The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 55/2007 holding that her left shoulder problems are not related to her compensable injury. The worker appealed this decision to the Appeal Commission and a hearing took place on July 19, 2007. The worker attended the hearing with a worker advisor who made a presentation on her behalf. The employer was represented by an advocate and their Director of Human Resource Services. The advocate made a presentation on behalf of the employer.

Issue

Whether or not the worker’s left shoulder problems are related to the compensable injury.

Decision

That the worker’s left shoulder problems are not related to the compensable injury.

Decision: Unanimous

Background

In April 2002, the worker reported to the Workers Compensation Board (WCB) that she suffered a right shoulder impingement, tendonitis and bilateral muscle imbalance from chronically using backpacks in her job duties. She stated this was the second year in a row that it flared up and that it was close to the end of the winter season. She said the backpacks are repetitively loaded and unloaded over her winter coat and while on worksite visits where minimal outerwear is worn.

Initial medical reports showed that the worker was treated by a chiropractor and a sports medicine specialist for her right shoulder condition. In August 2002, the worker resigned from the accident employer. On November 17, 2002, an MRI assessment of the right shoulder revealed “Small complete insertional tear supraspinatous not complicated by atrophy nor retraction.”

On December 23, 2002 a WCB medical advisor stated that the diagnosis was a supraspinatus tear and secondary mild AC arthrosis which was considered to be a pre-existing condition. He stated that on a balance of probabilities, it was probable for such an injury to have occurred from lifting, loading/unloading backpacks repetitively.

On January 7, 2003, initial adjudication denied the worker’s claim for compensation as it felt there was not enough evidence to establish that she suffered a personal injury due to an accident arising out of and in the course of her employment. This decision was overturned by Review Office on September 19, 2003. It found that the worker’s pre-existing condition would make the activity of lifting and unloading backpacks more likely to have caused the degenerative tear than if the worker did not have a pre-existing degenerative condition. On a balance of probabilities, Review Office believed the worker’s shoulder condition was either caused by or aggravated by her work with the backpack, which weighed upwards of 35 lbs.

The worker advised the WCB that she started her own business in January 2003 after she quit her other job due to problems with her shoulder and foot as well as other issues. The worker noted that she had to hire an assistant to do the “manual parts” of her work.

On September 4, 2003, the worker underwent arthroscopy to her right shoulder, arthroscopic acromioplasty and arthroscopic repair of her rotator cuff.

In early December 2003, the worker filed an accident report stating that as a result of her right shoulder injuries, she was compensating with her left shoulder to carry her work equipment such as analytical tools, training materials, etc. She stated this was not fully realized until a week before she underwent right shoulder surgery when she had to stop all anti-inflammatory medications that she had been on since 1999.

A medical report dated January 20, 2004, indicated that the worker continued to complain of bilateral shoulder pain with crepitus and difficulty performing all activities of daily living. The worker was trying to do some of her own rehabilitation in the pool using a breaststroke. The worker had difficulty doing any other overhead strokes. The sports medicine specialist’s opinion of the worker’s condition was “Healing of right shoulder after arthroscopy with ongoing cuff impingement signs and cuff weakness signs.”

On February 17, 2004, the worker was seen by a WCB medical advisor and physiotherapy consultant. In the assessment report, the medical advisor stated, in part:

“The claimant has also expressed concern of injury sustained to her left shoulder by way of overcompensation and overuse when her right shoulder was injured. Firstly it would be noted that the shoulder joint is representative of being a non-weight bearing joint and secondly that any use of the upper limb involving its use would be a self-determined and self-limited activity. Following discussion with WCB Orthopaedic consultant it was felt that there was no accident injury mechanism attributable to the claimant’s suggestion of overuse or overcompensation involving her left shoulder. Today’s examination would note that the claimant has full ROM [range of motion] in her left shoulder with no objective findings in support of any disability.”

On March 8, 2004, the WCB case manager denied responsibility for the worker’s left shoulder difficulties based on the comments noted above by the examining WCB medical advisor.

The worker underwent an MRI of her left shoulder on May 13, 2004. The results showed “Partial articular surface insertional tear supraspinatus. No associated atrophy or retraction.”

In a report dated November 4, 2004, the worker’s treating physician made reference to the decompression surgery and repair of the right supraspinatus tendon that took place in September 2003. He noted that before and after the surgery, the worker hired a student to help with her job site evaluations but in December 2003 she had to work alone again as she could not cover the costs of her assistant. He said the worker continued to compensate for decreased range and strength in her right shoulder by using her left upper extremity to perform the majority of her tasks. The physician expressed the view that the worker’s current condition, an evolving left supraspinatus tendon injury, was due to the worker not having sufficient time to recover from her original right shoulder surgery. The specialist’s impression of the worker’s condition was:

• Some ongoing inflammation in the right supraspinatus tendon and evolving left supraspinatus tendon injury and impingement predominantly attributable to compensation for the right shoulder injury;
• Deconditioning of the right upper extremity secondary to disuse, secondary to pain;
• Muscular imbalance and myofascial pain in the upper thoracic spine secondary to compensation for painful movements of upper extremities.

On December 2, 2004, a sports medicine specialist opined that the worker’s left shoulder condition was very much the same as her right. His diagnosis was “Chronic bilateral rotator cuff tendinopathy with mild early right cubital tunnel syndrome.”

A physiotherapist reported on December 14, 2004 that the first time the worker had bilateral shoulder problems was November 4, 2003. She reported that the left shoulder issue was related to overuse because the worker’s right shoulder was functionally limited. When next seen March 18, 2004, the worker had no pain in her shoulders, just numbness that went down to the lateral 2 digits bilaterally. When seen April 6, 2004, the worker reported that she had participated in a down hill and cross-country ski school program. She indicated that because she had kept all arm movements while skiing below the shoulder level no shoulder difficulties occurred from this activity. The cross country skiing was limited only by her right foot. The physiotherapist noted that the worker, when doing her regular work or word processing found it hard on her shoulders.

On January 7, 2005, the sports medicine specialist indicated that the worker’s left shoulder problems were linked to underlying postural issues, multidirectional glenohumeral laxity and her loading in the workplace. The specialist stated, “…on a balance of probability, I feel that the workplace factors including increased load, and specific performance in impingement positions on the left side with an underlying predisposition to shoulder difficulties, indicates that the workplace is predominantly responsible for her current condition of the left shoulder.”

On January 24, 2005 a senior medical advisor reviewed the file at the request of case management. After speaking with the treating physician, he recorded that the MRI findings of May 13, 2004 more likely reflected a long term process rather than an acute event. The treating physician said that on a number of occasions the worker demonstrated to him that many of her workplace duties involved positioning of the left shoulder in a position of risk for impingement. Combined with pre-existing multi-directional left glenohumeral laxity and the worker’s age, there was a probable relationship between the worker’s workplace duties and the partial supraspinatus tear.

The worker was then assessed by a WCB physical medicine and rehabilitation consultant on March 29, 2005. It was felt that the worker’s right and left shoulders were at maximum medical improvement. He said the left shoulder condition was likely a result of a combined effect specifically related to the pre-existing degenerative involvement and the glenohumeral laxity, and related to the essential work activities into the impinging position.

In July 2005, the worker told Review Office that she started to have left shoulder problems in 2000 from putting backpacks over her winter coat and that it was due to overuse as a result of her right shoulder injury.

In a letter dated October 11, 2005, an orthopaedic specialist stated, in part:

“On the balance of evidence, it is my opinion that [the worker’s] rotator cuff tear was secondary to gradual attrition… [the worker] would be particularly prone to this type of degenerative tear because of the noted multi-directional instability and also the curved acromion which would predispose her to impingement. I do not see her job as described to be a factor here. The reaching, setting up of equipment and measuring does not sound excessive. It would be equivalent to a normal housewife doing her regular cleaning of cupboards, etc. The fact that [the worker] has developed a partial articular surface insertional tear of the supraspinatus on the left shoulder further emphasizes her predisposition to this tear from on an anatomical and aging basis.”

In March 2006, a worker advisor asked the case manager to reconsider his March 2004 decision based on the comments expressed by the WCB physical medicine and rehabilitation consultant’s opinion that the worker’s left shoulder condition was work related.

On April 4, 2006, the case manager stated that no change would be made to his earlier decision. He felt the worker’s left shoulder problems were related either to a pre-existing condition or her current work. The case manager came to this decision by stating that the worker’s left shoulder injury was not reported at the time of the 2000 injury. He noted that even though the WCB consultant felt the worker’s left shoulder problems might be work related, there was no mention of any relationship to the right shoulder compensable accident. On April 21, 2006, the worker advisor appealed the decision to Review Office. She presented argument that the worker’s work duties aggravated her pre-existing left shoulder condition.

On August 22, 2006, the treating sports medicine specialist stated that the worker frequently had to work over the height of her shoulders. She performs repetitive overhead work which perturbs both rotator cuffs. She has to frequently lift and transfer equipment and places the equipment at or above the level of her shoulders. She was exposed to regular static loads held with her shoulders such as driving, taking measurements, videotaping and performing still photograph. The overhead lifting in an impingement position was frequently required. He said the worker must be able to perform all aspects of her job to successfully complete it. He felt the worker was not totally disabled from work but she did not have the physical capabilities to perform the essential tasks of her occupation.

A response was received from the employer’s representative in regard to the worker advisor’s submission. The employer’s representative outlined her view that there was no information to support that the worker’s left shoulder problems were due to her work with the accident employer.

On January 25, 2007, Review Office confirmed that the worker’s left shoulder problems were not related to her right shoulder compensable injury. Review Office stated the weight of evidence demonstrated that the worker’s left shoulder symptoms were likely due to other factors that may include her pre-existing shoulder condition, her self-employment activities that involved significant work activities requiring her left shoulder to be in a position of risk for impingement or physical activities pursued by the worker. The worker advisor appealed Review Office’s decision and an oral hearing was held.

Following the hearing, the appeal panel sought and obtained additional information from the worker’s treating sports medicine specialist dated August 16, 2007 which was provided to the interested parties for comment. On September 14, 2007, the panel met to render its final decision.

Reasons

“A. POLICY

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury;”

In order for the worker’s appeal to succeed, the panel must find that the worker’s left shoulder condition constitutes a further injury resulting from the primary compensable right shoulder condition. The panel is unable to reach this conclusion.

The worker’s evidence is that her left shoulder difficulties arise from overcompensating due to the right shoulder injury sustained in 1999 and that her various treating practitioners were aware of these difficulties. The panel has reviewed the evidence and notes that the information provided by the treating sports medicine specialist in his report of August 16, 2007 states that the first mention of left shoulder complaints was not made until October 22, 2003. This evidence is consistent with the evidence of the treating physiotherapist who indicated in her report of December 14, 2004, that the first reference to bilateral shoulder difficulties was not made until November 2003. Further, the panel also notes evidence provided by the worker’s treating chiropractor in relation to a previous appeal hearing on October 26, 2005. At that time, the chiropractor confirms providing treatment to the worker for her right shoulder in 2001 and confirms that his investigation at that time revealed no evidence of symptoms involving the left shoulder. As well, the panel also notes that the worker’s April 2002 accident report for her right shoulder condition makes no reference to any left shoulder problems.

Despite the worker’s assertion to the contrary, the panel finds that there is no evidence to support left shoulder symptomotology until the fall of 2003. The panel notes that the onset of left shoulder difficulties occurred over a year subsequent to the worker ceasing employment with the accident employer.

Therefore, there is insufficient evidence to find on a balance of probabilities, that the worker’s left shoulder problems are causally related to the compensable right shoulder condition.

The worker’s appeal is therefore denied.

Panel Members

J. MacKay, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

B. Malazdrewich - Commissioner

Signed at Winnipeg this 23rd day of October, 2007