The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right shoulder difficulties were not related to his compensable accident of March 25, 2011.  A hearing was held on December 2, 2013 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder difficulties in relation to the March 25, 2011 compensable accident.

Decision

That responsibility should not be accepted for the worker's right shoulder difficulties in relation to the March 25, 2011 compensable accident.

Decision: Unanimous

Background

On March 25, 2011, the worker injured his left shoulder when he slipped on ice when taking the straps off his truck to unload. The worker reported that he fell onto his left elbow and it drove up his arm into his shoulder. The worker indicated that he had been having problems with both shoulders but mostly his left shoulder which started in October 2010 while employed with a different employer.

The worker's claim for compensation was accepted for an aggravation of a pre-existing tear of the left rotator cuff. On September 23, 2011, the worker underwent surgery to repair the left rotator cuff tear. Following physiotherapy treatment, the worker returned to modified duties with the accident employer in June 2012.

When speaking with his WCB case manager on July 23, 2012, the worker said his left shoulder was feeling good but his right shoulder felt weak. He said his shoulder bothered him when he performed any work away from his body or at chest level. On October 16, 2012, the worker again advised the WCB that his right shoulder was causing him grief and he thought it was due to overcompensating for his left shoulder injury.

The WCB obtained medical information from the treating physicians as well as MRI results related to the right shoulder. File records also showed that the worker filed a claim with the WCB on March 25, 2013 for right shoulder difficulties but the claim for compensation was denied.

In e-mail correspondence dated June 18, 2013, the worker stated:

• he had right shoulder pain since approximately 2008.
• MRI of his right shoulder taken January 11, 2010 showed AC arthrosis.
• on March 25, 2011 he fell and was off work until June 4, 2012.
• MRI of December 4, 2012 showed a moderate sized cuff tear and he underwent surgery on May 6, 2013.
• in hindsight, he likely tore his right cuff at the same time he tore his left cuff when he fell on March 25, 2011. He fell backwards landing mainly on his left elbow, butt and right arm.
• he had restrictions on his left shoulder and had to use his right arm more to carry out his work duties.

On June 21, 2013, the case manager referred the file to the WCB's healthcare branch for an opinion related to the worker's current right shoulder condition. In response to questions posed by the case manager, a WCB orthopaedic consultant stated on July 10, 2013:

"1. The condition of the right shoulder is not related to a workplace injury. Rather, it is caused by a degenerative condition. The extent of the degeneration of the right shoulder is documented in MRIs dated 11-Jan-2010 and 4-Dec-2012. The increased damage over that interval represents the natural history of a degenerative condition.

2. During the pre-operative period, the dominant right upper limb would be expected to perform more activities than usual, so it is understandable that more symptoms at the right shoulder would be experienced during that time, as pointed out in the letter from the attending O/S dated 16-Feb-2012. However, with return of function of the left upper limb after surgery, the symptoms on the right side would be related to the degenerative condition of the right side. There is no medical evidence that the degree of damage in the right shoulder was caused by a single event.

3. On balance of probabilities, the workplace injury did not aggravate or enhance the condition of the right shoulder. Rather, the deterioration over the period from 2010 to 2012 was the result of steady deterioration of the degenerative condition. I concur with the remarks of the attending O/S on 16-June-2011 that all rotator cuff tears at this age are considered degenerative."

On July 11, 2013, it was determined by the case manager that the worker's right shoulder difficulties were degenerative in nature and were not related to his compensable left shoulder injury. The worker disagreed and an appeal was filed with Review Office.

On September 17, 2013, Review Office denied the worker's appeal as it found that the evidence did not support that the worker's left shoulder injury was the predominant cause of his right shoulder difficulties. To support its position, Review Office noted the following:

• when the worker first sought treatment for his right shoulder in August 2009, he reported that he could not lift his right arm overhead without pain. There was no specific injury reported to be the cause. In comparison, the worker told his case manager in July 2012 that any activity performed away from his body or chest level caused his right shoulder symptoms. Review Office found that the symptoms reported by the worker in July were similar to the symptoms he reported to his physician in August 2009. Review Office therefore was unable to find a causal relationship between the onset of the worker's right shoulder difficulties and his left shoulder.

• it placed weight on the medical opinion provided by the WCB orthopaedic consultant that the worker's right shoulder difficulties were related to natural degeneration and not from overuse.

• there was no evidence that the worker sustained an injury to his right shoulder at the time of the March 25, 2011 accident. This was further supported by the WCB orthopaedic consultant's July 10, 2013 opinion that there was no medical evidence that the degree of damage in the worker's right shoulder was caused by a single event.

On September 26, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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 to his left shoulder. He is asking the Appeal Commission to find that the WCB is responsible for his right shoulder condition which he relates to his 2011 accident and his left shoulder injury. 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.

The WCB Board of Directors has made policies which are applicable to the worker's claim. WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, applies to separate injuries which are not a recurrence of the original injury but where there may be a causal relationship between the injury and the original compensable injury.

WCB Policy 44.10.20.10, Pre-Existing Conditions, applies to cases in which the worker has a pre-existing condition which may have been aggravated or enhanced as a result of the workplace accident.

Worker's Position

The worker was self-represented. He explained his position and answered questions from the panel. The worker said he believes he may have injured his right shoulder in the March 25, 2011 workplace accident. He said that at the time of the accident his attention was on the left shoulder because it was very painful. He acknowledged that he had problems with his right shoulder before the March 25, 2011 workplace injury. He said that his right shoulder problem may also be due to the extra use he made of it, to compensate for the left shoulder injury.

The worker said that after the accident but before he returned to work, he did have pain in his right shoulder "from time to time." He said it escalated when he returned to work. The worker acknowledged that he had surgery on his right shoulder and that it is recovering but "it seems to be taking a little longer than my left."

The worker said that when he returned to work in June 2012 he did not return to his driving job. He initially operated a scarifier, then did odd jobs including operating an excavator for delimbing trees. He said that these jobs did not require any heavy activity or overhead work. He said that through these jobs his right shoulder pain was slowly escalating.

The worker said that he returned to his driving job in October 2012. The most physical aspect of this job was throwing straps, tightening the load down and putting chains on the tires. He said that he had to change the way he threw the strap over the load because of his left arm. He demonstrated how he adjusted his technique. He indicated that he is right-handed. He said that on some days he would have 3 or 4 loads and would have to use the straps on every load. He also had to take the straps off when unloading.

He also explained the task of installing both single and triple chains which were required at times during the early part of the season when there was more snow. He said the single chains weighed about 25 pounds and the triple chains about 50 pounds.

The worker said the logging season ended in approximately April 2013 and that by then his right shoulder was in daily pain. He said that he had surgery on his right shoulder and that his recovery is proceeding slowly.

Employer's Position

The owners of the employer participated in the hearing by conference call. The male owner presented the employer's position and answered questions from the panel. He said that he did not feel it was fair that responsibility for the right shoulder injury should fall fully on the employer. He noted that the worker had prior problems with his right shoulder and questioned whether the injury occurred away from the worksite. The owner said that WCB staff participated in the job assessment and said that it was okay for the worker to return to his duties. He also said that the firm did not pressure the worker to do anything that hurt his shoulder.

Analysis

The issue before the panel is whether responsibility should be accepted for the worker's right shoulder difficulties in relation to the March 25, 2011 compensable accident.

For the worker's appeal to be accepted, the panel must find, on a balance of probabilities, that the worker injured his right shoulder or aggravated or enhanced his right shoulder condition when he fell on March 25, 2011 or that his right shoulder condition is predominantly attributable to the March 25, 2011 injury.

The panel was not able make these findings. The panel was unable to find a causal relationship between the March 25, 2011 workplace accident and the worker's right shoulder difficulties.

The worker told the panel that he feels his right shoulder injury may have occurred at the time of the workplace accident. The panel has carefully considered the mechanism of injury provided at the time of the accident both from the evidence on file and in questions to the worker. The reported mechanism of injury was a fall on the left elbow. The panel finds that the worker fell and landed with full force on the left elbow and that this shot up to and injured his left shoulder. The panel could not identify any involvement of the right shoulder in the fall.

In this regard, the early medical information confirms only a left shoulder injury. There was no reference in the early medical reports or reports by the worker to a right shoulder injury. The evidence does not support a finding that the worker injured or aggravated or enhanced his right shoulder condition in the workplace accident.

At the hearing, the worker also indicated that his right shoulder condition may have been caused by compensating for his left shoulder. The worker acknowledged that his initial duties on returning to work, including driving the skidder, did not bother his right shoulder. He said that the return to his regular truck driving duties bothered his right shoulder. He also said that he made some adjustments in the physical duties due to his left shoulder. He described and demonstrated adjustments. The worker also acknowledged that his employer was very accommodating in respect of his job duties when he had returned to work. The main change was in the manner in which he threw straps over the loaded truck to secure the load once he went back to driving. The panel notes the worker is right hand dominant. It was unable to find that the adjustments made by the worker put additional strain on the right shoulder after consideration of how the worker had adjusted his throwing mechanism. The panel finds that the right shoulder condition does not meet the requirements of WCB policy 44.10.80.40, Further Injury Subsequent to Compensable Injury. The evidence does not establish that the worker's right shoulder condition was predominantly attributable to the compensable injury.

The panel notes that the worker had a significant pre-existing right shoulder condition and had received treatment for this condition before the workplace accident. The worker acknowledged that he had a prior shoulder condition. He noted that an MRI performed before the workplace accident did not show a tear in the right shoulder while the MRI performed after the workplace accident showed the tear. In his opinion, the accident must have caused the injury.

The panel notes that a WCB orthopaedic consultant reviewed the worker's file. In a memo dated July 10, 2013, the orthopaedic consultant opined that the worker's right shoulder condition was caused by a degenerative condition. He noted that the extent of the degeneration was documented in the MRIs and that increased damage is part of the natural history of a degenerative condition. He agreed with the treating orthopaedic surgeon that all rotator cuff tears at this age are considered degenerative. The panel concurs with this analysis.

The panel finds, on a balance of probabilities, that the worker's right shoulder condition is not related to the worker's March 25, 2011 workplace accident. The worker's appeal 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 19th day of December, 2013