The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 9, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being August 10, 2000.

Issue

Whether or not the claimant has recovered from the effects of the April 12, 1996 compensable injury; and

Whether or not the claimant is entitled to the payment of wage loss benefits beyond July 2, 1998.

Decision

That the claimant had recovered from the effects of the compensable left shoulder injury.

That the claimant is not entitled to further wage loss benefits beyond July 2, 1998 with respect to the injury of the left shoulder.

That the claimant had not recovered from the aggravation of the pre-existing condition of his right shoulder until November 26, 1998.

That the claimant is entitled to benefits and services including wage loss with respect to the right shoulder from the date of his right shoulder surgery, September 10, 1998, up to and including November 26, 1998.

Background

On April 12, 1996, the claimant injured his left shoulder, arm and elbow when he lifted a 40-50 pound door, which had fallen off a hook. The diagnosis reported by the treating physician was a left rotator cuff strain. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.

Following evaluations by an orthopaedic specialist, the claimant had an arthroscopy and cuff decompression of the left shoulder on March 12, 1997. The diagnosis noted on the operative report was a left rotator cuff tendonitis and an incomplete cuff tear. The operative report also noted the following “…There is quite a sharp hook to the anterior lip of the acromion to which the coracoacromial ligament was attached….”.

On October 29, 1997, a WCB medical advisor assessed the claimant due to ongoing left shoulder problems along with right shoulder difficulties. With regard to the left shoulder, the claimant exhibited full range of movement with good indications of muscle power and strength. The right shoulder demonstrated a weakness of the right supraspinatus with limited range of internal/external rotation and a painful arc. The claimant showed muscle weakness in the right shoulder compared to the left. On November 19, 1997, the medical advisor indicated that the claimant’s right shoulder difficulties were related to overuse due to the left shoulder injury. The medical advisor confirmed this on February 23, 1998.

In a memo dated March 6, 1998, an adjudication supervisor documented that she discussed the issue of any pre-existing conditions delaying the claimant’s recovery with the above WCB medical advisor. The medical advisor stated that the indication of a hooked acromion was not indicative of a pre-existing condition that would cause a delay in recovery. The hooked acromion had nothing to do with the claimant’s recovery time, as it was not the source of the claimant’s problems, rather it was the tendons.

In a letter dated April 9, 1998, the treating orthopaedic specialist reported that the claimant had been off work for 3 months with his right shoulder which appeared to have a chronic cuff tendonitis. An arthrogram was said to be negative. The claimant had a downward sloping acromion. The specialist recommended the same surgery for the right shoulder as was done on the left shoulder.

In June 1998, Claims Services asked a second WCB medical advisor to review the case. On June 17, 1998, the medical advisor responded as follows to the questions that were posed by Claims Services:

Question: If in your opinion the claimant’s right shoulder difficulties and proposed surgery are not related to overuse due to left shoulder compensable injury, could you please indicate the diagnosis of right shoulder difficulties and dominant cause (i.e. work related or pre-existing condition).

Answer: He may have a chronic rotator cuff tendonitis. He has a normal arthrogram. Therefore primary cause of his problem is the congenital hooked acromion.

Question: In your opinion has claimant recovered from the effects of the left shoulder injury?

Answer: Yes, in my opinion.

Question: In your opinion does claimant require restrictions for either his left or right shoulder solely related to a pre-existing condition. If yes, please outline.

Answer: Solely for pre-existing condition. No heavy lifting, no repetitive lifts above shoulder height.

On June 25, 1998, the claimant was advised by letter that wage loss benefits would be paid to July 2, 1998, inclusive and final. Claims Services was of the opinion that the weight of medical evidence including the history of injury, diagnosis, subsequent investigations and current clinical findings did not support a causal relationship between the compensable injury and the claimant’s current difficulties. The claimant was notified that his case would be referred to the preventative vocational rehabilitation committee to determine if he was eligible for preventative vocational rehabilitation benefits or services.

In a submission dated July 22, 1998, a union representative requested Review Office to reconsider the decision to deny further responsibility for the claim and wage loss benefits beyond July 2, 1998. The union representative made reference to the opinions expressed by the medical advisor who had examined the claimant and the second medical advisor who had provided comments on June 17, 1998. The union representative was of the position that the adjudicator had done some “doctor shopping” in order to get a contrary opinion that would give reasons to discontinue the claim.

On November 20, 1998, Review Office determined that the claimant had recovered from the effects of the compensable injury of April 12, 1996 and that the claimant was not entitled to wage loss benefits beyond July 2, 1998. Review Office based its decision on the medical evidence as well as WCB policy dealing with pre-existing conditions. Review Office’s decision was later appealed by the union representative and an oral hearing was convened on February 9, 2000.

Following the hearing and discussion of the case, the Appeal Panel requested further information prior to rendering a final decision. Specifically, the Panel received updated medical information from the treating orthopaedic specialist dated March 3, 2000, which included an operative report dated September 10, 1998, of the right shoulder. Information was also received from the accident employer and from a second employer whom the claimant had worked with from July 17 to September 11, 1998. A work site visit was also arranged and held on March 2, 2000.

On April 5, 2000, the Panel met again to discuss the case. At this time, the Panel requested that the claimant undergo a Functional Capacity Evaluation (FCE) to determine his functional capabilities with respect to the following:

a) his pre-accident duties as well as the light duties which were offered by the employer; and

b) the duties which he performed while employed with a second employer.

The claimant underwent a FCE on May 18, 2000. The report was forwarded to the interested parties for comment. On August 10, 2000, the Panel met to render its final decision.

Reasons

The issues in this appeal are whether or not the claimant has recovered from the effects of the compensable injury of April 12, 1996 and whether or not the claimant is entitled to the payment of wage loss benefits beyond July 2, 1998. The claimant has appealed Review Office decision of November 20, 1998 with respect to these issues.

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

Relevant WCB policy affecting this appeal is WCB policy Section 44.10.20.10., Pre-Existing Conditions.

In this appeal we reviewed all the evidence on file as well as that given at and received during the hearing process. We find that the weight of the evidence, on a balance of probabilities, supports the following decisions:

That the claimant had recovered from the effects of the compensable left shoulder injury.

That the claimant is not entitled to further wage loss benefits beyond July 2, 1998 with respect to the injury of the left shoulder.

That the claimant had not recovered from the aggravation of the pre-existing condition of his right shoulder until November 26, 1998.

That the claimant is entitled to benefits and services including wage loss with respect to the right shoulder from the date of his right shoulder surgery, September 10, 1998, up to and including November 26, 1998.

With respect to the left shoulder:

We note that the claimant injured his left shoulder at work on April 12, 1996. A strain of the left rotator cuff was diagnosed. On or about June 1996, a left rotator cuff tear was suspected and it was noted that the claimant had a pre-existing hooked left acromion of the left shoulder. In a memorandum to file dated July 12, 1996 a WCB medical advisor indicated that the hooked acromion would be contributing [to] or affecting the compensable injury.

The WCB accepted responsibility for proposed left shoulder surgery and on March 12, 1997 left shoulder arthroscopy, debridement of cuff tear and an acromioplasty were performed. Postoperative diagnosis was chronic left rotator cuff tendonitis with an incomplete cuff tear. The operative report indicated that there was quite a sharp hook to the anterior lip of the acromion noted during the procedure. In a memorandum to file dated April 17, 1997 a WCB medical advisor indicated that the hooked acromion, whether developmental or degenerative, would be a pre-existing condition.

“Range of motion of the shoulder now is essentially full. He has some soft tissue crepitus in the shoulder and a bit of a painful arc. Physio has just started to work on him on strengthening and I think things will start to improve as he gets more muscle strength about the shoulder. He certainly does not need to work very hard on stretching anymore as I am reasonably pleased with his range and further stretching will only tend to aggravate his discomfort. His x-rays show a very nice flat acromion has been achieved with his decompression.”

The claimant was examined by a WCB medical advisor on October 29, 1997. The medical advisor indicated in part in his report:

"The examination today reveals a claimant whose left shoulder is improving and recovering from a previously described acromioplasty.  The claimant is having almost full range of motion of the shoulder with good indications of muscle power and strength."

In a report dated January 13, 1998 the claimant’s attending physician indicated, “(L) side not bad” and in a report dated March 6, 1998 the claimant’s consulting orthopaedic specialist indicated:

“ He [the claimant] had a decompression of his left shoulder carried out in March of 1997 and this shoulder is much better, and in fact he feels that it is continuing to improve.”

In a memorandum to file dated January 23, 1998 a WCB medical advisor indicated that restrictions for the left shoulder, as outlined by the claimant’s attending physician, should be in place for a further six weeks and then reviewed. In a further memorandum to file dated June 15, 1998 the WCB medical advisor indicated his opinion that the claimant had recovered from the effects of the left shoulder injury and that any restrictions at that time were not related to the left compensable injury.

With respect to the right shoulder:

We note that there was no specific injury sustained. However, on December 4, 1996 some ten months following the injury to the left shoulder the claimant’s attending physician noted right shoulder pain at work following lifting and diagnosed rotator cuff tendonitis of the right shoulder. On January 23, 1997 the claimant was examined by a consulting orthopaedic surgeon who indicated in his narrative report of that day:

“This gentleman was last seen in September. He has got a chronic left rotator cuff tendonitis and if anything his pain is worse now, although occasional days he is not too bad. He has tried hard at his job to try and accommodate his shoulder. He was told to avoid lifting, but had a job change which involved having to do this and he tried by using the right shoulder for it. He now has had a flare and similar symptomatology in the right shoulder… . I think that the right side is fairly acute and should settle with aggressive treatment.”

The claimant was examined by a WCB medical advisor on October 29, 1997 who indicated in part with respect to the right shoulder:

“ Examination of the right shoulder however indicates a weakness of the right supraspinatus with a limited range of internal and external rotation and also a painful arc. Associated with these features, the claimant also shows muscle weakness in the right shoulder compared with the left… .

PLAN

1. The plan for this claimant is to continue with non-invasive conservative measures for his right shoulder would seem appropriate at this time… .

4. This claimant continues to have restrictions in relationship to the right shoulder. The claimant has limits in elevating the right arm above shoulder level. The claimant has limits in weight lifting with the right shoulder with no weights greater than 20 pounds. The claimant should not participate in repetitive actions of the right shoulder for a minimum period of three months.”

In a report dated November 6, 1997 the claimant’s attending physician indicated that the claimant was tolerating light duties at work. In a WCB memorandum to file, dated November 19, 1997, a WCB medical advisor indicated that, in his opinion, the claimant’s right shoulder difficulties were related to overuse due to the left shoulder injury. As recorded in a further WCB memorandum to file dated February 23, 1998 a medical advisor indicated that the right shoulder restrictions should remain until the claimant next saw his attending orthopaedic surgeon in two months.

In his narrative report dated March 6, 1998 the claimant’s consulting orthopaedic specialist indicated:

“ His right shoulder was giving him some symptoms prior to his difficulties with the left. It became more prominent as he had to use his right shoulder more.”

The orthopaedic surgeon further noted marked tenderness over the cuff and a positive impingement sign and suggested an arthrogram to rule out a cuff tear and possible cuff decompression on the right side. In a further report, dated April 9, 1998, the claimant’s attending orthopaedic surgeon indicated that the claimant had chronic right shoulder cuff tendonitis, had been back at work approximately three weeks and was certainly irritating the shoulder.

A right shoulder arthroscopy, cuff decompression and acromioplasty was performed on September 10, 1998, and similarly to the left the right acromion was noted to be quite hooked and inflamed bursal tissue was noted.

In a report dated March 3, 2000 the claimant’s consulting surgeon indicated his findings since the right shoulder surgery:

“ He was reviewed on September 22 at which time his incisions were healing satisfactorily and the sutures were removed… .

I saw him again on the 26^th of November 1998. This was about 10 weeks postop… .

His range of motion, however, was surprisingly good, being essentially full…

I asked that he return for review about 6 weeks later to make a decision about readiness to work. He has not returned for further follow-up and therefore I am unable to make any further comments about his present status.” (emphasis added)

We note from the evidence that the claimant’s benefits were discontinued on July 2, 1998 based on a review of the file by a WCB medical advisor, as recorded in a memorandum dated June 17, 1998, that the claimant had recovered from the left shoulder injury and that any restrictions were for the right shoulder due solely to a pre-existing condition and not related to the compensable injury.

With respect we find that the weight of the evidence, on a balance of probabilities, as outlined above, supports a finding that the claimant had recovered from the compensable injury of the left shoulder as of July 2, 1998.

However, we are of the view that a causal relationship continued and existed between the right shoulder symptoms and the employment and that the resultant right shoulder surgery with associated time loss was compensable.

We find from the evidence that the claimant, in attempting to protect his left shoulder, in the presence of an injury, a pre-existing hooked acromion, and subsequent surgery to his left shoulder did overuse his right shoulder which also had a pre-existing sharply hooked acromion which in combination caused increased symptoms.

Although it could be argued due to the claimant’s pre-existing hooked acromion of the right shoulder that this situation would have occurred anyway, we conclude from the evidence that the claimant’s right shoulder symptoms were related to a combination of these factors working in conjunction which led to overuse of the right shoulder necessitating earlier surgical intervention.

We visited the pre-accident work site in order to review the various light duty jobs assigned to the claimant by his pre-accident employer and concur with the WCB occupational therapist that there was sufficient and adequate accommodation by the employer in various modified duties that would have allowed the claimant to work until the date of his surgery for the right shoulder. In fact we take note that the claimant was able to find alternate duties and work full-time as a parts delivery driver until his surgery and therefore clearly demonstrated an earning capacity.

Notwithstanding the claimant’s ability to perform the modified duties as assigned, we remain of the view that a causal relationship existed between the left compensable shoulder condition and the right shoulder condition and the claimant’s work as an aggravation of a pre-existing condition which necessitated surgical intervention.

We note that the claimant discontinued his employment with the accident employer on May 1, 1998 and that benefits were discontinued as of July 2, 1998. We note that as mentioned above shortly following the discontinuation of benefits the claimant commenced working as a delivery driver full-time at 40 hours a week and that he continued working right up until the date of surgery on his right shoulder.

We therefore find that the modified duties as accommodated by the employer were within the claimant’s restrictions, and that the claimant did not sustain a loss of earning capacity after July 2, 1998 until the date of his right shoulder surgery on September 10, 1998. We further find based on the report of the claimant’s attending orthopaedic surgeon that the claimant had recovered from the effects of his compensable right shoulder condition as of November 26, 1998 when the claimant was last examined by his orthopaedic specialist. In this regard we take note of the claimant’s failure to appear for a later review with respect to a return to work as suggested by his attending orthopaedic surgeon. Therefore the claimant’s appeal is allowed in part as outlined in these reasons.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 11th day of September, 2000