Decision #188/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on August 15, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on August 15, 2006 and again on September 27, 2006 and October 30, 2006.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond July 22, 2003.

Decision

That the worker is entitled to wage loss and medical aid benefits beyond July 22, 2003 to the date of recovery from surgery.

Decision: Unanimous

Background

On June 14, 2001, the worker felt a sharp pain in his left shoulder region while performing a welding job. He did not miss time from work as a result of the incident and returned to modified duties. Responsibility for the claim was accepted by the Workers Compensation Board (WCB) on June 21, 2001. The worker later sought treatment on July 10, 2001 and was diagnosed with a left rotator cuff strain.

Initial file records also contained information about a work injury that the worker sustained on July 11, 2001 for which he filed a compensation claim. On his application for compensation, the worker stated that he was lifting a 30 foot tube and was placing it into a jig when he turned and felt a pinch in his neck. When seen for treatment on July 12, 2001, the worker advised his treating physician that his left shoulder and neck were becoming really sore through his shift and had been getting worse over the last 10 days. When he was examined by a WCB physical medicine and rehabilitation consultant (a physiatrist) on December 6, 2001, the worker described his July 11, 2001 work accident to the consultant as “…was lifting a 25-pound tube in an upward motion with both upper extremities and felt a pain in the posterior shoulder and left base of the neck.”

A report was received from an orthopaedic surgeon dated September 14, 2001. The report stated that the worker was 16 months post right arthroscopic surgery and was presently on modified duties. The worker complained of generalized bilateral shoulder soreness as well as some neck pain intermittently. The examination revealed a neurovascularly intact right upper extremity with excellent shoulder range of motion with no significant tenderness about the bony prominences. The worker had been advised to continue with physiotherapy and modified activities.

As the worker continued to experience difficulties with his left shoulder, an MRI examination was carried out on May 8, 2002. The radiological report revealed no evidence of a rotator cuff tear but minor bursal fluid was present. The worker was then diagnosed with bursitis and was treated with physiotherapy.

A second MRI examination took place on April 5, 2003 because of the worker’s persistent left shoulder pain and to rule out subacromial bursitis. The radiological findings suggested a possible posterior labral tear.

On May 15, 2003, the WCB’s physiatry consultant reviewed the file information at the request of primary adjudication. He noted that the worker’s prior bursitis condition had resolved and that the suggested posterior labral tear noted on the MRI assessment was not work related.

The WCB physiatrist made arrangements to have the worker’s MRI of May 6, 2002 compared with the MRI of April 5, 2003. In a report from the radiologist dated June 24, 2003, he stated that after reviewing both sets of images, he was less convinced that a posterior labral tear was present. He stated that an MR arthrography would have to be considered in order to be absolutely certain.

In a July 10, 2003 decision, the worker was formally advised by his case manager that the WCB could not accept any responsibility for additional medical treatment/expense or time loss from work beyond July 22, 2003 for his left shoulder difficulties as it was felt that he had recovered from the effects of his compensable injury, and that his ongoing symptoms were neither related to his work activities or compensable injury.

A report was received from the treating orthopaedic surgeon dated August 21, 2003. The specialist stated in his report that the worker claimed that his left shoulder problems began after an episode at work when a heavy metal beam fell on his arm which was abducted and forward flexed giving a sudden jarring sensation to the shoulder. His arm fell limp by his side and he had significant pain in his shoulder which took numerous weeks to subside. After reviewing the radiological reports and after his physical examination of the worker, the specialist suggested a shoulder scope to assess the posterior labrum and fix it should it be torn and arthroscopic decompression and possible distal clavicle excision should the worker’s labrum be normal.

The worker underwent surgery to his left shoulder on December 1, 2003. The postoperative diagnoses were listed as follows: “Degenerative changes chondromalacia Grade III humeral head and posterior glenoid, degenerative posterior glenoid labrum tear as well as impingement and AC arthrosis.”

In response to a worker advisor’s letter dated December 4, 2003, the treating orthopaedic surgeon stated on January 7, 2003, that there was a temporal relationship between the onset of symptoms in the worker’s left shoulder and this included the soft tissues around the shoulder as well as the pathology seen at the time of surgery. This included the degenerative posterior labral tear and the rotator cuff tendonitis. The orthopaedic surgeon commented that it would take approximately four months for the worker to recover from the surgery and that the worker could ease into light duties around 12 weeks post surgery.

Based on the above report, the worker advisor asked the WCB to accept the worker’s condition as being work related and to extend wage loss benefits beyond July 22, 2003.

On February 10, 2004, a WCB orthopaedic specialist was asked to review the file information and to comment on whether the June 1, 2001 mechanism of injury was consistent with or related to any of the post-operative diagnoses. In his response dated February 26, 2004, the WCB specialist noted that according to the treating orthopedic surgeon, there may be a temporal relationship between the worker’s current status and the workplace injury. However, he did not address the question of a work related surgical pathology. The WCB orthopaedic consultant further stated:

“Degenerative changes of posterior glenoid and head of humerus were of longstanding and not directly related to, or arising out of the workplace injury as described.

Degenerative changes of the AC joint likewise.

The word “tear” suggests a direct trauma relationship but was noted to be also degenerative in nature and in my opinion part of the overall degenerative picture. Also the contusion, lifting mechanism of injury is not a typical etiology for labral injuries.

In my opinion there is no irrevocable evidence that the surgery findings were directly related to the workplace injury, nor that the injury necessitated the surgical treatment.”

On March 8, 2004, the WCB case manager informed all interested parties that the WCB was unable to accept responsibility for the worker’s ongoing left shoulder difficulties and recent surgery as being related to the June 2001 compensable accident. This decision was based on the opinion expressed by the WCB orthopaedic consultant on February 26, 2004.

On June 7, 2004, the worker advisor provided the WCB with a further report from the treating orthopaedic surgeon dated April 20, 2004. The worker advisor submitted the following:

“In the December 6, 2001 exam notes, [WCB physiatrist] states that the claimant indicates that the mechanism of injury for the July 11, 2001 CI [compensable injury] was that he was lifting a 25 lb. tube in an upward motion with both upper extremities and felt a pain in the posterior shoulder and left base of the neck. We would suggest that this appears to be an amalgam of both claims. [The physiatrist] does not differentiate between the two claims and does not mention the second one, which is indicated as a neck injury without mention of shoulder involvement in the accident description.

In the April 20, 2004 report [orthopaedic surgeon] indicates that the claimant had a sudden jarring sensation in the left shoulder. While there may have been degenerative changes in the shoulder the claimant may have been asymptomatic up to that point. The doctor concludes that it is more likely that his injury had enhanced the symptoms in the shoulder and created a new injury in the posterior labrum.

I also note that the board has not considered the potential effects from the claimant’s job duties. There is an indication from [WCB physiatrist] 12/12/01 indicating that he suspects that the grinding duties are irritating the biceps tendon and rotator cuff problem. We request reconsideration of your decision and an investigation by the board into the potential effect of job duties.”

In a response dated July 6, 2004, the case manager advised the worker advisor that following his review of the June 14, 2001 and July 11, 2001 claims, neither file had an accident history from the worker, his employer or his physician which was consistent with the recent accident history clarification provided in his submission. Therefore he did not see basis to revisit the previous medical opinions on file. The case manager also commented that there was evidence on file which suggested that the worker had been engaged in activities other than work duties which may also strain his shoulder and possibly explain the development of the degenerative changes noted in both of his shoulders.

On May 16, 2006, a worker advisor appealed the July 10, 2003 and March 8, 2004 decisions to Review Office. He submitted that the report from the treating orthopaedic surgeon dated April 20, 2004 supported their position that the worker had not recovered from the effects of his compensable injury.

In a June 1, 2006 decision, Review Office confirmed that the worker was not entitled to wage loss benefits beyond July 22, 2003. Review Office made the following determinations:

  • it accepted the accident description as being what the worker reported to the WCB, his employer and physician as “lifted a metal tube and felt pain in left shoulder”;
  • that the file information did not confirm that the accident of June 14, 2001 resulted in the worker experiencing a jarring motion of his left shoulder;
  • it accepted the opinion expressed by the WCB orthopaedic consultant of February 26, 2004 and that of the orthopaedic consultant to Review Office that the diagnosis of the compensable injury was subacromial bursitis/tendonitis and that the worker aggravated his pre-existing condition but that this aggravation had resolved;
  • there was no medical evidence to support that the compensable injury enhanced the worker’s pre- existing condition;
  • that the posterior labral tear was not related to the compensable injury of June 14, 2001;
  • that the worker had sufficiently recovered from his compensable injury which was diagnosed as bursitis/tendonitis by July 22, 2003 and that any ongoing difficulties with the left shoulder are relate to the worker’s pre-existing condition.

On June 6, 2006, the worker advisor appealed Review Office’s decision and requested an oral hearing. The oral hearing took place on August 15, 2006. During the course of the hearing, the worker provided a detailed description of the events of June 14, 2001. He indicated that:

  • on the day in question, he was making a tube which helps to hold the window at the front of a bus in place;
  • at the time the injury occurred, he was standing at his workstation putting an eight foot long tube into a vertical jig, with his left arm fully extended above his head and the right arm bent at the elbow in a lower position than the left (a jig is a series of stoppers which put pieces in the right position to be welded);
  • he was trying to join a tube running vertical with a tube running horizontal;
  • the jig was two and a half to three feet above the ground;
  • he took his right arm off to grab his welder in order to make a spot weld to join the tube running horizontal to the tube running vertical;
  • he was continuing to support the vertical tube with his left hand, arm and shoulder;
  • the vertical tube slipped out of the jig and he “felt it jolting my shoulder in the socket area” causing a sharp pain;
  • the tube did not hit his shoulder;
  • subsequently, he lost control of the tube and it slid down two and a half feet while he was still holding it;
  • as a consequence of the event, he felt a sharp pain in his shoulder;
  • the symptoms related to his injury remained consistent and did not improve from June 2001 to December 2003.

During the hearing, the worker's representative also made submissions with regard to the worker's claim. He indicated that “what we're asking for today is that the Board accept responsibility for the accident, accept responsibility for the effects of the accident and to extend benefits until his recovery from the surgery.”

In making his submission, the worker’s representative made reference to the April 20, 2004 letter of the surgeon which concluded that “there was a sudden jarring sensation in the [worker's] shoulder, this is probably in keeping with a posterior subluxation . . . I believe that it is most likely that this injury enhanced [the worker's] symptoms in the shoulder and created a new injury in the posterior labrum.”

In the view of the worker's representative, the surgeon's evidence was clear that “the workplace accident, specifically the jarring motion of the accident enhanced the pre-existing conditions and caused the labral tear.” In the representative’s view, the surgery undertaken was for the most part successful. He confirmed that he was not taking the position that “all of the left shoulder problems right now continue to be related to the compensable injury.” He went on to note that “there's no diagnostic evidence that the other degenerative conditions were enhanced. There is diagnostic evidence that the labral tear was caused.”

The worker's evidence was that his surgery was in December of 2003 and that his physio therapy lasted four or five months after his surgery. He went on to suggest that about a year and one half after his surgery, his doctor was saying that he was recovered and that “there must be something you can do at work.” He indicated that in June or July of 2005, he wrote to his employer and indicated that he wanted to return to work.

On August 16, 2006, the appeal panel requested additional information from the WCB orthopedic consultant who had commented on the file in February, 2004. On September 14, 2006, the worker advisor was provided with the response that the appeal panel received from the orthopedic specialist dated August 31, 2006 and was asked to provide comment. On September 27 and October 30, 2006, the panel met to discuss the case and rendered its final decision.

Reasons

Section 4(1) of The Workers Compensation Act provides that

where, in any industry within the scope of this Part, personal injury by accident arising out and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund . . .

WCB Policy 44.10.20.10 on pre-existing conditions provides in part that:

“Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between them, the Worker's Compensation Board will accept responsibility for the full injurious result of the accident . . .

Where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on balance of probabilities, that the accident, or the accident in concert with the pre-existing condition is causing the loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.”

An enhancement is defined as a situation “where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.”

Competing views

The panel is presented with two contrasting views on the worker's eligibility for wage loss and medical benefits beyond July 22, 2003. To a large degree, the relative merits of the two views hinge on the panel's findings in terms of the mechanism of injury.

On one hand, Review Office found that the mechanism of injury was via the lifting of a metal tube. It held that there was no support for the suggestion that the accident resulted in the worker experiencing a jarring motion of his left shoulder. Review Office also found that the worker's posterior labral tear was not related to the compensable injury of June 14, 2001. It determined that while the worker had aggravated his pre-existing condition, this aggravation had resolved by July 22, 2003. It held there was no medical evidence to support the assertion that the compensable injury enhanced the worker’s pre-existing condition. Review Office suggested that any ongoing difficulties with the worker's left shoulder were related to the worker’s pre-existing condition.

In contrast, the worker argues that there was a jarring and dropping motion which caused the posterior labral tear and which enhanced his pre-existing condition. He argues that the consequences of this injury resulted in a loss of earning capacity up to the time he had recovered from his surgery.

In resolving this issue, the panel must ask:

What was the mechanism of injury on June 14, 2001?

What was the nature of the injury suffered by the worker as a consequence of the accident?

Was the worker's loss of earning capacity and need for medical aid beyond July 22, 2003 caused by the workplace incident?

The Mechanism of Injury

The panel accepts, based upon a balance of probabilities, the worker's description of his accident and mechanism of injury as detailed in the August 15, 2006 oral hearing. The panel found the witness to be convincing and persuasive. To the extent that previous reports of the accident in question may appear to be inconsistent with the version provided on August 15, 2006, the panel believes that those inconsistencies can be explained by the fact that a more thorough discussion of the mechanism of injury took place at the hearing on August 15, 2006.

In particular, the panel accepts, based upon a balance of probabilities, that the worker was holding and supporting an eight foot tube which was running vertically for the purposes of welding it to another tube running horizontally. In supporting and holding the tube, the worker's left arm was fully extended above his head. When the worker went to grasp his welder with his right hand, the tube slipped out of its supports and the transmittal forces jolted his left shoulder causing a sharp pain. The tube then slid to the ground with the worker still holding on to it with his left arm.

Based upon its assessment and the credibility of the worker, the panel also finds, on a balance of probabilities, that the symptoms related to his injury remained consistent and did not improve from June 2001 to December 2003. We note the observation of the surgeon in August of 2003 that the worker “has had ongoing problems with that shoulder [since the accident]. He has not had a pain free episode since.”

What was the nature of the injury suffered by the worker as a consequence of the accident?

The Panel accepts, based upon a balance of probabilities, that the worker suffered an enhancement of a pre-existing S.L.A.P lesion (a tear of his labrum) as a consequence of the jarring action to his shoulder on June 14, 2001.

In making this determination, the panel has relied in part upon its finding as to the mechanism of the injury as well as its finding that the worker is credible in describing the sharp pain that he suffered immediately after the jolt to or jarring to his arm. In particular, however, the Panel relies upon the evidence of the surgeon who expressly related the mechanism of injury on June 14, 2001 to the injury to his posterior labrum:

“There was a sudden jarring sensation in the shoulder. This is probably in keeping with a posterior subluxation. Although the degenerative changes may have pre-existed this injury and he may have been asymptomatic until this point, I believe that it is most likely that this injury enhanced his symptoms in the shoulder and created a new injury in the posterior labrum.”

In relying upon the opinion of the surgeon, that panel has taken into account the fact that other contrary medical opinions appear to heavily rely on the suggestion that the worker hurt his shoulder while lifting the tube rather than as a consequence of having his shoulder jarred while it was fully extended above his head. Given its findings as to the mechanism of injury, the Panel prefers the opinion of the surgeon. The panel also notes that the WCB orthopaedic consultant in his August 31, 2006 letter has agreed that extreme flexion and rotation arm movements may cause possible involvement of the posterior labrum.

The panel also finds, based on a balance of probabilities that the other pre-existing shoulder conditions are not related to the compensable injury. It makes this finding based upon its consideration of the record as a whole. In particular however, the panel notes that the worker's representative did not take the position that “all of the left shoulder problems right now continue to be related to the compensable injury.” He also conceded that “there's no diagnostic evidence that the other degenerative conditions [other than the labral tear] were enhanced.”

On a balance of probabilities, was the loss of earning capacity and the incurrence of medical costs caused by the compensable accident or the accident in concert with the pre-existing condition?

Considering the record as a whole, the panel finds, based on a balance of probabilities that the loss of earning capacity and the incurrence of medical costs was caused by the compensable accident or the accident in concert with the pre-existing condition.

In making this finding, the panel notes the continuity in symptoms dating from the June 14, 2001 accident to the surgery. It observes that the worker was not pain free from the date of that accident, that his condition was not responsive to physiotherapy and that it restricted his capacity to fully participate in the workforce. The panel also notes the August 21, 2003 opinion recommending surgery appeared to be based upon the continuity of symptoms from the date of the accident coupled with the pain experienced by the worker as well as the restrictions on his workplace duties and his non-responsiveness to physiotherapy.

The panel observes that while the surgery was largely successful, the worker continued to suffer a loss of earning capacity until he had recovered from the surgery.

Conclusion

The panel finds based upon a balance of probabilities that the worker is entitled to wage loss and medical benefits beyond July 23, 2003 to the date of recovery from surgery.

The appeal is allowed.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2006

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