The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that his left shoulder condition was not related to his compensable accident of May 30, 2012 and that he was not entitled to benefits beyond December 13, 2012. A hearing was held on July 3, 2013 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's left shoulder complaints in relation to the compensable injury of May 30, 2012; and

Whether or not the worker is entitled to benefits beyond December 13, 2012.

Decision

That responsibility should not be accepted for the worker's left shoulder complaints in relation to the compensable injury of May 30, 2012; and

That the worker is not entitled to benefits beyond December 13, 2012.

Decision: Unanimous

Background

On June 14, 2012, the worker filed a claim with the WCB for injuries to his right hip and low back that occurred at work on May 30, 2012 when his leg went through scaffolding. The worker indicated that he did not report the accident to his employer until June 11, 2012 as he thought he would get better. His last day of work following the injury was on June 7, 2012. The worker indicated that at the current time his back was very sore and it was difficult to bend over.

The worker advised a WCB adjudicator on June 20, 2012 that his leg fell through a hole in the scaffolding and the accident was witnessed by a co-worker. He said he continued to work but by June 11, 2012 the pain was so bad that he had to stop. He went to see a doctor regarding his right leg, hip and low back. The worker indicated that he had a neck injury stemming from a motor vehicle accident that occurred in November 2011 and that his neck injury from the accident had almost resolved. His last medical appointment for his neck injury was on May 23, 2012.

In a doctor's progress report for an examination dated June 13, 2012, the worker was diagnosed with a muscle strain to the right low back and a possible disc herniation at L5-S1.

The worker was referred to a physiotherapist for treatment and was seen for an initial assessment on June 15, 2012. The diagnosis rendered was a lumbar spine strain and a gluteus strain.

The claim for compensation was accepted by the WCB and benefits were paid to the worker.

In a memo to file dated July 19, 2012, the WCB adjudicator stated in part:

"...Worker reports increase in right side hip pain when walking and increase in rt groin pain when laying down. Also had been experiencing left shoulder discomfort from pushing himself up as he is unable to push with his rt leg. When he realized what was happening he started rolling out of bed or off the couch instead."

On July 30, 2012, the WCB adjudicator spoke with the worker's treating physiotherapist. She noted that the worker had been receiving treatment for a neck injury prior to June 15, 2012. The worker did not receive treatment for his low back, right hip or groin prior to June 15, 2012.

In a doctor progress report dated August 14, 2012, the treating physician stated:

"He injured the right hip and the left hip in the fall and as a result of the pain he leaned a lot on the left arm and possibly injured the left shoulder in the fall too. He has pain in the L shoulder, both hips and on the R upper leg below the buttock. Lower back pain improved. He is seeing a physiotherapist and a request to work on his hamstring tendosynovitis and left shoulder has been done. The MRI confirmed an effusion in R hip joint…has a possible labral tear as well. The mechanism of injury was probably an upward force into the hip joints that caused these type of injuries."

In a progress report dated August 28, 2012, the treating physician noted that the worker still had pain in both hips and the left shoulder. The diagnosis regarding the left shoulder was a rotator cuff injury. An MRI of the left shoulder was being arranged.

The worker was seen by a WCB orthopaedic consultant at a call-in assessment on August 30, 2012. The consultant indicated that the workplace injury of May 30, 2012 probably caused an exacerbation of the osteoarthritis (OA) of the right hip because of forced abduction. The current hip symptoms were caused by osteoarthritis of both hips. The left shoulder pain was probably related to a rotator cuff lesion of a degenerative nature. The consultant noted that there was no evidence that the shoulder was injured in the fall at work on May 30, 2012.

The WCB orthopaedic consultant reviewed the worker's file again on September 6, 2012 and considered information provided by the treating physician in his progress report of August 28, 2012. The orthopaedic consultant opined that the worker's left shoulder condition is not related to the workplace accident.

In a decision dated September 7, 2012, the worker was advised that based on the opinion expressed by the WCB orthopaedic consultant, his left shoulder condition was not related to the May 30, 2012, workplace injury.

Progress reports from the treating physician dated October 30, 2012 and November 28, 2012 indicated that the worker experienced an increase in pain while carrying his grandson at the zoo and when cutting wood. On November 28, 2012, the treating physician noted that the worker had pain on the right sacroiliac joint (SI) which radiated to the right leg hamstring area.

On December 5, 2012, the WCB orthopaedic consultant noted that the November 28, 2012 report listed a diagnosis of muscle strain of the right groin caused by chopping wood. "This would be in the environment of pre-existing hip OA. This current diagnosis was not related to the workplace injury."

In a second decision dated December 5, 2012, the worker was advised that in the opinion of the WCB, he had recovered from his work-related right hip injury that he suffered on May 30, 2012. The worker was advised that he was entitled to payment of wage loss benefits and coverage for his approved medications until December 13, 2012 inclusive. The decision was based on the following findings:

· the diagnosis following the work-related accident on May 30, 2012 was a muscle strain of the low back.

· CT scan of July 3 showed multi-level degenerative changes in his lumbar spine.

· MRI of the right groin and lumbar spine dated August 3, 2012 showed multi-level degenerative disc disease in his lumbar spine and osteoarthritis of his right hip.

· the worker received 19 physiotherapy treatments which ended on October 26.

· the opinion of the WCB orthopaedic consultant at the time of the call in exam on August 30 that the compensable diagnosis was aggravation of right hip osteoarthritis and medical restrictions were outlined and scheduled for review in three months.

· the opinion of the WCB orthopaedic consultant of December 5, 2012 that:

"Osteoarthritis of the hip is a condition which is progressive, so pain and stiffness can be expected to deteriorate over time. The current condition is a result of the natural history of the pre-existing condition (osteoarthritis of the right hip) and not caused by the workplace injury. The aggravation of symptoms by the workplace injury is considered to have now resolved."

The adjudicator concluded that in her opinion, the worker's current condition was not medically accounted for in relation to the workplace injury of May 30, 2012.

In December 2012, the treating physician submitted a copy of the MRI report related to the worker's left shoulder dated November 27, 2012 and a progress report dated December 10, 2012. The treating physician indicated that the worker had a post-traumatic supraspinatus muscle tendon tear of the left shoulder and post-traumatic pain in the right hip joint.

On December 18, 2012, the worker was advised by his adjudicator that the new information had been reviewed by a WCB medical advisor and that the information did not provide new objective medical evidence to change the WCB's previous decision of December 5, 2012. On February 6, 2012, the decision was appealed by the Worker Advisor Office, on the worker's behalf, to Review Office.

On April 10, 2013, Review Office determined that no responsibility would be accepted for the left shoulder injury and that the worker was not entitled to benefits beyond December 13, 2012.

With respect to the worker's left shoulder condition, Review Office noted that the worker did not report symptoms at the time of the accident to his employer, his care providers or the WCB, nor did he follow up for any form of care for the left shoulder until over two months following the accident. Given the lack of available substantiating evidence, the facts did not support the contention that an acute shoulder injury occurred on the date of accident. Review Office also stated that the compensable right hip injury did not cause or significantly contribute to the development of the worker's left shoulder difficulties/condition under WCB Policy 44.10.80.40. The diagnosed injury to the shoulder was a rotator cuff tear that had been opined to be degenerative by a WCB orthopaedic consultant. Review Office indicated that it accepted this opinion. It felt that the mechanism of injury described by the worker, specifically, repeatedly pushing to get up out of a chair, would not be in keeping with the development of a rotator cuff tear.

Review Office also referred to specific file evidence to support that the worker did not have a loss of earning capacity beyond December 13, 2012. Review Office noted that the treating physician asserted that the labral tearing found on the MRI was traumatic and consistent with the original mechanism of injury. The WCB orthopaedic consultant's opinion was that labral tearing was common in degenerative hip joints even in asymptomatic patients. The orthopaedic consultant opined that the worker's bilateral degenerative hip condition would have taken years to develop.

Review Office considered the treating physician's reports of October 30, 2012 and November 28, 2012. Review Office indicated that both activities (carrying his grandson and cutting wood) would have been anticipated to require an extensive period on foot and in both instances the worker suffered a temporary increase in symptoms followed by a reduction of same. Review Office was of the opinion that this was a pattern consistent with a chronic degenerative condition rather than a continuous functional decrease extending forward from the May 30, 2012 incident. Review Office concluded that any workplace restrictions beyond December 13, 2012 would not be related to an acute injury occurring in May 2012 and was not a consequence of his compensable injury. On April 12, 2013, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

The worker has an accepted claim. He is appealing the WCB decision that his left shoulder complaints are not related to his compensable injury of May 30, 2012. He is also seeking benefits beyond December 13, 2012.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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, or the worker attains the age of 65 years. Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. Subsection 60(2) (b) provides that the WCB has exclusive jurisdiction to determine whether any injury has arisen out of or in the course of employment.

Worker's Position

The worker explained his reasons for appealing the WCB Review Office decision. He also answered questions asked by the panel.

Issue 1: Whether responsibility should be accepted for his left shoulder complaints in relation to the compensable injury of May 30, 2012?

The worker advised that he had to use his left arm and shoulder more after the accident due to restrictions on his right hip and groin injury. He said he made adaptations in his movements to make up for the restrictions. He also said that he may have injured the shoulder when his leg fell through a gap in the scaffold. He said he had to use his hands and arms to break the fall. He acknowledged that his shoulder did not initially bother him. He also advised that he did not have problems with his shoulder before the accident.

The worker told the panel that he feels pain at the top of the shoulder. He has pain moving his arm back, lifting overhead and getting his jacket on.

Regarding the cause of his shoulder injury, the worker advised that his physician said that accidental trauma could cause the condition.

He submitted that the left shoulder injury was due to the May 30, 2012 workplace accident.

Issue 2: Whether the worker is entitled to benefits beyond December 13, 2012?

The worker described the incident. He said that his leg went through a gap in the scaffold. He did not report the accident at first because he thought it would get better. He said that the accident happened on Friday. He returned work on Monday. The pain worsened by Thursday, it rained on Friday so he did not work and by Monday he could not work and called in. He said that he did not have problems with his hip before the accident.

The worker advised that he continues to have pain in his hip and shoulder. He uses pain medication. He is not receiving any treatment or therapy. He feels his current condition is due to the May 30^th, 2012 injury and he is unable to return to work.

Employer's Position

The employer was represented by its Safety and Health Director who advised that the employer supports the WCB Review Office Decision. The employer representative said that the employer does not deny that the worker was hurt at work and acknowledged that a witness confirmed that the accident occurred. However, the employer believes the worker should have recovered from the injury.

The employer called the worker's co-worker as a witness. The witness acknowledged that he was working with the worker on May 30^th. He did not see the accident but saw the worker getting up. He said he continued working with the worker and did not notice any problems.

The employer also expressed concern that the worker was involved in a vehicle accident before the injury.

Analysis

There are 2 issues before the panel.

1. Whether responsibility should be accepted for the worker's left shoulder complaints in relation to the compensable injury of May 30, 2012.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker injured his left shoulder in a workplace accident or was a further injury which developed as a result of a workplace accident. The panel was not able to make this finding. The panel finds that the evidence on the file and that provided at the hearing does not, on a balance of probabilities, support a finding that he worker injured his left shoulder in the May 30, 2012 workplace accident or that the injury is related in any way to the workplace accident.

In reaching this conclusion the panel notes:

• there was no evidence of an acute injury to the shoulder at the time of the accident; in fact the worker worked for approximately 2 weeks at regular duties after the accident, laying between 100 and 150 bricks per day.
• as the worker was not on medication initially, it cannot be said that pain or symptoms from the shoulder injury were masked by the medication.
• the worker's evidence that he did not notice symptoms immediately.
• the first reference to the shoulder was to WCB case manager in mid July 2012.
• the first reference in a medical report was in July 2012.
• the worker's evidence on the file that he first noticed discomfort in July when pushing out of bed and that it continued to worsen after that date.

The panel places significant weight on the opinion of the WCB orthopaedic consultant who examined the worker on August 30, 2012 and reviewed the worker's file on September 6, 2012 after receipt of a report from the worker's physician. In a memo dated September 6, 2012 the WCB orthopaedic consultant opined that "the condition of the left shoulder is of a degenerative nature, and the onset did not coincide with the workplace injury. "

Upon receipt of the November 27, 2012 MRI of the shoulder and the treating physician's December 10, 2012 report, the WCB orthopaedic consultant commented that the "The MRI of 27-Nov-2012 of the left shoulder demonstrated an intra-substance partial thickness tear of the rotator cuff. This type of lesion …is usually of degenerative rather than traumatic etiology."

The panel has also considered whether the worker's shoulder injury was a further injury under WCB Policy 44.10.80.40. It was suggested that the shoulder was injured as a result of increased use due to the accident. The panel considered this possibility but finds that the diagnosis of the shoulder condition, a degenerative tear of the rotator cuff, does not support a finding that it is caused by increased use of the left arm. The panel is unable to find that the worker's shoulder condition is "…predominantly attributable to the compensable injury." The panel finds that the left shoulder condition is not a further injury under WCB policy 44.10.80.40.

The worker's appeal of this issue is denied.

2. Whether the worker is entitled to benefits beyond December 13, 2012.

For the worker's appeal of this issue to be successful the panel must find that the worker's inability to work after December 13, 2012 was due to his compensable workplace injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's inability to work after December 13, 2012 is not related to his May 30, 2012 injury.

In reaching this decision, the panel relies upon the opinion of the WCB orthopaedic consultant. As previously noted the WCB orthopaedic consultant examined the worker on August 30, 2012. He also reviewed various imaging studies of the worker's hips, lumbar spine and pelvis. The WCB orthopaedic consultant opined that the workplace injury was an aggravation of osteoarthritis of the worker's right hip. He wrote that "The workplace injury of May 30, 2012, probably caused an exacerbation of the osteoarthritis of the right hip because of forced abduction. Current hip symptoms are caused by osteoarthritis of both hips." He suggested restrictions which were to be reviewed in 3 months. In providing this opinion the WCB orthopaedic consultant noted that the MRI of the worker's hips showed degenerative arthrosis with a labral tear and full thickness chondral loss with reactive bone marrow in the anterosuperior acetabulum.

The panel notes that WCB orthopaedic consultant provided a further opinion on December 5, 2012. He wrote that "OA of the hip is a condition which is progressive, so pain and stiffness can be expected to deteriorate over time. In my opinion, the current condition is a result of the natural history of this pre-existing condition and not caused by the workplace injury, on balance of probabilities. The aggravation of symptoms by the workplace injury is considered to have now resolved."

While the panel notes that the treating physician has provided a different diagnosis of the worker's injury and relationship to the workplace accident, the panel places greater weight upon the opinion of the WCB orthopaedic consultant. The panel finds that the WCB orthopaedic consultant is a specialist in the field of orthopaedics as opposed to the treating physician. As well the panel notes that the WCB orthopaedic consultant provided medical research in support of his opinion that the labral tear of the acetabulum was likely degenerative.

Regarding the worker's lower back complaints, the panel finds that his back condition improved and is not preventing him from returning to the workforce. The panel notes that:

• the WCB orthopaedic consultant notes in his August 30, 2012 examination notes that the worker "…denies any low back pain at the present time and tells me that the low back pain has not been present for more than a week."
• the treating physician's report of December 10, 2012 does not identify lower back findings.
• at the hearing the worker indicated that his lower back pain went away.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 31st day of July, 2013