The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current right shoulder and knee symptoms were not the result of his January 23, 2012 work accident. A hearing was held on June 24, 2013 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's ongoing right shoulder and right knee difficulties in relation to the January 23, 2012 compensable accident.

Decision

That responsibility should be accepted for the worker's ongoing right shoulder condition up to April 1, 2013 in relation to the January 23, 2012 compensable accident; and

That ongoing responsibility is not accepted for the worker's right knee difficulties in relation to the January 23, 2012 compensable accident.

Decision: Unanimous

Background

On March 5, 2012, the employer reported that the worker suffered an injury to his right shoulder on January 23, 2012 from the following work-related accident:

Employee was going down stairs… and slipped while holding onto handrail. Wrenched right shoulder and knee.

When speaking with a WCB adjudicator on April 13, 2012, the worker reported that he continued working after the injury and he did not go on light duties. He mentioned to his boss that his shoulder continued to bother him but he never made official records of his complaints because he knew muscle injuries took time to heal. He noted that he hurt his knee as well but that seemed to resolve so he thought the same thing would happen with his shoulder. The worker indicated that he sought medical attention on February 29, 2012.

A Doctor's First Report dated February 29, 2012 indicated that the worker had pain in his right shoulder AC joint with normal range of motion and no painful arc.

A right shoulder x-ray taken February 29, 2012 indicated no fracture, dislocation or osteoarthritic changes. No abnormal bone structure was identified.

The worker was seen by a physiotherapist on March 27, 2012 for an initial assessment. The diagnosis was coraco-clavicular ligament sprain.

On May 30, 2012, the treating physiotherapist reported that the worker may have a small tear in his right shoulder.

A Doctor First Report for an examination on May 30, 2012 indicated that the worker slipped while going down stairs on May 14, 2012 and twisted his right knee upon landing. The worker had knee pain with walking. The diagnosis was a right knee strain and physiotherapy was recommended.

On August 1, 2012, the worker advised a WCB adjudicator that his right knee was injured at the time of his injury and that his knee complaints were noted on the emergency report when he first sought medical treatment. The worker indicated that his treating physiotherapist told him that the muscles at the back of his right knee felt different. There was no looseness but he felt pain in the joint and at the back and sides of his knee when walking.

On August 8, 2012, an MRI taken of the worker's right shoulder read:

There is minor increased signal present within the distal clavicle consistent with bone marrow edema/contusion.

A WCB medical advisor reviewed the file on August 15, 2012. He noted that the initial diagnosis was a right shoulder strain and that a knee complaint was not documented until May 30, 2012, some four months following the injury. The diagnosis was a knee strain. The medical advisor predicted that a gradual recovery would occur in six to eight weeks.

On September 5, 2012, the worker advised the WCB that he discussed the MRI results with his physiotherapist. The worker was unsure how the MRI results were related to his injury as he did not sustain a bruise to his shoulder nor did he did make contact with the shoulder.

On September 13, 2012, the worker advised the WCB that his work activities were aggravating his shoulder and that his treating physician authorized him to be off work for one month.

In a decision dated September 14, 2012, the worker was advised that based on a review of the file information, he had recovered from his work-related shoulder and knee injuries related to the accident on January 23, 2012. It was felt that his ongoing shoulder complaints were not related to the accident.

On September 27, 2012, the worker reported that he still had shoulder complaints even though he had been off work completely for the last 20 days.

On October 2, 2012 a sports medicine specialist diagnosed the worker with AC joint pain right shoulder. Treatment consisted of a cortisone injection.

On October 31, 2012, a worker advisor spoke with the WCB adjudicator regarding the worker's right knee. The adjudicator indicated that the right knee was never a concern until the May 14 incident and as such, the worker should have filed another claim due to his second injury.

On November 1, 2012, a WCB medical advisor commented that the MRI results of August 2012 indicated minor contusion to the distal clavicle and the absence of rotator cuff or other structural abnormalities. The imaged abnormality did not correlate with the reported mechanism of injury. The strain-type injury of January 2012 would be expected to recover over a period of two to three months. The diagnosis of AC joint pain right shoulder as diagnosed by the treating sports medicine consultant was a new condition and it was not related to the effects of a strain injury occurring and reported some eight or nine months ago. The diagnosis of AC joint pain was a non-specific diagnosis not supported by imaging evidence of AC joint changes such as arthrosis or of other structural abnormalities.

In a second decision dated November 13, 2012, the WCB advised the worker that the updated medical information dated October 2, 2012 had been reviewed and that the WCB was still unable to accept responsibility for his ongoing shoulder complaints.

On December 7, 2012, the Worker Advisor Office submitted a November 2, 2012 report from the treating sports medicine consultant. The worker advisor outlined the position that the information as a whole supported that the worker's right shoulder symptoms had remained persistent since his injury, that the worker had not yet recovered from the injury and therefore the WCB should continue their responsibility.

With respect to the worker's right knee condition, the worker advisor indicated that the Employer's Accident Report was evidence that the worker sustained an injury to his right knee on January 23, 2012 and that the evidence also supported that the worker aggravated his knee in May 2012 and that he required medical attention. Therefore the WCB should accept responsibility for medical treatment related to the right knee.

On February 25, 2013, Review Office determined that responsibility should not be accepted for the worker's ongoing right shoulder and right knee difficulties. Review Office concurred with the WCB medical advisor's opinion that the worker sustained a right shoulder strain and a right knee strain on January 23, 2012. By the worker's own admission, his knee symptoms resolved by April 13, 2012. The worker did not seek medical attention for his knee until May 30, 2012, approximately two weeks after he slipped at work. Review Office was of the opinion that the medical information did not support that the worker sustained an aggravation to his right knee on May 30, 2012 stemming from the January 23, 2012 workplace accident.

Review Office concurred with the WCB medical advisor that the January 23, 2012 workplace accident resulted in a right shoulder strain which would have resolved within a period of approximately six to eight weeks. The worker sought medical attention on February 29, 2012 related to the sudden onset of shoulder pain when the worker was entering a crane. A strain was queried. Review Office therefore found that no responsibility should be accepted for the worker's ongoing right shoulder and right knee symptoms.

On March 11, 2013, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged. On May 22, 2013, the employer's senior pay and benefits coordinator provided the Appeal Commission with a written submission to support their position that the outcome of the January 23, 2012 accident would have resolved by the time the worker was taken off work on September 17, 2012.

On June 24, 2013, a hearing was held at the Appeal Commission. Prior to determining the issue under appeal, additional medical information was requested from the worker's treating physicians. On August 20, 2013, the interested parties were provided with the medical information that was received by the panel and they were invited to provide written comment. On September 5, 2013, the panel met further to discuss the case and reach 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.

The worker has an accepted claim for a workplace injury. He is asking the Appeal Commission to find that the WCB is responsible for his ongoing right shoulder and right knee difficulties. 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.

Worker's Position

The worker was represented by a worker advisor who made a presentation on the worker's behalf. The worker answered questions posed by his representative and the panel. The worker provided photographs of the area in which he was injured.

The worker's representative submitted that the worker believes his ongoing right shoulder difficulties and right knee difficulties are related to his January 23, 2012 workplace accident.

The worker described the accident as follows:

"I was coming down the stairs and the stair treads in this area are bent from I guess prior things happening, pieces being removed, and the stair treads are actually nose downwards; and, when I was coming down them with them being covered in oil and water from the dripping and pieces of equipment above them, I had slipped holding onto the handrail and I think I was on about the third or fourth step when I slipped; and when I was holding onto the handrail with my right hand, because we also have to carry a clipboard, so I had that in my left, because you have got to document everything you see. When I slipped and fell, my arm went back behind me and wrenched it and then I fell down the remainder of the stairs and landed at the bottom landing."

The worker advised that he can’t remember making any contact with the knee, he did not notice exterior bruising, so when he got the MRI scan he was astounded that it said ‘bruising.’

The worker confirmed that he continued to work every day after the accident but that performing his regular duties was tough. He said his co-workers helped him out. He had hoped the injury would go away but it did not and he became concerned that it might be a tear or something.

The worker explained that it is difficult to see a doctor in his community. He said he finally saw a physician on February 29, 2012. On that day he felt pain in his shoulder while moving a crane with a chain. The worker said the incident was a breaking point where he knew his injury was not healing. He said the physician only examined his shoulder, thought it was a muscle pull and referred him to physiotherapy. He said he told the physician about his knee but acknowledged that it is not referenced in the physician's note. He also acknowledged that it is not referenced in the physiotherapist's initial reports.

The worker advised that he saw a different physician in Winnipeg in October 2012. Since seeing this physician he has received 4 cortisone injections in the shoulder area. He has not received further treatment but did see a sports medicine physician in Winnipeg. He is using rubber bands to strengthen his shoulder.

The worker described his knee symptoms at the time of the January 23, 2012 injury. He stated:

"Well like said, when I first got hurt everything felt like kind of just a muscle tear or a pull or something like that. That’s basically what the knee felt like. And, when I go to the – when I went to the doctor and physio they’d ask me, well, where does it hurt. Well one day it would be hurting on the left side. The next day it would be hurting on the right side, then in the back, then above the knee cap. And, I tried to explain that to them. I said it doesn’t make sense to me, I said, but it kind of hurts in different places, different days. I said, I don’t know why, I said, but there’s no point in me telling you that it’s just one, I said, ‘cause it’s not.

So that kind of I think threw everyone for a little bit of a loop. They weren’t sure. They thought maybe I overextended it, maybe both ways, at first and I didn’t know, that’s kind of what my assumption was too, that maybe I stretched a muscle because they did do X-rays and stuff and nothing really showed on an X-ray."

The worker said that the pain has shifted around the knee area. He said that when he stands up the knee gives a really 'nasty click and hurts.' He said his knee clicks while walking.

The worker acknowledged that he had a second incident where he slipped on oil on a stair. He explained that "I never fell or anything like that, just slipped, but I felt a shot of pain through my knee…" The worker explained that he did not fill in a new accident form because:

"Well my position was that I never took a fall. I know I didn’t – now, that I know what’s wrong with my knee, I know I didn’t do that on those blue stairs coming down them with just a little bit of a slip, and as I say, I never fell or anything like that. I’m a hundred percent sure the initial fall did the damage. I might have tweaked it a little bit more on those blue stairs because it did start to aggravate me more after that."

The worker said that the physiotherapist and doctor did a stability test and that he did not feel pain during this test. The worker advised that he has had an MRI on his knee which shows a tear in the cartilage. He is awaiting a referral for arthroscopic surgery.

The worker advised that he has changed duties to a lighter duty job and takes time off when heavier work is scheduled.

The worker described his condition on the day of the hearing. He said that he has a steady ache in his shoulder and that his knee is aggravated by walking. He said that his knee clicks but that the clicking is not constant.

The worker advisor submitted that:

"… we do have a lack of medical information, but we do believe the medical information that’s available with respect to the right shoulder injury has been consistent and [worker] has explained to the Panel members why he maintained working his regular duties. It wasn’t for lack of symptoms. It was due to necessity and he devised ways of coping in order to maintain his regular duties.

With respects (sic) to the knee, again, we’re lacking some medical information to support a connection between the original January 23rd, 2012 injury and his current condition, but [worker] has again provided that information to the Panel members to connect – to associate his current condition or right knee condition to that original January 23, 2012 incident."

Employer's Position

The employer did not attend the hearing but provided a written submission. The employer wrote:

"We acknowledge [worker] reported an accident on January 23, 2012. As noted in [worker's] WCB file the outcome of that accident would have resolved by the time [worker] was taken off work, September 17, 2012. Due to the duration of time between the accident date and the date [worker] was taken off work there may have been incidents occur to further aggravate [worker's] injury that were not work-related.

In summary, the Employer would like it noted that we do not believe this would be considered a workplace incident due to the time delay from the incident to actually being off work and accordingly the employer opposes the appeal."

Analysis

The issue before the panel is whether responsibility should be accepted for the worker's ongoing right shoulder and right knee difficulties in relation to the January 23, 2012 compensable accident.

Right Shoulder:

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing right shoulder difficulties are related to his January 23, 2012 workplace accident. The panel finds that the worker's ongoing right shoulder difficulties are related to the January 23, 2012 accident but that these difficulties resolved by April 1, 2013.

The panel finds there was a continuity of shoulder symptoms in the AC joint area including AC joint pain and restricted movement. The Doctor's First Report dated February 29, 2012 indicates that the worker had "pain at right shoulder AC jt area." The report also notes reduced range of motion. An October 2, 2012 report from a sports medicine specialist notes tenderness at AC joint and provides a diagnosis of AC joint pain right shoulder. A report from another physician dated November 2, 2012 noted tenderness at the AC joint and provided a diagnosis of right ACJ injury.

The panel also finds that the injury is consistent with the initial incident on the stairs and subsequent incident pulling a crane. As well, the panel accepts the worker's evidence that he did not have any symptoms prior to the initial incident.

The panel notes the worker's evidence that after the incident his co-workers assisted him and that he took a lighter duties job. This enabled the worker to continue working after the injury.

The worker was examined by a sports medicine specialist on March 31, 2013. The specialist reported that the worker advised that his shoulder feels very good, he does not have any real pain and he is able to do all his work activities without pain. On examination, the specialist found that "Right shoulder has full active range of motion with normal strength. There is no tenderness on the AC joint. Cross body adduction and O'Brien's test doesn't reveal any AC joint pain." The panel finds that by April 1, 2013, the worker's shoulder condition resolved.

The worker's appeal with respect to his right shoulder is allowed.

Right Knee:

For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker's ongoing right knee difficulties are related to the January 23, 2012 workplace accident. The panel finds that the worker's ongoing knee difficulties are not related to the January 23, 2012 workplace accident. The panel also finds that the evidence does not support a finding that the worker aggravated his January 23, 2012 right knee injury when he slipped on May 14, 2012.

The panel acknowledges that the worker did report that he injured his knee in the incident on January 23, 2012. However, the evidence before the panel does not, on a balance of probabilities, support a finding that the right knee injury was problematic or symptomatic. In arriving at this conclusion the panel relies on the following:

• there was no reference in the early medical reports of complaints related to the worker's right knee.
• the first reference in a medical report to right knee difficulties is in a report dated May 30, 2012 from his physician. This report references May 14, 2012 as the date of incident.
• in a discussion with a claims adjudicator on April 13, 2012, the worker advised that his right knee had resolved.

The panel notes that although the worker said that he told the treating practitioners about his knee, there is no reference to this in any reports prior to the May 14, 2012 incident. The symptoms appear to become a factor after the May 14, 2012 incident.

The panel is unable to find, on a balance of probabilities, that the worker's ongoing right knee difficulties are related to the January 23, 2012 workplace injury. The panel notes that the worker was advised by the WCB that he could file a new claim for his right knee injury arising out of the May 14, 2012 incident.

The worker's appeal with respect to his right knee is declined.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 24th day of September, 2013