Decision #98/09 - Type: Workers Compensation

Preamble

The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) that after July 18, 2008, he no longer had a loss of earning capacity due to his compensable right shoulder. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through a union representative. A hearing was held on September 1, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and/or medical aid benefits beyond July 18, 2008.

Decision

That the worker is not entitled to wage loss and/or medical aid benefits beyond July 18, 2008.

Decision: Unanimous

Background

On October 18, 2005, the worker jarred his right shoulder and arm while employed as a crane operator. The claim for compensation was accepted based on the diagnosis of rotator cuff/bicep tendonitis and benefits were paid to the worker. On March 31, 2006, the worker underwent surgery to his right shoulder and the postoperative diagnosis was “adhesive capsulitis”.

In a follow up report dated August 21, 2006, the orthopaedic surgeon reported that the worker showed no real improvement in his shoulder following surgery. The worker still had pain and stiffness of the right shoulder consistent with a frozen shoulder. The surgeon noted that it took about a year or two years on average for a frozen shoulder to resolve. It was recommended that once the painful phase was over, range of motion exercises would help.

On December 29, 2006, a second orthopaedic surgeon reported that the worker did have some glenohumeral motion but it was quite painful. He noted that an MRI in the past had been negative and a repeat MRI was recommended to rule out other intraarticular pathology. The surgeon indicated that he discussed with the worker the possibility of a second manipulation and release of the shoulder. He indicated that there would be a 30 to 50 percent chance of improvement with a second release. On May 8, 2007, the worker underwent further surgery to his right shoulder which was accepted as a WCB responsibility.

In a follow up report dated May 25, 2007, the orthopaedic surgeon stated, “Initially, he felt that he was going to have a stiff frozen shoulder, but once he was asleep, he had full range of motion. The arthroscopy was essentially normal. We did a bursectomy.”

On July 11, 2007, the case was referred to a WCB physiotherapy advisor, as the treating physiotherapist had concerns that there may be an undiagnosed problem with the worker’s shoulder given that the worker had 5-6 sessions of physiotherapy without any sustained benefit.

On August 3, 2007, the worker was assessed by a WCB physiotherapy advisor, who recommended that the worker be referred to the WCB’s Pain Management Unit (“PMU”). He stated that the worker presented with elements of neuropathic pain and a pattern similar to that described for a shoulder/hand syndrome.

On August 18, 2007, a specialist from the pain clinic reported “On examination, I did not appreciate any obvious wasting of the muscles of his right shoulder girdle or upper extremity. There was no obvious swelling, increased heat or redness noted involving the right shoulder. There was markedly decreased range of motion in all directions involving the right shoulder…”. The specialist reported that the worker continued to experience limited range of motion and pain involving his right shoulder and that there did not appear to be any significant sympathetic component to his pain.

The worker was assessed at the WCB’s healthcare branch on November 14, 2007 (3 healthcare consultants). The medical advisor provided the following impression of the worker’s condition:

“The diagnosis to account for [the worker’s] present reported right shoulder pain is a stiff and painful shoulder. The previous diagnosis, that of adhesive capsulitis, which is one of a stiff and painful shoulder was treated at the arthroscopy of March 31, 2006, and is no longer playing a role in [the worker’s] reported right shoulder pain…chronic subacromial irritation involved in [the worker’s] reported right shoulder pain is consistent with having had two arthroscopic bursectomies in that area. Additionally the tenderness over the right acromioclavicular joint is consistent with moderate degenerative AC joint arthrosis as documented on the December 17, 2005, MRI. Considering that the AC joint is essentially the roof of the subacromial space, arthrosis in this joint could be contributing to possible subacromial irritation in [the worker’s] right shoulder.”

On March 5, 2008, a sports medicine physician reported that he saw the worker on February 29, 2008 regarding his ongoing right shoulder and arm pain. A subacromial injection was performed and the post-injection exam revealed no significant change in range of motion. Based on these results, the physician commented that the subacromial space was not the predominant pain generator. “Although he does appear clinically to have a case of adhesive capsulitis, it would also appear that there is a component of regional pain syndrome or neuropathic pain in addition.”

A WCB orthopaedic consultant reviewed the file on June 20, 2008. The consultant opined that the compensable injury resulted in at least a sprain/strain soft tissue injury. There was an early suggestion that the worker had adhesive capsulitis (frozen shoulder) that appeared to be confirmed to some extent at the original arthroscopy; however a subsequent examination under anaesthesia demonstrated a full range of movement. This led to the current diagnosis which was a stiff right shoulder and the etiology was unknown. The consultant indicated that the worker’s ongoing signs and symptoms were no longer consistent with a sprain/strain injury of the right shoulder. He also stated there was no continuing evidence of a direct cause/effect relationship between the workplace injury and the worker’s current clinical status.

On July 11, 2008, the worker was advised that, in the opinion of the WCB, he sustained a sprain/strain soft tissue injury and subsequent adhesive capsulitis at the time of his October 18, 2005 work accident, which had since resolved. The case manager noted that the current medical evidence indicated full passive range of motion with no muscular wasting of the right shoulder and a diagnosis of a painful shoulder with no known cause. Based on these findings, there was no continuing medical evidence to support an ongoing cause and effect relationship between the October 18, 2005 workplace accident and the worker’s current signs and symptoms. The worker was advised that WCB wage loss and medical aid benefits would be paid to July 18, 2008.

On November 19, 2008, a union representative acting on the worker’s behalf provided the case manager with new medical information dated October 17, 2008. The union representative contended that this new information supported that the worker’s present shoulder problem was related to his original workplace injury.

Following consultation with a WCB medical advisor on January 7, 2009, the union representative was advised on January 9, 2009, that it was still the WCB’s opinion that the worker’s current right shoulder difficulties were not related to his October 18, 2005 work injury and no change would be made to the July 11, 2008 decision. On January 29, 2009, the union representative appealed the case manager’s decision to Review Office.

On February 12, 2009, Review Office determined that there was no ongoing cause and effect relationship between the October 18, 2005 workplace injury and the worker’s current signs and symptoms. As such, there was insufficient evidence to support a loss of earning capacity as a direct result of the compensable injury and therefore the worker was not entitled to wage loss or medical aid benefits beyond July 18, 2008. In reaching its decision, Review Office relied on the following evidence:

· the worker had full range of motion during the May 8, 2007 surgery and the arthroscopy was essentially normal;

· the WCB medical advisor’s opinion of November 14, 2007 that the diagnosis was no longer adhesive capsulitis and that the current reported clinical findings applied to the current diagnosis of stiff shoulder, etiology unknown; and

· the WCB orthopaedic consultant’s opinion that the clinical findings were no longer consistent with the initial right shoulder injury incurred on October 18, 2005.

On May 4, 2009, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Worker’s submission:

The worker was represented by a union representative who submitted that there was an ongoing cause and effect relationship between the October 18, 2005 workplace injury and the worker’s current signs and symptoms. It was noted that the mechanism of injury involved considerable force as the worker was pushing a 1200 lb axle on a conveyor system when it slid back and forced him to move backwards. The worker’s body took the brunt of the force.

The union representative reviewed the existing medical evidence, and tendered two recent reports which were not on the WCB file. The first report, dated August 26, 2009, was from a physical medicine specialist who was providing the worker trigger point needling and treatment of spinal segmental sensitization. His conclusion was that there was a very strong probability that the worker’s present problems with his right shoulder and the resultant functional limitation were directly related to the workplace accident of October 18, 2005.

The second report was from the attending physician dated August 27, 2009. The attending physician described the worker as showing a moderate amount of clinical improvement with the local trigger point injections, with some improvement in range of motion. The attending physician indicated that he remained of the opinion that the worker’s symptoms were related to regional myofascial pain and neuromuscularly mediated inhibition. He also stated that he believed the present symptomatology was related to the original work related injury and the subsequent development of adhesive capsulitis and regional pain with the precise etiology of the pain generators being not well understood.

Applicable Legislation:

Pursuant to section 37 of The Workers Compensation Act (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. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury resulting from an accident.

Analysis:

To find that the worker is entitled to benefits beyond July 18, 2008, we must find on a balance of probabilities that the worker continued to suffer a loss of earning capacity or require medical aid as a result of the injury he sustained in the workplace accident of October 2005. We are unable to make that finding. In the panel’s opinion, by July 18, 2008, the worker had recovered from the effects of the compensable injury and the present condition being complained of by him is not related to the accident which occurred while he was at work.

In coming to our decision, the panel places significant reliance on the following medical evidence:

  • The worker’s initial compensable diagnosis was adhesive capsulitis. The medical evidence would indicate that this condition had resolved prior to the second surgery in May 2007. At the hearing, the union representative acknowledged that the adhesive capsulitis was repaired and no longer present by the time of the second surgery.
  • Although at the hearing the worker’s evidence was that he experienced further improvement after the second surgery, the operative report would indicate that very little in the way of treatment was administered during the second surgery. After it was determined that the worker had full range of motion of the right shoulder, equal to the opposite side, all further treatment was limited to the subacromial space where a bursectomy was performed;
  • At the call-in examination of November 2007, the WCB medical advisor found no indication of remaining adhesive capsulitis of the right shoulder joint. The only maneuver which could not be done was an impingement test, due to insufficient range of motion secondary to reported pain by the worker. The worker’s attending physician subsequently performed an ablation test in February 2008 and his results were consistent with intraoperative findings of no rotator cuff pathology or an adhesive capsulitis as the sources of the worker’s pain;
  • In his report of October 17, 2008, the attending physician suggested regional myofascial pain and neuromuscularly mediated inhibition as being causes for the worker’s current symptoms. With respect to the myofascial pain, the attending physician then referred the worker to a physical medicine specialist and new medical evidence submitted at the hearing indicated that from October 2008 to the time of the hearing, the worker had received 8 needling treatments whereby treatment was administered to the right deltoid, coracobrachialis, biceps and pectoralis major. The treatment was specifically directed at alleviating myofascial pain. The physical medicine specialist reported that the worker had been responding to the needling with a reduction in resting pain, but that there had not been a significant change in functional ability. This was consistent with the worker’s evidence at the hearing, where he advised that the treatment had not achieved any increase in function. At best, the worker indicated that he obtained some temporary pain relief for approximately 6-7 days. His pain then returned to its pre-treatment levels;
  • In the panel’s opinion, the lack of significant improvement with needling suggests that the myofascial pain syndrome diagnosis is not validated, as the recommended treatment has not achieved its intended results;
  • During his submission, the union representative suggested that the worker sustained a neuropathic injury at the time of the workplace accident, and that this condition has not resolved. The union representative highlighted several references in the medical information which suggest that there is a neurological basis for the worker’s continuing pain. The panel has considered these references, but finds that a neurological basis for the pain has only been suggested in vague terms as a possible explanation with no clinical support. The panel notes that in a physiatrist’s report of August 18, 2007, he specifically checked for neurological signs during his examination and stated that: “Examination of the sensation and reflexes involving his right upper extremity was within normal limits.”
  • The panel does note that there are other potential pain generators in the worker’s right shoulder, most notably the presence of osteoarthritis. While the MRI of December 17, 2005 describes moderate AC arthrosis, a physical medicine specialist’s report states that an MRI performed March 25, 2009 now showed significant AC joint arthrosis. It would appear that the osteoarthritic condition had advanced during the intervening years. There is a lack of evidence to suggest that this advancement was caused, aggravated or enhanced by the compensable injury.

Overall, the panel found that there was insufficient evidence to enable us to conclude, on a balance of probabilities, that the worker’s current pain symptoms are related to the injury he sustained in the workplace accident. It is therefore the panel’s decision that by July 18, 2007, the worker no longer suffered a loss of earning capacity or required medical aid as a result of his compensable injury and accordingly, he is not entitled to benefits beyond that date. The appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of October, 2009

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