Decision #57/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that her right shoulder difficulties and the need for right shoulder surgery in June 2012 was unrelated to her compensable accident of November 19, 2010 but was due to her pre-existing right shoulder condition. A hearing was held on April 3, 2013 to consider the matter.Issue
Whether or not responsibility should be accepted for the worker's right shoulder surgery in relation to the November 19, 2010 compensable injury.Decision
That responsibility should not be accepted for the worker's right shoulder surgery in relation to the November 19, 2010 compensable injury.Decision: Unanimous
Background
The worker filed a claim with the WCB for a slip and fall incident that occurred at work on November 19, 2010. The worker described her injury as follows:
I was in the parking lot walking to a vehicle at coffee time with 2 other coworkers, and I slipped and landed on my butt, back and twisted my right knee.
A Physiotherapy Initial Assessment form completed on November 22, 2010 stated:
Walking outside at work (during break), feet slipped out from under her. Right knee twisted, landed on buttocks, and right elbow before ending flat on back.
In a fax cover sheet dated November 22, 2010, the treating physiotherapist noted that the worker injured her right knee (second degree MCL sprain), low back, neck and right shoulder from the accident and that she would benefit from a hinged knee brace.
A Doctor's First Report dated November 25, 2010 reported that the worker experienced right medial knee pain that became worse with any movement, especially extension. The diagnosis was a right knee sprain.
The claim for compensation was accepted based on the diagnoses of right knee, back and shoulder sprains and benefits were paid to the worker while she underwent physiotherapy treatments.
On December 30, 2010, the worker advised her WCB case manager that she was returning to work on a graduated basis starting January 7, 2011. She was continuing with physiotherapy treatment and her right knee pain was improving. The worker noted that she continued to have pain in her neck and upper right shoulder area.
On January 24, 2011, the treating physician reported that the worker returned to work in January 2011 but had to decrease her hours due to her sore knee. The worker was still attending physiotherapy treatments and her symptoms were slowly improving. The worker's shoulder and neck were still sore.
On January 28, 2011, the worker spoke with her WCB case manager and stated that she jarred her right shoulder during the November 2010 accident. She said her current right shoulder symptoms were not improving much with physiotherapy and that a cortisone injection had been suggested. The worker noted that she had right shoulder difficulties in the past and that she received two cortisone injections to her shoulder back in April 2010. The worker felt that her previous right shoulder difficulties were related to the duties she performed during her 30 year career. She said her shoulder was fine prior to the November 2010 accident.
A right shoulder x-ray taken January 28, 2011 revealed no bone or joint abnormalities.
Medical chart notes related to the worker's previous right shoulder complaints dated April 12, 2010 outlined the following diagnoses: right chronic rotator cuff tendinitis and mild AC arthritis.
In April 2011, the worker was discharged from physiotherapy treatment and was advised to continue with home exercises. On April 12, 2011, the treating physician reported that the worker was now working her eight hour shifts without any trouble.
By letter dated May 30, 2011, the worker was advised that her claim with the WCB was now closed as she was back at her full job duties and was no longer seeking medical treatment for her workplace injuries.
On March 8, 2012, the worker contacted the WCB to advise that she was having further problems with her right shoulder and that she now required shoulder surgery.
In a consultation report dated March 5, 2012, an orthopaedic specialist reported that the worker fell last winter onto her right shoulder and had significant pain. The pain had been consistent over the last number of months and had been improved by injections. The specialist noted that the worker had an MRI (taken November 14, 2011) and the results showed a small cuff tear, 1 cm x 1 cm, with mild atrophy. Rotator cuff tear repair was recommended.
On May 1, 2012, a WCB case manager spoke with the worker about her shoulder difficulties. The worker advised that when she slipped and fell in November 2010, she landed onto her right side with her right hand on the ground to brace the fall. She felt that this likely jarred her right shoulder and caused her present difficulties. The worker indicated that her knee was causing the most pain after the fall and this was what she was focusing on instead of her shoulder.
On June 12, 2012, the worker underwent surgery to repair the right rotator cuff tear.
At the request of the WCB case manager, the worker's claim was reviewed by a WCB orthopaedic consultant on June 27, 2012. The consultant stated:
"The diagnosis related to the right shoulder was a strain of the right shoulder in the environment of a rotator cuff lesion which was under treatment by physician and physiotherapist, including physio treatments during December unrelated to the WCB claim, according to information provided by the physiotherapist to the CM.
The current diagnosis as per MRI dated 14-Nov-2011 and arthroscopy report dated 12-June-2012 was a full thickness tear of the rotator cuff of the right shoulder.
The continuation of symptoms requiring previous shoulder injection indicates that the need for shoulder surgery was related entirely to the pre-existing condition, on balance of probabilities."
In a decision dated June 29, 2012, the worker was advised that the WCB was unable to accept responsibility for her right shoulder surgery. The case manager noted that when considering a claim for recurrent disability where there had been no further injury or accident at work, entitlement to benefits depended on medical evidence and other information proving that the recent disability was related to a previous injury which "arose out of and in the course" of a worker's employment. It was determined that such a relationship had not been shown to exist in this instance and therefore her claim for right shoulder surgery was not accepted. On August 9, 2012, the worker appealed the decision to Review Office.
In a letter to the WCB dated August 28, 2012, the treating orthopaedic surgeon stated:
"In this circumstance it is impossible to objectively say when the actual anatomic rotator cuff tear occurred, i.e. Did it occur with the cumulative overuse in April of 2010 or in November 2010 with the fall? It is certainly possible that she initially had tendonitis, which was exacerbated and changed to a cuff tear. It is also possible that she started with a cuff tear, which was asymptomatic after injection. The fact that she responded to injection does not in any way objectively confirm that this was or was not a cuff tear at that time."
Prior to considering the worker's appeal, Review Office obtained copies of DASH [Disabilities of the Arm, Shoulder and Hand) forms dated November 22, 2010 and April 11, 2011 from the worker's treating physiotherapist.
On October 31, 2012, Review Office determined that the evidence on file did not support a causal relationship between the worker's right shoulder injury sustained on November 19, 2010 and the need for right shoulder surgery on June 12, 2012. Review Office based its decision on the following facts:
- the worker received treatment for right shoulder complaints prior to the workplace accident which confirmed a pre-existing right shoulder condition.
- the worker's right shoulder condition had returned back to its pre-accident status when she was discharged from physiotherapy treatment in April 2011.
- the DASH report completed by the worker in April 2011 stated that she was having "no difficulty."
- if the worker sustained a rotator cuff tear from the November 2010 accident, the worker's pain complaints would have been more acutely noted and would have been recorded by the treating physician and physiotherapist.
- the opinion of the WCB orthopaedic consultant that "previous shoulder injection indicates that the need for shoulder surgery was related entirely to the pre-existing condition, on the balance of probabilities."
- the impact of the worker's shift schedule was unrelated to the workplace accident of November 2010.
The worker asked Review Office to reconsider the above decision based on a medical report dated November 12, 2012. The treating physician stated:
"…in summary, this patient was first examined in April of 2010 at which time she showed signs of rotator cuff tendinitis only and this was successfully treated with injections. She then (sic) another injury in November of 2010 after which the appropriate treatments with injections did not have a lasting response and did suggest more significant injury in the form of the rotator cuff tear. I have no evidence prior to the MRI of November 2011 to suggest that a rotator cuff tear was evident on my first examination."
The November 12, 2012 medical report was reviewed by a WCB orthopaedic consultant on November 22, 2012 at the request of Review Office. The consultant noted that the symptoms for which treatment was sought in April 2010 were similar to symptoms when treatment was sought in January 2011. The treatments by injections and physiotherapy were similar on both occasions. Only when persistence of symptoms led to an MRI being done was the diagnosis of a rotator cuff tear confirmed.
He also noted that the expected response to injection treatments for a degenerative rotator cuff lesion would be relief for a few months but expectation of recurrent symptoms thereafter. This type of relief response was realized after the injection in April 2010 and again after the injection in February 2011, based on the patient-completed DASH questionnaire of April 11, 2011 (received by the WCB on October 31, 2012).
On November 28, 2012, Review Office advised the worker that it considered all the file evidence which included the opinion of the WCB orthopaedic consultant and it confirmed that no responsibility would be accepted for her right shoulder surgery due to the diagnosis of a rotator cuff tear. On December 20, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Subsection 4(1) of the Act provides:
“4(1) Where, in any industry, within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund…”
The worker has an accepted claim for compensation. The issue before this panel is whether the worker's right shoulder surgery is related to the 2010 compensable injury.
Worker's Position
The worker attended the hearing and explained the reasons for appealing the WCB decision.
The worker described the accident. She said that while walking across the employer's parking lot, her feet slipped out from under her. She believes she hit an ice patch. She said she had no idea which part of her body hit the ground first. She twisted her knee and injured her right hand and elbow. She said the main focus at the time of the injury was her knee but that her shoulder was painful.
In answer to a question, the worker explained that her shoulder, initially, was sore in November 2009. This was due to an injury which occurred while she was restraining a resident of the facility where she worked. She did not file a claim for the injury.
In reply to a question about the DASH form she completed in April 2011, the worker said that she had no problems at that time because she had a cortisone injection in February 2011. She advised that the injections were very helpful but that her shoulder worsened. She found that she could not sleep and work duties bothered her.
The worker advised that she returned to work on a graduated basis the day before the hearing.
Employer's Position
The employer did not participate in the hearing.
Analysis
For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that her right shoulder surgery is related to the compensable injury. The panel was not able to make this finding.
After considering all of the evidence including the worker's evidence at the hearing, the panel finds, on a balance of probabilities, that the worker’s right shoulder surgery is not related to the November 2010 injury. In the panel's opinion, the worker’s shoulder injury in November 2010 was of a minor nature and did not result in a rotator cuff tear which required surgical treatment.
In reaching this decision, the panel relies upon the following information:
· The June 27, 2012 report of the WCB orthopaedic consultant in which the consultant opined that: "The diagnosis related to the right shoulder was a strain of the right shoulder in the environment of a rotator cuff lesion which was under treatment by physician and physiotherapist, including physio treatments during December unrelated to the WCB claim…"
· The November 22, 2012 report of the WCB orthopaedic consultant in which the consultant opined that:
"The symptoms for which treatment was sought in April 2010 were similar to symptoms when treatment was sought in January 2011. The treatments by injection and physiotherapy were similar on both occasions." The consultant concluded that "it is more probable that the tear was of a degenerative nature and had been present prior to the workplace injury…Had there been an acute tear of the rotator cuff on 19-November -2010, it would normally have caused sufficient acute symptoms to lead to reporting those symptoms in statement of claim and to attending physician."
· Physiotherapy Discharge Assessment dated April 11, 2011 which notes "shld - full ROM, some weakness above shoulder level (x yrs)." The report notes that the worker is managing a return to work regular duties.
· The DASH form completed by the worker in April 2011 indicates no difficulty with activities involving the hand, arm and shoulder. This suggests that the shoulder condition had resolved.
· The mechanism of Injury described by the worker in the file and at the hearing did not demonstrate any significant impact upon or to the shoulder that would cause a full tear of the rotator cuff.
The panel also notes the lack of reference to the worker's shoulder in the Doctor First Report and the limited mention of the shoulder in the Physiotherapy Initial Assessment. This limited mention of the worker's right shoulder suggests to the panel that the worker did not sustain a serious shoulder injury.
Finally, the panel notes that the operative report dated June 12, 2012 found a generally normal shoulder with a rotator cuff tear but no other acute injury. While the panel recognizes that the surgery was performed many months after the accident, we note there was no evidence of any trauma to the shoulder.
The panel finds that the injury to the right shoulder related to the November 2010 accident likely resolved as of April 11, 2011, the date of the discharge assessment and the clear DASH form.
The worker's appeal 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 18th day of April, 2013