Decision #40/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that there was insufficient medical evidence to support a causal relationship between the compensable shoulder injury of August 12, 2008 and the July 8, 2011 surgical procedure. A hearing was held on February 29, 2012 to consider the matter.

Issue

Whether or not responsibility should be accepted for the July 8, 2011 left shoulder surgery.

Decision

That responsibility should not be accepted for the July 8, 2011 left shoulder surgery.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left shoulder injury that occurred on August 12, 2008 while employed as a maintenance supervisor.

On October 6, 2008, the worker advised the WCB that he was climbing on a trailer to move a top pin to lift the door when he slipped off the fender of the trailer putting all his weight on his shoulder. The worker said he had surgery to his left shoulder about six years ago and that he did not have any problems or difficulties with the shoulder since that time.

The claim for compensation was accepted by the WCB and benefits and services were paid to the worker while he underwent physiotherapy treatment. The compensable diagnosis was a left shoulder strain, however, the diagnosis was later changed to supraspinatus syndrome.

On April 7, 2009, an MRI examination of the left shoulder was carried out and the results were read as follows: "Osteoarthritis of the glenohumeral joint and acromioclavicular joint. Possible partial thickness tear of the supraspinatus tendon on tendinosis. No change from October 2008."

The file contains a copy of an operative report related to the worker's non-compensable left shoulder arthroscopy dated July 15, 2003. The pre-operative diagnosis was left rotator cuff impingement. The post-operative diagnosis was a Bankart Lesion and Type 1 SLAP lesion.

On June 10, 2009, a WCB medical advisor made the following comments after his review of the file evidence:

  • The current diagnosis was a partial thickness tear of the supraspinatus tendon versus tendinosis. There was also osteoarthritis of the glenohumeral joint and the acromioclavicular joint.
  • The injury related to the mechanism of injury was the partial thickness tear versus tendinosis.
  • The current diagnosis was related to the 2008 mechanism of injury.

On March 8, 2010, the worker underwent an arthroscopy of the left shoulder which was accepted as a WCB responsibility. The post-operative diagnosis was a left shoulder partial supraspinatus tear, early glenohumeral osteoarthritis ("OA") and subacromial decompression and debridement of partial thickness supraspinatus tear."

In a follow up report dated June 3, 2010, the treating surgeon reported that the worker continued to struggle with impingement pain despite regular physiotherapy and exercises. The same opinion was expressed in a further follow-up report dated September 9, 2010. The surgeon noted that the worker had mild OA with grade 3 to 4 chondromalacia of the posterior aspect of the humeral head. The surgeon was unsure as to the reason for the delayed recovery unless it was related to the degenerative changes. A repeat MRI was being arranged.

On November 5, 2010, a WCB orthopaedic consultant reviewed the file and opined as follows:

  • The current diagnosis was status post-arthroscopic shaving supraspinatus tear and acromioplasty, left shoulder and status post-arthroscopic shaving Type I SLAP tear and debridement glenohumeral osteoarthritis.

  • The accident diagnosis of the workplace injury was partial rotator cuff tear left shoulder. The other diagnosis was not related to the workplace injury.

  • There were 2 pre-existing conditions. Early OA of the glenohumeral joint and a recurrent Type I SLAP labral tear.

  • The compensable injury diagnosis was established as "A fairly superficial supraspinatus tear on the bursal side" as identified at arthroscopy. This did not require repair, was shaved and an acromioplasty was carried out. The recovery from this procedure would be 10 to 12 weeks.

  • The further MRI suggested by the treating orthopaedic surgeon was not a WCB responsibility as the continuing pain and loss of function related to the pre-existing condition.

A decision was issued to the worker on November 10, 2010 which stated that in the opinion of the WCB, he had recovered from his left shoulder injury and therefore he was no longer entitled to further benefits related to the August 12, 2008 injury. It was felt that the worker's current left shoulder difficulties were due to a non-compensable pre-existing condition, OA of the glenohumeral joint and Type I SLAP labral tear.

On February 3, 2011, the treating orthopaedic surgeon noted that the worker continued to have shoulder pain. He stated: "His recent MRI does show moderately severe OA of the inferior aspect of the glenohumeral joint with associated degenerative subchondral cysts. He also has AC joint arthrosis. Clinically he does have pain over the superior aspect of the shoulder with tenderness over the AC joint and this could be one source of pain."

In a report to the WCB dated June 28, 2011, the family physician noted that the worker's left shoulder surgery scheduled for July 8, 2011 was to repair an injury that originally occurred in August 2008. He said the previous surgery that the worker had in March 2010 did not completely resolve his problem and therefore he believed that the July 8, 2011 surgery should be covered by the WCB.

On July 8, 2011, the worker underwent an arthroscopy of the left shoulder with biceps tenotomy, debridement of the glenohumeral joint and excision of the lateral clavicle. The pre-operative diagnosis was "Acromioclavicular and glenohumeral OA left shoulder." The post-operative diagnosis was "Torn, dislocated long head of biceps. Acromioclavicular and glenohumeral OA left shoulder."

On September 9, 2011, the WCB orthopaedic consultant stated that the pre-operative diagnoses noted in the July 8, 2011 operative report were not related to the compensable injury diagnosis of rotator cuff tear. The orthopaedic consultant concluded that the recent surgery was for treatment of pre-existing degenerative joint changes and that these changes were not aggravated or enhanced by the compensable injury. Further treatment referred to the pre-existing condition and was not the responsibility of the WCB.

On September 13, 2011, the worker was notified that the WCB was unable to accept responsibility for his current disability as it was unrelated to his August 12, 2008 workplace injury. The case manager relied on the opinion expressed by the WCB orthopaedic consultant outlined on September 9, 2011.

On November 15, 2011, Review Office considered the worker's appeal and determined that no responsibility should be accepted for the July 8, 2011 surgery. Review Office accepted the opinion expressed by the WCB orthopaedic consultant and said there was insufficient medical evidence to support a causal relationship between the compensable injury of August 12, 2008 and the July 8, 2011 surgery. The worker appealed the decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeal deals with whether the WCB is responsible for surgery on the worker's left shoulder. The worker's claim for a left shoulder injury has been accepted by the WCB. Subsection 27(1) of the Act, provides that the WCB may provide the worker with such medical assistance as the WCB considers necessary to cure and provide relief from an injury resulting from an accident.

Worker's Position

The worker attended the hearing and explained his reasons for appealing the WCB and Review Office decision. He also answered questions from the panel.

The worker acknowledged that he injured his left shoulder in 2003 and had surgery on July 15, 2003. He advised that he recovered from the injury and did not have any shoulder symptoms until his August 12, 2008 workplace injury. He said he did not seek any medical attention or treatment after the July 15, 2003 surgery.

The worker described the accident. He explained that while working on the side of a large trailer, he slipped off the fender and was left hanging by his left arm. He said that he heard a mushy noise. When asked to explain the noise, he said it was as if there was something in there that was getting squashed and ripped.

The worker said that he had surgery in 2010 but that the surgery did not result in any improvement to his shoulder condition. He said "There was still something not right in my arm. They either missed something in the surgery and I was still in an incredible amount of pain. I had lots of sudden pinching, constant deep pain in the shoulder and upper arm."

The worker said that on November 10, 2010, the case manager advised him that the injury had resolved simply because the time frame of ten to twelve weeks was over and that the pain was from an old injury of 2003. The worker indicated that he was told by his employer he had to return to regular duties as there was no other work for him. He chose to work, but was very uncomfortable with the pain, having to take medication daily.

Regarding medical treatment, the worker advised that he attended physiotherapy forty-one times with no improvement from March 2010 to July 2011. He saw the surgeon on ten visits with complaints as well. He also saw his family doctor numerous times.

The worker said that the problem was never resolved from the injury in 2008. Both his family doctor and surgeon believe the surgery on July 8, 2011 was related to August 2008 injury.

The worker advised that between August 2003 and August 12, 2008 there were no doctor visits for any kind of pain or discomfort in his shoulder and that he never complained to his employer.

The worker said that after the surgery he felt a change in the shoulder performance. Although recovery was slow, five months before returning to work there was noticeable difference in his left shoulder. With respect to his current condition, he said there is still some pain and discomfort at times, but nowhere near what he had before.

In answer to a question, the worker described his 2003 accident as "I just tipped sideways on the snowmobile." He said that he had surgery and never had a problem again until the 2008 injury.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue to be determined is whether responsibility should be accepted for the July 8, 2011 left shoulder surgery.

For the worker's appeal to be successful, the panel must find that his July 8, 2011 surgery is related to his August 12, 2008 compensable left shoulder injury. We were not able to make this finding. We find, on a balance of probabilities, that responsibility should not be accepted for the worker's July 8, 2011 shoulder surgery.

In reaching this decision, we rely upon the September 9, 2011 report of a WCB orthopaedic consultant. The consultant opined that the July 8, 2011 surgery was related to the worker's pre-existing condition. He noted that the pre-operative diagnosis was acromioclavicular and glenohumeral OA left shoulder and that neither of these diagnoses related to the diagnosis of the compensable injury, which was a rotator cuff tear. The consultant wrote:

"In more detail, the information relating to the rotator cuff states quite clearly:

a. "The undersurface of the rotator cuff appeared intact."

b. "The rotator cuff appeared intact on the bursal side."

The report also notes that the revision acromioplasty was not required. This means that the subacromial space was satisfactory and not responsible for any impingement on the rotator cuff.

The remainder of the surgery was directed at debridement of the glenohumeral joint and excision distal clavicle, both degenerative osteoarthritis changes.

…The recent surgery was for treatment of pre-existing degenerative joint changes. These changes were not aggravated or enhanced by the compensable injury of this claim."

The panel further notes that in the March 8, 2010 operative report it was noted that: "the glenoid was somewhat thinned at the inferior portion, but there were no loose flaps…There did not appear to be any tearing or detachment of the biceps tendon aside from the superior labral fraying..." In the July 8, 2011 operative report it was noted that: "…The inferior one-third showed delamination of the glenoid with several large chondral flaps"…" The biceps tendon was also noted to be anteriorly dislocated with tearing of the medial aspect on the under-surface about 30% of the diameter of the biceps tendon" (emphasis added). The panel is unable to relate these differences to the compensable injury.

We also note that after the March 8, 2010 surgery the treating orthopaedic surgeon commented that "Still has impingement signs. I am unsure as to the reason for his delayed recovery unless it is related to the degenerative changes." While the surgeon did not make a specific finding on this issue, we find that his comment is supportive of our decision that the July 2011 surgery was related to degenerative changes and not the 2008 compensable injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 22nd day of March, 2012

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