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 right shoulder condition and need for treatment was related to a pre-existing shoulder condition and therefore he was not entitled to further benefits beyond October 24, 2012. A hearing was held on July 28, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits beyond October 24, 2012.

Decision

That the worker is not entitled to further benefits beyond October 24, 2012.

Decision: Unanimous

Background

In February 2013, the worker filed a claim with the WCB for a right shoulder injury that occurred on October 24, 2012 while flipping metal sheets. The worker indicated that he felt his shoulder fall down and he lost all power.

On February 12, 2013, the employer's Safety Program Director stated:

"[The worker] originally reported that he had a very sore right shoulder about two years ago; he was told by me that he should seek medical diagnosis and treatment if required. He kept working and kept icing his shoulder and the pain would come and go. I kept an eye on him to ensure he wasn't always in pain and that we could help him when and if his shoulder would ever prevent (sic) from working. In the last few months of last year I could tell he was suffering more every day that I saw him. Finally, on Oct. 24, 2012 he couldn't move it anymore and was in real bad pain. I told him in no uncertain terms that he needed to go to a doctor to get help for his shoulder discomfort or else he would suffer for the rest of his life with the injury. He agreed and sought out medical diagnosis and treatment."

The worker spoke with a WCB adjudicator on February 12, 2013. The worker confirmed that he had had right shoulder issues but he kept on working. He noted that his left shoulder bothered him as well but was not as bad. The worker indicated that the problem with his shoulder started around 2003 and progressively got worse.

Medical reports on file showed that the worker was seen on November 8, 2012 for right shoulder problems related to repetitive use. The worker was diagnosed with right shoulder osteoarthritis.

In a consultation report dated January 22, 2013, an orthopaedic specialist reported that the worker was referred to him for bilateral shoulder pain. He noted that the worker had last been seen by him two years prior in 2010 for bilateral massive irreparable rotator cuff tears. He said the worker had been functioning adequately since that time but had noticed increased pain and difficulty with heavy work. The symptoms were more severe on the right side. Based on physical examination and diagnostic imaging, the specialist diagnosed the worker with bilaterally massive irreparable tears with rotator cuff tear arthroplasty. The treatment plan was a right shoulder hemiarthroplasty with extended humeral head prosthesis for cuff tear arthropathy. The worker underwent this procedure in March 2013.

File records show that the worker has prior claims with the WCB for a left shoulder injury that occurred on August 22, 2003 and for his right upper arm that occurred on October 27, 2003.

In a decision letter dated March 6, 2013, the worker was advised that his claim for the October 24, 2012 accident was accepted, however, responsibility for wage loss or medical costs associated with the October 2012 accident would be limited up to and including October 24, 2012.

The adjudicator noted that she reviewed the worker's prior WCB claims which showed that he developed left shoulder pain on August 22, 2003 while lifting at work. X-rays taken at that time showed significant degenerative changes within the A/C joint. On October 27, 2003, the worker pinched his right upper arm at work and was diagnosed with a hematoma. The worker returned to work on December 3, 2003. The adjudicator noted that the worker next sought medical treatment in October 2009 when he underwent an MRI which revealed significant pre-existing degenerative changes and bilateral rotator cuff tears.

Dealing with the relationship between the worker's prior claims and the worker's current diagnosis, the adjudicator indicated that because there was a significant gap in seeking additional medical treatment and the current diagnosis, the WCB was unable to establish the necessary link between his current diagnosis and the compensable injuries of either August 22, 2003 or October 27, 2003.

The adjudicator stated that the event of October 24, 2012 met the WCB's definition of an accident. However, the medical information confirmed that the worker's ongoing and current signs and symptoms were likely related to pre-existing degenerative changes which was supported by the findings outlined in the October 2009 MRI which pre-dated the most recent incident. Therefore the WCB was unable to approve any wage loss benefits or medical aid expenses beyond October 24, 2012. On October 16, 2013, the worker appealed the decision to Review Office.

On December 10, 2013, Review Office determined that the worker was not entitled to benefits beyond October 24, 2012. Review Office accepted that the worker had an accident which resulted in personal injury that involved right shoulder weakness while performing a specific work activity on October 24, 2012. Review Office found that a work-related diagnosis had not been offered in relation to the October 2012 incident. The worker was diagnosed with osteoarthritis, an ordinary disease of life that was not caused by an acute injury. Review Office found that the medical findings, diagnosis and treatment offered by the orthopaedic specialist in January 2013 was not a consequence of the October 24, 2012 accident.

Review Office concluded that the worker had an aggravation of his pre-existing right shoulder condition on October 24, 2012 and that his loss of earning capacity and need for medical treatment was due solely from the effects of his pre-existing bilateral shoulder condition and he was not entitled to benefits beyond October 24, 2012.

On April 28, 2014, the worker appealed Review Office's decision to the Appeal Commission. At this time, a medical report was submitted written by an occupational health physician dated April 24, 2014 for consideration. On July 28, 2014, a hearing was held at the Appeal Commission.

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.

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.

The Worker’s Position

The worker participated in the hearing assisted by his union representative. The position put forth on behalf of the worker was that he had been hurt previously at work, in 2003, and had a degenerative shoulder injury which was confirmed by a 2009 MRI. The worker was described as being "old school" and he kept working through the pain. He described his job duties, much of which involved moving and manipulating large sheets of sheet metal on and off a cutting machine. The job duties involved over the shoulder work. He had been doing essentially the same job since he started with the employer in 2002.

By October 24, 2012, the shoulder pain had gotten to be too much and he advised his union representative of his situation around October 26 or 27. It was suggested that he see a doctor. The worker continued to work until a seasonal layoff on November 2, 2012. In response to questions, the worker advised that his layoff date had not been preplanned. Rather, he asked to be laid off early. He advised that each winter, sooner or later, the shop experiences a winter slowdown and that he is typically laid off, but he initiated the layoff request. He attributed this to his shoulder pain. He then saw his family physician who referred him to a specialist. It was his union representative who advised him to file a WCB claim.

In response to questions, the worker advised that there was no specific event that he could identify on October 24 that led to his increased pain that day.

Among the benefits being sought by the worker was a request for wage loss for the recovery period after the worker's March 2013 surgery, which the worker (and the employer) asserted had been authorized by the WCB. The panel indicated during the hearing that in its review of the written file, the WCB had specifically indicated in writing to the worker's surgeon and to both the employer and the worker that the proposed surgery would not be covered by the WCB, and therefore would not have even looked at the authorization of post-surgery benefits. The panel did advise, however, that if our decision on this appeal led to the acceptance of the worker's shoulder surgery, then it would be open for the WCB to consider the worker's entitlements to appropriate post-surgery benefits.

The Employer's Position:

The employer was represented by a member of their Human Resources Department. The representative indicated that the employer was not contesting the appeal. The employer's position was that the worker is entitled to complete benefits. The representative and the employer were aware of the worker having experienced ongoing shoulder pain prior to the October 24 report of increased pain. The representative attributed the pain to the general nature of the worker's job duties over the years.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after October 24, 2012. The worker has an accepted claim for his injury on that date, but the WCB has declined to provide any wage loss or medical aid benefits including a subsequent right shoulder surgery in respect of this claim.

Scope of the appeal:

At the outset of this analysis, the panel wishes to deal with the scope of this appeal. We note that the worker ultimately required a very significant surgical procedure, essentially a replacement-type surgery, to repair his right shoulder. The positions of both the worker and employer at the hearing set out two distinct arguments as to the work-related causes of the worker's right shoulder difficulties. One argument deals with the specific events of October 24, 2012 as the cause of his ongoing problems, and the second points to the general nature of the worker's job duties over the years as being the reason for the worker's shoulder difficulties and the eventual need for his shoulder surgery.

In the panel's view, our jurisdiction in considering this appeal has been limited to the first argument by the Review Office decision dated December 10, 2013. That decision states, in part:

We note that in the worker's appeal he said that his work duties over the years might have contributed to his current bilateral shoulder difficulties. The Review Office acknowledges this statement and advises the worker that our decision does not preclude him from making a new claim with Compensation Services for these circumstances. This new claim would be adjudicated on its own merit.

At the hearing, the panel was advised that a new claim to address the worker's general work duties, as suggested by Review Office, had not been filed and therefore has not been considered at the WCB primary adjudication level or by Review Office. Under the Act, the Appeal Commission can only deal with issues that have been considered by Review Office. The panel is therefore restricted in this appeal to consideration of the events of October 24, 2014 only, and in particular, what medical diagnosis can be attributed to the events of that day and what benefits might flow out of this specific claim. Again, it remains open for the worker to file a claim in respect of the impact of his general work duties as a roofer and/or sheet metal worker on his shoulder conditions.

The October 24, 2012 work injury:

In order for the worker's appeal to be successful regarding his October 24, 2012 injury, the panel must find that after October 24, 2012, the worker continued to suffer from the effects of the injury he sustained that day at work. On a balance of probabilities, we are not able to make that finding. We find that the worker's compensable injury on October 24, 2012 was limited to a strain or a very short term aggravation of the worker's significant pre-existing shoulder condition, and that this specific injury did not lead to either time loss or the need for medical treatment. In coming to our decision, the panel relies on the following evidence and findings:

· The worker had a very significant pre-existing right shoulder condition prior to October 24, 2012. This is confirmed by the medical reports and diagnostic testing on the file. A 2003 x-ray first confirmed the presence of longstanding degenerative changes. These were confirmed in 2010, two years before the October 24, 2012 injury. In this regard, a January 22, 2013 narrative report by the worker's orthopaedic surgeon indicated that the worker had been seen in 2010, for bilateral massive irreparable rotator cuff tears and severe bilateral AC arthrosis which had been identified in an October 14, 2009 MRI. At that time, the surgeon obtained a history from the worker, of shoulder pain of six year duration. The surgeon notes in 2013 that repeat bilateral shoulder x-rays confirmed the presence of changes consistent with massive irreparable tears bilaterally.

· The worker's right shoulder had been symptomatic well before October 2012. This is confirmed in the employer's first conversation with the WCB on February 12, 2013, that the worker had originally reported a very sore right shoulder about two years ago, and that it had been suggested to him that he seek medical treatment as needed. The employer also reported that the worker kept working and icing his shoulder and the pain would come and go. The worker was suffering more every day in the last few months of 2012. These comments were echoed consistently at the hearing in the evidence of the worker, his union representative and the employer representative that the worker had been complaining of shoulder pain for some considerable period of time prior to October 24, 2012, while performing his general job duties. The worker's surgeon indicated that the worker, when seen in 2010, had provided a history of shoulder pain of six years duration. The panel notes that there is evidence suggesting an even earlier onset -- in an April 24, 2014 report by an occupational health physician, the worker provides a history of working with another employer as a roofer from 1995-2001, and having an onset of bilateral shoulder pain that were fairly continuous during those years.

· There was no change in his job duties on October 24, 2012, and nothing extraordinary had occurred to the worker in the performance of his job duties that day. In this regard, the panel notes that in his first discussions with the case manager on February 12, 2013, the worker indicated that the problem with his shoulder started around 2003 and it just got progressively worse, and that on October 24, 2012 it was "just too much." On careful questioning by the panel at the hearing, the worker indicated that he could not identify a specific incident or particular job duty on that day that caused his increased shoulder pain.

· While the worker's evidence is that he self-modified his work duties during the week following, the panel notes that he was nonetheless able to perform his heavy duties for a full week after the October 24, 2012 incident. In the panel's view, this suggests that the

· Incident, while painful, was relatively minor and did not alter the course of a serious and worsening pre-existing shoulder problem. Two years earlier, in 2010, the worker's surgeon had provided the opinion that the worker's shoulder conditions were irreparable and that he should continue as long as he could, given his youthful age. Any surgery would only be to alleviate pain and not to increase function. Under these trying circumstances, the panel would expect the worker to have increasing pain while working and to be making ongoing and more significant self-modifications because of the advancing problems in his shoulder.

· The post-October 2012 medical evidence consistently points to a chronic and ongoing and worsening right shoulder condition, rather than to a significant acute right shoulder injury as having occurred on that date. The panel notes that the January 22, 2013 report by the worker's treating surgeon describes the same medical diagnoses in 2013 as had been identified 2010, which were supported by repeat clinical findings and diagnostic tests. There is also no reference to a new or acute injury, or indications of an enhancement of the previously identified shoulder condition. As well, the consulting occupational health physician in his April 24, 2014 report describes the worker's rotator cuff pathology and his clinical pattern of shoulder pain related to repetitive lifting as being "work related and cumulative over his career as a sheet metal worker." He also indicates that "the WCB's position that the diagnosis of 'osteoarthritis' is non-compensable in this case is quite wrong; the severe OA such that joint replacement was the result of a longstanding, work related rotator cuff tear since 2009 at least.[sic]"

Based on this analysis, the panel finds that the evidence supports, on a balance of probabilities, that the worker suffered a minor exacerbation or aggravation of his pre-existing right shoulder condition on October 24, 2012 during an extended period of time in which the worker had been experiencing rapidly increasing pain and discomfort and reduced function in his right shoulder. The extent of the worker's shoulder condition had become apparent at least two years earlier, to the point where discussions had taken place between the worker and his surgeon as to whether surgery would even be of benefit, and most recently where the worker had been reporting his problems to his employer and was noted to be using ice while at work in the months prior to October 24, 2012.

In the panel's view, the worker's ability to continue to perform his job duties for another week before seeking a layoff, taken together with the very serious shoulder pathologies that led to an inevitable surgery to assist only in pain management, all suggest that it was the pre-existing shoulder condition and its progressive deterioration over time which were the likely sources of the worker's decision to seek a layoff and undergo medical treatment, rather than the increased pain noted on October 24, 2012. These pre-existing conditions, and not the workplace injury on October 24, 2012, led to the need for the worker to leave work and to seek medical aid.

The panel therefore finds that the worker is not entitled to benefits after October 24, 2012 for his right shoulder injury on that date. The worker's appeal is dismissed.

Again, the panel wishes to reiterate that there has been no WCB adjudication to date as to whether the worker's shoulder difficulties (prior to October 24, 2012) are causally related to his general job duties as a roofer or sheet metal production worker. The panel has in no way sought evidence on that issue and makes no findings in that regard.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 27th day of August, 2014