The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury by March 26, 2013. A hearing was held on April 29, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond March 27, 2013.

Decision

That the worker is entitled to benefits beyond March 27, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to his right shoulder which he attributed to pitching heavy bags of garbage. The date of accident was November 20, 2012. On November 29, 2012, the worker was diagnosed with a right shoulder strain and tendinitis. The worker was then referred to a physiotherapist for treatment and his claim for compensation was accepted by the WCB.

On February 11, 2013, an MRI of the worker's right shoulder revealed the following:

• Moderate AC joint arthropathy
• Mild to moderate glenohumeral joint degenerative changes
• Small linear full thickness perforation of the rotator cuff in the region of the attachment of the infraspinatus tendon to the humerus with some adjacent cystic changes in the humeral head. No tendon retraction was seen.

A WCB orthopaedic consultant reviewed the file on February 20, 2013 and stated:

• the workplace injury caused aggravation of the pre-existing rotator cuff tear of the right shoulder based on history and clinical findings
• osteoarthritis (OA) of the AC joint and gleno-humeral joint are longstanding pre-existing degenerative conditions identified by MRI of February 11, 2013. The rotator cuff tear found on the MRI had been present for some years, on a balance of probability, because it was associated with a cystic defect of the adjacent bone of the humeral head
• resolution of symptoms was expected to occur within two months by avoidance of throwing activities. Surgery for the small chronic tear would not generally be indicated.

In a note to file dated February 21, 2013, a WCB adjudicator documented that the worker's claim was accepted based on an aggravation of the pre-existing rotator cuff tear of the right shoulder and that the mechanism of injury would not have caused the need for surgery.

On March 27, 2013, the WCB decided that the worker had recovered from the effects of his November 28, 2012 workplace injury and that the need for surgery and further treatment was now associated with the pre-existing tear that was not a result of the aggravation.

On April 9, 2013, the worker appealed the March 27 decision and his case was referred to Review Office for consideration.

On May 8, 2013, a WCB orthopaedic consultant outlined the following opinion after reviewing a May 3, 2013 report from the worker's treating orthopaedic surgeon:

• the May report pointed to multiple degenerative diagnoses at the right shoulder and recommended arthroscopy with surgical "management of the AC joint, the glenohumeral findings and the rotator cuff." These diagnoses were present before the workplace injury.
• the workplace injury was a strain of the right shoulder in the environment of pre-existing degenerative disease of the AC and gleno-humeral joints and the rotator cuff.
• the proposed surgical management was related to the pre-existing diagnoses and not to the workplace injury.

On June 12, 2013 the worker underwent surgery and the post-operative diagnosis was reported as rotator cuff disease and glenohumeral arthritis shoulder.

On August 15, 2013, Review Office determined that the worker was not entitled to benefits beyond March 27, 2013. Review Office stated that it accepted the worker's original injury description of accident as it was more consistent with his report to the sports medicine doctor on November 29, 2012. Review Office referred to medical information to support that the tearing of the rotator cuff was a pre-existing degenerative condition and that the compensable injury was likely a strain in the environment of significant pre-existing degenerative shoulder conditions. Review Office was of the opinion that the workplace accident did not make the procedures

undertaken on June 12, 2013 necessary. It therefore was unable to confirm a compensable enhancement of a pre-existing condition in relation to the workplace injury. On September 8, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on April 29, 2014.

At the hearing, the worker advisor was given leave to submit a report dated September 11, 2013 from the treating orthopaedic surgeon. In it, the treating surgeon stated:

"In terms of prognosis and enhancements versus aggravation, in failure to return to his pre accident level (subjective is all we have here) would define an enhancement of a preexisting condition."

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.

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.

WCB Policy 44.10.20.10 (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

b. Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The definition portion of the Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

The Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker's pre-existing right shoulder condition was adversely affected by the November 28, 2012 injury which resulted in surgical repair. As such, the pre-existing condition was enhanced by the workplace injury and the worker should be entitled to benefits after March 27, 2013. The injury occurred on a day when the worker had the most garbage to pick up. The truck the worker was using had a split box with a partition across the middle which meant that he had to throw the bags overhead to get them past the partition to the front of the truck. The worker first experienced pain in his shoulder around 8:00 am which he thought was just a strained muscle. He continued performing his work using just his left arm until he came to a house with some heavy bags. He used both arms to lift the items when he felt the same sharp pain in his right shoulder. At this point, the worker called his supervisor and sought medical attention.

It was submitted that the file information supported that the worker continued to experience the same right shoulder symptoms of positive impingement, limited range of motion and tender AC joint from the time of his injury until his June 12, 2013 surgical repair. There was no medical information to support that the worker had recovered to his pre-accident status. The treating surgeon's opinion was that the worker's right shoulder condition would not improve with additional conservative treatment and arthroscopic treatment was recommended. The surgical repair resulted in a good recovery of the worker's right shoulder symptoms. It was therefore submitted that the worker ought to be entitled to further benefits.

The Employer’s Position

The employer was represented by its claims manager who participated in the hearing by teleconference. The employer was in support of the decision made by the WCB based on the WCB orthopaedic advisor's opinion. The claim was originally allowed for a shoulder strain, and strains resolve. The employer was not disputing that the worker was still experiencing symptoms in his shoulder which were preventing him from returning to his pre-accident duties; however, they were of the position that these symptoms were related to his pre-existing shoulder condition.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits beyond March 27, 2013. In order for the appeal to be successful, the panel must find that the worker suffered an enhancement (rather than an aggravation) of his pre-existing right shoulder condition in the November 28, 2012 work related accident. We are able to make that finding.

At the hearing, the worker described the job duties he performed for the employer. He had been working in this position for approximately seven months before he was injured. The worker was responsible for driving a truck and picking up residential curbside garbage and/or recycling. The workload varied from day to day, but the work was always performed at a quick pace and the goal was to load the truck as fast as possible. The worker would drive the truck forward, then get out and manually pitch the bags into the truck. Sometimes he had a helper, but on the day of the accident he did not. The worker estimated that in one week, he would pick up approximately 24,000 pounds of garbage.

It is clear to the panel that prior to the accident date of November 28, 2012, the worker was able to perform very physical duties which involved extensive use of his right shoulder. There is no indication that a pre-existing condition was in any way affecting his ability to perform his full regular duties. Following the workplace accident, there was a distinct change in the worker's ability to function.

We have carefully reviewed the medical reports (family doctor and physiotherapist) from the time of the accident on November 28, 2012 to the date of surgery, June 12, 2013, approximately 6 1/2 months later. While there was some slight improvement reported in regards to the worker's range of motion, there was no functional change reported. It was only with surgery that the worker's condition improved.

There is little doubt that the worker had an extensive pre-existing condition in his right shoulder, but the crux of the issue before us is whether the workplace accident caused an aggravation (as opined by the WCB orthopaedic consultant) or an enhancement (as opined by treating orthopaedic surgeon).

In the panel's opinion, there are three main factors which convince us on a balance of probabilities that the workplace injury made necessary the surgery on the pre-existing condition and was therefore an enhancement. They are:

• The fact that the worker had been performing very physical duties without any problems for seven months prior to the workplace injury. This suggests that the pre-existing shoulder condition was asymptomatic and stable.
• The fact that after suffering the injury, the worker experienced no significant change in symptoms between the time of the accident to the time of surgery.
• The fact that surgery was performed in a relatively short period (6 1/2 months) after the workplace injury and that the worker only experienced improvement in his condition after undergoing the surgical procedure.

Based on the foregoing, the panel is satisfied on a balance of probabilities that the worker had not recovered from the workplace accident to the point where it was no longer contributing to a material degree to his loss of earning capacity, and that in fact, his compensable injury made the June 12, 2013 surgery necessary. We find that there was an enhancement of the worker's pre-existing right shoulder condition. It is therefore the panel's decision that the worker is entitled to benefits beyond March 27, 2013. The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of June, 2014