opinion generally supported a conclusion that there was a causal relationship between the workplace accident and the subsequent left shoulder problem; and that pain medication may have "masked" the claimant's initial left shoulder symptoms for a period of time.

The Review Office concluded that the claimant was entitled to benefits under The Workers Compensation Act (the Act) for his left shoulder difficulties.

The employer's representative appealed the Review Office's decision and an Appeal Panel review was held on November 9, 1998. At the hearing, the claimant's representative requested the Appeal Panel to seek and review medical reports from a physical medicine and rehabilitation specialist who had been recently treating the claimant. Following discussion of the case, the Appeal Panel requested additional information which was later obtained from a physical medicine and rehabilitation specialist dated December 18, 1998, which included letters dated April 9, 1998, May 25, 1998, and June 25, 1998. On December 24, 1998, all interested parties were forwarded copies of the additional information that was received and were asked to provide rebuttal arguments. On January 29, 1999, the Panel met to render its final decision and took into consideration submissions from both the employer and union representatives.

Reasons

The issues in this appeal are whether the claimant's left shoulder problems are related to his accident of October, 1996 and whether the claimant is entitled to benefits for the effects of his left shoulder injury.

The relevant subsection of The Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.

Subsection 39(2) states:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

a) the loss of earning capacity ends, as determined by the board; or

b) the worker attains the age of 65 years.

While in the course of employment on October 17, 1996 the claimant fell down a flight of stairs when he was carrying meters and a step broke beneath him. At the time of the accident the claimant sustained multiple soft tissue injuries to his right and left ankle, right shin, right cheek, right shoulder, right side of neck and right hand. WCB accepted the claim and paid benefits. The claimant returned to alternate duties on November 13, 1996. In December 1997 the claimant contacted the WCB to report difficulties with his left shoulder.

We reviewed all the evidence on file, the evidence given at the hearing and received following the hearing, and in our opinion the weight of the evidence, on a balance of probabilities, supports a finding that the claimant's left shoulder problems are not related to his accident of October 17, 1996 and therefore there is no entitlement to benefits. In reaching this conclusion we placed weight on the following evidence:

• In his sworn statement dated January 22, 1998 the claimant indicates that he did not recall when he first realized that he had sustained an injury to his left shoulder but that he felt it was about three months after the original injury. He further indicates that his left shoulder had been fine between October and December, 1996 and that he had no prior history of injury to his left shoulder;
• On December 4, 1997 the claimant contacted the WCB indicating that his left shoulder had also been injured at the time of the accident. By letter to the WCB dated December 4, 1997 the claimant indicated that the injury to the left shoulder had not been apparent as the strong pain medication that he was taking for his right shoulder problems had "masked" the injury to the left shoulder. The claimant did not report the left shoulder involvement to his employer until December 3, 1997;
• In a report dated October 18, 1996 from the Health Sciences Centre Emergency Department an attending physician notes pain in the right shoulder, left ankle and right fourth finger and diagnoses right shoulder AC strain, possible rotator cuff injury, and sprain of the right ring finger;
• In a report dated October 27, 1997 the claimant's attending physician indicates that he had been seeing the claimant on a frequent and regular basis since the accident. He indicates he first saw the claimant on October 22, 1996 and that the claimant sustained abrasions to the right temporal region of the head and below the right eye, that the left foot was bruised, and that the right lower leg and left ankle were sore. He further notes bruising on the right upper arm and right hand and a small bruise near the left elbow;
• In the same report the attending physician indicates that the claimant first complained of some discomfort in the left shoulder on December 5, 1996 at which time he was back at work on light duties and the attending physician reports that the claimant attributes his difficulty with the left shoulder to his accident. However the attending physician states:

" Certainly the problems he had with the right shoulder can be attributed to the accident. Frankly, I don't know if the difficulty with the left shoulder is related to the accident or not."

• In a report dated February 6, 1997 the attending physician indicates that the claimant was still complaining of right shoulder pain and where asked to describe any condition not caused by the accident which may be affecting progress indicated "also complaining of discomfort left shoulder."
• The claimant returned to modified duties of servicing meters on a work bench on November 13, 1996 which excluded all lifting and all overhead work;
• In a report dated April 28, 1998 an attending orthopedic specialist indicated he first saw the claimant on December 10, 1997 and subsequently on January 15, 1998 and February 17, 1998. He indicates that it was exceedingly difficult to give a specific diagnosis as the claimant was tender throughout a great number of muscle groups and further indicates that giving a current diagnosis at that time would be outside the scope of his specialty;
• The claimant was seen by a rehabilitation and physical medicine specialist on April 6, 1998, May 7, 1998 and June 24, 1998. In a report dated April 9, 1998, the specialist indicates that the claimant has significant myofascial pain of the left neck, shoulder girdle and upper limb muscles;
• In a further report dated December 18, 1998 the rehabilitation and physical medicine specialist when asked about the likely etiology of left shoulder symptoms in relation to the mechanism of injury and the seven week delay in the appearance of any left shoulder symptoms indicated that there was no clear cut answer. He provided an opinion that the left shoulder complaints may have resulted from a compensatory mechanism following injury to the right shoulder, however, the physician indicated that this would be conjecture as it could not be proven.

We find that the medical evidence establishes that at the time of the accident the injuries were predominantly to the right side of the claimant's body and that there was no indication of any injury to the left shoulder. We find that symptoms involving the left shoulder did not occur until approximately two months following the accident and that no definitive diagnosis was made with respect to the left shoulder problems until approximately eighteen months post-injury. As well, the fact that the claimant waited almost a year from the initial onset of his left shoulder symptoms until reporting them to the WCB, further supports our conclusion that the symptoms do not relate to the compensable event.

We further find that the evidence does not provide a reasonable basis which would account for the delay in onset of the claimant's left shoulder symptoms which would demonstrate a relationship to the compensable event. We conclude that a cause and effect relationship has not been established between the claimant's left shoulder condition and the compensable accident of October 17, 1996. Therefore, the claimant is not entitled to benefits for the effects of his left shoulder condition and the employer's appeal is allowed.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 9th day of February, 1999