Decision #143/11 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") in relation to a compensation claim for an accident occurring on September 11, 1998. A hearing was held on October 5, 2011 to consider the issues under appeal.Issue
Whether or not the worker is entitled to wage loss benefits from September 18, 1999 to August 20, 2008;
Whether or not the right shoulder surgery performed on August 21, 2008 is related to the September 11, 1998 compensable injury; and
Whether or not the worker is entitled to wage loss benefits effective August 21, 2008.
Decision
That the worker is not entitled to wage loss benefits from September 18, 1999 to August 20, 2008;
That the right shoulder surgery performed on August 21, 2008 is not related to the September 11, 1998 compensable injury; and
That the worker is not entitled to wage loss benefits effective August 21, 2008.
Decision: Unanimous
Background
The worker filed a claim with the WCB for right shoulder and low back pain that occurred on September 11, 1998 while spray painting in a flat deck booth.
On September 21, 1998, the worker advised the WCB that he had been employed with the accident employer for 19 years and his job entailed spray painting equipment parts. He stated that the number of parts he sprayed depended on the shift but the minimum was 135 parts per shift. He had to reach over and under the parts with the spray gun. He noticed pain at the top of his shoulder on the right side about two weeks before September 11, 1998.
Medical reports showed that the worker was diagnosed 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, a WCB medical advisor examined the worker and diagnosed a strain of the right latissimus dorsi and supraspinatus and the long and short head of the biceps due to repetitive motion.
In December 1998, the worker returned to work on a graduated basis but experienced a flare-up of shoulder symptoms and complained of forearm pain.
On March 18, 1999, the worker was seen by a WCB physical medicine and rehabilitation consultant (physiatrist) for a medical assessment. The worker reported that he returned to his regular work duties on December 22, 1998 for a three to four day period and felt an increase of symptoms in his right arm and right top of the shoulder. The examination revealed tenderness, soft tissue, top of the shoulder and trapezius muscles and slight tenderness of the dorsal proximal forearm. He concluded that there was no evidence of any active myofascial pain syndrome and there was resolution of the previous bicipital tendonitis that has been identified earlier in the WCB examination notes of November 9, 1998.
The worker was treated by a physiotherapist and received acupuncture treatment.
On August 12, 1999, the WCB physiatrist noted to the file that the worker could return to work on a graduated basis at four hours per day and to increase by one hour per day each week until he was back at full hours.
On August 31, 1999, the treating physiotherapist noted that the worker was fit to return to work.
The WCB arranged for the worker to return to work on a graduated basis. On September 2, 1999, the employer advised the WCB that the worker was following the program and he was not aware of any problems.
On May 22, 2002, the worker advised the WCB that he was still having problems with his shoulder and back and that he had been laid off from work since September 24, 1999. The worker advised that he moved a 50-pound object in 1999 and hurt himself.
A medical report from the treating physician dated July 11, 2002 showed that the worker was diagnosed with myofascial pain of the left trapezius/supraspinatus.
On July 24, 2002, the WCB case manager advised the worker that the WCB was unable to relate his present symptoms to his 1998 compensable injury given that he had made a good recovery in 1999 and was able to return to work full time.
On August 1, 2002, the worker advised the WCB that he believed his neck problems were related to his compensable shoulder injury.
In a report dated February 19, 2003, an occupational health physician noted that there was fairly significant deterioration in the worker's upper back and neck posture with greater findings of myofascial dysfunction throughout the right shoulder and upper shoulder girdle muscles. His shoulder blades were rounded forward and this contributed to the problems he had with overhead reaching and pain flare-up. The worker's neck x-rays showed degenerative changes at C4-5 and C5-6. A trial of myofascial trigger point therapy was recommended.
On August 7, 2003, the worker was advised by the WCB case manager that the WCB still considered him to have recovered from the effects of his compensable injury after reviewing the new medical information.
On 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, it was felt that repetitive work duties were the cause of the worker's pain complaints.
On April 19, 2005, a physiatrist reported restriction in range of motion in abduction and flexion at both shoulders was 60%. Palpation revealed taut bands in the trapezius muscles bilaterally. There was tenderness at the superior medial corner of the scapula bilaterally.
On 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. The worker had some cervical disc degeneration and bursitis.
An August 16, 2006 MRI report 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."
On April 9, 2007, the treating physician reported that a surgical consultation was required based on the results of the August 16, 2006 MRI findings.
On May 14, 2007, an orthopaedic specialist reported that the worker had fair range of cervical spine and right shoulder movement. There was some tenderness anteriorly. The specialist noted that the worker had cervical disc degeneration and bursitis of the right shoulder.
On August 13, 2007, an orthopaedic specialist reported that the worker complained of neck aches and pains with some radiation into his shoulders. He noted that the worker's upper arms had been deformed for years. There was 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.
A WCB physiatrist stated on August 15, 2007, that the rotator cuff tear noted in the MRI findings cannot be ruled out as having occurred with the original claim incident and was most likely predisposed to a tear at work as a result of the degenerative changes present. The current diagnosis appeared to be 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 had been able to manage his duties in the paint department in 1999.
On 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 and the worker was provided with wage loss benefits commencing August 21, 2008. The August 21, 2008 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 had a loss of earning capacity beyond September 17, 1999. The worker clarified that the duties he performed in the painting department on his return to work were not his regular duties. He was first assigned to priming duties and then was transferred to the assembly department which involved repetitive lifting from floor to overhead which caused a noticeable increase in his symptoms. The worker advisor felt that weight should be placed on the opinion expressed by the WCB's physiatry consultant dated August 15, 2007 and the worker's treating physician both of whom concluded that the worker had restrictions which prevented him from performing his pre-accident job duties.
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…"
Based on the opinion expressed by the WCB orthopaedic consultant, Review Office expanded 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 December 12, 2008, the WCB's physiatry consultant 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. The impingement noted on the August 7, 2006 MRI was a new finding as there was no evidence of impingement prior to this date. There was 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 determined that the worker did not have a loss of earning capacity effective September 18, 1999 to August 20, 2008 due to his compensable injury and that WCB responsibility of the right shoulder surgery of August 21, 2008 should be revoked. It was determined that the worker was not entitled to wage loss benefits beyond August 21, 2008.
In its supporting reasons, Review Office was of the opinion that the MRI findings of August 7, 2006 were not related to the September 11, 1998 right shoulder compensable injury. Review Office noted that the worker was diagnosed with a soft tissue injury involving his right shoulder on September 14, 1998. Between September 14, 1998 and September 9, 1999, the worker saw multiple physicians and a physiotherapist and no one reported findings to support a more significant diagnosis, such as a right rotator cuff or biceps tear. Review Office accepted the opinions of the WCB's orthopaedic consultant dated October 30, 2008 and the WCB physiatry consultant of December 12, 2008.
On May 26, 2009, the worker advisor provided Review Office with a report from the treating orthopaedic surgeon dated March 2009, to support that the work duties performed by the worker in September 1998 contributed to the right rotator cuff tear demonstrated on the MRI and therefore 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:
"…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 tears in the superior aspect of the subscapularis, how a tear in the superior aspect of the subscapularis could affect 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 by medical documentation nor was it consistent with the accident description of September 11, 1998.
- Based on the opinion expressed by the WCB orthopaedic consultant on June 3, 2009, 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 workplace 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 medical 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 a Medical Review Panel ("MRP") under subsection 67(4) of the Act. The request for a MRP was denied by primary adjudication and Review Office but was granted by the Appeal Commission. An MRP was held on January 27, 2011 and the MRP report is on file dated February 18, 2011.
On March 24, 2011, the worker advisor contended that the opinion of the MRP, the WCB's physiatry consultant opinion of August 15, 2007 and the surgeon's opinion of March 29, 2009 supported that the work duties contributed to a significant degree to the worker's right shoulder condition and need for surgery, and caused an ongoing loss of earning capacity.
On March 28, 2011, Review Office determined that no change would be made to its earlier decisions. Review Office made reference to file evidence to support that the worker's claim was for a specific accident, not a non-specific accident as was contended by the worker advisor. Review Office noted that the MRP indicated that the most probable diagnosis following the accident was tendinosis of the rotator cuff as well as shoulder, neck and mechanical lower back pain. The worker's file was only accepted in 1998 for his right shoulder injury. Review Office found that the right shoulder tendinosis was caused by the September 11, 1998 accident. The worker essentially left the workforce in 1999 and there was no evidence of a rotator cuff tear at that time. It was not until August 2006 that it was confirmed by MRI. Review Office therefore was of the opinion that the rotator cuff tear was not an injury as a result of an accident as defined by the WCB Act.
On April 11, 2011, the worker advisor appealed Review Office's decision dated June 23, 2009 to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
The worker is appealing three decisions made by the WCB arising from an injury that occurred in 1998. The worker is seeking a ruling that his right shoulder surgery is related to his 1998 compensable injury and that he is eligible for wage loss benefits for two different periods.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
With respect to responsibility for the right shoulder injury, the key issue to be determined by the panel deals with causation and whether the worker's shoulder condition and resulting surgery are related to his 1998 compensable injury. The wage loss issues are dependent on a finding that the worker sustained a loss of earning capacity due to the accident during the noted periods.
Worker's Position
The worker was represented by a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the panel. The employer, through the chair, also asked the worker questions.
The worker advisor submitted that:
"The question here is whether the worker was recovered from his compensable injury in September of 1999 when the Workers Compensation Board ended responsibility on his claim or, if beyond that date, the injury continued to require the need for medical treatment and to cause a loss of earning capacity."
The worker advisor identified two points of disagreement with Review Office. She said that the worker disagrees with Review Office's determination that the compensable diagnosis was tendinosis of the rotator cuff and that it was caused by a specific accident or a specific event. The worker's position is that he developed a rotator cuff tear and that this tear did not occur from a specific event, but rather developed over time and as a result of the worker's work duties.
In reply to questions from the worker advisor, the worker described his job duties and when his symptoms occurred. He advised that he started work with the employer in 1979 doing sanding and body work and then painting. He used his right hand to paint. He used a spray gun and moved it in an up and down, left to right motion. He demonstrated how he held the spray gun. He agreed that most of the time his elbow was at his side.
Regarding the symptoms the worker said that he felt the symptoms "little by little, gradual." He said he first felt the symptoms in the elbow and it then moved up to his neck. Regarding the shoulder symptoms he said "It was started very dull pain and after it started getting very sharp, very sharp and there come the time where I cannot move my shoulder." He said that painting the big parts where he could not stop until completed made the symptoms worse.
The worker advised that his symptoms did not go away. He said acupuncture worked temporarily at the time of treatment so he told his physician that it worked but it did not really work.
The worker advisor reviewed the medical information on file and noted that an August 7, 2006 MRI showed a complete tear of the supraspinatus with considerable retraction and atrophy, as well as a cephalad tear in the subscapularis and a complete tear of the bicep.
The worker advisor noted that physicians had examined the worker and did not find impingement which is an indicator of a tear. She stated:
"What this indicates is that while a loss of range of motion and impingement might be typical signs for a rotator cuff tear, in this man’s case, we have a confirmed and extensive rotator cuff tear affecting several of the rotator cuff muscles without those typically expected markers."
She noted that the worker's orthopaedic surgeon commented that the natural history and presentation of rotator cuff tears is variable.
The worker advisor said that while Review Office has treated the injury as a specific event, the worker's position is that it was the effect of a slowly degrading shoulder in the context of the physical demands of the work duties, combined with pre-existing changes. She reviewed the medical evidence which supported this position.
Regarding the Medical Review Panel which was convened at the worker's request she said:
"The questions put to a Medical Review Panel that was convened to consider the differences in medical opinion on Mr. Pena’s case, however, was structured with the notion of a single traumatic event, and it was from this understanding that the panel provided its opinion that the worker’s current diagnosis is not medically accounted for in relation to the September 1998 accident.
The panel did add however that repetitive, strenuous activity over many years, and the aging process probably weakened the rotator cuff and could be a factor in the tear development.
We suggest that the panel’s comment was made in recognition of the nature of the demanding nature of the worker’s job duties in relation to their effect on the rotator cuff."
In answer to questions, the worker said that his shoulder continued to bother him at the time that the WCB ended responsibility for his claim in September 1999. He confirmed that at that time he had been permanently laid-off by the employer.
The worker advised that he looked for work during the period from 1999 to 2002, when he contacted the WCB again. He attempted one job, for 2 or 3 days, as a painter but was not able to perform the job. He did not have any other employment during this period. He also advised that he continued to seek medical treatment.
The worker advisor submitted that the evidence supports that the diagnosis related to the worker's right shoulder condition in 1998 was a rotator cuff tear. This tear developed out of the worker’s job duties. The tear caused symptoms and restrictions, which resulted in a loss of earning capacity after September 1999. His loss of earning capacity warrants the payment of wage loss benefits. The surgery performed in August 2008 was needed to repair a compensable condition and is therefore the WCB’s responsibility and the worker is entitled to benefits following the surgery.
Employer's Position
The employer was represented by two staff members. The representatives initially indicated that they were observing the proceedings but did seek information from the worker regarding his activities/employment.
Analysis
Issue #1: Whether the worker is entitled to wage loss benefits from September 18, 1999 to August 20, 2008?
For the worker's appeal of this issue to be successful we must find that the worker sustained a loss of earning capacity during this period caused by the workplace injury. We are not able to make this finding.
We find that the worker was capable of returning to employment as of September 18, 1999. We note that on August 31, 1999, the physiotherapist reported that the worker was fit to return to work. We also note that on September 2, 1999 the employer stated that the worker followed his graduated return to work plan and that the employer was not aware of any problems. The worker was subsequently laid off from his employment and we consider any loss of earnings to be related to his loss of employment. The file indicates that the worker did not contact the WCB again until 2002.
We also note and rely on our decision on Issue #2. There is no compensable diagnosis between September 18, 1998 and August 20, 2008 that would lead to an entitlement to wage loss benefits in that period.
The worker's appeal on this issue is dismissed.
Issue #2: Whether or not the right shoulder surgery performed on August 21, 2008 is related to the September 11, 1998 compensable injury?
For the worker's appeal to be successful, we must find that the worker's surgery was related to his 1998 compensable injury. In other words, we must find that the surgery was required as a result of the 1998 workplace injury. We are not able to make this finding. We find, on a balance of probabilities, the surgery is not related to the 1998 workplace injury.
In arriving at our decision, we have considered the worker's file, including medical reports, and the evidence and arguments presented at the hearing. We rely upon the following information in reaching our decision:
- WCB physical medicine consultant's file review and opinion dated December 12, 2008 which concluded "There is also no significant evidence on the file to support the presence of any significant rotator cuff involvement early in the file despite the fact that his job duties were performed for over 15 years, and had a high physical demand for shoulder structures including muscle, bone and ligamentous."
- The first identification of the complete supraspinatus tear, and the long heads bicep was in the MRI of August 2006, approximately seven years after the worker ceased working.
- WCB orthopedic consultant's opinion dated October 30, 2008 that the findings at surgery of August 21, 2008, were not, on a balance of probabilities, present prior to September 18, 1999. The medical advisor commented that had the almost complete biceps tear been present, the clinical finding of a displaced muscle belly would have been obvious to the examining doctors and had the massive tear of the rotator cuff been present, significant limitation of active abduction would have been evident to the examining doctors.
- The opinion of the second WCB orthopedic consultant of June 3, 2009 which noted that early specific clinical tests found the worker's biceps tendinopathy was negative, supraspinatus power testing was full bilaterally, impingement and cross adduction testing was negative bilaterally, and normal range of movement of the right shoulder when moved passively.
- The MRP report dated February 18, 2011which found that:
- The most probable diagnosis of the worker's injury following the accident to be tendinosis of the rotator cuff as well as shoulder, neck and mechanical lower back pain.
- The worker did not have a pre-existing back or shoulder condition.
- The worker's current diagnosis includes bicep tendon rupture of unknown etiology and rotator cuff tear, now repaired, none of which is medically accounted for in relation to the September 1998 accident.
The panel notes that numerous physicians examined the worker after the injury and did not report signs of rotator cuff injury. This included the occupational health clinic physician who saw the worker on February 19, 2003 and the physiatrist who examined the worker on April 19, 2005.
We note that the worker advisor disagreed with the Review Office decision which treated the 1998 injury as resulting from a traumatic or specific event rather than a gradual process. She also expressed concern that the Review Office decision coloured the decision of the Medical Review Panel.
While Review Office did consider that the injury was the result of a specific event, we do not believe that the MRP decision was limited in its scope by this decision. We note that the MRP File Review section acknowledges the opinion of the treating orthopaedic specialist that "…there was no one major injury either at work or away from work that would have been entirely the cause of the large tear." As well, the Worker Interview section confirms that the worker advised that "…he had noticed pain coming on gradually over several months." In answer to Question #1 the MRP commented that "The evidence for these changes include the history obtained from the worker and the information on his healthcare file." Accordingly, it is our view that the MRP's negative findings regarding etiology apply to both an acute or repetitive overuse scenarios.
The worker's appeal on this issue is dismissed.
Issue #3: Whether the worker is entitled to wage loss benefits effective August 21, 2008?
Given our decision on Issue # 2, the panel finds that the worker is not entitled to wage loss benefits effective August 21, 2008.
The worker's appeal on this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 31st day of October, 2011