The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 23, 1999, following receipt of an appeal from the claimant. The Panel discussed this appeal on March 23, 1999.

Issue

Whether the claimant's right shoulder difficulties and surgery performed on March 10, 1998, are related to the compensable injury of August 26, 1988; and,

Whether the claimant is entitled to benefits commencing May 1996 as being related to the compensable injury of August 1988.

Decision

That the claimant's right shoulder difficulties and the surgery performed on March 10, 1998, are related to the compensable injury of August 26, 1988; and,

That the claimant is not entitled to benefits commencing May 1996 but rather is entitled to benefits between February 9, 1998, to June 1998 as being related to the compensable injury of August 1988.

Background

On August 21, 1988, the claimant completed a Worker's Claim for Injury or Industrial Disease claim form for a right shoulder injury which occurred while at work on August 26, 1988. According to the claimant's report, he was installing a shaft into a garbage compactor with the use of a large hammer when he injured his right shoulder. The injury did not necessitate the need for the claimant to miss any time from work, however, medical treatment was sought on September 1, 1988. According to the physician's initial report, the claimant presented with tenderness of the biceps tendon with decreased power. The claimant attended a second physician in October 1988 and on examination was found to have tenderness of the biceps groove with a positive impingement and limited abduction/elevation of the right arm. The claimant was diagnosed with a supraspinatus tendinitis and was treated with Depo Medrol injection. On November 15, 1988, the Workers Compensation Board (WCB) accepted financial responsibility for this claim.

No further activity is noted on the file until February 1998 when the WCB received a report, dated February 9, 1998, from the claimant's orthopaedic surgeon. The surgeon had assessed the claimant on January 12, 1998, for problems associated with the right shoulder which were being attributed to the August 1988 compensable injury. The surgeon advised that the claimant had experienced an increase in right shoulder symptoms about a year previously and which got progressively worse. The orthopaedic surgeon felt that the claimant had a chronic impingement syndrome of the right shoulder with a possible small rotator cuff tear. Surgery was scheduled for March 10, 1998.

In light of the foregoing, the WCB undertook an investigation to determine whether the claimant's right shoulder difficulties were related to the 1988 compensable accident. Part of this investigation included a telephone conversation between the claimant and the adjudicator on March 16, 1998, as well as a signed statement provided by the claimant on March 18, 1998. The claimant advised that subsequent to the medical treatment received in 1988, he did not seek any further medical follow up until October, 1997. At that time, the claimant was referred for a course of physiotherapy. He indicated that this form of treatment aggravated his symptoms. He was then referred to the orthopaedic surgeon. With respect to his employment history since the compensable accident, the claimant advised that he had continued with the accident employer until May, 1990 when the company was sold. The claimant accepted a financial "buy-out" and then obtained employment as a machinist with another firm in June of that same year. He continued working for this second company until May 1996 when he could no longer continue due to his shoulder condition and a lay off. The claimant reported being unemployed since that time. He then collected Employment Insurance benefits until May 1997 when they ran out.

The WCB also obtained a narrative medical report from the claimant's family physician. In his reply dated March 23, 1998, the physician reported assessing the claimant for right shoulder complaints on several occasions between March 23, 1993 and February 13, 1998. When seen on April 15, 1997, and again on November 28, 1997, the physician noted that the claimant was unable to elevate the right arm above 90 degrees. These findings were consistent with a frozen shoulder. According to the doctor, the claimant had a chronic injury dating back to 1988 which had been aggravated by ongoing use of the arm without adequate treatment. An x-ray performed on December 5, 1997, revealed the following:

"Slight deformity at the junction of the middle and distal thirds of the clavicle is most likely the result of a previous fracture which is solidly healed. Moderate degenerative changes are present in the AC joint. No abnormality of the shoulder joint is seen. There is no evidence of calcification in the rotator cuff."

On March 10, 1998, the claimant underwent surgery to the right shoulder consisting of an anterior acromioplasty and repair of the rotator cuff tear.

The file was reviewed in its entirety by a WCB medical advisor on April 3, 1998. Based on this review, the medical advisor expressed the opinion there was no medical evidence to support that the claimant had not recovered from the initial compensable injury, that the claimant's symptoms had significantly worsened after his lay off two years earlier, and that the operative findings of an extremely sharp anterior edge of the acromion found to be digging directly into the rotator cuff was a pre-existing anatomical variable unrelated to the compensable injury. Although the surgery was considered an appropriate procedure, it was not felt to have been related to the 1988 compensable injury.

By letter dated April 7, 1998, the WCB wrote to the claimant and advised that responsibility for the right shoulder symptomatology and surgery would not be accepted. In arriving at this decision, Primary Adjudication relied on the comments made by the WCB medical advisor.

The claimant's orthopaedic surgeon wrote to the WCB on April 26, 1998, asking that the decision to deny responsibility be reconsidered. In making his submission, the surgeon indicated the following:

"Although there may have been an underlying anatomical abnormality, this abnormality may have also been secondary to the impingement syndrome resulting from his injury. There is still controversy as to whether or not the acromial abnormalities are cause or affect and given his previous lack of difficulties with his right shoulder prior to his injury, it would seem likely that his injury either caused or aggravated a pre-existing condition."

The surgeon's submission was reviewed by the medical advisor. The adjudicator again wrote to the claimant on May 4, 1998, and advised that there would be no change in the decision with respect to the non-acceptance of the current problems as being related to the original compensable injury.

With the assistance of a worker advisor, the claimant filed an appeal with the WCB's Review Office. On January 25, 1999, the Review Office wrote to the claimant and advised that the previous decision of Primary Adjudication was being upheld. In reaching this conclusion, the Review Office noted that the claimant had not sought any medical attention for a period of approximately five years for a problem which was said to be chronic and that he had not sought medical treatment for approximately one year after stopping work. These facts in conjunction with the medical evidence confirmed for the Review Office that a relationship between the claimant's right shoulder problems and the original compensable accident could not be supported.

On February 3, 1999, the claimant completed an application to appeal and requested the Appeal Commission convene an oral hearing to determine the claimant's issues. The oral hearing was convened on March 23, 1999.

Reasons

We are satisfied, based on the weight of evidence and on a balance of probabilities, that the claimant's right shoulder difficulties and the surgery performed on March 10th, 1998, were related to the compensable injury of August 26th, 1988. In this regard, we preferred to accept the evidence of the claimant's orthopaedic surgeon contained in his letter of October 1st, 1998, to the worker advisor in which he said:

"My diagnosis of Mr.[the claimant] is a chronic impingement syndrome of the right shoulder and rotator cuff tear. This was confirmed at the time of surgery and indeed further confirmed by the fact that the surgical procedures completely relieved his pain. Your x-ray report of September 14, 1988, reporting no bone or joint abnormality, does not change my opinion. No special views of the shoulder were taken. An impingement syndrome is virtually impossible to diagnose on a plain x-ray, and a rotator cuff tear is impossible to diagnose, unless the cuff tear is extremely large, and has been there for a very long time. This was certainly not the case in this instance."

With respect to the second issue, the evidence is very clear that the claimant was not totally disabled beyond May 1996. Following a successful return to work, the claimant applied for and received employment insurance benefits in 1997. The orthopaedic surgeon, again in his letter to the worker advisor, stated that the claimant had indeed made excellent progress since the surgery. "On the 28 of May, 1998, he had a nearly full range of motion of his right shoulder, no pain, normal strength and was fit for work." The claimant advised that he was capable of performing light and/or modified duties.

We note that the claimant made no real active or concerted attempt to seek alternate satisfactory employment after his brief return to work. Accordingly, we find that the claimant is only entitled to receive benefits from February 8th, 1998, the day on which his condition was diagnosed, to June 1998 when he successfully returned to work following the surgery.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of May, 1999