Decision #52/09 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by the Review Office of the Workers Compensation Board (“WCB”) which determined that the worker’s current right shoulder difficulties and associated surgery were not related to a work related accident that occurred on July 24, 2003. A hearing was held on November 18, 2008 to consider the matter.Issue
Whether or not responsibility should be accepted for the worker’s current right shoulder difficulties in relation to the July 24, 2003 compensable injury.Decision
That the worker’s current right shoulder difficulties are not related to the July 24, 2003 compensable injury.Decision: Unanimous
Background
The worker reported that she suffered a right rotator cuff and neck injury on July 24, 2003 when she moved 40 to 45 boxes of paper weighing between 5 to 7 pounds from a shelf onto a cart. The worker did not report the accident to her employer until September 17, 2003 because she thought that she “just slept funny the night before.”
The worker had another workplace injury on March 31, 2005 when she slipped and fell on ice while getting out of her car. The claim for compensation was accepted based on the diagnoses of a strained left ankle, right shoulder and back.
With regard to her 2003 injury, the worker sought medical treatment on September 17, 2003 for right shoulder pain that she related to lifting above shoulder height and feeling a pop in her right shoulder. The diagnosis rendered was right shoulder impingement. Treatment included rest, ice, physiotherapy and medication.
On September 20, 2003, the treating physiotherapist reported that the worker complained of right shoulder pain and paraesthesia into her right thumb and index finger. The diagnosis reported was C6 radiculopathy and right shoulder strain.
On October 24, 2003, an x-ray examination of the cervical spine revealed findings consistent with mild degenerative disc disease. X-rays of the right shoulder revealed no evidence of calcific tendonitis or other bone or joint abnormality.
On November 7, 2003, a WCB medical advisor reviewed the file evidence and commented that the current diagnosis was uncertain given the different diagnoses provided by the attending physician and treating physiotherapist. He indicated that the mechanism of injury described by the worker was unlikely to cause a cervical radiculopathy. A WCB call in examination was suggested.
The worker was examined by a WCB medical advisor on November 21, 2003. The medical advisor reported that the worker appeared to have some ongoing muscular irritability in her right paracervical, UFT and shoulder region with no significant neurologic abnormality. It was indicated that the cervical spine x-rays demonstrated some pre-existing, non-work related degenerative disc disease at C5-C6 and C6-C7 levels and that this may be contributing to some of the findings noted on the examination. It was recommended that the worker undergo four further weeks of physiotherapy treatment directed at the soft tissues and a worksite ergonomic assessment. After these steps were carried out, it was expected that the worker could continue on with her regular workplace activities.
A few years later, in March 2006, the worker contacted the WCB and advised that her right shoulder had been steadily sore and throbbing. She had a cortisone injection to her shoulder on April 5, 2006.
On April 11, 2006, the treating physician was asked to provide the WCB with a narrative report regarding his medical treatment of the worker’s shoulder condition. In a report to the WCB dated April 13, 2006, the treating physician stated that the worker was assessed for her work related injuries in January, March and June 2004. On June 2, 2004, the worker reported that she was doing well and that her work station had been modified to reduce the amount of repetitive strain that she was undergoing. He said the worker only had low grade chronic issues with her neck and shoulder region until she presented herself on March 16, 2006 with complaints of severe recurrent right shoulder pain. His physical examination found a recurrent right rotator cuff impingement and an injection was done on April 5, 2006. The physician’s impression was that the worker suffered from a recurrent right shoulder impingement that was related to her ongoing work related duties as he was not aware of any trauma or injury that would account for her symptoms.
On December 18, 2006, a WCB medical advisor reviewed the file information which included a report from a physical medicine and rehabilitation specialist dated November 23, 2006. The medical advisor opined that the worker’s myofascial neck pain may be a combination of the degenerative cervical spine changes and her workplace activities but the reported right rotator cuff problem was questionable. He noted that rotator cuff disorders were often related to repetitive overhead activities and often involved some force as well. The worker reported lifting some boxes overhead in her initial report on September 22, 2003 but this appeared to be a one time activity and would be unlikely to cause such long ongoing symptoms. He stated that myofascial neck pain would be the most probable diagnosis related to the compensable injury.
On January 15, 2007, the worker was advised that the WCB was accepting responsibility for part of her ongoing myofascial neck pain but was not accepting responsibility for her right rotator cuff disorder. After considering the opinion expressed by the WCB medical advisor on December 18, 2006 and the call-in examination findings of November 21, 2003, the adjudicator was unable to establish a causal relationship between the worker’s right shoulder diagnosis and her work activities.
Subsequent file records showed that the worker underwent an MRI assessment of her right shoulder and was assessed by a sports medicine specialist and an orthopaedic surgeon.
The MRI results dated December 28, 2006 showed the following findings: “AC joint arthrosis. Small full thickness insertional tear in the anterior supraspinatus.”
In a letter to the WCB dated December 6, 2007, the sports medicine physician reported that he saw the worker on November 3, 2006 for symptoms of right shoulder pain that had been present since a work injury in 2003. His examination showed a positive impingement with rotator cuff crepitus on circumduction. These findings raised the suspicion of a rotator cuff tendonitis with an associated AC joint injury and an MRI was arranged. He noted that the worker related her right shoulder symptoms to her work related injury as she had no prior trouble with her shoulder. He commented that “…rotator cuff tendon injuries can become progressive after injury.”
In a report to the WCB dated October 19, 2007, the orthopaedic surgeon reported that he saw the worker on May 25, 2007 at the request of the sports medicine specialist. He noted that his clinical examination of the worker’s shoulder was consistent with a rotator cuff tear. He stated that the worker’s current problem was related to her original injury when she was moving heavy boxes at work. The worker was awaiting surgery on November 15, 2007.
A surgical report dated November 15, 2007 showed the following postoperative diagnoses:
- Right AC joint arthrosis.
- Rotator cuff impingement.
- Type 1 SLAP lesion.
On January 21, 2008, a WCB medical advisor reviewed the file information and provided the following opinion:
“…based on the improvement and apparent resolution of her right shoulder symptoms around the time of the examination in November 2003 and the examination performed by the worker’s physician in March 2004, and the sudden onset of severe right shoulder pain in March of 2006, it seems obvious to me that the RC tear occurred around March of 2006, and therefore is not related to the compensable injury which had previously resolved.”
In a decision dated February 27, 2008, the worker was advised that in the opinion of the WCB and based on the weight of evidence, she had recovered from the effects of her July 24, 2003 compensable injury and the need for the November 15, 2007 right shoulder surgery was not related. The worker disagreed with the decision and the case was forwarded to Review Office for consideration.
On April 30, 2008, Review Office confirmed that no responsibility would be accepted for the worker’s current right shoulder difficulties. Review Office outlined its opinion that the evidence on file which included the initial diagnosis, treatment rendered and the time that passed with no medical treatment sought between March 2004 to March 2006, did not support a causal relationship between the worker’s right shoulder difficulties in March 2006 and the July 24, 2003 compensable injury. On June 23, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Following the hearing that took place on November 18, 2008, the appeal panel requested that an independent medical consultant review the findings noted in the November 15, 2007 surgical report and other file documentation, and provide his/her medical opinion regarding the etiology of the three post-operative diagnoses. A report from the consultant was later received dated February 28, 2009 and was provided to the interested parties for comment. On April 21, 2009, the panel met further to discuss the case and considered a final submission from the worker advisor dated March 19, 2009.
Reasons
Applicable legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Pursuant to subsection 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. In order for compensation to be payable, the loss of earning capacity must be causally related to the workplace accident.
Worker’s position:
At the hearing, the worker was assisted by a worker advisor. The position advanced on behalf of the worker was that since the workplace accident of July 24, 2003, the worker has continuously experienced pain and symptomatology in the anterior part of her right shoulder. Although she did not seek any medical treatment from her attending physician for the period March 2004 to March 2006, this was largely due to the fact that her medical practitioners told her there was nothing they could do for her with respect to her shoulder. The worker indicated that she is not the type to complain, so she attempted to live with the pain. The pain was a generalized aching or discomfort in her shoulder, which would occasionally flare into something more. When she had flare ups, she would go to her chiropractor for manipulation, which would help reduce the pain. In early 2006, the worker found that the pain was worsening and that her medications were no longer helping her. As a result, she went to her attending physician, who referred her to a specialist. Ultimately, surgery was performed.
It was noted by the worker advisor that the chiropractor confirms that although he had been treating the worker since 1988, there were no complaints related to her shoulder prior to July, 2003. Further, it was noted that the WCB medical file reveals that clinical findings of impingement were present on the file in 2003. It was submitted that there is evidence of continuity of shoulder symptoms since the time of the workplace injury, and accordingly, the claim for the shoulder injury should be accepted.
Employer’s position:
A representative from the employer was present at the hearing. He indicated that they were in agreement with the reasoning used by the WCB and supported the previous decision made by Review Office.
Analysis:
The key issue to be determined by the panel deals with causation and whether the worker’s right shoulder condition which resulted in surgery in November 2007 is related to the compensable workplace accident of July 24, 2003.
After considering the evidence as a whole, we are unable, on a balance of probabilities, to find that the worker’s claim for her current shoulder difficulties is related to the July 2003 workplace duties.
The panel notes that this was a complex file which extended over a period of several years. As was noted by the worker advisor, early on the file in 2003, there were positive findings of right shoulder impingement. In subsequent medical reports, however, impingement findings are notably absent. The physiotherapy discharge report of April 23, 2004 makes no mention of impingement findings. It was not until March 2006 when the worker went back to her doctor with complaints of worsening pain that the references to impingement are again reflected in the medical reports. The panel also notes that although the worker’s evidence was that she has experienced a continuous aching pain in her shoulder since 2003, at present, multiple conditions have been identified in her shoulder and neck region, including AC joint arthrosis, a rotator cuff tear, Type 1 SLAP lesion, degenerative cervical spine changes and myofascial pain. The worker’s claim for ongoing myofascial neck pain has already been accepted by the WCB. The issue presently before the panel deals with the acceptability of what is described as “the worker’s current right shoulder difficulties”, which the panel understands to mean the right AC joint arthrosis and rotator cuff tear which created the need for the November 15, 2007 surgery.
Following the oral hearing, the panel referred the matter to an independent orthopedic surgeon to review the medical evidence and provide comment on whether the AC joint arthrosis, the right rotator cuff impingement and/or the SLAP lesion could have been caused by the July 2003 accident. He was also asked to provide comment on whether a March 31, 2005 work related slip and fall injury suffered by the worker could have caused the conditions. By letter dated February 28, 2009, the independent orthopedic surgeon provided a comprehensive overview of the file. He conducted a very thorough analysis of the medical findings and concluded that neither the 2003 nor the 2005 work related incidents were likely the cause of the worker’s current presenting problems. He acknowledged that they may have had some effect on the worker’s condition, but were not the prime causes. The panel interprets his comments to mean that it is possible, but not probable, that the workplace injuries caused the AC joint arthrosis and/or the right rotator cuff impingement. With respect to the SLAP lesion, the independent orthopedic surgeon quite clearly stated that there is no evidence that the SLAP lesion was caused by the workplace injuries.
The panel found the independent orthopedic surgeon’s analysis to be thoughtful and thorough and consistent with the panel’s view of the evidence. We therefore accept his opinion.
Accordingly, on a balance of probabilities, we find that the worker’s current right shoulder difficulties are not causally related to the July 24, 2003 compensable injury and responsibility should not be accepted. The panel again notes that responsibility for the worker’s myofascial neck pain has already been accepted by the WCB as an ongoing condition which is related to the 2003 workplace injury.
The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 29th day of April, 2009