The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 3, 1998, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being March 23, 1999.

Issue

Whether responsibility can be assumed for the worker's current right shoulder problems and his subsequent work stoppage on February 17, 1998;

Whether there is entitlement to vocational rehabilitation benefits and services; and

Whether a Medical Review Panel should be convened.

Decision

That responsibility cannot be assumed for the worker's current right shoulder problems and his subsequent work stoppage on February 17, 1998;

That there is no entitlement to vocational rehabilitation benefits and services; and

That a Medical Review Panel should not be convened.

Background

While employed as a labourer on November 7, 1996, the claimant was jackhammering a hole through concrete when the drill jammed yanking his right shoulder.

On November 28, 1996, x-rays of the right shoulder revealed no significant abnormalities. Cervical spine x-rays showed narrowing of the cervical disc spaces at the level of C-4 inferiorly with associated marginal osteophyte formation.

A Doctor's First Report, dated December 10, 1996, indicated that the claimant displayed atrophy of the supra and infraspinatii on the right with impairment of abduction of the right arm. The claimant was diagnosed with a rotator cuff tear of the right shoulder and was referred to an orthopaedic specialist.

In a letter dated December 12, 1996, the orthopaedic specialist reported his examination findings and concluded that the diagnosis "seems to be that of an injury to the teres minor and infraspinatous tendons." An arthrogram was recommended in order to evaluate the rotator cuff of the right shoulder. In a follow up report to the family physician, dated December 16, 1996, the orthopaedic specialist stated that the arthrogram failed to show any tears in the rotator cuff. He suggested that an EMG evaluation be done, if the claimant continued to suffer from weakness.

The claimant was again seen by the orthopaedic specialist on January 31, 1997. The specialist stated the claimant still had marked wasting of the supraspinatous muscle and also marked weakness of external rotation of the right shoulder. Movements such as abduction and anterior elevation and internal rotation were unaffected. The specialist was of the impression that the claimant still exhibited an injury to the external rotators of the arm although the arthrogram, which was re-evaluated, confirmed that the claimant did not have a tear of the capsule. MRI and EMG studies were then arranged.

On February 19, 1997, the shoulder MRI revealed the following: "There is an approximately 1 x 1.5 x 1.5cm lesion noted along on T1 and increased signal on T2. Findings are highly suspicious for a ganglion along the course of the suprascapular nerve. Appearances of the rotator cuff, labrum and AC joint are within normal limits."

In a progress report, dated March 5, 1997, the orthopaedic specialist reported a change in diagnosis to "ganglion in suprascapular nerve". The specialist felt that the claimant should avoid any work which placed stress on his right arm or necessitated excessive movement of the right arm. The specialist considered the claimant was basically unfit for most types of work.

EMG studies were performed on March 17, 1997. The results indicated evidence of a suprascapular injury on the right side.

On March 17, 1997, the claimant was assessed by a neurologist, who recorded the following comments:

"Clinically, this gentleman has a suprascapular nerve lesion on the right side. EMG shows reinnervation and confirms this.

It may be a traumatic neuroma that one is seeing. It is equally possible that what one is seeing is a swelling secondary to trauma.

I think he may improve to a decompression of the right suprascapular nerve at the suprascapular notch."

The claimant was assessed by a Workers Compensation Board (WCB) neurology consultant on April 23, 1997. Following his examination, the consultant concluded that the claimant was not completely disabled and should be encouraged to use his arm in a normal fashion. He further stated that in lesions of the infra and supraspinatii it was common for other muscles to compensate so one could not anticipate any long term disability even if there was no regeneration of the nerves to the muscle. He indicated there was no suggestion of any direct trauma to the nerve in the upper posterior part of the shoulder from either a wound or blunt pressure.

On June 21, 1997, the claimant was examined by a neurosurgeon who agreed with the orthopaedic specialist that the claimant had a lesion in the suprascapular nerve. The neurosurgeon discussed the possibility of excising the lesion, however, this view was not promoted as nerve grafting procedures in the nerve area had very poor results.

In a decision, dated July 31, 1997, the claimant was advised that wage loss benefits would be paid to August 7, 1997, inclusive and final. This decision was reached following consultation with WCB healthcare personnel who felt that the claimant was able to return to his regular work duties as the other muscles in the right shoulder would compensate for the damaged muscles.

On March 4, 1998, the claimant contacted the WCB indicating that he had been off work since February 17, 1998, due to right shoulder difficulties.

Subsequent medical information received from the treating neurologist, dated February 25, 1998, noted that the claimant reported weakness of his forearm/right hand and paresthesia of the right 4th and 5th fingers since June 1997. The neurologist was concerned that the lesion in the suprascapular region was becoming larger and perhaps compressing other members of the brachial plexus. Further investigations were recommended.

Following consultation with WCB healthcare personnel, Claims Services wrote to the claimant on April 8, 1998, and advised that he was not entitled to additional benefits. It was felt that his current right shoulder problems were different from the shoulder injury that had occurred on November 7, 1996. This decision was appealed to the Review Office by a worker advisor, acting on behalf of the claimant.

On August 14, 1998, after consulting with a WCB orthopaedic specialist, the Review Office denied the worker's appeal. The Review Office found it particularly compelling that the claimant had marked wasting of the infraspinatus and teres minor muscles with specific weakness of the external rotator muscles when he was first examined by the treating orthopaedic specialist in December 1996. Review Office concurred with the WCB's orthopaedic specialist that the claimant most probably had a pre-existing, non-compensable lesion developing in his shoulder prior to the incident at work in November 1996. "This lesion was not caused by this accident, and the worker's current difficulties can be attributed to the lesion expanding to it's present size as noted on the recent MRI scan. There is no indication that this lesion be it a ganglia or a neuroma was caused by the twisting incident of November 7, 1996. In particular, there was no direct trauma to the shoulder area that could have accounted for a neuroma as reported by the neurologist."

The Review Office concluded that the claimant was not entitled to vocational rehabilitation benefits and services as his ongoing difficulties were not a result of a compensable injury. The Review Office also considered the additional reports submitted by the treating neurologist and concluded that a Medical Review Panel (MRP) would not be convened. There was no difference of opinion as contemplated under Section 67(1) of the Workers Compensation Act (the Act).

On November 3, 1998, an Appeal Panel hearing was held at the request of the worker advisor. At the Appeal Panel's request, the claimant was subsequently examined by an independent neurologist on November 27, 1998, regarding his current physical status.

On March 4, 1999, all interested parties were provided with the independent neurologist's report and were asked to provide supplementary comments if they so chose. On March 23, 1999, the Panel met to render its final decision.

Reasons

The claimant was initially diagnosed as having possibly sustained a rotator cuff tear of the right shoulder. Subsequent clinical evaluation of the right shoulder revealed marked wasting of the infraspinatous and teres minor muscles with aspecific weakness of the external rotator muscles around the shoulder. The range of motion of the shoulder was found to be normal both actively and passively. Electrodiagnostic studies disclosed "a lesion consistent in its appearance with a ganglion cyst located in the suprascapular region, and appropriately so-placed as to impinge upon and compromise the suprascapular nerve." The WCB's medical services concluded that this lesion was the origin of the claimant's right shoulder difficulties and that it had not been caused by the compensable injury. The preponderance of evidence has led us to conclude that responsibility cannot be assumed for the claimant's current right shoulder problems and his subsequent work stoppage on February 17th, 1998. In arriving at this conclusion, we attached considerable weight to the following body of evidence.

• December 12th, 1996, letter from the orthopaedic surgeon to the treating physician. "The diagnosis seems to be that of an injury to the teres minor and infraspinatous tendons."
• February 19th, 1997, MRI of the right shoulder. "There is an approximately 1 x 1.5 x 1.5 cm. lesion noted along the course of the suprascapular nerve. Findings are highly suspicious for a ganglion along the course of the suprascapular nerve. Appearances of the rotator cuff, labrum and AC joint are within normal limits."
• April 22nd, 1997, letter from the neurologist to the orthopaedic surgeon. "Clinically this gentleman has a suprascapular nerve lesion on the right side. EMG shows deinnervation and confirms this. It may be a traumatic neuroma that one is seeing. It is equally possible that what one is seeing is a swelling secondary to trauma."
• March 26th, 1998, MRI right shoulder. Comparison is made with the previous of February 18. The lesion seen previously compressing the suprascapular nerve is again identified. It has however enlarged in the period since the previous examination and measures about 3 x 2 cm. now. The appearances are most in keeping with a suprascapular notch ganglia which is under gone interval enlargement."
• April 2nd, 1998, memorandum to file by WCB neurology consultant. "A traumatic suprascapular nerve neuroma related to CI of 1996 would not cause radial / ulnar nerve, other brachial plexus, spinal cord problems. Therefore any progressive - diffuse neurological problem would not be a result of the compensable injury. Any inability to work would not be a result of CI (1996)."
• May 17th, 1998, letter from the neurologist to the treating physician. "I think the lesion is in the brachial plexus. I think the neuroma may be the cause of brachial plexus compression. It was originally felt that the neuroma was due to trauma of the nerve." (Emphasis ours)
• August 13th, 1998, memorandum to file by WCB orthopaedic consultant in response to a question whether the compensable accident created the ganglia / lesion / neuroma. "No. The claimant was noted to having wasting of periscapular muscles and weakness [less than] 1 month post onset of symptoms suggesting the lesion was present prior to any CI. Furthermore there was no direct or blunt trauma to the suprascapular nerve."
• January 29th, 1999, letter from an independent neurologist to the Appeal Commission. "MRI of Mr. [the claimant's] right suprascapular region has been reviewed in detail by radiology staff of our institution, who report that the pertinent abnormality present on the imaging studies is a lesion consistent in its appearance with a ganglion cyst located in the suprascapular region, and appropriately so-placed as to impinge upon and compromise the suprascapular nerve. In relation to Mr. [the claimant's] right suprascapular nerve palsy, the available medical documentation clearly establishes this as being his principal deficit since the inception of his right upper extremity symptoms, and the radiologic opinion is that the ganglion cyst identified in the right suprascapular region is most likely responsible for this suprascapular nerve lesion, however, a potential association between the ganglion cyst and the 'injury' of 07 November 1996 can only circumstantially be inferred. The contingent relationship between the patient's right ulnar pathology and his original 'injury' in November of 1996 is difficult to establish."

We are satisfied that the claimant's right shoulder difficulties are not, on a balance of probabilities, related to his compensable injury of November 7th, 1996. In light of our decision with respect to the first issue, there is also no entitlement to vocational rehabilitation benefits and services beyond February 17th, 1998. In addition, we find no difference of medical opinion to warrant the convening of a Medical Review Panel.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 28th day of April, 1999