The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker has claims for workplace injuries she suffered on January 27, 2004 and January 31, 2009. The worker is appealing decisions made by the Workers Compensation Board ("WCB") that she is not entitled to benefits in relation to her right shoulder condition for which she underwent surgery in November 2012. A hearing was held on October 7, 2014 to consider these matters.

Issue

January 31, 2009 Claim:

Whether or not the worker's right shoulder difficulties after March 23, 2009 are a consequence of her January 31, 2009 compensable injury.

January 27, 2004 Claim:

Whether or not the worker is entitled to further benefits.

Decision

January 31, 2009 claim:

That the worker's right shoulder difficulties after March 23, 2009 are not a consequence of her January 31, 2009 compensable injury.

January 27, 2004 claim:

That the worker is not entitled to further benefits.

Decision: Unanimous

Background

January 31, 2009 claim:

While employed as a home care worker on January 31, 2009, the worker suffered an injury to her right upper arm when helping a client get ready for a bath. The worker reported that "my client...suddenly got up while holding onto my arm and I felt a pull and then a burn in my upper arm even into my neck and ear." The worker continued working after the incident stating that the clinic was closed on the weekend. She self-treated her injury with medication and soaking in salt water. The first day she missed from work was February 1, 2009.

The worker's claim for compensation was accepted based on the diagnosis of a traction injury/traumatic radiculopathy and the worker received physiotherapy treatment for her shoulder injury. By March 24, 2009, it was felt that the worker was capable of returning to work. When speaking with a WCB representative on May 26, 2009, the worker stated that she was doing okay and was working often.

The next medical report on file was from the worker's treating physician dated October 17, 2011 which indicated that the worker was experiencing pain in her right shoulder, with internal rotation. The diagnosis was right rotator cuff syndrome.

On January 20, 2012, the worker underwent an MRI of her right shoulder which showed:

1. Rotator cuff tendinosis with full thickness tear supraspinatus tendon.

2. Moderate acromioclavicular osteoarthritis.

3. Biceps tendinosis.

On July 4, 2012, a WCB orthopedic consultant responded as follows to questions posed by the WCB case manager:

• The workplace injury of January 31, 2009 probably caused aggravation of a chronic degenerative rotator cuff lesion of the right shoulder.
• The aggravation resolved completely by March 30, 2009 as documented by the physiotherapist. Degenerative rotator cuff lesions can develop gradually often without symptoms in the early months and years.
• Current symptoms were caused by the chronic degenerative rotator cuff lesion as demonstrated on the MRI.
• On balance of probabilities, the worker's current symptoms are unrelated to the workplace injury of January 31, 2009.

On August 3, 2012, the worker was advised that there was no relationship between the recent MRI findings and the right shoulder injury she suffered at work on January 31, 2009. The decision was based on the July 4, 2012, medical opinion that:

On balance of probabilities, current symptoms are unrelated to the workplace injury of 31-Jan-2009. The clinical findings and resolution of symptoms in 2009 do not support that an acute tear occurred on 31-Jan-2009 rather than a temporary aggravation of a chronic degenerative condition.

On January 25, 2013, an orthopedic surgeon wrote the WCB stating:

My working up diagnoses confirmed by MRI at that time was supraspinatus full thickness tear and AC joint arthrosis on biceps tendinosis. This was treated with right shoulder arthroscopic rotator cuff repair on November 5, 2012 and also a right shoulder arthroscopic biceps tenotomy, right shoulder arthroscopic biceps dissection distal one-third of the clavicle, and acromioplasty.

[The worker] did extremely well in recovery. She injured her shoulder in 2002 at work while she was lifting and transferring a patient. I believe that this rotator cuff tear is most likely related to that injury, especially since she had no other injury. The atrophy of her muscle is also consistent with the chronicity of the problem, which makes sense since it has been since 2002.

In a letter dated March 1, 2013, the worker was advised that the information contained in the January 25, 2012 medical report did not alter the previous decision that her current difficulties were not related to the compensable injury as outlined on August 3, 2012.

On April 9, 2013, the worker appealed the August 3, 2012 decision to Review Office. On April 23, 2013, Review Office advised the worker that her file was being returned to case management who would be obtaining additional information related to her shoulder difficulties and that a written decision from case management would follow.

In a memo to file dated April 23, 2013, the WCB case manager noted that the worker provided a Notice of Injury form for an incident on January 27, 2004. He noted that this incident did not result in a WCB claim being filed. The case manager noted that the worker's Notice of Injury form indicated that on January 27, 2004 at 9:20 a.m., the worker fell on ice by the garbage can at the end of an apartment building. Further details regarding this incident are provided under the heading "January 27, 2004 claim."

On May 23, 2013, the worker spoke with a WCB sector services manager. The worker indicated that her right shoulder difficulties began in 2004 when she fell on ice at work. The worker stated that she was seeking entitlement to wage loss benefits up to April 2013 when she recovered from her right shoulder surgery. The worker also claimed that the cumulative effects of heavy lifting over the course of her career in home care services was also a cause of her right shoulder difficulties.

In a decision dated May 30, 2013, the sector services manager made the following determinations:

• there was insufficient evidence to support the conclusion that the rotator cuff lesion resulted from the fall on ice in 2004. This was based on review of the injury report from 2004, the information provided by the worker regarding the mechanism of injury, subsequent treatment and activities.
• there was insufficient evidence to support an ongoing cause and effect relationship between the worker's workplace activities and the diagnosis of a rotator cuff lesion. The acceptable claim of 2009 based on a diagnosis of an aggravation of the pre-existing rotator cuff pathology remained. Therefore the claim for a workplace injury in 2004 was acknowledged as a no-time loss, non-medical incident.
• the acceptance of a cumulative injury claim for the right shoulder was denied based on the detailed medical investigations and reporting related to a specific injury contained in the file and review of the worker's claim file (claim number) where no reporting of right shoulder difficulties were documented.
• there was no change to the entitlement decisions related to the 2009 claim as outlined in previous decisions dated August 3, 2012 and March 5, 2013.

On June 19, 2013, the treating physician wrote the WCB stating that it was his impression and that of the orthopedic surgeon that the worker's rotator cuff tear was sustained at the end of January 2009.

On July 19, 2013, the worker was advised that the report of June 19, 2013 had been considered and that no change would be made to the decisions outlined on August 3, 2012, March 5, 2013 and May 30, 2013. On September 12, 2013, the worker appealed the decision to Review Office.

On November 8, 2013, Review Office determined that the worker's right shoulder difficulties after March 23, 2009 were not a consequence of her compensable right shoulder injury of January 31, 2009 based on the following findings:

• medical information showed that the worker's compensable injury had resolved by March 24, 2009 when she returned to full duties.
• there was no continuity of symptoms between 2009 and October 14, 2011.
• there was an absence of any report of right shoulder complaints during 2009 and 2010 made by the worker to her doctor nor was there any contact with the WCB.
• on May 26, 2009 the worker mentioned to the WCB that she was doing okay.
• there was no evidence of any injury occurring to the worker's right shoulder in 2002 as the file evidence shows that the worker's right shoulder was fine when she returned to her full regular duties in March 2009.
• the WCB medical opinion of July 4, 2012.
• the file evidence after the worker returned to work in March 2009 did not establish that she suffered an increase in permanent impairment or relapse of her injury resulting in a loss of earning capacity arising from the original compensable injury.

On February 10, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

January 27, 2004 claim:

On March 18, 2014, the worker filed a claim with the WCB for injury to her right shoulder and hip that she related to falling on ice on January 31, 2004. The worker indicated that the fall occurred when she was taking garbage bags to the dumpster. The worker stated that she sought massage therapy right away but did not seek medical attention. Around 2005 she saw a doctor and was prescribed medication for her arms, shoulders and back.

In a memo dated April 4, 2014, a WCB adjudicator noted that she contacted the medical clinic identified by the worker. It was reported that the worker had been at the clinic four times in 2004, the first time being January 12, 2004. The appointment was not related to the right shoulder. The worker was also seen at the clinic at various times between February and June 2004 but not for shoulder complaints.

On April 4, 2014, the worker's employer confirmed the January 27, 2004 injury as described by the worker. The employer indicated that the worker incurred no time loss as a result.

On April 4, 2014, the WCB accepted the worker's claim for the incident occurring on January 27, 2004 but also determined that she was not entitled to any healthcare or wage loss benefits related to the incident. The WCB adjudicator indicated that she was unable to confirm the worker's ongoing complaints or difficulties either through her employer or through medical documentation from 2004. It was the WCB's opinion that there was no evidence to conclude that any of the further difficulties experienced by the worker after January 27, 2004 were related to the workplace incident. On May 7, 2014, the worker appealed the decision to Review Office.

On July 8, 2014, Review Office stated that it was unable to find that the worker's shoulder symptoms in 2012 were related to the January 2004 compensable accident or that the accident caused a loss of earning capacity or resulted in medical treatment. The decision was based on the worker's reporting that she did not seek medical follow up as a result of the fall and information obtained from the medical clinic that the worker had not been seen for right shoulder complaints in 2004. The first documented complaint in relation to the right arm or shoulder was in 2007, roughly three years post accident. Review Office stated that it agreed with the July 4, 2012 WCB medical opinion that the worker's current symptoms were caused by the chronic degenerative rotator cuff lesion as demonstrated on the January 20, 2012 MRI. On July 24, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

The worker’s position:

The worker was self-represented at the hearing. The worker described two incidents which occurred while she was at work. The first one was in 2004 when she fell on some ice. The worker indicated that she was hurt "pretty bad" but she did not go to a doctor, only to massage therapists and chiropractors. Following the fall, she had some regularly scheduled days off. When her next shift came up, she managed to go back and perform her duties, but only by doing more with her left arm than her right arm and taking painkillers. The worker reported the matter to her employer and she thought that she would be covered since she filled out the WCB green card. The worker indicated that she was disappointed with the WCB's decision to deny benefits. She could not understand why she was not being covered since she had suffered a work injury.

With respect to the workplace injury of January 31, 2009 injury, the worker noted that the WCB felt that she had an aggravation of a chronic degenerative rotator cuff lesion of the right shoulder. The worker disagreed with this. She felt that her shoulder difficulties did not result from a degenerative condition. Again, she felt that her problems were from a work injury.

Analysis:

January 31, 2009 Claim

The first issue before the panel is whether or not the worker's right shoulder difficulties after March 23, 2009 are a consequence of her January 31, 2009 compensable injury. For the worker’s appeal to be successful, we must find on a balance of probabilities that by March 23, 2009, the traction injury the worker sustained to her right shoulder on January 31, 2009 had not resolved. We are not able to make that finding.

The first medical report after the injury was a report dated February 2, 2009 from a family doctor. He noted the worker had pain in her right shoulder but full range of motion. There was tenderness over the anterior muscles. Naproxen was prescribed and the worker was told to stay off work for one week. On February 9, 2009 the worker was assessed by a physiotherapist who reported that the worker had a brachial plexus traction injury. A six week course of physiotherapy treatment was anticipated. The worker attended physiotherapy regularly. On February 20, 2009, a family doctor reported that the shoulder was improving and that the worker was able to work with restrictions of no lifting more than 15 pounds. She could clean surfaces and perform meal preparation. Physiotherapy was to be continued.

By March 19, 2009 , the physiotherapist reported that the worker was discharged from treatment and that her condition had resolved. The worker's numeric pain rating scale was 0 and the Disabilities of the Arm, Shoulder and Hand (DASH) score was very low (1.7). The worker was discharged with home exercises aimed at strengthening and stretching the upper extremities and rotator cuff. The worker returned to her regular duties on March 24, 2009 and her benefits ended.

The medical reports would all appear to indicate that by March 2009, the workplace injury sustained on January 31, 2009 had largely resolved. File notes of a conversation the adjudicator had with the worker on May 26, 2009 record that as of that date, the worker stated that she was doing ok, working frequently and that she did not have any scheduled doctor's appointments. The worker advised that she would only go back to see a doctor if she had further problems with her arm.

Nothing was heard from the worker on the 2009 right shoulder claim until 2012. At that time, the worker had been investigated for right shoulder pain and an MRI revealed a rotator cuff tear, moderate acromioclavicular osteoarthritis and biceps tendinosis. On a balance of probabilities, the panel is not able to relate the worker's subsequent difficulties diagnosed in 2012 back to her 2009 injury. All indications in the spring of 2009 were that the worker's traction injury had satisfactorily healed. The panel notes that a traction injury is a soft tissue injury and differs in nature from the rotator cuff tear and osteoarthritis identified in the 2012 MRI. We find that there is no causal connection between these conditions and the worker's January 31, 2009 injury. We therefore find that the worker's right shoulder difficulties after March 23, 2009 are not a consequence of her compensable right shoulder injury. The worker's appeal on this issue is dismissed.

January 27, 2004 Claim

The second issue before the panel is whether or not the worker is entitled to further benefits. In order for the worker's appeal to succeed, the panel must find on a balance of probabilities that the fall the worker suffered on January 27, 2004 caused her to sustain an injury to her right shoulder which caused or contributed to the subsequent difficulties diagnosed in 2012. We are not able to make that finding.

Although there is sufficient evidence to establish that the worker did suffer a fall on January 27, 2004, there is a lack of medical evidence to support that the worker sustained any significant injury to her right shoulder on that date. There are no doctor reports detailing a shoulder injury, despite the fact that the worker was seen on many occasions in the months following the fall. The panel also notes that the worker was able to maintain her regular employment and use her right shoulder to perform physical tasks without any complaint from 2004 to 2009. In the circumstances, the panel finds that we cannot relate the 2012 diagnosis to the fall which occurred in January 2004. There is no evidence of an acute injury which did not heal.

Based on the foregoing, the panel finds that the worker is not entitled to further benefits related to her January 27, 2004 workplace accident. The worker's appeal on this issue is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of December, 2014