Decision #62/10 - Type: Workers Compensation
Preamble
The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that his bilateral shoulder condition was not related the duties he was performing on July 10 and 11, 2007. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on May 20, 2010 to consider the matter.Issue
Whether or not responsibility should be accepted for the worker’s bilateral shoulder condition as being related to the July 10, 2007 compensable injury.Decision
That responsibility should not be accepted for the worker’s bilateral shoulder condition as being related to the July 10, 2007 compensable injury.Decision: Unanimous
Background
The worker filed a claim with the WCB on July 12, 2007 for sharp pain in his chest that started on July 10, 2007 while lifting and pushing oak desks and metal filing cabinets. He said he completed his shift, went home and rested and was feeling fine. When he returned to work the next day, he started to feel chest pain while loading bags filled with old magazines onto a cart. The diagnosis rendered on July 11, 2007 was severe left anterior chest wall pain. The claim for compensation was accepted based on the diagnosis of chest wall strain.
On August 29, 2007, the treating physician reported a new diagnosis of left shoulder bursitis. The treatment plan included medication and physiotherapy treatment.
A physiotherapy report dated September 12, 2007 diagnosed the worker’s left shoulder as “strain to left shoulder rotator cuff.”
In a note to file dated September 17, 2007, the WCB adjudicator noted that she called the treating physician and was told that the worker was seen on June 1, June 26, August 29 and September 12, 2007 for left chest and left shoulder difficulties.
On November 29, 2007, the worker advised a WCB adjudicator that the onset of his left shoulder difficulties developed on the date of accident and that the pain was going from the left chest to the shoulder. He felt the chest pain the most. He said his doctor concentrated on his chest as he has had chest/heart difficulties in the past. The worker indicated that he did not have any new injuries to his chest or left shoulder.
On December 3, 2007, the adjudicator spoke with a co-worker who indicated that the worker complained about his shoulder difficulties around the date of accident and when he returned to work. The worker related his shoulder difficulties to the July 10, 2007 injury.
On December 4, 2007, physiotherapy treatment was approved by the WCB related to the worker’s left shoulder.
On March 18, 2008, the worker advised the adjudicator that he was working his regular duties but had ongoing difficulties with his left shoulder since the date of accident and had difficulty with movement above his head.
In January and March 2008, the treating physician diagnosed the worker with left and right rotator cuff tendonitis.
X-rays taken of the right shoulder on March 10, 2008 showed degenerative narrowing at the AC joint. The glenohumeral articulation was unremarkable. Minor irregularity was noted in the worker’s left shoulder involving the superior aspect of the greater tuberosity of the humerus, likely related to rotator cuff degeneration. No other abnormality was identified.
On April 1, 2008, the worker told his WCB case manager that he was having problems with both shoulders since the date of accident. The left shoulder was worse initially. On January 28, 2008 he had a cortisone injection to his right shoulder.
The treating physician provided the WCB with a narrative report dated April 3, 2008. He reported that the worker was seen on August 29, 2007 for left shoulder pain which began after moving a heavy filing cabinet and an oak desk on July 10, 2007. When seen on November 5, 2007, the worker was moving his shoulder better but still had limited range of movement and now was starting to experience pain in his right shoulder. The worker was next seen on January 28, 2008 for bilateral shoulder pain and was diagnosed with bilateral rotator cuff tendonitis. When seen on April 3, 2008, the worker reported bilateral shoulder pain with no improvement in his symptoms.
A WCB medical advisor reviewed the file information on April 10, 2008. She stated that the initial diagnosis was chest wall sprain/strain which was consistent with the reported mechanism of injury and the initial symptoms/finding. There were no reported symptoms or findings to the shoulder regions. She stated the current diagnosis of bilateral rotator cuff tendinopathy would not result from a chest wall injury. If the diagnosis was related to the original compensable injury, there would have been symptoms and findings localized to the shoulders immediately or at least within a day or two of the incident. The medical advisor noted that the worker’s left shoulder x-ray showed evidence of rotator cuff degeneration. On a balance of probabilities, the medical advisor felt that the degenerative changes accounted for the worker’s symptoms and not the effects of his workplace injury.
On April 15, 2008, the worker was advised that the WCB was unable to relate his current bilateral shoulder difficulties to his workplace accident on July 10, 2007. The worker disagreed with the decision and an appeal was filed with Review Office.
On April 24, 2008, Review Office upheld the decision that no responsibility should be accepted for the worker’s bilateral shoulder condition. Review Office noted that the worker did not mention any shoulder condition when he spoke with a WCB representative two days after the July 10, 2007 accident. It was four months post injury or November 5, 2007, when the worker brought forward a condition of pain in his right shoulder. Review Office found that it was unreasonable to conclude that the worker’s bilateral shoulder condition beyond April 15, 2008 had a relationship to the description of injury and symptoms the worker described as occurring on July 10 and 11, 2007.
On June 2, 2008, the worker underwent an MRI of both shoulders. The right shoulder findings revealed a full thickness tear of the supraspinatus tendon and the left shoulder showed a partial, articular-sided tear of the supraspinatus tendon.
A worker advisor asked Review Office on March 17, 2009 to reconsider its previous decision based on new medical information dated February 12, 2009 to support that the worker’s bilateral shoulder difficulties were work related. The worker advisor stated:
“The claimant’s position is that for his right shoulder, as noted by [specialist], the full thickness tear in the central zone of the supraspinatus tendon could be consistent with an overstress injury leading to a tear or it could be a combination of the effect of the pre-existing condition and the overstressing. Either way, under board policy dealing with pre-existing conditions, this would result in a compensable condition in the form of the tearing and should be accepted and covered by the board. The doctor also notes that the testing (MRI) did not describe either tear as a degenerative type of tear and this lends more credence to the conclusion that there was an acute injury leading to the current state.
The same argument applies to the left shoulder as noted by [specialist]. There is noted to be an articular sided tear of the supraspinatus tendon along with chronic degeneration at the superior aspect of the greater tuberosity of the humerus which displayed itself as a minor irregularity. The doctor expresses his view that these could represent either an acute or chronic etiology.
In terms of recovery, the claimant needs the tears repaired. He feels that the board should accept responsibility for both operations.”
On April 2, 2009, Review Office outlined its decision that responsibility was not accepted for the bilateral shoulder condition beyond April 15, 2008 as having a relationship to the worker’s left chest wall and left shoulder injury of July 10, 2007. Review Office was of the opinion that if the worker’s right rotator cuff tear had occurred on July 10 or 11, 2007, the worker would have brought such symptoms to the attention of a physician in a prompt manner. This did not occur and Review Office therefore confirmed the original decisions on file regarding the right shoulder.
With respect to the left shoulder, Review Office was of the opinion that the worker incurred a strain superimposed on an underlying and pre-existing torn rotator cuff and felt that the effects of the strain should have resolved by June 15, 2008.
Review Office did not accept responsibility for any potential shoulder surgeries as it was felt they would be to correct a pre-existing condition which did not have a relationship to the worker’s duties on July 10 and 11, 2007. On September 30, 2009, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
On May 20, 2010 a hearing was held to determine whether the worker’s bilateral shoulder condition was related to the July 10, 2007 compensable injury. Following the hearing, the appeal panel asked the treating orthopaedic surgeon to describe the nature of the partial tear of the supraspinatus tendon noted at surgery and to provide an opinion as to whether the tear was of acute or chronic etiology. A report from the surgeon was later received dated May 27, 2010 and was forwarded to the interested parties for comment. On June 29, 2010, the panel met again to discuss the case and rendered its final decision.
Reasons
Applicable legislation:
The issue before the panel is whether responsibility should be accepted for the worker’s bilateral shoulder condition as being related to the July 10, 2007 compensable injury. Under subsection 4(1) of The Workers Compensation Act (the “Act”), where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
Worker’s position:
The worker appeared on his own behalf at the hearing. At the outset, the worker clarified that although the WCB characterized his injury as being a bilateral shoulder condition, the claim for his left shoulder condition differed from the claim for the right shoulder. He noted that although there had been numerous changes to his diagnosis over time, the MRI indicated that he had a partial tear in his left shoulder and a full thickness tear on the right. The worker described the areas of pain on each side as being completely different. On the left side, he felt pain right from the date of the accident. He ached all over his chest and his whole left upper body hurt. He was unable to move his left arm in that it would hurt to lift his arm anything over 45 degrees. If he lifted it too high, he would get a sharp pain in his left shoulder. On the right side, he could generally use his arm, but if he reached for anything overhead or moved the wrong way, he would suffer an excruciating, sharp pain. The first time he experienced this kind of pain on the right side was in September 2007. He had returned to work and was reaching to hand a packing box to a co-worker on a ladder. All of a sudden he felt a sharp pain in his right shoulder. The problem on the right side started as a sporadic minor inconvenience, but worsened over time and by 2008, the right shoulder was more painful than the left. The worker felt that he may have been overcompensating with his right arm due to the pain in his left, and this may have caused the increased symptoms on the right.
The worker described his work duties in considerable detail and indicated that for the three months prior to July 2007, he had been performing relatively physical work which involved relocating a library by removing books from shelves, taking the shelves apart and moving them to another location, reassembling the shelves and replacing the books. During that time, the worker had no problems with his shoulders, despite the fact that it involved a significant amount of overhead reaching. On July 10, 2007, the worker was tasked with moving some heavy oak tables and also some filing cabinets. This was much heavier work than he was accustomed to, and by the end of the day, he was extremely tired. The next day, he woke up and felt “a little stiff, a little sore.” He went to work and one of his tasks that day was to move some 60-80 pound plastic bags full of magazines. He had to move the bags from the floor into a delivery cart, which involved lifting the bags approximately 4 feet off the ground. The bags were too heavy to lift that high, so he had to swing the bags side to side in front of his body and “throw” them into the cart. He moved about 20-25 bags when he started to feel nausea and intense pain on his left side, and he though he was having a heart attack. He immediately went to the hospital, where a heart attack was ruled out, and the worker was told that he probably had “some kind of bad pull to his chest or shoulder.”
The worker’s position was that prior to the accident, he was never bothered with pain in his shoulders. His doctor stated that since 1990, he never mentioned nor complained of shoulder problems. The worker felt that degeneration as the cause of his problems was unlikely. The worker submitted that in the first days following the accident, he had so much pain in his chest that he may not have fully described all of the pain he was experiencing in both his shoulders. As his chest condition improved, he was left with problems in both his shoulders. The worker asked the panel to find that the partial tear in his left shoulder was caused by his work duties, in particular, being tired and sore from the day before, and then throwing bags into the cart on July 11, 2007. The worker also felt that his right shoulder tear was work related, although he admitted that the file did not document complaints of right sided pain until some time after the accident.
Analysis:
In order for the worker’s appeal to be successful, the panel must find that the full thickness tear in the worker’s right supraspinatus tendon and the partial tear of the left supraspinatus tendon are related to the injuries he sustained in the workplace accident of July 10, 2007. As the onset and symptoms of each shoulder differed, we will deal with each one separately.
With respect to the right shoulder, the panel is unable to relate the full thickness tear of the supraspinatus tendon to the compensable injury. The first record of complaint regarding the right shoulder was to the treating physiotherapist. The physiotherapist is not specific as to the date the complaint was made, but the initial physiotherapy assessment was on September 6, 2007.
In the narrative letter from the worker’s family physician dated April 3, 2008, the family physician stated: “He was seen again on November 5, 2007 in our clinic and said that he was moving his shoulder better, but still limited range of movement and now was starting to experience pain in his right shoulder” (emphasis added).
At the hearing, the worker’s evidence was that he did not recall experiencing any unusual pain or swelling in his right shoulder in the initial period after the workplace incident. He did note, however, that he was basically incapacitated due to his chest pain during that time, so he was not particularly active or using his right arm much. The first time he recalled experiencing a sharp pain in the right shoulder was after he returned to work in September, 2007. He recalled reaching overhead when he screamed out due to a sudden sharp pain in his right arm.
Given the extended period of time between the workplace accident and the first complaints of right shoulder difficulty, the panel is unable on a balance of probabilities to conclude that the full thickness tear of the right supraspinatus tendon occurred in the workplace on July 10 or 11, 2007. We therefore find that responsibility should not be accepted for the worker’s right shoulder condition.
With respect to the left shoulder, the panel finds that the worker’s ongoing left shoulder difficulties are not related to the July 2007 compensable injury. Following the hearing, the panel requested further information from the worker’s orthopedic surgeon regarding his findings from the left shoulder arthroscopy which was performed on October 20, 2009. Our questions related to the nature of the partial tear of the supraspinatus tendon. The operative report revealed, however, that although the pre-operative diagnosis was left rotator cuff tendonitis and query of a partial thickness tear, the post-operative diagnosis was an intact rotator cuff. The surgeon’s letter to the panel dated May 27, 2010 indicated: “At arthroscopy there was no evidence of any partial thickness tearing on the articular or bursal side … It is common that MRI suggests partial thickness tear and at arthroscopy, the tendon is completely normal and tendinosis is the only diagnosis.”
Accordingly, the only remaining diagnosis for the left shoulder condition is tendinosis. The panel finds, on a balance of probabilities, that this diagnosis is not related to the compensable injury suffered by the worker in July, 2007. The panel adopts the April 10, 2008 analysis of the WCB medical advisor which considered the diagnosis of rotator cuff tendinopathy and concluded that degenerative changes were more likely responsible for this condition.
The panel therefore finds that no further responsibility should be accepted for the worker’s bilateral shoulder condition as it is not related to the July 10, 2007 compensable injury. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerR. Koslowsky, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 5th day of July, 2010