Decision #68/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s 1997 compensable left shoulder injury and left shoulder symptoms for which surgery was performed in 2004.
The worker’s original claim was for an injury that resulted from a flu vaccine which was incorrectly injected into the worker’s shoulder joint. The Workers Compensation Board (WCB) accepted the claim, upon reconsideration, and benefits were paid. The worker underwent surgery in 1999 for the injury and subsequently returned to work. In 2003, the worker’s shoulder symptoms increased resulting in the need for surgery in 2004. The WCB found that the 2003 symptoms were not related to the 1997 compensable shoulder injury. The Review Office agreed with this position. The worker appealed to the Appeal Commission.
A hearing was held on January 24, 2007 at the request of a union representative, acting on behalf of the worker. The panel discussed this case on two occasions, the last one being April 2, 2007.
Issue
Whether or not responsibility should be accepted for the worker’s recurrent left shoulder difficulties for which surgery was performed on September 3, 2004.Decision
That responsibility should not be accepted for the worker’s recurrent left shoulder difficulties for which surgery was performed on September 3, 2004.Decision: Unanimous
Background
The worker filed a claim with the WCB for pain and discomfort that she felt in her left upper arm that she related to a flu vaccination that she received at work on October 8, 1997. The worker was later diagnosed with a chronic subacromial bursitis condition which the WCB’s Review Office accepted as being related to the inoculation of October 8, 1997. Following treatment of her diagnosed condition which included surgery on January 22, 1999, the worker returned to her pre-accident duties as a nurse’s aide on June 18, 1999.
Then, on September 30, 2003, the treating orthopaedic surgeon reported that the worker’s condition had worsened over the past six months or more and she was having difficulty with her work activities. The worker now had pain in her acromioclavicular joint (AC) with weakly positive impingement signs. X-rays showed only minor degenerative changes at the AC joint. Treatment consisted of an injection to the AC joint through the subacromial space.
In his next report dated February 18, 2004, the surgeon commented that the injection to the AC joint did not relieve the worker’s pain. A repeat MRI revealed both anterior and posterior shoulder instability on the left side including reverse Bankart lesion and a Hill-Sacs lesion. He felt this was unusual in view of the fact that the worker never had any history of shoulder instability and the MRI prior to her last procedure was also negative for these findings. He stated, “Interestingly at her first scope she did have quite a degree of synovitis although it’s possible this may represent an intraarticular glenohumeral abnormality with some percussive degenerative changes.” As the prognosis and specific diagnosis for the worker’s present condition was unclear, further surgery was recommended to reassess the AC joint.
Following review of the medical information on file to determine whether responsibility for the surgery should be accepted, a WCB senior medical advisor arranged for a radiologist to compare the worker’s old and recent MRI films to determine whether there was a possible connection between the worker’s current findings and those from her original compensable injury.
In his report dated August 9, 2004, the radiologist reported that he concurred with the findings of his initial report of the 1998 study but added that a small Hill-Sacs compression deformity was present and more importantly that the posterior labrum and glenoid appeared entirely normal at that time. On the other hand, the January 23, 2004 study showed that the posterior glenoid and labrum problems were definitely new. There was a small step deformity concerning an ununited fracture possibly related to posterior subluxation. The Hill-Sach’s defect was unchanged. There was no evidence of a rotator cuff tendon tear. The anterior and superior labrum all appeared intact. No abnormality was present in the deltoid. An artifact related to prior surgery was noted within the anterior deltoid.
On September 2, 2004, a WCB orthopaedic consultant reviewed the radiologist’s report of August 9, 2004. In his view, the articular changes were new and were not related to the compensable injury. He therefore did not recommend acceptance of the worker’s time loss or authorization of surgery as a WCB responsibility. On September 3, 2004, the orthopaedic surgeon was advised that the WCB was not accepting responsibility for the worker’s upcoming surgery.
The worker underwent surgery on September 3, 2004 and the operative report was reviewed by a senior WCB medical advisor on October 6, 2004. After his review of the evidence, he confirmed that the worker’s ongoing difficulties were not related to her compensable injury.
On December 16, 2004, the orthopaedic surgeon advised the WCB of the following opinion “The inciting, or triggering incident, has been attributed to a prolonged inflammatory reaction in the subacromial region to a left shoulder injection. Despite findings on MRI related to shoulder instability, shoulder instability has not been part of the clinical presentation.”
Based on the opinion expressed by the orthopaedic surgeon on December 16, 2004, a union representative appealed the WCB’s decision to deny ongoing responsibility for the worker’s left shoulder problems.
On April 14, 2005, Review Office commented that the surgery performed in January 1999 confirmed a diagnosis of subacromial bursitis and that the more recent findings were located in the posterior glenoid and labrum. The symptoms associated with these findings did not present themselves until 2003. The Review Office therefore was of the position that the worker’s left shoulder problems originating in 2003 could not reasonably be associated with the injury initially sustained in 1997.
In another submission dated May 1, 2006, the union representative provided the WCB with a report from an occupational health physician dated February 16, 2006 which provided argument that the worker’s current shoulder symptoms were still related to her original 1998 injury.
On July 17, 2006, Review Office determined that no change would be made to its decision of April 14, 2005. Review Office stated, “An opinion was solicited from the Orthopaedic Consultant to the Review Office, who was of the view that the left shoulder complaints which ultimately led to surgery on September 3, 2004, could not reasonably be associated with either the original injury or the initial surgical procedure of January 22, 1999. He was of the belief that the MRI report of January 23, 2004 provided a false positive for a Hill-Sach’s and reverse Bankart lesion, as proven by repeated clinical examinations and the results of the most recent MRI of May 7, 2006. Furthermore, he points out that the presence of shoulder instability has never been proven on clinical examination, or even under anaesthetic.”
Following the hearing that took place on January 24, 2007, the appeal panel requested information from the orthopaedic surgeon prior to making a decision on the issue under appeal. A report from the surgeon dated March 6, 2007 was provided to the interested parties for comment. On April 2, 2007, the panel met to render its final decision.
Reasons
Worker’s Position
The worker attended the hearing with her union representative who made a presentation on behalf of the worker. The worker answered questions posed by the panel.
The representative stated that it is the worker’s “position that there is a direct cause and effect between [the worker’s] October 1997 workplace injury, and her ongoing medical problems that culminated in the surgery that occurred in September 2004.” He indicated that the worker is asking that the WCB accept responsibility for the surgery and any time loss as a result of the surgery.
The representative stated that although there was corrective surgery in 1999, the problems caused by the 1997 injection were not entirely corrected by the 1999 surgery. He stated that after a few years the pain became severe enough for the worker to be referred to an orthopedic surgeon. He referred to the opinion of the orthopedic surgeon in support of the worker’s claim. He noted that the orthopedic surgeon operated on the worker’s left shoulder in September 2004. The surgeon commented that the inciting or triggering event was attributed to a prolonged inflammatory reaction of the subacromial region to the left shoulder injection.
The representative referred to the operative notes of the 2004 surgery and noted that the surgeon operated on the exact same area as in 1999, and specifically mentioned revisiting the subacromial area where he cleared up scar tissue.
The worker confirmed that after the 1999 surgery she returned to work. The worker stated that after the 1999 surgery her shoulder was never normal. She had to “baby” her shoulder and did most lifting with her other arm. She said the shoulder got worse and worse until she had to see her family physician in 2003. She was then referred back to the orthopedic surgeon who performed the 1999 surgery.
In answer to a question regarding where her shoulder hurt, she responded that the whole joint hurt.
Employer’s Position
The employer was represented by an advocate who advised the panel that the employer is not opposed to the claim. The advocate advised that a Medical Review Panel would be helpful in resolving this complex case.
Analysis
The issue before the panel is whether responsibility should be accepted for the worker’s recurrent left shoulder difficulties for which surgery was performed on September 3, 2004. For the appeal to be successful, the panel must find that the worker’s left shoulder difficulties in 2003 which led to the 2004 surgery are related to the worker’s 1997 compensable shoulder injury. The panel was not able to find a relationship between the worker’s 1997 compensable shoulder injury and her shoulder difficulties in 2003.
The panel notes that the worker’s 1997 compensable injury was found to have arisen from the administration of a flu vaccine to the worker’s left shoulder. The accepted diagnosis for the 1997 compensable injury was a chronic bursitis condition.
In considering whether a relationship exists between the 1997 compensable injury and the shoulder condition which recurred in 2003, the panel has reviewed the pre and post operative reports for the 1999 and 2004 surgeries. The panel notes that the preoperative diagnosis in 1999 was chronic bursitis and impingement left shoulder. The post operative diagnosis was the same plus synovitis left glenohumeral joint. In 2004 the preoperative diagnosis is AC joint arthritis and synovitis and the post operative diagnosis is AC joint arthritis and synovitis. Neither surgeries found shoulder instability.
The panel notes that in 2004 there is no finding of chronic bursitis which is the accepted diagnosis for the 1997 compensable injury. As well the 2004 findings relate to the AC joint which was not noted to be involved in the 1997 injury and 1999 surgery. The panel notes and finds that the 2004 findings relate to a different part of the shoulder. The question then arises as to whether there is a biologically plausible link between the 1999 and 2004 findings.
In response to a request for additional information, the orthopedic surgeon advised that “…I have no literature support to show that AC arthritis is a complication of acromioplasty. However, I did postulate that that had happened in the case of [the worker], and the alternative explanation was that there was no connection between the conditions.” The surgeon advised that the last evaluation of the worker was in June 2006 and that no new definite diagnosis was made. The surgeon commented further that the worker’s complaints appeared to have been fairly consistent.
Regarding the consistency of the worker’s complaints, the panel notes the worker’s evidence that her shoulder was never normal after the 1999 surgery and that symptoms would come and go. The panel also notes that the worker’s family physician records indicate that she first saw the physician for shoulder complaints in June 2003. It does not appear that the worker sought medical attention between 1999 and 2003 for the shoulder. The panel notes there is a lack of information on file to support the consistency of symptoms.
The panel finds, on a balance of probabilities, that the shoulder condition which led to the 2004 surgery is not related to the 1997 compensable injury. The 2004 operative report finds AC joint arthritis. This finding involves a different part of the shoulder and a different condition than that which was found in 1999. The lack of significant symptoms between 1999 and 2003 suggests that a new and non-related medical condition arose for which surgery was required. Accordingly the panel finds that responsibility should not be accepted for the recurrent shoulder difficulties for which surgery was performed on September 3, 2004.
The worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of May, 2007