The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which denied the request for a Medical Review Panel ("MRP") under subsection 67(4) of The Workers Compensation Act ("Act"). It was Review Office's position that the worker's treating orthopaedic surgeon did not provide an "opinion" as defined by subsection 67(1) of the Act and therefore an MRP was not warranted. The worker disagreed with the decision and an appeal was filed by the Worker Advisor Office. A file review was held on August 31, 2010 to consider the matter.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

In September 1998, the worker filed a claim with the WCB for right shoulder and low back pain that occurred on September 11, 1998. He described the accident as "while spray painting in flat deck booth when I felt pain in my right shoulder and my lower back."

When speaking with a WCB adjudicator on September 21, 1998, the worker indicated that he had been employed with the accident employer for 19 years and his job entailed spray painting equipment parts using a spray gun. He stated that the number of parts he sprayed depended on the shift but the minimum was 135 parts per shift. He said he had to reach over the parts and under the parts with the spray gun. The worker stated that his back hurt when he reached under the equipment frame which was very low. He stated that he began to notice pain in the top of his shoulder on the right side about two weeks before September 11, 1998.

Initial medical information received from the treating physician diagnosed the worker with a soft tissue injury to his right shoulder, upper back and right arm muscles as well as lumbago.

On October 5, 1998, the WCB accepted responsibility for the worker's right shoulder injury but could not relate his back complaints to the September 11, 1998 accident.

On November 9, 1998, the worker was seen by a WCB medical advisor and was diagnosed with a strain of the right latissimus dorsi and supraspinatus and the long and short head of the biceps due to repetitive motion.

The worker returned to work on a graduated basis in December 1998 but experienced a flare up of shoulder symptoms and complained of forearm pain. He was treated by a physiotherapist and received acupuncture treatment. As of September 20, 1999, it was determined that the worker could return to full time work and had recovered from the effects of his compensable injury. The worker was paid partial wage loss benefits to September 17, 1999 inclusive.

Subsequent file records showed that the worker continued to seek medical treatment for shoulder and back complaints which he related to his compensable injury. The following is a brief summary of those reports:

• July 11, 2002 - the treating physician reported that he began treating the worker in September 2001 for myofascial pain of the left trapezius/supraspinatus.

• February 19, 2003 - an occupational health physician outlined his opinion that the worker appeared to have significant deterioration in his upper back and neck posture with greater findings of myofascial dysfunction throughout the right shoulder and upper shoulder girdle muscles. The worker's shoulder blades were rounded forward and this contributed to his problems with overhead reaching and pain flare up. The specialist noted that the worker's neck x-rays showed degenerative changes at C4-5 and C5-6.

• September 4, 2003 - a physiatrist reported that the worker had generalized pain in his neck, shoulders and back. Although there was no specific incident to cause his problems, the specialist reported that the worker's pain was probably connected to his repetitive work activities.

• April 19, 2005 - a physiatrist indicated that the worker's last job was in 2001 and that he was not able to manage the work after about 3 days. Examination showed restriction in range of motion in abduction and flexion at both shoulders at about 60%. Palpation revealed taut bands in the trapezius muscles bilaterally. There was also tenderness at the superior medial corner of the scapula bilaterally.

• May 10, 2006 - an orthopaedic specialist reported that the worker had limitation of shoulder movement, particularly abduction, internal and external rotation, right shoulder worse than left. He indicated that the worker had some cervical disc degeneration and bursitis.

• August 16, 2006 - an MRI of the right shoulder revealed the following findings: "Complete tear of supraspinatus with considerable retraction and atrophy. Cephalad tear in the subscapularis. There also appears to be a complete tear of the biceps."

• April 9, 2007 - the treating physician asked the WCB to reinstate the worker's benefits based on the results of the August 16, 2006 MRI findings. He stated that the worker needed a surgical consultation for reconstruction of the shoulder.

• May 14, 2007 - an orthopaedic specialist stated that the worker had fair range of cervical spine movement and fair range of right shoulder movement. There was some tenderness anteriorly. The specialist stated that he was going to continue with conservative management.

• August 13, 2007 - the orthopaedic specialist noted that the worker reported aches and pains in his neck and some radiation into his shoulders. He noted that the worker's upper arms had been deformed for years. He noted decreased range of motion in the cervical spine in all directions. The worker had bilateral torn long heads of the biceps with the biceps bulging distally.

• August 15, 2007, a WCB physical medicine consultant (a physiatrist) outlined the opinion that the rotator cuff tear as noted in the MRI findings cannot be ruled out as having occurred with the original claim incident and the worker was most likely predisposed to the tear as a result of the degenerative changes present. The diagnosis was a complete rotator cuff and biceps tendon tears at the shoulder with potential secondary soft tissue irritability. The consultant indicated that the worker would not likely be able to return to his pre-accident job duties as a spray painter and certain work restrictions were outlined.

On September 6, 2007, a WCB case manager advised the worker that he was not entitled to retroactive wage loss benefits given that he was able to return to his position in the paint department in 1999 and because in 2002, he advised the WCB that he was managing with his duties in the paint department until he was laid off in 1998.

• June 25, 2008 - an orthopaedic surgeon asked the WCB to provide him with authorization to perform a rotator cuff debridement, partial repair, or complete repair depending on findings at surgery. On July 10, 2008, the WCB accepted financial responsibility for the costs of the surgery.

• August 21, 2008 - the operative report identified "rotator cuff disease" as the diagnosis related to the worker's right shoulder.

On September 16, 2008, a worker advisor submitted to Review Office that the worker was entitled to wage loss benefits beyond September 17, 1999 based on the opinion expressed by the WCB's physiatry consultant on August 15, 2007 and the worker's treating physician.

Prior to considering the appeal, Review Office obtained the following opinion from a WCB orthopaedic consultant dated October 30, 2008:

"The findings at surgery of August 21, 2008, were not, on balance of probability, present prior to September 18, 1999. Had the almost complete biceps tendon tear been present, the clinical finding of a displaced muscle belly would have been obvious to the examining doctors…Had the massive tear of the rotator cuff been present, significant limitation of active abduction would have been evident to the examining doctors, none of whom reported such a finding. Even a lesser tear of the rotator cuff would have been expected to cause positive impingement tests, which were not evident to the examining doctors."

Based on the opinion expressed by the WCB orthopaedic consultant, Review Office advised the Worker Advisor Office that it was expanding the issues under consideration. Specifically, Review Office was considering whether the right shoulder surgery of August 21, 2008 was related to the original compensable injury from September 11, 1998 and whether there was entitlement to wage loss benefits as of August 21, 2008.

On November 14, 2008, the worker advisor asked Review Office to refer the matter to a MRP under subsection 67(3) of the Act given the difference of medical opinion between the WCB's physiatrist's opinion of August 15, 2007 and the opinion expressed by the WCB orthopaedic consultant. It was felt that an MRP would provide clarification on the probable cause and effect relationship between the worker's shoulder problems beyond September 17, 1999.

On December 12, 2008, the WCB's physiatry consultant again reviewed the worker's file and opined that the worker did not have findings related to biceps tendon or any evidence of rotator cuff irritability or weakness on testing of the supraspinatus at the time of his March 18, 1999 examination. He stated that the impingement noted on the August 7, 2006 MRI was a new finding as there was no evidence of impingement prior to this date. He found no early file evidence to support the presence of any significant symptomatic degeneration involving the rotator cuff until the August 7, 2006 MRI examination.

In a decision dated January 7, 2009, Review Office was unable to determine that the worker had a loss of earning capacity from September 18, 1999 or that the surgery of August 21, 2009 and the loss of earning capacity starting at that time was related to the original compensable injury.

In the opinion of Review Office, the MRI findings of August 7, 2006 were not related to the accepted compensable right shoulder injury from the September 11, 1998 accident which was approximately eight years prior. It stated that the initial diagnosis from September 14, 1988 was a soft tissue injury involving the right shoulder. Between this date and September 9, 1999, the worker saw multiple physicians and a physiotherapist and no one reported findings of a more significant diagnosis, such as a right rotator cuff or biceps tear. Review Office also accepted the opinions of the WCB's orthopaedic consultant dated October 30, 2008 and the WCB physiatrist of December 12, 2008 in making its decision.

On May 26, 2009, the worker advisor provided Review Office with a March 29, 2009 report from the treating orthopaedic surgeon to support the position that the worker's compensable injury fell under WCB Policy 44.10.20.10, Pre-Existing Conditions, and met the definition of an enhancement. The surgeon stated, in part:

"…Therefore, I think the more likely scenario is that the tear initially occurred around the time of the accident, likely secondary to a combination of work-related injury and some pre-existing rotator cuff degeneration. With the mechanism of injury, doing spray painting in awkward positions, the sequence of events was probably initial tearing around the upper border of the subscapularis, which gradually, over time, became a larger tear, and probably at some later date moved up into the supraspinatus, as the cuff attachment to the integrity of the greater and lesser tuberosities was threatened by ongoing retraction and force couple imbalances in the rotator cuff. Therefore to establish a causal connection between his work injury and the MRI findings in 2006 and subsequently at surgery, it is not necessary to state that there was a huge tear all at one time at the workplace accident."

At the request of Review Office, a second WCB orthopaedic consultant was asked to review the file and answer specific questions related to the causes of a tear in the superior aspect of the subscapularis, how a tear in the superior aspect of the subscapularis could effect the supraspinatus, etc. His response to Review Office is dated June 3, 2009.

On June 23, 2009, Review Office determined that no change would be made to its previous decision of January 7, 2009 based on the following rationale:

• the opinion provided by the orthopaedic surgeon on March 29, 2009 that the worker had developed some degenerative changes in the rotator cuff over time was not validated with medical documentation nor was it consistent with the accident description of September 11, 1998.

• based on the June 3, 2009 opinion by the WCB orthopaedic consultant, Review Office did not find the evidence to show that the worker had a right sided supraspinatus tear, subscapularis tear or biceps tear as a result of his September 11, 1998 work place accident.

• the orthopaedic surgeon's comment that "…the gradually worsening rotator cuff tear became more evident until the MRI was arranged August 7, 2006" was speculative and not based on the recorded medical facts of the case.

• the worker was examined by multiple physicians and a physiotherapist between September 11, 1998 and September 17, 1999. On a balance of probabilities, Review Office was unable to find that a diagnosis involving the right shoulder was overlooked or overshadowed by the worker's report of symptoms; and

• it could not find the evidence to support that the worker had a pre-existing right shoulder condition prior to September 11, 1998 and therefore the definition of enhancement was not applicable.

On August 18, 2009, the worker advisor asked the WCB to convene an MRP under subsection 67(4) of the Act. She stated that there was a difference of medical opinion between the worker's treating orthopaedic surgeon and two medical officers of the WCB, namely the opinion expressed by the WCB's orthopaedic consultant of October 30, 2008 and the December 12, 2008 opinion from the WCB's physiatrist.

On August 21, 2009, a WCB supervisor determined that the orthopaedic surgeon's report of March 29, 2009 did not provide a full statement of facts and reasons to support his medical conclusion and therefore an MRP would not be granted. On September 10, 2009, the worker advisor appealed the decision to Review Office.

In a letter to the worker's orthopaedic surgeon dated November 3, 2009, Review Office noted that on February 18, 2009, a worker advisor asked him to respond to certain questions with respect to the worker's claim. The worker advisor stated that the worker's claim was accepted by the WCB for injuries related to his "duties as a spray painter". Review Office stated upon its review of the file, the worker's claim was accepted as a result of a specific accident occurring on September 11, 1998 and not as a result of his work duties in question. The worker's accident report form dated September 11, 1998 stated, "While spray painting in flat deck booth when I felt pain in my right shoulder and lower back." Based on this difference, Review Office asked the specialist to review his March 29, 2009 correspondence and advise if the information he provided was relevant to the specific accident description of September 11, 1998. In a response dated November 6, 2009, the orthopaedic surgeon stated, in part:

"…To try to get a better handle on what went on with [the worker] at the accident of September 11, 1998, I spoke to him briefly on the telephone yesterday and he did confirm a specific increase in neck and back and shoulder pain doing that particular work at that time.

However, he did indicate that there were a number of days when work and activities specifically aggravated his shoulder and neck. It seems that this September 11, 1998 was not an isolated event, but I suspect, more extensive and persistent and problematic than a typical day, as this was the one which led to the injury report forms being completed.

In asking how he was doing currently, he indicated that the shoulder surgery, although not giving him a normal shoulder which certainly wasn't expected, was associated with a lot of reduction in pain around the neck and around the shoulder girdle.

Looking back, at the time of his accident in 1998, he was 45 years old, in the 5^th decade of life, when rotator cuff degenerations secondary to ADL and sports and work related injuries is beginning to become a more chronic and irreversible problem. The assumption was that something happened on that particular day to hasten the progress of his condition, likely some degree of rotator cuff tearing, although impossible to be exact in describing extent of injury on that given incident now over 11 years ago."

In a submission to Review Office dated November 19, 2009, the worker advisor stated that the orthopaedic surgeon's report of November 6, 2009 confirmed the probability that the worker's rotator cuff tear originated with the compensable injury, likely within the context of underlying, pre-existing degenerative changes. She submitted that this opinion clearly differed from the conclusions reached by the WCB medical officers and therefore the circumstances of the case satisfied subsection 67(1) and 67(4) of the Act.

On January 5, 2010, Review Office denied the worker advisor's request for an MRP. Review Office concluded that the orthopaedic surgeon's reports of March 29, 2009 and November 6, 2009 did not provide an "opinion" as defined by subsection 67(1). It stated that the specialist provided speculative scenarios that he felt could have occurred at the time of the worker's accident. The specialist used statements such as "I think" and "likely" which Review Office felt were speculative and did not constitute an "opinion". Review Office stated that it continued to place weight to the medical findings, diagnoses and clinical test results that were recorded in the closest proximity of the workplace accident and found that on a balance of probabilities, the worker did not sustain a rotator cuff tear as a result of his specific accident on September 11, 1998. On February 3, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that the opinion of the WCB medical officer (Review Office orthopaedic consultant) differs from the opinion of the worker’s physician (treating orthopaedic surgeon) within the meaning of subsections 67(4) and 67(1) of the Act. We are able to make that finding.

The panel finds that the worker's physician and the WCB medical officer expressed opinions on the presence and absence of etiology relating the worker's condition to the 1998 workplace injury. The worker's physician opined there is a relationship between the workplace injury and August 2008 surgical findings. In his view, the initial tear occurred around the time of the accident, likely secondary to a combination of work-related injury and some pre-existing rotator cuff degeneration. On the other hand the WCB medical officer rejected a relationship and stated that "even a lesser tear of the rotator cuff would have been expected to cause positive impingement signs, which were not evident to the examining doctors."

The panel finds that the opinions offered by both the worker's physician and the WCB medical officer meet the requirements of an "opinion" as defined in the Act.

In the panel’s view, to the extent that the worker's physician found there was a relationship and the WCB medical officer found there was no relationship between the workplace injury and the subsequent surgical findings, there is a difference of medical opinion affecting entitlement to compensation. Accordingly, the requirements of subsection 67(4) are met and an MRP should be convened. The worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of September, 2010