The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") dated May 15, 2012 which determined that an accident occurred on January 26, 2011. The worker is appealing Review Office's decision dated December 4, 2012 that she was only entitled to wage loss benefits to January 31, 2011. A hearing was held on March 13, 2013 to consider the matters.

Issue

Employer Issue:

Whether or not the claim is acceptable.

Worker Issue:

Whether or not the worker is entitled to wage loss benefits after January 31, 2011.

Decision

Employer Issue:

That the claim is acceptable.

Worker Issue:

That the worker is entitled to wage loss benefits after January 31, 2011.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right shoulder injury that occurred at work on January 26, 2011. The worker reported that she felt a severe stabbing pain in her right shoulder and up the right side of her neck while emptying a partially full jug of liquid into a hopper. The worker indicated that she reported the incident to her employer on January 26, 2011.

The employer's incident report confirmed that the worker felt a sharp pain in her right shoulder up through her neck when dumping a jug on January 26, 2011. The employer questioned the validity of the claim on the basis that the worker had a pre-existing condition in her right rotator cuff.

On February 2, 2011, the worker spoke with a WCB adjudicator and stated that she injured her right shoulder in 1999 and missed 2 or 3 weeks from work. She had sought medical attention for her shoulder on and off and her last treatment was 5 or 6 years ago. In the Fall of 2010, her shoulder pain flared up and it was not related to any specific injury or accident. She attended physiotherapy treatment and her last appointment was on November 8, 2010. She also attended massage therapy up until January 3, 2011.

The worker provided additional details regarding the accident on January 26, 2011. She was emptying a partially full jug (4 liters) into a hopper (toilet on a pedestal). She was standing beside the toilet and facing forward, toilet was on her right side. She held the jug with her right hand and out to the side of her body. She tilted the jug to pour the contents into the toilet and this was when she felt a severe stabbing pain in her right shoulder and up the right side of her neck.

Medical information consisted of an MRI of the right shoulder performed on January 25, 2011. The test revealed a supraspinatus tendinosis and small tear as well a small subscapularis intertendinous tear.

A doctor's first report related to an examination on January 27, 2011 diagnosed the worker with rotator cuff tendinosis.

The WCB arranged for the worker to undergo a second MRI on February 18, 2011 and it also obtained information related to the worker's medical appointment on December 21, 2010.

On March 2, 2011, a WCB medical advisor reviewed the worker's file and made the following comments:

• The worker had right shoulder pain prior to the workplace incident of January 26, 2011. The pain was consistent with rotator cuff tendinopathy. Following the work incident, the worker's presentation was again consistent with rotator cuff tendinopathy.
• The MRIs pre and post workplace incident did not show any change, therefore there was no evidence of any structural damage caused by the workplace incident.
• Prior to the workplace incident, the treating physician reported that if the MRI were positive, an orthopaedic opinion would be sought.
• OPINION: There was no objective evidence that the January 26, 2011 workplace event caused any change in diagnosis or management of the shoulder. The activity at work (lifting jug with arm away from body) was known to cause pain from rotator cuff tendinopathy, but there was no evidence that it aggravated, enhanced or changed it in any significant manner.

In a decision dated March 4, 2011, the worker was advised that after considering the nature of injury reported, the medical evidence and consultation with a WCB medical advisor, the WCB had not established a relationship between her ongoing right shoulder difficulties and the workplace accident of January 26, 2011.

Subsequent to the March 4, 2011 decision, the worker's union representative provided the WCB with a report from the worker's treating physiotherapist dated April 6, 2011 to support that the worker's shoulder difficulties were related to the workplace accident of January 2011.

In his report dated April 6, 2011, the physiotherapist reported that the worker was first seen for treatment related to the onset of right shoulder pain in September 2010 and that she received a total of 8 treatments. She was then seen on April 6, 2011 where she described the workplace injury that occurred in January 2011. The physiotherapist's clinical impression was that the worker sustained some form of internal derangement of the right shoulder as she did describe an immediate sharp pain. He said it was reasonable to conclude that if the worker had a minor irritation of her pre-existing tendonopathy, she should have seen a significant improvement in her symptoms in 3 to 4 weeks. He noted that the current clinical examination findings did not correlate with the MRI findings. The worker exhibited no signs of symptom magnification or abnormal symptom behavior and therefore her current clinical findings should be given consideration.

On June 8, 2011, the WCB case manager determined that the report from the physiotherapist did not alter the decision made on March 4, 2011 given that the information provided was for treatment in September 2010 to October 2010 which was prior to the January 26, 2011 incident and for the next appointment on April 6, 2011.

On August 30, 2011, the worker's union representative submitted a medical report for consideration dated July 29, 2011. In this report, the treating physician outlined his examination of the worker's right shoulder on December 21, 2010. The presumptive diagnosis outlined was a supraspinatus partial tear, impingement signs and a potential for rotator cuff tendinosis. The physician noted that the MRI performed on January 25, 2011 (one day prior to the January 26, 2011 injury) showed a small tear and some supraspinatus tendinosis with a small tear. A repeat MRI was then arranged and a complete tear was found. The physician noted:

There was a comment by the radiologist that there were different scanners being used for the rotator cuff injuries and this may be the same tear just seen on different imaging equipment however with the history suggesting a new and increased symptom presentation, my thought would be that this could quite likely be a new full thickness tear from her most recent injury on January 26, 2011.

The physician outlined the opinion that the mechanism of injury on January 26, 2011 would put the worker at risk of causing an exacerbation or worsening of her condition that was pre-existing.

In the physician's opinion:

…based on her history and the changes in her clinical examination from her previous injury to her more recent injury on January 26, 2011 that she caused an exacerbation of an existing problem in her shoulder which once again, in my opinion, would have caused her full thickness on her shoulder that was only a partial tear from a chronic nature based on her history of injuring her shoulder 10 years ago.

In a decision dated February 14, 2012, the worker was advised that the new information did not provide any information to change the decision made on March 2, 2011 as the information provided was for treatment beginning in December 2010.

On February 16, 2012, an orthopaedic surgeon reported that the worker underwent a right rotator cuff repair on July 26, 2011 (the post-operative diagnosis was a near full thickness bursal-sided tear). The surgeon stated: "MRI does not give sensitive or specific information and commonly in these circumstances where there is not a full thickness tear with retraction, MRI has a hard time differentiating between tendinosis, partial thickness articular or bursal-sided tears. Any time someone lifts away from his or her body, significant work is performed by the rotator cuff and as such, rotator cuff symptoms are exacerbated by any weight moved away from the body. Thus lifting a 4 liter jug of fluid away from the body is a significant weight at the shoulder and would certainly exacerbate any underlying cuff problems."

In a submission to Review Office dated March 2, 2012, the worker's union representative stated that based on the opinion by the worker's treating physician, the worker suffered an accident in the workplace resulting in a worsening of her pre-existing shoulder condition requiring surgery. There was no other evidence to suggest that she injured her shoulder at home or any other activity besides the described mechanism of injury. It was felt that the worker's shoulder condition had worsened because of the work-related event and therefore she was entitled to benefits.

A copy of the March 2, 2012, submission was referred to the employer's representative for comment. On April 19, 2012, the employer's representative submitted that there was no objective evidence that the workplace event caused any change in the diagnosis or management of the worker's shoulder condition based on the opinion by the WCB medical advisor. The representative concurred that lifting a five pound jug at work could cause pain in an already injured shoulder but as stated by the medical advisor "there is no evidence that it aggravated it, enhanced it, or changed it in any significant manner."

On May 15, 2012, Review Office determined that the workplace injury of January 26, 2011 caused an aggravation or temporary flare-up of the worker's pre-existing rotator cuff tear and that the claim for compensation was acceptable. It said the mechanism of injury which provoked the worker's pre-existing symptoms essentially mimicked the motions for a loaded impingement test. Review Office also found that the mechanism of injury described by the worker was not likely to cause a rotator cuff tear given the measureable findings and the treatment recommendations remained the same pre and post January 26, 2006 injury and the imaging studies did not show any change pre and post injury. Review Office further noted that the surgical findings were consistent with the MRI findings of January 25, 2011 and February 18, 2011. Review Office did not accept the union representative's position that the injury caused a "worsening" of the worker's right shoulder condition.

On May 23, 2012, a WCB medical advisor read the file at the request of the adjudicator. The medical advisor referred to the opinion of Review Office that the mechanism of injury caused a flare-up of the worker's pre-existing condition but did not cause a worsening of it. The medical advisor concluded that the flare up would have resolved by January 31, 2011, the date the worker was declared fit for modified duties.

On June 4, 2012, the worker was advised that a full recovery from a temporary aggravation of her pre-existing shoulder condition would be expected within a few days of the aggravation and therefore she was entitled to full wage loss benefits to January 31, 2011 inclusive and final.

On September 6, 2012, the union representative asked the WCB to consider medical reports dated July 30, 2012 and August 9, 2012 to support that the worker was entitled to benefits beyond January 31, 2011 with respect to her right shoulder.

In his report dated July 30, 2012, the treating surgeon stated that based on the worker's history, the accident worsened her previous shoulder condition. The surgeon stated that the accident could simply be an aggravation of a pre-existing rotator cuff situation, either tendonitis or partial thickness tear, or the initiation of a new tear. It was impossible to be definitely affirmative in either direction with any substantive science.

On August 9, 2012, the treating physician reported that it would be impossible for anyone to predict as to whether or not the worker's aggravation would settle in four day's time. "Certainly, if it were a minor exacerbation that would be a reasonable time frame for recovery however would not be within my realm of believability that if it were somewhat more of an exacerbation of an existing condition that it would take longer than that to resolve. Time frames specifically are based on patient response and individual responses to recovery and I would not be able to comment further on any specific number of days per se." The physician indicated that he had no other evidence other than what was presented through clinical notes as to whether or not the worker's condition had worsened.

On September 10, 2012, the union representative was advised that the new medical information had been considered; however, no change would be made to the decision outlined on June 4, 2012.

In a submission to Review Office dated October 15, 2012, the union representative noted that the worker's pre-existing condition did not limit her ability to work or carry out any activities of daily living. It was not until the accident on January 26, 2011 where she became totally disabled. The union representative referred to the opinion outlined by the treating surgeon on July 30, 2012 that it was virtually impossible to predict the length of recovery of an aggravation of the worker's previous injury. She noted that the surgeon also indicated that the worker's mechanism of injury was not similar to a loaded impingement test and therefore he could not make a definitive estimate of what aggravation actually occurred. "We are not sure how WCB could have estimated only 4 days of time loss relating to an aggravation of her shoulder injury. [The treating surgeon] also indicated that an aggravation or enhancement of a previous injury is possible given his clinical involvement with [the worker]…[the worker] was not slated for surgical intervention for her pre-existing condition and was able to manage her pain. It would be reasonable to assess that WCB should give significant weight to objective medical evidence that two healthcare practitioners who treated [the worker] both pre and post injury date outlining the change in level of function. Diagnostic evidence alone should not be relied upon to determine the extent of injury given the fact that the MRIs were completed by two different machines which increases the variability of validity of results…We believe that had the accident not happened, [the worker] would never have needed to pursue a surgical option and would have remained at work."

A copy of the union's submission was referred to the employer's representative for comment. On November 30, 2012, the employer's representative asked Review Office to place greater weight on the WCB medical consultant's opinion over the opinions expressed by the worker's treating physicians and to affirm its previous decision that the worker suffered only a temporary flare-up of her significant pre-existing condition and that she was only entitled to wage loss benefits to January 31, 2011 at which time she was deemed fit for modified duties required for her pre-existing condition.

On October 17, 2012, the employer's representative appealed Review Office's decision dated May 15, 2012 that the worker's claim was acceptable. The employer's position was that the worker's disability was solely pre-existing and that Review Office erred in discounting the opinion of the WCB medical consultant.

On December 4, 2012, Review Office confirmed that the worker was not entitled to wage loss benefits after January 31, 2011. Review Office indicated that the information on file supported that the worker's injury was only a minor aggravation of a long standing and pre existing shoulder problem and that any aggravation or loss of earning capacity after more than a few days would not be related to the compensable accident. Review Office agreed with the WCB's healthcare advisor's opinion that a few days of time loss was reasonable given the extent of the pre existing right shoulder problem. Review Office noted that the worker experienced a temporary worsening of her right shoulder pain when she poured a jug of liquid into a hopper on January 26, 2011 but the worker did not experience an enhancement of her shoulder injury.

On December 17, 2012, the union representative appealed Review Office's December 4, 2012 decision to the Appeal Commission. A hearing was arranged for March 13, 2013 to consider the worker's appeal and the employer's appeal.

Prior to deciding the issues under appeal, the appeal panel arranged for an independent sports medicine consultant to review the worker's file and respond to specific questions related to the worker's condition. The independent sports medicine consultant later provided the Appeal Commission with his report and a copy was provided to the interested parties for comment. On May 21, 2013, the panel met further to discuss the case and rendered its final decision on the issues under appeal.

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 employer is appealing the acceptance of the claim. 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.

The worker is seeking wage loss benefits after January 31, 2011. Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, as determined by the WCB.

Employer's Position

The employer was represented by an employer advocate.

With respect to the issue of whether the claim is acceptable, the employer representative submitted that the events of January 26, 2011 do not constitute a workplace injury. She said that there must be an injury resulting from the accident and that the evidence does not support that an injury occurred. She noted that prior to the accident the worker was receiving medical attention for a shoulder problem and, that on the day before the accident, had an MRI of her shoulder which identified a possible rotator cuff tear. She noted that an MRI performed after the accident confirmed the findings.

The employer representative asked the panel to find that the claim is not acceptable.

Regarding the issue of whether the worker is entitled to wage loss benefits , the employer representative submitted that if the claim is acceptable, the panel should find that the incident was a temporary flare-up of a serious pre-existing condition and that worker is entitled to wage loss benefits to January 31, 2011 as found by Review Office.

The employer representative noted that the description of the accident has changed from that initially provided by the worker to the WCB. She disputed that the worker had to reach over a cart to empty the jug and noted that this detail was not included in the early descriptions of the accident. She questioned whether it was physically possible to reach that far. She said that the employer does not believe "…the mechanism of injury was anything that would in any way cause or enhance a rotator cuff tear."

The employer representative asked the panel to place significant weight on the opinion of the WCB medical advisor who reviewed the file on February 2, 2011 and opined that the mechanism of injury, which did not involve any overhead or above shoulder work, might cause pain from an already injured shoulder but would not be expected to cause any structural damage.

She noted that WCB medical advisor "…concluded that there was no objective evidence that the workplace event caused any change in the diagnosis or management to the shoulder. The OS [orthopaedic surgeon] referral was being considered prior to the workplace incident. The workplace incident did not hasten the need for this and it would not be related to a CI, compensable injury, so it would not be the responsibility of the WCB."

The employer representative provided a written submission in response to the report of the independent sports medicine consultant who was retained by the panel. She submitted that the consultant validates the employer's position that:

· the worker's diagnosis of a right rotator cuff tear was a pre-existing condition temporarily aggravated but unchanged by the compensable accident.

· the mechanism of injury as described by the worker is improbable.

· the orthopedic consult was already considered prior to the accident depending on the result of the January 25, 2011 MRI.

· the MRI documented a partial tear of the rotator cuff pre-existing the accident.

· the MRI findings pre and post accident were the same and were also the same as the operative report.

· surgery would likely have been carried out regardless of the compensable incident.

She noted that the consultant concluded that the medical evidence did not indicate further tearing of the rotator cuff tendon occurred due to the workplace incident, that surgery was likely even if the workplace incident had not occurred, that the workplace incident did not enhance the pre-existing condition and the workplace incident did not result in any other medical conditions developing that would account for the worker's reported symptoms and functional limitations.

The employer representative submitted that "The compensable incident may have caused a temporary exacerbation of pain but there is no significant evidence that it enhanced or changed the pre-existing rotator cuff pathology in any significant manner. Based upon the medical evidence on file, corroborated by [the consultant] we ask that you deny [the worker's] appeal."

Worker's Position

The worker attended with her union representative who made a submission at the hearing. In addition to the submission made at the hearing, the representative provided a written submission in response to the report from the independent sports medicine consultant.

The worker's representative submitted that the injury was not a temporary flare-up but rather resulted in an enhancement of the worker's pre-existing condition. She said that the accident resulted in a dramatic increase in shoulder pain and prevented the worker from returning to her regular duties. She noted prior to the incident the worker had been working her full duties. She also noted that modified duties were not offered when the worker stopped working after the accident.

The worker's representative reviewed the medical information on the file and noted that the treating physician, surgeon and physiotherapist supported the worker's position that she injured her shoulder at work.

The worker provided a detailed description of the accident. She was emptying a ¾ full jug of liquid into a hopper. She said that the room in which the hopper was located was cluttered with garbage and materials, and that a cart was in front of the hopper into which she attempted to empty a jug of liquid. She said that she reached across the cart because to move it out of the way would have required her to move bags of garbage basically out of the room. She said that she reached across the 18 inch width of the cart and started pouring the jug into the hopper. When she tipped the jug to start pouring the contents into the hopper she felt a severe stabbing pain in her right shoulder and up the right side of her neck. She was unable to continue pouring with her right arm and completed the job with her left arm.

The worker demonstrated the movements and answered questions from the panel regarding the specific position of her arm and her movements.

The representative provided a written submission in response to the report of the independent sports medicine consultant who was retained by the panel. The representative noted that the consultant opined that it would be reasonable to conclude that the accident contributed to the surgical procedure being performed sooner than later. The representative asked the panel find that the worker "…suffered an aggravation of her pre-existing condition which accelerated the need for surgical repair and as such, she is entitled to benefits beyond January 31, 2012."

Analysis

The panel notes there was discussion at the hearing regarding the mechanism of injury ("MOI") of the accident. Different views were expressed on mechanics of the January 26, 2011 accident and the injury suffered. The panel finds that the description of the accident provided at the hearing was more detailed than the description provided by the worker at the time the injury was first reported but not inconsistent with the early descriptions, such as that provided by the worker to the WCB adjudicator on February 2, 2011.

As part of this decision, the panel accepts the worker's description of the accident provided at the hearing. The panel, on a balance of probabilities, finds that the accident occurred when the worker was emptying a rectangular plastic container or jug containing approximately 12 pounds of fluid by its handle with her right arm extended fully out to her side at a 15 degree angle below horizontal. The worker attempted to pour out the liquid contents of the jug by rotating her arm forward from the "thumb on top position" towards a position beyond 45 degrees. As she began the rotation, the worker immediately felt pain in her shoulder area and was unable to complete the task with her arm.

The panel notes that the independent sports medicine consultant questioned this MOI. The panel, having heard the worker's evidence and questioned the worker on her evidence, finds, on a balance of probabilities, that it is a reasonable description of the incident.

The panel agrees that it was unwise for the worker, with an already injured right shoulder, to attempt to empty the jug in the manner described but accepts her evidence that she did make such an attempt.

Employer Issue: Whether the claim is acceptable?

The employer is appealing the WCB decision that the worker was injured at work on January 26, 2011. For the employer's appeal to be successful the panel must find that the worker did not suffer personal injury by accident arising out and in the course of her employment. The panel was not able to make this finding. The panel finds that the worker was injured while performing her employment duties on January 26, 2011.

At the hearing, the employer noted that an acceptable claim requires both an incident (event) and an injury. The panel finds that these requirements have been met. The panel accepts the worker's evidence regarding the task that she was performing, the immediate onset of pain the worker experienced, and the change in function which followed. The panel notes that the worker reported the accident immediately and stopped work due to the injury. She also attended her treating physician the next day and reported increased symptoms. The physician noted findings of decreased active range of motion due to pain and authorized time off work.

The panel finds that the incident meets the definition of accident set out in the Act. The employer's appeal is dismissed.

Worker Issue: Whether the worker is entitled to wage loss benefits after January 31, 2011?

The worker is appealing the WCB decision that she is not entitled to wage loss benefits beyond January 31, 2011. For the worker's appeal to be successful, the panel must find that the worker was unable to perform her employment duties and sustained a loss of earning capacity after this date. The panel was able to make this finding.

The panel notes that the worker had a pre-existing condition at the time of the January 26, 2011 accident. The WCB determined that the worker sustained a temporary aggravation and was entitled to wage loss benefits up to January 31, 2011. The worker submits that the injury was enhanced and that wage loss should be extended to the date of surgery and beyond, to the point that she returned to work.

To assist in the adjudication and understanding of the impact of the injury, the panel asked an independent sports medicine consultant to review the file and provide an opinion on the extent of the January 26, 2011 injury and on whether the injury resulted in a flare-up, aggravation or enhancement of the worker's pre-existing condition.

The consultant reviewed the medical information on file including reports from the treating physician, treating physiotherapist, WCB medical advisor and orthopaedic surgeon. In a report dated April 28, 2013, the consultant concluded that:

"It is my opinion the medical evidence indicates [the worker] aggravated the pre-existing rotator cuff tendinopathy as a result of the workplace incident based on the definition you provided. It is my understanding an exacerbation is similar to aggravation in that there is a temporary increase in clinical findings without altering the natural course of the per-existing condition. It is medically probable that with additional time and treatment [the worker] would have been able to regain her previous level of functions (i.e. painful shoulder with limited range of motion; positive rotator cuff tests and limited function to some extent).

It is my opinion the surgical procedure performed on July 26, 2011 was to address symptoms and functional limitations [the worker] reported, part of which arose from the workplace incident as well as the MRI findings that did not develop as a direct result of the workplace incident, in all probability.

Based on medical evidence indicating orthopedic assessment was being considered prior to the workplace incident in conjunction with [the worker's] long history of shoulder problems that had not responded well to conservative treatment and MRI findings of a partial thickness tear affecting the supraspinatus tendon, it is medically probable [the worker] would have proceeded with surgical intervention at some stage even if the workplace incident had not taken place.

The medical evidence leads me to conclude that the exacerbation/aggravation she experienced as a result of the workplace incident resulted in the surgical procedure being performed sooner than later. Based on this as well as the absence of radiological evidence confirming further disruption of the rotator cuff tendon took place secondary to the workplace incident it is my opinion it is not medically probable the incident enhanced [the worker's] pre-existing condition." [emphasis ours]

Although the consultant has concluded there has not likely been an enhancement, he opines that the January 26, 2011 accident aggravated the worker's pre-existing condition and that the surgical procedure performed on July 26, 2011 addressed both the pre-existing condition and the symptoms and functional limitations arising from the January 26, 2011 injury. He also opines that the injury resulted in the surgery being conducted "sooner than later." The panel finds that the aggravation of the pre-existing condition by the workplace injury and the surgery which was required in part because of the workplace injury, resulted in a loss of earning capacity beyond January 31, 2011.

In reaching this decision, the panel also relies upon the opinion of the worker's treating physicians and attaches significant weight to the evidence that the worker was able to perform her regular workplace duties before the accident and was unable to do so after the accident.

The worker's appeal is accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of June, 2013