The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that her current right shoulder difficulties are not causally related to her workplace accident of September 25, 2006. A hearing was held on April 9, 2013 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder difficulties in relation to the September 25, 2006 compensable injury.

Decision

That responsibility should not be accepted for the worker's right shoulder difficulties in relation to the September 25, 2006 compensable injury.

Decision: Unanimous

Background

On September 25, 2006, the worker reported injuries to her head, left hip and right arm from the following work-related accident:

…the runner slipped and I went flying backwards hitting my head on the conveyor belt, hit my left hip on the concrete floor and my right arm on the steel beam behind me.

The claim for compensation was accepted by the WCB and benefits and services were paid to the worker while she underwent physiotherapy treatments. The initial compensable diagnoses were multiple contusions and a cervical strain.

File records showed that the worker was seen by a WCB medical advisor on February 21, 2007. The worker complained of headaches along with neck pain that radiated into the right arm at the shoulder tip and into the back of her shoulder at the interscapular area. The worker also complained of upper arm and forearm pain, mid back pain, left sacroiliac pain into the buttock and the back of her left knee. It was concluded from the assessment that the worker showed exaggerated complaints of pain in terms of touch, range of motion, function and pain. The worker was subsequently referred to a clinical psychologist and was also assessed by the WCB's pain management unit.

On November 7, 2007, it was determined by the WCB that the worker had recovered from the effects of her original compensable injury and that wage loss benefits would be paid to November 14, 2007 inclusive and final. It was felt that the worker's pain behavior did not have a physical basis and that her psychological diagnosis of Pain Disorder Associated with Psychological Factors was not causally related to her compensable injury.

A few years later, the WCB was provided with a March 12, 2009 report by an internal medicine consultant to the worker's treating physician, who noted that he examined the worker for neck and low back pain related to the 2006 accident. The WCB considered the new information and by decision dated April 24, 2009, determined that there would be no change to the previous decision of November 7, 2007.

On March 10, 2010, Review Office confirmed that the worker was not entitled to wage loss benefits beyond November 14, 2007, as the medical reports submitted in 2009 did not establish any ongoing causative association between her current complaints and the contusive injuries sustained on September 25, 2006.

On May 26, 2011, the worker advised the WCB that she was still suffering from severe neck, back and shoulder pain caused by the September 2006 accident. The worker reported that she recently underwent an MRI of her right shoulder and that she was undergoing shoulder surgery.

In a May 31, 2011 report, an orthopaedic surgeon reported that the worker had an MRI of the right shoulder in March 2011 which showed moderate AC joint arthrosis with inferior spurring but no rotator cuff damage. The worker also had a variety of other symptoms including paresthesia in the right upper limb. She was developing some chronic pain for a variety of other reasons and had some other signs and symptoms which were not specifically shoulder-related. The surgeon indicated that he was arranging for the worker to have a scope, decompression, distal clavicle excision of the right shoulder. The surgeon noted that although the worker had other chronic pain issues which may not be covered by WCB, they would work with the worker's WCB appeal to see if she could get coverage for short-term post-operative coverage.

On October 26, 2011, a WCB adjudicator advised the worker that her claim for compensation had been accepted for injuries to her right elbow, left hip and low back and that there had been no mention of a right shoulder injury at the time of her accident in September 2006. After consulting with a WCB medical advisor, it was felt that there was no medical evidence to support that her right shoulder difficulties and pending surgery were related to her compensable accident of September 25, 2006. The worker disagreed with the decision and an appeal was filed with Review Office.

On December 29, 2011 Review Office determined that no responsibility should be accepted for the worker's right shoulder difficulties. Review Office concluded that the file evidence including the lack of clinical findings for the right shoulder following the workplace accident and the time that had passed (five years) did not support a causal relationship between the worker's current right shoulder difficulties and the September 2006 compensable injury. On December 16, 2012 the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on April 9, 2013.

Following the hearing, the appeal panel requested medical information from the treating orthopaedic surgeon. On May 6, 2013, the worker and the employer representatives were provided with a copy of the medical reports that were submitted by the surgeon and were asked to provide comment. On May 23, 2013, the panel met further to discuss the case and render its final decision.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are 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, subject to the following subsections. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s right shoulder condition arose out of and in the course of her employment.

The worker’s position:

The worker was self-represented at the hearing. In the Appeal of Claims Decision form filed by the worker, the reasons for overturning the Review Office were described as follows: "At the initial injury dated Sept/06 I had hurt my right shoulder, which was overlooked. This has now become apparent and has required surgery."

At the hearing, the worker described her accident on September 26, 2006. She said that she was cutting door fronts on a mitre saw that day. She placed a door front on the saw and had one foot on the concrete floor and one foot on a runner. When she started to push the product through the saw, she lost her balance and fell backwards. As she fell, she tapped her head on the conveyor belt behind her and fell sideways to the right. She recalled banging her right elbow on the steel pillars that go from the warehouse floor to the ceiling and then everything went dark. The next thing she recalled was that some co-workers came to ask if she was okay and to help her off the floor. When she fell, she had a sharp pain in her left hip, but was adamant that she never fell on her left side.

The worker stated that when she was taken to the hospital, she always complained about arm pain. She did not know why they only took an x-ray of her elbow down, as she was of the view that the arm starts at the shoulder. The worker felt that she had been misinterpreted and never listened to. When she fell, she had pain all the way through the arm. The fall jolted her to the shoulder and affected her whole right arm. She never fell on her left side, but did experience pain in her left hip and it hurt right to the back of her knee cap.

Overall, the worker felt that when she struck her elbow, the impact caused her to hurt her whole arm, the shoulder included. Since the time of the accident, her shoulder has always been sore and she felt that her work accident was the cause of her shoulder injury.

The employer’s position:

The employer was represented by an advocate and two representatives at the hearing. The employer's position was that the medical evidence on file failed to support that the worker's right shoulder difficulties arose out of the September 2006 event or any other work-related incident. The initial report filed by the worker stated that she went flying backwards, hit her head on the conveyor belt, hit her left hip on the concrete floor and her right arm on the steel beam behind her. Those were the worker's words from when she initially created her report, which was the day after the incident when events would be fresh in her mind. At that time, there was really no indication that the right shoulder was involved at all. The last medical report on file was from the orthopaedic surgeon who referenced the MRI of the right shoulder which was done in March 2011, five years after the initial event. The MRI indicated that there was moderate AC joint arthrosis with inferior spurring but no rotator cuff damage. This confirmed that there was no traumatic damage to the right shoulder. Arthrosis was an arthritic progressive problem which the surgeon was prepared to address through surgery but it did not arise out of a traumatic event. It was therefore submitted that the need for surgical intervention could not be related to the compensable event of September 2006.

Analysis:

The issue before the panel is whether or not responsibility should be accepted for the worker's right shoulder difficulties in relation to the September 25, 2006 compensable injury. In order for the appeal to be successful, the panel must find that the worker’s right shoulder condition was caused by the workplace slip and fall accident she suffered in September 2006. On a balance of probabilities, we are not able to make that finding.

At the outset, it is important to delineate the medical condition to which this decision applies. This appeal arises out of the Review Office decision dated December 19, 2011 which considered the worker's current right shoulder difficulties which ultimately led to a shoulder arthroscopy on August 2, 2012. The panel considers this shoulder condition to be distinct from the more generalized complaints of pain the worker described that she experiences in her arm (hot burning pain on the inside of her arm from her shoulder down to the elbow), constant tingling in her fingers, pain in her neck which leads to headaches and pain going up into the jaw and ears, and low back pain. The worker has had ongoing medical investigation of this pain condition, with no identified diagnosis. At the time of the hearing, the worker had an upcoming consultation scheduled with a physiatrist. The worker subsequently informed the panel that she was scheduled to start injections on her right shoulder starting June 3, 2013. It is also worth noting that the worker's evidence at the hearing was that the shoulder surgery did not bring her any relief and she said: "I might as well not even got the surgery done because I feel like my arm's (sic), if not worse than it was before the surgery."

The panel distinguishes the surgical intervention of 2011 from these ongoing investigations into the worker's pain. The Review Office decision of March 10, 2010 addressed entitlement to compensation for these pain complaints and that decision has not yet been appealed to the Appeal Commission. It remains open to the worker to ask Review Office to reconsider its decision of March 10, 2010 in view of the new investigations by the treating physiatrist, and if the worker does not agree with that decision, her rights of appeal to the Appeal Commission on that issue remain intact. The current decision is limited to the shoulder complaints leading to surgery, and does not preclude future consideration of the generalized pain complaints.

Following the hearing, the panel requested medical reports concerning the August 2, 2011 surgery from the orthopaedic surgeon. The operative report indicated that the procedure performed was an arthroscopy, debridement labrum, and upper portion subscapularis tendon/subacromial decompression, and distal clavicle excision of the right shoulder. The postoperative diagnosis was rotator cuff tendinitis syndrome and AC joint arthritis, shoulder right, plus partial tearing subscapularis. The tearing of the subscapularis was described to be a FUSSI (frayed upper subscapularis severe impingement). The panel understands this to refer to a degenerative type of tearing, rather than acute.

After reviewing the evidence as a whole, the panel finds that the evidence does not support a relationship between the worker's shoulder condition and the workplace accident of September 26, 2006. In particular, the panel notes:

• There is little support in the described mechanism of injury or contemporaneous reports of accident to suggest that there was an acute injury to the right shoulder.
• There was no report of acute shoulder problems in the immediate period following the workplace injury.
• The handwritten hospital emergency department notes taken at 11:05 on September 25, 2006 indicate that the shoulder was checked. No further notations were recorded with respect to the shoulder, thus indicating an absence of any findings.
• The lapse of five years between the time of the accident and the surgery makes it difficult to find a causative link.
• The surgical findings outlined in the operative report indicate that the surgery was primarily performed to address a degenerative arthritic condition. Although there was reference to some tearing, this tearing appears to be degenerative, rather than acute.

Based on the foregoing, the panel finds that responsibility should not be accepted for the worker's right shoulder difficulties in relation to the September 25, 2006 compensable injury. The surgery of August 2, 2012 was necessitated by non-compensable degenerative changes and was in no way related to the worker's workplace injury. The worker's appeal is therefore denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of July, 2013