The Appeal CommissionThe Workers Compensation Act of Manitoba

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. Under subsection 4(1) of 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 was assisted by a union representative at the hearing. The worker’s position was that on March 17, 2007, he suffered a right shoulder strain, a tear to his supraspinatus biceps tendon and a tear to his right rotator cuff. Although by process of elimination, the rotator cuff tear was ruled out as the pain generator, it was submitted that the partial tear of the biceps tendon was the cause of the worker's acute symptoms which resulted in sudden, distinct and lasting changes in functional ability immediately following the workplace injury. The injuries permanently and adversely affected a pre-existing condition, in this case, existing degenerative changes, which required surgery. The worker diligently reported the injury to his shoulder and sought prompt medical attention. As time progressed, his recovery plateaued and he still experienced symptoms, but the worker was told by his physician that a lengthy healing process was normal. He was not referred by his physician for an MRI until his symptoms had persisted for seven months, by which time the WCB had assumed the worker had fully recovered and was functioning at one hundred percent. This, however, was a mistaken assumption and in fact the worker continued to have problems with his shoulder. It was only after the worker had surgery performed on his shoulder that the symptoms resolved and at the time of the hearing (almost four years later) the worker had no shoulder difficulties whatsoever. The panel was asked to acknowledge that the tears found at surgery and all associated shoulder difficulties which ceased after surgery was the result of the workplace injury. There was medical support for a cause and effect relationship and evidence of ongoing difficulties from the time of the workplace accident.

Employer's position:

A representative from the employer appeared at the hearing. It was submitted that there was a significant disconnect between the medically confirmed resolution of the March 17, 2007 compensable shoulder strain and the onset of symptoms which prompted renewed medical attention effective November 23, 2007. It was noted that after resuming regular duties on May 4, 2007, there was no further communication between the worker and the WCB until February 28, 2008 at which time the worker indicated he was experiencing further problems with his right shoulder. It was noted, however, that the worker did not seek any medical attention for his shoulder between April 27 to November 27, 2007, despite the fact that he was seen by his attending physician on four separate occasions during this period for unrelated medical issues. The worker was also able to perform his full regular duties in a busy posting for seven months, as well as participate in various active recreational activities. It was submitted that the weight of the evidence failed to establish any relationship between the surgical intervention of November 3, 2008 and the compensable accident of March 17, 2007.

Analysis:

The issue before the panel is whether or not responsibility should be accepted for the worker's ongoing right shoulder condition. In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with his right shoulder which led to the November 3, 2008 surgery are related to the injuries he sustained in the workplace accident of March 17, 2007. We are unable to make that finding.

The post-operative diagnoses identified after the November 3, 2008 surgery were a partial thickness cuff tear, acromioclavicular (AC) arthrosis and a partial biceps tendon tear. The surgeon determined that the rotator cuff tear did not need repair and so that structure was left unaltered. An acromioplasty, a resection of the distal clavicle and a biceps tenotomy were performed.

Following the surgery, the worker reports that he has regained full and pain free function of his right shoulder. Given that the rotator cuff tear remains unrepaired, it would follow that the rotator cuff tear was not responsible for the worker's complaints of shoulder pain. Indeed, the worker's union representative had abandoned his arguments in this regard.

The union representative's submission now placed focus on the biceps tear. It was submitted that the tear to the biceps tendon was caused on March 17, 2007 while the worker was chopping with an axe in an awkward position during the course of his employment. In the panel's opinion, the evidence does not support this submission. In particular, we note the following:

• The initial reports in March 2007 from the walk-in clinic physician, the worker's own family physician, and the physiotherapist all focus on a shoulder strain to the rotator cuff and acromioclavicular joint. There were no clinical findings indicative of a biceps tear.
• The worker's own evidence was that the only activities which caused him pain were ones which required him to extend his arms at or above shoulder height. Specifically, he had no difficulty performing bicep curls or other activities requiring strenuous use of the arm.
• After his return to work, the worker was able to resume his full regular job duties, which involved heavy physical activity. He reported no functional limitations with the use of his biceps muscle.
• The MRI report of December 27, 2007 identified the biceps tendon as appearing normal.

In view of the lack of clinical correlation, absence of functional limitations and a normal appearance on MRI, the panel is unable to conclude that the biceps tear occurred during the workplace accident of March 2007.

In the panel's opinion, the injury suffered by the worker in March 2007 was limited to a right shoulder strain injury. It was submitted on behalf of the worker that the injury caused an enhancement of the pre-existing degenerative changes in the worker's shoulder. It was noted that prior to the injury, the worker's shoulder had been asymptomatic, but that following the injury, new acute symptoms developed and persisted, ultimately necessitating corrective surgery for resolve.

The panel agrees that pre-existing degenerative changes were aggravated by the workplace accident, and that new acute symptoms developed following the aggravation. The panel finds, however, that the aggravation was only temporary and that the pre-existing degenerative changes were not enhanced by the injury. The March and April medical reports from the family physician document an improving condition with steadily increasing function and decreasing pain. By the final report of April 27, 2007, the family physician reported normal range of motion and some intermittent discomfort. In our opinion, by this date, the aggravation had resolved.

There was discussion at the hearing as to whether there was evidence of an ongoing shoulder condition. The panel accepts that during the period from May 2007 to November 2007, the worker continued to experience pain in his shoulder. His evidence, however, was that the pain was not present all the time and was only triggered with certain movements. Lifting over shoulder height with extended arms was a problem, as was the task of raking. Otherwise, the worker was able to maintain his active lifestyle, which involved his heavy physical duties at work, and considerable physical duties at home, as he was performing extensive repairs to his house at that time. In the panel's opinion, this evidence is descriptive of an ongoing pre-existing degenerative condition, which would be subject to periodic flare ups of pain with certain movements. We do not view these ongoing reports of pain to be a continuation of the workplace injury, but rather are separate and discrete aggravations of the pre-existing degenerative condition, which flared from time to time. The evidence does not convince us that the right shoulder strain injury caused the pre-existing AC joint arthrosis to become enhanced. The operative report described the AC arthrosis to be "obvious" and the panel does not accept that this degree of arthrosis would have been caused or enhanced by the six week strain injury.