The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing left shoulder difficulties were no longer related to the June 6, 2013 accident. A hearing was held on July 22, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits after August 30, 2013 in relation to his left shoulder.

Decision

That the worker is entitled to further benefits after August 30, 2013 in relation to his left shoulder.

Decision: Unanimous

Background

On June 6, 2013, the worker suffered a left shoulder and arm injury in the course of his employment as a long haul driver when his feet slipped out from under him while exiting his truck.

On June 10 and 17, 2013, the worker attended his family physician for treatment and the suspected diagnosis was a torn left rotator cuff.

On June 18, 2013, the worker was seen by a physiotherapist for an initial assessment regarding his left shoulder and elbow. The diagnosis outlined was a left rotator cuff strain.

An MRI assessment of the left shoulder taken July 3, 2013 revealed the following:

1. Moderate AC joint arthrosis.
2. Evidence of a massive rotator cuff tear involving the supraspinatus tendon and leading edge infraspinatus tendon with mild supraspinatus and moderate infraspinatus fatty atrophy.

On July 10, 2013, the treating physician requested that the WCB arrange for the worker to see a shoulder surgeon for repair of his rotator cuff. On July 11, 2013, a WCB orthopedic consultant referred the worker to an orthopedic surgeon for an opinion regarding the worker's shoulder condition.

In a report to the WCB dated July 18, 2013, the orthopedic surgeon stated:

My impression is that [the worker] has an acute-on-chronic injury to his left shoulder. There are clear signs of a chronic rotator cuff tear with bony changes and fatty infiltration of his muscle. I explained to [the worker] had he likely had a pre-existing rotator cuff tear prior to his injury and at the time of his injury, he aggravated this. He may have made the tear bigger or he may just have irritated it causing pain which has limited his function. I told him that my recommendation would be try and regain function without surgery as it is not clear that his tear would be repairable and that he functioned well prior to his injury with the rotator cuff tear, suggesting that he would likely be able to function well without a surgical repair.

On July 24, 2013, the treating physician recommended that the worker see a different surgeon for a second opinion as the worker was disabled due to having a significant rotator cuff tear.

In a memo to file dated July 31, 2013, the WCB orthopedic consultant commented as follows:

...The diagnosis of the compensable injury was a sprain/strain left shoulder, possible irritation of the pre-existing condition of chronic massive rotator cuff tear...I agree with [orthopedic surgeon's] examination report and opinion, except the comment regarding increasing the extent of the massive rotator cuff tear, which is not evidenced based...The claimant informed [orthopedic surgeon] that he had no previous dysfunction of the left shoulder prior to the compensable injury of this claim. This is unlikely in the presence of such significant longstanding pathology.

By letter dated August 2, 2013, the worker was advised that the WCB would pay for an additional 4 further weeks of physiotherapy as it was anticipated that he would be recovered to his pre-injury status at that time and there would be no continuing workplace restrictions in relation to the compensable injury. It was the WCB's position that the worker had a pre-existing

rotator cuff tear and that wage loss benefits would be payable to August 30, 2013 inclusive and final. On August 15, 2013, the worker appealed this decision to Review Office. The worker said he had support from his treating physician and physiotherapist that he required surgery for his shoulder. The worker also indicated that he never missed a day of work due to his shoulder until the June 6, 2013 accident.

On September 4, 2013, the treating physician reported that the worker's rotator cuff tear was not improving with physiotherapy and that the worker was not back to his pre-injury status.

The worker attended a second orthopedic surgeon for his shoulder condition on October 4, 2013 who stated:

Therefore although he had no previous history, he did obviously have some degree of preexisting cuff degeneration in his left shoulder but it appears historically these injury in (sic) the work injury that caused him his loss of function and pain therefore it was not entirely a preexisting issue...the plan going forward is limited to a debridement and adhesions released as best as possible. We will get the shoulder moving back to the pre-fall status...

On October 21, 2013, Review Office determined that there was no entitlement to benefits beyond August 30, 2013 with regard to the left shoulder. Review Office referred to the medical reports on file to support its position that the worker had a pre-existing condition involving his left shoulder. Review Office did not find the evidence to support that the workplace accident structurally (such as comparable MRI) changed the pre-existing condition. Review Office stated that the acromioclavicular arthrosis found on the July 3 MRI was a pre-existing condition and that the massive rotator cuff tear likely pre-dated the June 6, 2013 compensable injury. Review Office found that the compensable injury was no longer contributing to the worker's loss of earning capacity and need for medical aid. The accepted compensable injury was a sprain/strain of the left shoulder and at most, aggravation of the worker's pre-existing condition.

On March 13, 2014 the worker appealed Review Office's decision of October 21, 2013 through the Worker Advisor Office and on July 22, 2014 a hearing was held at the Appeal Commission.

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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

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.

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.

Worker’s submission:

The worker was assisted by a worker advisor at the hearing and the worker's wife attended as an observer. It was submitted that the worker was entitled to further wage loss and medical aid benefits because he had not recovered from the effects of his compensable shoulder injury. Specifically, it was submitted that the workplace accident enhanced the worker's pre-existing yet asymptomatic rotator cuff tear by way of causing further tearing or by creating the need for a

shoulder arthroscopy, which was performed on May 28, 2014. Alternatively, if the panel were to find that the compensable injury did not involve an enhancement, it was suggested that the worker remained entitled to further benefits on the basis that the aggravation of his pre-existing rotator cuff tear had not resolved by August 30, 2013.

Medical reports provided by two orthopedic surgeons, the family physician and the treating physiotherapist were relied upon as evidence supporting that the worker had not recovered from the effects of his workplace accident. It was not disputed that the worker had some degree of rotator cuff tearing prior to his accident; however, the evidence supported that the worker was asymptomatic and fully functional beforehand. Since the time of the initial examination by the family physician, the diagnosis of rotator cuff tear had been identified and the clinical findings indentified from that date forward, including beyond August 30, 2013, had remained relatively constant. It was submitted that this supported non-recovery and a compensable loss of earning capacity. The panel was therefore asked to grant the worker's appeal.

Analysis:

The issue before the panel is whether or not the worker is entitled to further benefits after August 30, 2013 in relation to his left shoulder. For the worker’s appeal to be successful, the panel must find that after August 30, 2013, the worker continued to suffer from the effects of his June 6, 2013 workplace accident. We are able to make that finding.

The panel finds that, although the MRI imaging indicates that the worker had a pre-existing rotator cuff tear, there was a distinct and significant change in the condition of the worker's shoulder following the workplace accident which we accept is sufficient to establish that the pre-existing rotator cuff tear was enhanced as a result of the accident. In coming to this decision, the panel relied on the following:

• Prior to the June 2013 accident, the worker had been working as a driver for the employer for approximately 3 years. The job involved significant physical work as the worker was required to load and unload freight. He performed several tasks which involved the shoulder, including opening trailer doors, hooking up the trailer, cranking the dolly and repositioning freight. The worker's height is 5'6" so he was frequently required to reach overhead to complete his duties.
• During this time, the worker had no problems performing his duties. His evidence was that he never turned down any jobs or required the assistance of a helper to load his freight.
• The worker had been a patient of the family physician for approximately ten years and the family physician confirmed that prior to the workplace injury, the worker had not been seen regarding his left shoulder or a similar condition.

  
  The panel finds that prior to suffering the workplace injury, the worker had a pre-existing asymptomatic rotator cuff tear in his left shoulder. Following the accident, the worker experienced constant pain and loss of function, range of motion and strength in his shoulder. There was a distinct and significant change in the condition of his shoulder.

On June 18, 2013, the worker commenced physiotherapy treatment. Despite regular attendance two times per week, the worker did not experience much improvement. An October 4, 2013 report from the physiotherapist indicated that the worker had attended regularly but the results were poor. There was minimal change in his range of motion and the pain, spasms and restricted function remained. The panel finds that the lack of improvement despite regular treatment indicates that there had been a permanent and adverse effect on the worker's pre-existing rotator cuff tear. This is consistent with the July 18, 2013 suggestion by the orthopedic surgeon that the tear may have been made bigger. We find this scenario to be more likely than the suggestion by the WCB orthopedic consultant that the injury was limited to a sprain/strain of the left shoulder with possible irritation of a pre-existing chronic massive rotator cuff tear. It is notable that the WCB orthopedic consultant based his opinion on the assumption that it was unlikely that the worker had no previous dysfunction prior to the compensable injury, which is contrary to the finding of fact made by the panel.

On May 28, 2014, the worker underwent surgery on his left shoulder which included debridement, decompression, and distal clavicle excision. The panel finds that the compensable injury made necessary this surgery on the pre-existing rotator cuff tear and therefore clearly rendered the workplace injury an enhancement of the pre-existing condition. The Policy provides that where a worker's loss of earning capacity is caused in part by the compensable accident and in part by a pre-existing condition, the WCB will accept responsibility for the full injurious result of the accident. We therefore find that the worker is entitled to further benefits after August 30, 2013 in relation to his left shoulder.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 20th day of August, 2014