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 condition diagnosed as adhesive capsulitis was not related to his compensable injury of August 28, 2012. A hearing was held on March 19, 2014 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder difficulties after January 15, 2013.

Decision

That responsibility should be accepted for the worker's right shoulder difficulties after January 15, 2013.

Decision: Unanimous

Background

On August 28, 2012, the worker suffered injury to his right shoulder while lifting equipment into a trailer. His claim for compensation was accepted based on the diagnosis of a right shoulder strain and benefits and services were paid while the worker attended physiotherapy treatments starting September 17, 2012.

On November 2, 2012 the worker underwent an MRI of his right shoulder. The report identified moderate AC arthrosis and no abnormality of the rotator cuff.

In a doctor progress report dated November 14, 2012, a sports medicine physician outlined a new diagnosis of post traumatic adhesive capsulitis.

A WCB medical advisor reviewed the claim file on December 15, 2012 to address questions posed by the WCB case manager. The medical advisor stated:

• the new diagnosis based on review of the clinical notes, physiotherapy notes and MRI was a strain to the right shoulder in an environment of severe A/C arthrosis. The natural history of recovery was six to eight weeks.
• the worker's symptoms were that of a strain. The MRI A/C arthrosis and the physiotherapy report indicates evidence of impingement syndrome which was directly related to the arthrosis.
• the impingement syndrome diagnosis was not related to the August 28, 2012 workplace injury.
• the worker's current complaints were related to his pre-existing condition.
• there were no workplace restrictions related to the workplace injury.

By letter dated January 9, 2013, the WCB case manager advised the worker that she was unable to medically account for his current right shoulder complaints in relation to the workplace injury of August 28, 2012 and that the need for workplace restrictions were not related to the claim. This decision was based on the WCB medical opinion of December 15, 2012.

On January 17, 2013, the worker advised his case manager that he did not agree with the decision of January 9, 2013. The worker said he still had difficulty moving his shoulder and that he had never returned to his full regular work duties. The case manager advised the worker that the August 28, 2012 incident was accepted based on a strain and that medical evidence supported that the strain had resolved. It was felt that the AC arthrosis as seen on the MRI was a pre-existing condition and was not a result of the compensable injury.

On February 2, 2013, the worker appealed the January 9, 2013 decision to Review Office stating that his "frozen shoulder" was related to his compensable injury. On February 7, 2013, Review Office returned the claim file back to primary adjudication to conduct a further investigation and review of the worker's claim.

Primary adjudication subsequently contacted the worker, his employer and the treating physiotherapist for additional information related to the worker's shoulder condition.

A chiropractor's first report dated March 6, 2013 related to an examination on February 13, 2013, diagnosed the worker with vertebral subluxation complex due to traumatic onset complicated by right frozen shoulder syndrome.

A doctor's first report dated March 21, 2013 noted that the worker had no right shoulder atrophy, a normal AC and CC joint with no tenderness. Flexion was to 110 degrees, with normal abduction and adduction and normal extension. The physician stated that "history unclear related to injury, advise WCB physician to review and assess re etiology and management."

A WCB physical medicine specialist reviewed the claim file on March 28, 2013. The specialist noted that the current diagnosis was adhesive capsulitis (frozen shoulder) and that the worker's current presentation was not medically accounted for in relation to the compensable injury.

On April 4, 2013, primary adjudication advised the worker that the WCB was unable to establish a relationship between his current right shoulder difficulties and a workplace injury that occurred on August 28, 2012. The decision was based on the WCB medical opinion outlined on March 28, 2013. On July 18, 2013, the Worker Advisor Office appealed the decision to Review Office on the worker's behalf.

In decision dated September 19, 2013, Review Office determined that responsibility for the worker's claim/right shoulder difficulties should be extended to January 15, 2013, not November 27, 2012, as previously outlined by the case manager.

Review Office noted that the diagnosis of a posttraumatic adhesive capsulitis was provided after the November 2, 2012 MRI findings and it was unable to relate the MRI findings to the compensable injury. Review Office felt that the MRI findings were a pre-existing condition and it could not find there was a structural change in the right shoulder as a result of the compensable injury.

Review Office was of the opinion that the file evidence supported that the compensable injury resulted in a right shoulder strain based on medical reports dated September 5, 17 and 26, 2012. It did not find the compensable injury continued to contribute to the worker's ongoing right shoulder difficulties or enhanced his pre-existing right shoulder condition.

Review Office took note that the worker had been at his regular job and was careful not to perform any task outside of his doctor's recommendations. Review Office felt the worker demonstrated his ability to continue working with the right shoulder and that the comments regarding limited use of the right shoulder to be inconsistent. On September 27, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on March 19, 2014.

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.

Relevant provisions of the Act include:

• ss. 4(1) provides that 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.
• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
• ss. 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

The worker has an accepted claim for an injury to his right shoulder. He is appealing the WCB determination that his right shoulder difficulties after January 15, 2013 are not related to his accepted workplace accident.

Worker's Position

The worker was self-represented. He was accompanied to the hearing by his wife. He answered questions posed by the panel.

The worker said he and a co-worker were lifting a piece of equipment weighing approximately 120 pounds to about 50 inches in height to roll it into a trailer when he felt pain in his shoulder and dropped the equipment on the ground. He demonstrated the mechanism of the accident.

He advised the panel that he did not believe that he had a pre-existing condition. He provided the panel with two common definitions of pre-existing condition and submitted that his condition did not fall into either category. He advised that he feels the WCB is questioning his integrity when it says that his condition is a pre-existing condition as he had no prior symptoms. The worker acknowledged an MRI which indicated he had arthritis but he stated that he did not have any symptoms before the accident.

The worker said that his shoulder is about 80% and that he can do most things at work. His strength has improved but his range of motion is not 100%. He advised that he is being accommodated at work. He said that he has received a new position which will require him to drive a snowmobile and an all terrain vehicle. He is concerned that this may bother his shoulder. He advised that he has not missed work due to his injury.

Regarding his diagnosis, the worker advised that his current family physician and specialist have told him he has a frozen shoulder, known as adhesive capsulitis. He thinks that a strain may have caused his condition.

Employer's Position

The employer was represented by an advocate and its WCB Case Worker. The advocate made a submission on behalf of the employer.

The employer advocate advised that the employer agrees with the WCB Review Office decision. She reviewed the medical information. Regarding the diagnosis of post traumatic adhesive capsulitis, the advocate agreed with the WCB medical advisor's opinion that the diagnosis of adhesive capsulitis was a pre-existing condition. She noted that the condition could not have developed overnight and that it typically occurs without trauma or possibly as a result of clinically significant trauma which was not noted in this case.

Analysis

The issue before the panel is whether responsibility should be accepted for the worker's right shoulder difficulties after January 15, 2013. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right shoulder difficulties are related to his workplace accident. The panel was able to make this finding. The panel finds, on a balance of probabilities, that the worker aggravated a developing pre-existing adhesive capsulitis and that the aggravation continued to effect his right shoulder after January 15, 2013.

In arriving at this decision, the panel notes that the evidence indicates that the worker's right shoulder symptoms have been continuous from the date of the injury and have not fully resolved to this date.

The panel notes the March 28, 2013 opinion of the WCB physical medicine advisor that "The initial physiotherapist's examination would be consistent with an adhesive capsulitis pattern. The job action may have irritated symptoms of the developing condition. Any irritative effects would be expected to then transition to the symptoms of the progressing symptoms of the underlying condition." The panel finds that the WCB physical medicine advisor's opinion, considered in conjunction with the November 14, 2012 sports medicine physician's opinion that the worker's condition is post traumatic adhesive capsulitis, support the panel's finding that the worker sustained an aggravation to his pre-existing developing adhesive capsulitis in the workplace accident.

The panel also finds that it is likely that the worker strained his shoulder in the workplace accident.

In conclusion, the panel finds that the worker's right shoulder injury occurred in the environment of pre-existing arthritis and developing adhesive capsulitis. The panel finds, on a balance of probabilities, that the worker sustained an aggravation to his developing adhesive capsulitis and that responsibility should be accepted for his right shoulder difficulties beyond January 15, 2013. The panel applies the definition of "aggravation" set out in WCB Policy 44.10.20.10, Pre-existing Conditions in reaching its conclusion.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 10th day of April, 2014