Decision #72/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a left shoulder injury that occurred in the workplace on December 1, 2004. Primary adjudication accepted that an accident occurred on December 1, 2004 but could not relate the worker’s subsequent left shoulder symptomatology to the accident. The decision was appealed to Review Office. In decisions dated May 10, 2007 and June 25, 2007, Review Office could not associate the worker’s ongoing complaints with the December 1, 2004 accident, given the worker’s lengthy delay in the onset of his recorded symptomatology and the lack of any medical attention for a protracted period of time following the accident. The decision was appealed by the worker’s union representative to the Appeal Commission and an oral hearing was held on April 9, 2008.Issue
Whether or not the worker’s ongoing left shoulder complaints are related to the accident that occurred at work on or around December 1, 2004.Decision
That the worker’s ongoing left shoulder complaints are not related to the accident that occurred at work on or around December 1, 2004.Decision: Unanimous
Background
The worker filed a claim with the WCB on November 21, 2006 with respect to a left shoulder injury. The injury was initially reported to have occurred at work on December 1, 2005, but it was subsequently determined to be December 1, 2004. The worker reported that he had been moving “at a good clip” toward a steel door. He tried to push the door open with his left hand, however it was locked, and as a result his left shoulder struck the door. He immediately felt pain, but he “shook it off” and was able to complete his shift. The worker reported that over the course of the next month, he began to experience pain in his left shoulder which became progressively more severe to the point that movement of his shoulder caused him agony and he was unable to sleep at night. The worker reported that he first saw a physician one month after the accident and was treated with medication, cortisone shots and physiotherapy. While he was initially diagnosed as having sustained a rotator cuff tear, he was subsequently advised that he had severe osteoarthritis and that he would require a shoulder replacement.
In November 2006 the employer provided the WCB with an accident report dated August 1, 2005 that was signed by the worker in respect of an accident that occurred “approximately six months ago”. It reported an injury to the left shoulder and noted that the worker had neither reported the incident to his employer, nor sought first aid at the time as the shoulder “did not hurt right away – took about a month to start hurt”. The worker subsequently advised his WCB adjudicator that his injury had in fact occurred in December 2004 and not December 2005. He advised that between December 2004 and March 2005 he was able to perform his regular duties and did not do any home treatment.
Medical reports confirm that the worker first sought treatment at a hospital emergency department on March 6, 2005 complaining of a painful shoulder with movement over the past month. He did not provide a history of any work related injury to the attending physician, who reported “no trauma, started as an aching pain at shoulder, progressing to aching pain from left shoulder to left side of neck”. He was diagnosed as having sustained a left rotator cuff injury and referred for x-rays. An x-ray of the left shoulder and AC joints dated March 7, 2005 showed “Degenerative changes suspected left acromioclavicular joint and glenohumeral joint. There is a possibility of underlying trauma”.
The worker sought further treatment at the hospital emergency department on April 5, 2005. The attending physician diagnosed osteoarthritis of the left shoulder. No accident description was provided by the worker. On April 8, 2005 he attended at the hospital emergency department and again no accident description was provided. The attending physician stated the worker “had rotator cuffing since 2 months” and referred him for a possible steroid injection.
The worker was seen by a consulting physician on April 14, 2005 who reported that he had “pain and stiffness of the left shoulder over the past one month. He denies any previous problem and he denies any trauma. His pain appears to have come on quite suddenly.” The consulting physician provided the worker with a cortisone injection to the left shoulder joint. Further injections were administered when the worker subsequently attended upon the hospital emergency department on April 28, 2005 and May 26, 2005. No accident descriptions are recorded in the related hospital records.
On August 11, 2005 the worker attended the hospital emergency department and was prescribed an anti-inflammatory medication and Tylenol 3. The hospital record notes that “patient has a history of left shoulder arthritis for 4-5 years”. There is no accident description provided. The clinical history reported when the worker attended on October 3, 2005 for an MRI was “left shoulder pain, has gotten worse last three months”.
It was not until February 22, 2006 that the worker is reported to have attributed his ongoing shoulder condition to the work related incident in December 2004. In a report dated February 22, 2006 an orthopaedic surgeon noted that the worker had “injured himself while at work about one year ago”. He concluded that the worker had significant osteoarthritis of his glenohumeral joint, and after outlining the surgical options, indicated that the most likely procedure was a Copeland hemi arthroplasty.
In a letter dated February 26, 2007, the worker was advised by primary adjudication that there was insufficient evidence to conclude that his left shoulder difficulties were related to an accident arising out of and in the course of his employment. Reliance was placed on the fact that the worker had delayed in seeking medical attention until March 6, 2005 and had not reported his injury to his employer until August 2, 2005.
On April 10, 2007, the worker’s union representative filed an appeal from the decision with Review Office. The union representative contended that the worker had satisfied the reporting requirements under The Workers Compensation Act (the “Act”) and submitted that the worker had in fact sustained an accident at work as defined under the Act which resulted in his injury.
On April 17, 2007, Review Office referred the file back to primary adjudication to determine whether the one year time limit on filing claims for compensation, as set out in subsection 19(2) of the Act would be enlarged given that the worker’s accident had occurred in December 2004 and not December 2005 as had been originally reported.
In a decision dated May 1, 2007, the worker was advised that he had provided sufficient information to allow the WCB to enlarge the one year time limit for making a compensation claim. Primary adjudication remained of the view, however, that while an incident occurred at work on December 1, 2004 there was no evidence to suggest that the symptoms for which the worker sought medical attention in the beginning of March 2005 were related to that incident. On May 10, 2007 the worker’s union representative requested that Review Office consider the worker’s appeal of April 10, 2007.
In a decision dated May 22, 2007 Review Office concluded that it was unable to associate the worker’s complaints with the December 2004 incident, given that the accident history reported by the worker was not corroborated in any of the worker’s numerous visits to emergency outlets throughout 2005. Review Office noted that when the worker first sought medical attention on March 6, 2005 he informed the attending physician that his shoulder had been sore for the past month, dating the onset of his symptomatology to February 2005. A subsequent report suggested that the worker had reported a 4 to 5 year history of left shoulder arthritis. Diagnostic testing in fact proved the existence of severe osteoarthritic changes in the worker’s shoulder but did note that some of the irregularities could be due to previous trauma. In the circumstances Review Office concluded that the incident had played no significant role in the worker’s ongoing difficulties.
The treating orthopaedic surgeon submitted a report dated June 12, 2007 in which he stated that the worker had no symptoms prior to his work injury and that his arthritis pre-dated the work event. The surgeon felt that because the worker was previously asymptomatic, this constituted an enhancement or aggravation of a pre-existing condition. In a letter to the worker dated June 25, 2007, Review Office indicated that this new information did not alter the decision that was made on May 10, 2007. Given the worker’s lengthy delay in the onset of his recorded symptomatology and the lack of any medical attention for a protracted period of time following the accident, Review Office was unable to reasonably associate the worker’s ongoing complaints with the incident at work on December 1, 2004.
A union representative, acting on the worker’s behalf, appealed Review Office’s decision to the Appeal Commission and an oral hearing was requested. The union representative later provided the appeal panel with further medical information consisting of an x-ray report and an operative report dated May 1, 2007 for consideration.
Reasons
The worker attended the hearing with a union representative who made a presentation on the worker’s behalf. The worker responded to questions from the panel. The employer was represented by two representatives who were present at the hearing, and the worker’s supervisor participated by teleconference.
The issue before the panel is whether the worker’s ongoing left shoulder complaints are related to the accident that occurred at work on or around December 1, 2004. The WCB is not generally responsible for loss due to pre-existing conditions, however WCB Policy 44.10.20.10, Pre-Existing Conditions, provides that the WCB is responsible to pay wage loss benefits where the loss of earning capacity is due to a combination of a pre-existing condition and the workplace injury. For the appeal to be successful, therefore, we must find that the worker’s loss of earning capacity after December 1, 2004 was caused by the workplace injury or by the workplace injury together with the pre-existing condition.
The worker advised the panel that prior to the accident he had no pain in his shoulder or restrictions in his range of motion. He was able to play guitar, do yard work, shovel snow and act as a karate instructor. Following the accident it was submitted that the worker experienced pain, had a decreased range of motion, required medication and was no longer able to continue with his normal activities. Accordingly the worker’s representative submitted that the worker’s pre-existing osteoarthritis was enhanced by the workplace accident on December 1, 2004.
Notwithstanding the worker reported no difficulties with his shoulder prior to December 2004, the medical evidence confirms that the worker had a serious pre-existing osteoarthritic condition in his left shoulder, to such a degree that he required surgery in May 2007 to replace his shoulder joint. We are unable to find, on a balance of probabilities that the worker’s ongoing left shoulder condition is related to the December 2004 accident. There are a number of factors that have led us to that conclusion.
Firstly, the worker did not immediately report the incident to his employer, because as he said in his evidence before the panel “I shook it off, didn’t hurt after 10, 15 minutes or whatever, sort of thing. I continued my shift. I didn’t think it was necessary. I didn’t hurt anymore.” There was no time loss associated with the injury, as the worker completed his shift and continued with his regular duties. It was not until some eight months later that he reported the incident to his employer. As a supervisor, the worker ought to have appreciated the importance of the timely reporting of an incident that might give rise to a compensation claim.
Secondly, the worker required no medical treatment, and when he did seek treatment some three months later, he did not report any trauma to the attending physician, nor did he report the work related incident to those who subsequently treated him throughout the spring and summer of 2005. Indeed it was not until February 22, 2006 that a report from an orthopaedic specialist notes a work related event having occurred “about a year ago”. While the worker attributes this to a misunderstanding of the meaning of the term “trauma”, we find the absence of any reference to a work related injury in the early reports supports our conclusion that the treatment being sought by the worker was not related to the December 2004 injury.
We also think it significant that the incident which took place in December 2004 was not an isolated incident. When the worker finally reported the incident to his employer on August 1, 2005 he noted that over the course of 20 years he had been going through heavy steel doors which sometimes were locked and that he would “end up hitting my shoulder to the door and as a result I stop dead and probably bruise my shoulder”. While the worker’s shoulder may have been immediately aggravated by the incident, the rapidity with which his pain subsided, and the absence of any time loss or medical treatment following the December 2004 incident supports our finding that the incident did not contribute in any meaningful way to the worker’s ongoing shoulder condition.
We have also noted that both before and after the December 2004 accident the worker was engaged in activity that could itself have contributed to the worker’s ongoing shoulder condition. In his evidence before the panel the worker acknowledged that he held a black belt in karate and had been involved with a karate club for twenty-three years. He had instructed karate three nights per week “which involved a lot of motion” until a couple of months following the accident. He had also been using a heavy punching bag in workouts at home, two to three times per week for twenty years. While he said in his evidence that by March and April 2005 it was becoming increasingly difficult for him to teach classes, we note that in June 2005 he was still attending 50% of classes, although he required students to do the demonstrations that he had previously performed. The fact that the worker was able to continue with these activities immediately following the December 2004 accident further supports our conclusion that any temporary aggravation of his pre-existing condition had resolved by the time the worker sought treatment in March 2005.
In all of the circumstances we are unable to conclude that the worker’s shoulder condition is related to the December 2004 accident. The appeal is therefore dismissed.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
Signed at Winnipeg this 30th day of May, 2008