The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker has an accepted claim with the Workers Compensation Board ("WCB") for a right shoulder strain. The worker subsequently developed problems with his left shoulder, for which he sought coverage from the WCB. The WCB accepted limited responsibility for the left shoulder on the basis of overcompensating for the right side, but did not accept that the worker suffered a new left shoulder injury on December 10, 2008. This appeal deals with the worker's entitlement to ongoing benefits for his left shoulder. A hearing was held on September 18, 2012 to consider the matter.

Issue

Whether or not the claim for a left shoulder injury occurring on December 10, 2008 is acceptable; and

Whether or not further responsibility for wage loss and medical aid benefits including surgery should be accepted for the worker's left shoulder complaints in relation to the right shoulder injury of July 14, 2008.

Decision

That there is no separate claim for an acute left shoulder injury occurring on December 10, 2008; and

That further responsibility for wage loss and medical aid benefits including surgery should not be accepted for the worker's left shoulder complaints in relation to the right shoulder injury of July 14, 2008.

Decision: Unanimous

Background

The worker filed a claim with the WCB on August 14, 2008 for a right shoulder injury that occurred at work on July 14, 2008. The worker reported that he was prying a fitting in place when he put his shoulder out. File records also showed that the worker had a prior claim with the WCB for a right shoulder injury that occurred on September 22, 2006. That claim was accepted based on a soft tissue diagnosis for the right shoulder.

On September 3, 2008, the treating physician reported that the worker was seen for treatment of his right shoulder on July 17, 2008. The worker had decreased overhead movement with tenderness and some swelling. The diagnosis was a sprain to the right shoulder and a referral was made for the worker to see a sports medicine physician.

In a report dated October 21, 2008, the sports medicine physician reported that the worker injured his right shoulder at work on July 14, 2008. He noted that the worker had a previous shoulder injury a few years ago and that an MRI had been done in the past. He noted that the worker had no physiotherapy or x-rays at this point and that he continued to work. The examination showed decreased internal rotation and positive impingement signs. The worker had normal external rotation strength with full abduction. The specialist recommended that the worker attend physiotherapy as a form of treatment. In an addendum added to this report, the physician noted that the previous MRI study (January 14, 2007) showed no rotator cuff tear but there were advanced degenerative changes in the acromioclavicular joint potentially resulting in some impingement upon the supraspinatus tendon.

On November 8, 2008, the worker was seen by a physiotherapist and was diagnosed with right subacromial impingement rotator cuff tendonitis.

The WCB accepted the worker's claim based on the diagnosis of a right shoulder strain.

On December 16, 2008, the WCB case manager recorded that she spoke with the treating physiotherapist and was told that the worker's treatment was going well until a recent set back which he related to an increased workload. The worker reported that he was now experiencing left shoulder difficulties.

A physiotherapy discharge report dated December 19, 2008 indicated that the worker's right shoulder was improving and that the worker had left shoulder pain due to overcompensating for his right shoulder.

On January 6, 2009, the worker advised the WCB that he was having left shoulder problems due to overcompensating for his right shoulder. He said his job involved a lot of heavy lifting and pulling. He said he first noticed left shoulder difficulties about three months after his right shoulder injury.

On January 6, 2009, the employer advised the WCB that the worker completed a green card around December 10, 2008 for left shoulder difficulties that he related to "over-compensating for his right shoulder".

The worker filed a Worker Incident Report for the incident of December 10, 2008. He noted that his left shoulder was injured as he was compensating due to his right shoulder injury. The worker added that he believed that over the years, the constant motion of fitting and welding took a toll on his shoulders and arms. He noted that the metal tanks are warped and that it took a lot of prying to fit the corner so that you can weld it.

On January 15, 2009 the family physician reported that the worker was seen on July 17, 2008, September 8, 2008, November 9, 2008 and January 7, 2009 for right shoulder complaints. On January 7, 2009, the worker complained of right shoulder pain and range of movement was improved to some extent. When seen on December 17, 2008, the worker reported that he injured his left shoulder while lifting parts and he had pain in the left shoulder and upper arm. The physician's impression was that the worker suffered a musculoskeletal sprain or tear of the left shoulder. At a follow-up visit on January 7, 2009, the worker continued to complain of left shoulder pain which radiated to his neck.

In a January 19, 2009 report, the sports medicine physician reported that the worker mentioned left shoulder difficulties to him on January 15, 2009. The worker indicated that he was injured on December 10, 2008 while fitting a tank and he felt tremendous pain in his left shoulder. He said his right shoulder was bothering him as well and that he was awaiting an MRI of the right shoulder. The diagnosis related to the left shoulder was a left shoulder rotator cuff strain.

An MRI of the right shoulder dated January 21, 2009 indicated : "No significant changes are seen from the prior study. There appears to be supraspinatus tendinosis but no tear is identified. There is severe osteo-arthritis."

On February 5, 2009, the WCB accepted responsibility for the worker's left shoulder difficulties as being related to overcompensating for his right shoulder difficulties.

On February 25, 2009, an occupational health physician stated in a report to the family physician that the worker had an acute injury on December 10, 2008 from overusing the left shoulder from prying with forceful internal and external rotation shoulder forces while welding. The physician assessed the worker as suffering from acute pain likely due to deltoid muscle strain and an underlying impingement syndrome.

On April 3, 2009 an MRI of the left shoulder read as follows:

1. Suspect minimal crescentic insertional tear of supraspinatus. Features most consistent with an intrasubstance tear.
2. Early degenerative change of glenohumeral articulation.

In a report dated May 5, 2009, an orthopaedic specialist reported that the worker's pain in his left shoulder was more significant than his right shoulder. The pain described by the worker was in the anterolateral aspect of the joint with radiation down towards the elbow. The specialist noted that the MRI demonstrated a partial thickness tear of the supraspinatus and surgery was considered the next logical step.

In June 2009, a work site assessment was carried out to view the worker's job duties. In a memo to file dated June 18, 2009, the WCB case manager documented that the worker "noted twice during our meeting that there was no specific accident to this (sic) left arm. He reported his opinion that the difficulties were because he was overcompensating his right arm. He confirmed his right arm was better."

A WCB medical advisor reviewed the worker's file on August 10, 2009 and answered questions posed by primary adjudication. The medical advisor outlined the following opinions:

Right shoulder:

• The probable medical diagnosis was aggravation of pre-existing grade 3 impingement syndrome.
• The current medical diagnosis was pre-existing grade 3 impingement syndrome of the right shoulder.
• We do not at this time have any evidence that the worker was having any difficulties with his right shoulder.
• Based on probability and considering reasonable restrictions, the future difficulties would in all probability be related to the pre-existing Grade 3 impingement syndrome because of degeneration of the tissues of the rotator cuff, the reduction in vascularity and vulnerability of the shoulder. The changes in the rotator cuff would include thinning fraying degenerative changes and even full-thickness defects and tearing in the region of the supraspinatus insertion.
• The condition described in this worker will continue to degenerate and progress even without any injury occurring.

Left shoulder:

• The diagnosis of the left shoulder is grade 3 impingement as described above for the right side.
• Because of the natural history of this condition it is not possible to state whether the current findings are related to any injury or are as a consequence of degenerative processes.
• In my opinion the worker's complaints of his shoulders should be managed conservatively.

On August 31, 2009, the worker was advised that the WCB was not accepting further responsibility for either his right or left shoulder conditions as of September 3, 2009. It was the WCB's opinion that any aggravation of a pre-existing condition for the right shoulder had resolved and that any left shoulder difficulties were the result of a pre-existing condition which was not aggravated or accelerated by a workplace accident.

On November 18, 2010, Review Office considered an appeal from a worker advisor acting on behalf of the worker, and determined that the worker was entitled to wage loss and medical aid benefits after September 3, 2009 for his right shoulder condition. Review Office accepted the January 2010 opinion outlined by an occupational health physician that the worker's right shoulder had not returned to its pre-injury status.

A memo to file dated February 25, 2011 documented a meeting that was held with the WCB case manager, the worker and his representatives. The worker indicated that there was no new accident or specific action that caused him to have left shoulder difficulties. He said he had to use his left shoulder more instead of his right shoulder to perform his work duties.

On May 11, 2011, primary adjudication issued the worker a letter stating based on the weight of current information, an accident could not be established for a left shoulder injury occurring on December 10, 2008. The case manager stated in part, that the worker completed a green card noting overcompensation with no specific mechanism of injury and that immediate medical attention was not sought for a December 10, 2008 incident.

A submission to Review Office was made by a Worker Advisor dated June 8, 2011. The worker advisor referred to specific file evidence to support the position that there was a causal relationship between the worker's left shoulder diagnosis and his work duties and therefore the WCB should accept coverage for surgical treatment.

A submission was made by the employer's representative on September 14, 2011. The representative concurred with the material evidence presented and the rationale provided by the WCB in the decision letter dated May 9, 2011.

On September 29, 2011, Review Office determined that a December 10, 2008 left shoulder incident was not accepted as a specific incident and that responsibility was not accepted for any further wage loss benefits or medical treatment, including surgery, regarding the left shoulder. Review Office noted in its decision that the file was full of mixed signals from the worker regarding his left shoulder condition and that this made it difficult to take a view that a compensable accident occurred on December 10, 2008. Review Office indicated that it agreed with the position taken by the case manager in her decisions on file regarding the left shoulder.

On January 27, 2012, the worker advisor provided Review Office with information to support that the worker sustained a specific injury to his left shoulder during the course of his employment on December 10, 2008. The submission included an operative report dated December 5, 2011 which revealed a postoperative diagnosis of "Severe tendinosis and partial thickness tearing rotator cuff and tendinosis and partial tearing long head of biceps." It also included an article on rotator cuff tears as well as pictures and tools used by the worker.

A copy of the January 27, 2012 submission was provided to the employer's representative. On March 26, 2012, the employer representative submitted that the surgical report confirmed the findings previously noted on the MRI report dated April 3, 2009. There were no new findings other than more specific details confirming the previous diagnosis of severe tendinosis. The representative also was of the view that there was no new evidence presented which supported than an accident involving the left shoulder occurred that would allow Review Office to rescind its previous order.

On April 2, 2012, Review Office advised the worker that it was unable to reach a conclusion that the two tears found at the December 5, 2011 surgery had a relationship to his work duties on December 10, 2008. Review Office indicated that it continued to be in agreement with the case manager's position regarding her termination of WCB responsibility for wage loss benefits and medical treatment in relation to his left shoulder. On April 27, 2012, the worker advisor appealed the Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The operative report from the December 5, 2011 surgery indicated postoperative diagnoses of severe tendinosis and partial thickness tearing of the rotator cuff and tendinosis and partial tearing of the long head biceps. The panel must decide whether any of these diagnoses can be attributed to the overcompensatory use of the left arm. We find that they cannot.

In the panel's opinion, the secondary overcompensation injury was limited to a muscular stain injury to the left shoulder. This is based on the medical reports documenting the worker's complaints of left shoulder difficulties. As noted earlier, the physiotherapist's report of December 19, 2008 indicated a diagnosis of left shoulder strain. Similarly, the family physician's chart notes from December 17, 2008 and the sports medicine physician's report of January 19, 2009 identify the left shoulder difficulties as a strain. Most notably, the worker was examined on February 12, 2009 by an occupational health physician who reported that: "By my assessment, the left shoulder has acute pain likely from deltoid muscle strain and an underlying impingement syndrome." The biceps muscle was specifically examined for resisted contraction and palpation along the tendon and the physician found it to be "relatively unremarkable."

In view of the foregoing, the panel finds that the post-operative diagnoses of partial tearing of the rotator cuff and long head biceps were not caused by the worker's compensatory use of his left arm and that the compensable secondary injury to his left shoulder was limited to a muscular strain. By the time that wage loss and medical aid benefits were ended on September 3, 2009, the muscular strain had resolved. The subsequent findings from the surgery of December 5, 2011 cannot be attributed to the workplace injury. It therefore follows that no further responsibility should be accepted for the worker's left shoulder complaints in relation to the right shoulder injury of July 14, 2008. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 8th day of November, 2012