The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that his right rotator cuff tear was not related to his work duties. A hearing was held on June 27, 2013 to consider the matter.

Issue

Whether or not the worker's right rotator cuff tear is compensable.

Decision

That the worker's right rotator cuff tear is not compensable.

Decision: Unanimous

Background

On December 28, 2011 the worker filed a claim with the WCB for a right shoulder/arm injury that occurred during the course of his employment as a cushion filler on September 26, 2011. The worker described the accident as follows:

I pulled my shoulder and I was in a lot of pain. I work filling the arms in the back. When pushing in order to fill it, I felt a pain/pull in my right shoulder. I went to the doctor and he gave me some medicine.

The Employer's Accident Report dated October 6, 2011 stated:

Employee told supervisor he felt pain in his R. shoulder while fill a K-cloth bag into a cover. He did not inform us that he was going to the doctor until September 30, 11. (sic)

Employee has had no loss time, and was told by his physician on September 28, to return to regular duties on September 29. Not sure significance of injury or need for medical attention.

Via e-mail correspondence dated January 4, 2012, the employer provided the WCB with information regarding the worker's job duties as a cushion filler and a production line loader.

On January 5, 2012, the worker spoke with a WCB adjudicator through an interpreter regarding the onset of his shoulder difficulties, his current difficulties and details of his work duties which he attributed his shoulder condition to.

A Doctor's First Report dated September 26, 2011 reported that the worker felt an intense pain on the anterior aspect of his right shoulder. The diagnosis outlined was rotator cuff syndrome. The physician felt the worker was fit to continue with his regular duties.

The treating physician later provided the WCB with his medical chart notes from March 9, 2009 to January 30, 2012 as well as a referral letter that he wrote to an orthopaedic surgeon and the results of an MRI of the worker's right shoulder.

On March 1, 2012, the treating physician submitted a second Doctor's First Report for an examination on September 28, 2011. He reported that the worker had tenderness over the deltoid and supraspinatus muscles and signs of impingement. It was felt that the worker should only perform light duties.

An MRI dated January 6, 2012 related to the worker's right shoulder stated:

Impression: Small to moderate tear of supraspinatus tendon near its insertion.

On March 2, 2012 the worker's file was referred to the WCB's healthcare branch to respond to questions posed by the WCB case manager related to the worker's shoulder condition. The adjudicator stated:

This 58 year old male submitted a claim for right shoulder difficulties that he relates to his repetitive job duties filling cushions….These job duties were done while standing at a table, waist level in height, and stuffing foam or k-cloth bags into place inside furniture back/seat cushions. He was performing these duties from April 25, 2011 to September 26, 2011 when he first reported having difficulties.

At that point he was moved to a different job (production line loader…where he was auditing frames. See employer email dated January 4/12 - current job duties, for description. After being moved to line loader duties, the worker requested 3 hours of overtime per day in the original cushion filling job and did these additional duties from November 1, 2011 to December 23, 2011.

On March 10, 2012 a WCB medical advisor reviewed the worker's file and outlined the following opinions:

• the initial diagnosis related to the worker's right shoulder difficulties was rotator cuff syndrome as per report dated September 26, 2011 by treating physician. The change in reporting on the physician's report of September 28, 2011 could not be accounted for on a medical basis, therefore the information closest to the date of visit would be considered more accurate.

• the current diagnosis was a supraspinatus tear based on the MRI results.

• the worker's claim was that filling the cushions had caused his shoulder condition. The medical information on file did not support that claim. The current diagnosis was not medically accounted for in relation to the worker's reported injury or job duties.

• surgery was an option for the rotator cuff tear. However, since the tear was not medically related to a workplace injury, the treatment of the tear would not be the WCB's responsibility.

• the need for restrictions would be related to the rotator cuff tear which was not related to the compensable injury.

In a decision dated March 16, 2012, the worker was advised that the WCB accepted his claim on a limited basis for a mild right rotator cuff strain diagnosis only. The WCB was not responsible for his right supraspinatus tear diagnosis. The adjudicator outlined the following rationale for her decision:

…a review of your file by a WCB medical advisor which noted rotator cuff tears of this nature are a common part of the aging process, that the cushion filling job duties are not considered forceful enough to cause a tear, that you did not identify a specific traumatic injury to your shoulder, and that you were able to continue performing your cushion filling duties from November 1, 2011 to December 23, 2011 as part of an overtime request, it is the opinion of Rehabilitation and Compensation Services that a causative relationship between your rotator cuff tear diagnosis and your job duties has not been established…Because your claim was accepted for a minor rotator cuff strain diagnosis only, and strains of this nature typically resolve completely in 6 weeks or less, the WCB considers you to have recovered from the compensable injury of this claim.

On July 25, 2012, the Worker Advisor Office submitted medical literature related to rotator cuff tears as well as information from an orthopaedic specialist. The worker advisor contended that the submitted medical evidence supported that the worker developed a rotator cuff tear in September 2011 as a result of the physical demands of his employment duties.

On August 17, 2012, the worker was advised that no change would be made to the adjudicative decision of March 15, 2012.

On September 10, 2012, the worker advisor appealed the above decision to Review Office. On September 26, 2012, the worker advisor provided Review Office with a report from the treating physician dated September 18, 2012 for its consideration.

The employer's representative made a submission to Review Office dated October 17, 2012. The employer's position was that the acceptance of the claim as a strain only and no accepted responsibility for the supraspinatus tear was the correct one given the relevant WCB legislation and the available evidence. The employer's submission was given to the worker advisor to comment on and the worker's advisor's response is dated October 29, 2012.

On November 9, 2012, Review Office determined that the worker's right shoulder rotator cuff tear was not compensable. Review Office indicated that the file information provided that the worker suffered a minor strain to his right shoulder on September 26, 2011 in the presence of degenerative joint disease. The strain was not debilitating and the file information provided that the worker was not incapacitated by it nor did he require work restrictions due to it. Review Office indicated that the need for work restrictions appeared later, due to the general progression of his pre-existing condition. Review Office concluded that the worker's right shoulder rotator cuff tear was not related to his strain injury of September 26, 2011.

On January 3, 2013, the worker advisor provided Review Office with an orthopaedic surgeon's report dated December 10, 2012. The worker advisor indicated that the new report supported that the worker's right shoulder rotator cuff tear was compensable.

In a second decision dated February 26, 2013 Review Office determined that the worker's right shoulder rotator cuff tear was not compensable. Review Office indicated that the submitted report by the orthopaedic surgeon did not provide new information on the accident or the injury but only provided information on rotator cuff tears. Review Office indicated that the worker suffered a strain injury in the presence of his degenerative joint disease which would have healed on its own within weeks. It felt that the worker's right shoulder problems were not enhanced at the time of the September 26, 2011 accident and the compensable injury was no longer "to a material degree" contributing to the worker's ongoing shoulder difficulties. On March 13, 2013, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on June 27, 2013.

On July 2, 2013, the appeal panel asked the worker advisor and the employer's representative to comment on the "significance of the long head biceps tendon tear and its possible relationship to the September 26, 2011 workplace accident." Written submissions related to this request were later received from the worker advisor and the employer's representative dated July 11, 2013 and July 4, 2013 respectively. On August 6, 2013, the panel met and rendered 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 rotator cuff tear arose out of and in the course of his employment.

The worker’s position:

The worker was assisted by a worker advisor at the hearing and the services of a translator were provided. The worker's position was that his right rotator cuff tear and the need for surgery was a direct result of the compensable injury on September 26, 2011. The evidence supported that there was pre-existing degeneration prior to the accident; however, the MRI showed that was a minor degenerative condition. It was submitted that the work duties in upholstery and cushion filling accelerated the changes that were taking place in the worker's shoulder. Despite his symptoms, the worker continued to work. It was the worker's position that the initial work, the accident and the subsequent modified duties all contributed to the worker's need for surgery. This position was supported by the report of the treating orthopaedic surgeon.

The employer's position:

The employer was represented by an advocate and its human resources officer. The employer's position was that neither the September 26, 2011 job duties nor the cumulative action involving use of his arm at work could have been enough to cause the significant pathology in the worker's shoulder. The WCB medical advisor had very detailed information regarding the job tasks performed by the worker and the employer supported the opinion that the supraspinatus tear could not be medically accounted for in relation to the worker's reported injury. The evidence showed that the activities done by the worker in the course of his employment were well within ergonomic normals and the work was done primarily at chest level. None of the activities would have been traumatic enough to cause a tear. The employer agreed with the adjudication that this was an aggravation of an extensive pre-existing condition. By the time of termination of the claim, the aggravation had in essence resolved. The rotator cuff tear was therefore not the responsibility of the WCB.

Analysis:

The issue before the panel is whether the worker’s right rotator cuff tear is compensable. In order for the appeal to be successful, the panel must find that the worker’s right shoulder condition was caused by the performance of his work duties. On a balance of probabilities, we are not able to make that finding.

The operative report of October 25, 2012 identified a post-operative diagnosis of rotator cuff disease in the shoulder. The procedures performed were arthroscopy, debridement, decompression, biceps tenotomy and rotator cuff tear repair.

The operative report described the shoulder as having a "very extensive amount of fibrillation and degenerative change." With respect to the rotator cuff, the report stated: "The undersurface of the cuff shows obvious extensive fibrillation and full thickness tearing" and "further identification of the cuff shows it is an oval tear with a slight split in it, aiming towards the glenoid, it looks to be about 1 ½ cm in width and quite mobile." The description of the rotator cuff with extensive fibrillation surrounding the tear suggests a degenerative rather than acute etiology for the tear.

At the hearing, the worker was asked to demonstrate the manner in which he performed his job duties as a cushion filler and as a production line loader. Although the worker was required to reach forward to some degree, the panel noted that minimal overhead actions were required in order to perform the job duties. We saw no significant physical demands which would require continuous elbow elevation or the need to work with the hand above the shoulder, which is the type of activity typically associated with a rotator cuff tear.

The WCB medical advisor's opinion dated March 10, 2012 identified rotator cuff tears as being associated with prolonged overhead work or repetitive heavy lifting. Again, these types of activities were not present in the job duties being performed by the worker. In her report, the WCB medical advisor observed that none of the causes of rotator cuff tear were documented as being related to the compensable injury and she concluded that the current diagnosis of a rotator cuff tear was not medically accounted for in relation to the worker's reported injury or job duties. She opined that the diagnosis most likely related to the workplace duties was a mild rotator cuff strain. The panel accepts and adopts the WCB medical advisor's opinion.

The panel considered the December 10, 2012 letter from the treating orthopaedic surgeon. Although he did indicate that there was a relationship between the work and the development of the worker's cuff pathology, the surgeon then wrote: "Editorially, it is impossible after the fact to determine exactly how much the job related to the development of the cuff tear." He identified work, the documented injury, subsequent work duties and clinical course as all being contributors to the need for surgical treatment. The issue before the panel in this appeal is limited to the effect of the September 26, 2011 work and the duties performed subsequently by the worker. The long term impact of performing a physical job for many years is not part of our considerations. We do not view the surgeon as definitively identifying the cushion filling and production line loading duties as being causative of the rotator cuff tear. Accordingly, we are inclined to place less weight on the surgeon's letter.

During the course of our discussions, the panel considered whether the operative finding that "the superior aspect of the long head of biceps tendon has extensive in substance tearing" could be an injury attributable to the work duties. As this matter was not discussed at the hearing, the panel invited submissions from the parties on this issue.

The March 10, 2012 opinion of the WCB medical advisor noted that on the first medical examination, the family physician reported pain with limited abduction and tenderness over the long head of the biceps. She observed that this presentation was most consistent with a rotator cuff or biceps tendinopathy, which could be of different degrees - from a strain, to a partial tear to a full tear. It would therefore appear that the initial physical findings were consistent with a tear of the long head of biceps tendon.

Subsequent medical information, however, would suggest that the biceps tenon was intact. Most notably, the MRI of January 6, 2012 identified the long head of the biceps tendon as being intact. The orthopaedic surgeon's notes of April 19, 2012 also referred to the biceps long head tendon as being intact. While the panel acknowledges that MRI imaging is not definitive and may not accurately depict the true status of an anatomical structure, the MRI combined with the surgeon's notes are sufficient to tip the scales away from finding that the tear was present in September 2011 and incurred by the job duties at that time.

Overall, the panel finds that the evidence is not sufficient to convince us on a balance of probabilities that an acute tear of the rotator cuff or long head of the biceps tendon occurred on September 26, 2011 or subsequently, while the worker was performing his job duties. We therefore find that the worker's right shoulder condition is not compensable. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 22nd day of August, 2013