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 after September 13, 2013 was not related to his compensable accident of June 14, 2013. A hearing was held via teleconference on September 9, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after September 13, 2013.

Decision

That the worker is not entitled to benefits after September 13, 2013.

Decision: Unanimous

Background

On June 17, 2013, the worker filed a claim with the WCB for a right shoulder injury that occurred at work on June 14, 2013. The worker reported that he was walking and a co-worker was holding a door open for him. The co-worker then let go of the door and the door slammed into his right arm. The worker said he then locked the door but was unable to finish his shift. The accident was reported to the employer on the same day. The employer's incident report confirmed the mechanism of injury but also stated that the worker had a pre-existing non-compensable injury to his right shoulder.

On June 20, 2013, a WCB adjudicator obtained information from the worker related to his prior right shoulder condition. The worker stated that he first had problems with his right shoulder starting in the new year of 2013. When he sought medical attention, he was told that he probably had arthritis. The worker attended physiotherapy treatment and received a cortisone shot to his shoulder. When the June 14, 2013 work injury occurred, he was finished with his medical treatment other than keeping up with some home physiotherapy exercises to strengthen his shoulder. The worker stated that his right shoulder was fine prior to his work shift other than regular stiffness. When his shoulder was "whacked" by the door he felt excruciating pain.

Medical information showed that the worker attended a healthcare facility on June 14, 2013 as well as his treating physician on June 26, 2013. The worker was diagnosed with a rotator cuff tear by his treating physician who also stated that the worker was recovering from a right rotator cuff impingement and that a cortisone injection was done on April 5, 2013 followed by physiotherapy.

On July 17, 2013, the worker underwent an MRI assessment of his right shoulder. The report indicated that there was a moderate AC arthrosis with a type 3 acromion. A full-thickness tear was present within the supraspinatus which affected the upper infraspinatus. The tear measured approximately 3 cm. There was some minimal atrophy of the infraspinatus and moderate atrophy of the teres minor was present medially.

In a consultation report dated August 20, 2013, an orthopedic surgeon recommended a rotator cuff repair given that the worker's job often required repetitive overhead activity. The surgeon stated that he would also assess the long head of the biceps at that time to see if it was unstable requiring either a tenotomy or tenodesis.

On September 22, 2013, a WCB medical advisor reviewed the worker's claim file and answered questions posed by the WCB adjudicator. The medical advisor stated:

• medical reports prior to the workplace injury noted pain for months, with loss of abduction, a painful arc, weak ER and positive impingement. This was consistent with rotator cuff tendonopathy. Following the injury, it was noted that the worker had a painful arc, weak ER and positive impingement (similar to pre-accident), so the diagnosis remained a rotator cuff tendonopathy.
• rotator cuff tendonopathy is a general term for pain coming from the cuff. Pathology associated with this was on a continuum from no gross pathology equivalent to a strain to tendonosis to partial tearing to full tearing. The pathology can be caused by an acute injury or normal aging of the cuff. In this case, an MRI showed rotator cuff tearing with retraction and atrophy. These are changes consistent with a chronic rotator cuff tear. This would be consistent with the age of the worker. The chronic changes would not have been caused by the workplace accident one month earlier, since they take months or years to develop. The clinical findings are consistent with the MRI changes of degeneration of the cuff. Therefore, the diagnosis both before and after the injury was rotator cuff disease/degeneration.
• the diagnosis of degeneration of the rotator cuff would not have been caused by the June 14, 2013 accident.
• the effects of the acute injury have resolved and ongoing is related only to the pre-existing condition.
• the proposed surgery is related only to the pre-existing condition.

In a letter dated September 30, 2013, the worker was advised that a relationship between his right shoulder difficulties and an accident arising out of and in the course of his employment had been established but that the effects of his acute injury had resolved by September 30, 2013. The WCB's position was that the worker's ongoing medical treatment and symptoms and proposed surgery were all related to his pre-existing rotator cuff tear and not to his workplace accident.

On October 3, 2013, the worker appealed the September 30 decision to Review Office. The worker noted that prior to June 14, 2013, he was able to move and lift heavy boxes at work above his head and the only pain he had was in the front of his shoulder after a heavy day of lifting. After his injury, the pain was in the back of his shoulder. The worker indicated that his doctor said his shoulder is worse now than it was before the accident. He was unable to lift above shoulder level, he was in constant pain and was only able to sleep two or three hours per night.

On November 4, 2013, the worker underwent arthroscopic subacromial decompression, arthroscopic biceps tenotomy and arthroscopic cuff repair.

The WCB's medical advisor reviewed the November 4, 2013 operative report on January 13, 2014. The medical advisor stated that the report confirmed the diagnosis to be a massive rotator cuff tear. There was significant retraction which was generally seen with a chronic tear. There were other degenerative changes in the shoulder (labrum) which support an overall degenerative condition about the shoulder. The mechanism of injury would not have caused a massive rotator cuff tear so the surgery report did not provide evidence to support a change in opinion previously provided that this was pre-existing and not related to the compensable incident. The surgery was for the pre-existing condition and not the effects of the compensable injury.

Based on the above WCB medical opinion, the worker was advised on January 15, 2014 that no change would be made to the original adjudicative decision of September 30, 2013.

The worker provided the WCB with further submissions dated January 17 and January 23, 2014. On January 29, 2014, the WCB advised the worker that no new information had been provided to change the adjudicative decisions dated January 15, 2014 and September 30, 2013. On January 30, 2014, the worker appealed the decision to Review Office.

On May 8, 2014, Review Office upheld that the worker was not entitled to benefits after September 30, 2013.

Review Office noted that the worker had experienced shoulder pain for over six months and had received cortisone injection, physiotherapy and had attended his doctor up to the compensable accident with complaints of ongoing pain and limitations in his right shoulder. Had the accident not occurred, the worker would have continued seeking further medical attention leading up to and including surgery. The worker's medical treatment pre-accident was in keeping with the natural progression of medical treatment for degenerative shoulder conditions. Review Office indicated that diagnostic imaging and the surgical report revealed degenerative and pre-existing issues with the worker's shoulder and no findings could be medically attributable to the mechanism of injury described by the worker on June 14, 2013. It was felt that the June accident caused an aggravation of the worker's pre-existing shoulder condition and that the aggravation would have settled within a few days to weeks. On May 15, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on September 9, 2014.

Following the hearing, the appeal panel met to discuss the case and decided to obtain additional information from the worker's treating physiotherapist prior to discussing the case further. The panel also asked the employer to provide the Appeal Commission with a copy of the surveillance video which recorded the workplace accident on June 14, 2013. The requested information was later received and was forwarded to the interested parties for comment. On November 3, 2014, the panel met further to discuss the case and rendered its decision on the issue under appeal.

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.

Worker’s position:

The worker was self represented at the hearing and participated via teleconference. The worker described his position as an administrative manager at one of the employer's stores. His duties included everything from assisting the store manager to run the store, to stocking shelves, to operating electric power jacks. In the day to day operation of the store, he would assist staff with lifting and moving boxes in the back warehouse, stack items above shoulder height, off load trucks, and reload trucks with empty pallets. On the particular evening in question, he was working the close shift. While in the course of closing the store, he was walking out a hydraulic man door when the person in front of him let go of it and it swung back and struck him on the right shoulder. The worker's evidence was: "Immediately my arm dropped to my side and it was excruciating pain." The worker tried to continue his duties and stated that the video footage showed him grimacing in pain and favouring the right shoulder.

The worker went to the emergency department that night and was given a cortisone shot in the shoulder and prescribed anti-inflammatories. He was also told to follow up with his regular sports medicine doctor whom he was already seeing for his shoulder.

The worker acknowledged that he had a pre-existing shoulder condition for which he was seeing a doctor, but prior to the accident, the treatment did not involve any types of surgery. When the worker saw the doctor after the injury date, he was advised that he would now require surgery as there was more damage, more resistance and less function than there was previously. The worker's evidence was that after the door struck him on the shoulder, his lifestyle had dramatically changed. He was no longer able to do any of the stocking of shelves and had to be placed on light duties.

The worker eventually had surgery on his shoulder and had an extensive recovery time. He had coverage for some physiotherapy appointments but had to pay for additional treatments over and above the initial period. The worker indicated that he continued to experience the effects of his shoulder injury with ongoing pain, nights of lack of sleep, and reduced ability to participate in activities such as gardening and playing catch with his children. The worker had left his employment with the accident employer to take another job which was more low level with very little work above the shoulder. Overall, the worker advised that there had been a dramatic change to his lifestyle and that his biggest concern was that there would be ongoing issues with his right shoulder in the future.

Employer's position:

The employer was represented by its claims manager who participated via teleconference. It was submitted that there was no doubt that the worker suffered an injury but that the accident mechanics were minor. The initial medical report from the emergency department had no mention of bruising or marking. At the time of the accident, the worker had a pre-existing condition which was symptomatic and he was receiving active treatment for the shoulder. It was submitted that the subsequent surgery and rehabilitation was strictly due to the pre-existing condition and that surgery would have been inevitable in any event. Accordingly, the employer's position was that while the worker did suffer an injury, the WCB provided benefits for that injury which was minor in nature and that no further benefits were payable.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after September 13, 2013 were related to the injury he sustained in the workplace accident of June 14, 2013. We are not able to make that finding. On a balance of probabilities, we find that the worker's compensable injury was limited to a temporary aggravation of his pre-existing right shoulder condition and that this aggravation had resolved by September 13, 2013. The panel does not accept that the ongoing right shoulder difficulties and subsequent surgical procedure performed on November 4, 2013 are attributable to the June 14, 2013 workplace accident.

At the hearing, in response to questions from the panel, the worker's evidence was that:

• "...I was going out the door behind that associate that was leaving, and I'm right-handed, so I had my right hand up, with my forearm extended and when the door swung back it basically hit me in the forearm, elbow and upper arm area, humerus area, and it threw my arm towards my chest."
• "...Immediately my arm just dropped to the right side, I had excruciating pain in the shoulder area, it was almost like you get people that are hit by a sledge hammer, or something."
• "And I walked back in the store, trying to lift it, trying to move it as what's shown on the video footage and then I have to lock the electric doors and you have to raise your arm above your head to put your key in the door lock and turn it, the electricity off. And I couldn't even lift my right arm, it shows me lifting with my left arm to put the key in, holding my right hand up."

Following the hearing, the panel requested a copy of the security video footage from the employer. We were provided with a short segment in which the events of June 14, 2013 were recorded. The actual event of the door swinging back and striking the worker could not be clearly observed. There is a clear view of the worker's actions in the first few minutes following the accident. In the panel's opinion, the video does not reflect behaviour on the part of the worker which would suggest that he suffered a severe injury. In particular, the panel notes that while the worker did appear to be uncomfortable, he did not appear to be in "excruciating pain." He did not have to use his left arm to raise his right arm to lock the sliding doors; he was able to reach up with his right arm unassisted and complete this task. When getting up from a bench, the worker used both arms to push himself up from the seated position. He also used both hands to adjust his clothing by grasping the top of his waistband from the back. Overall, the panel felt that the worker did not demonstrate signs of significant distress which we would have expected had he suffered a massive rotator cuff tear on that date.

On September 22, 2013, the WCB medical advisor reviewed the worker's file and stated that in order to find that the accident permanently changed the worker's pre-existing condition, there would have to be:

• a very forceful mechanism of injury;
• objective/measurable clinical findings to support a significant worsening of the condition; and
• change in the structural abnormality of the pre-existing condition to account for the worsening.

The evidence does not satisfy us on a balance of probabilities that these criteria have been met. As noted above, the video footage does not support the finding of a forceful mechanism of injury which caused the worker significant distress. He appears uncomfortable, but is still able to use his right arm to lock the sliding doors, assist himself in getting up, and adjust his clothing.

The medical reports do not provide measurable clinical findings to support a significant worsening of the condition. A physiotherapy report dated October 16, 2014 (which was obtained after the hearing at the request of the panel) describes the worker's condition just prior to the accident. It states that the worker was assessed on April 16, 2013 at which time he complained of intermittent stabbling/clicking/locking pain of the right shoulder with some numbness and tingling down the arm into the thumb. Pain was aggravated by overhead or repetitive movements. The worker reported that his sleep was disturbed by his shoulder pain. The physiotherapist's diagnosis was right impingement syndrome with a concurrent long head biceps tendinosis. These findings are similar to the post-accident findings, as reviewed by the WCB medical advisor in her September 22, 2013 opinion.

The operative report of November 4, 2013 was subsequently reviewed by the WCB medical advisor. In her opinion of January 13, 2014, the WCB medical advisor states that the operative report confirmed the diagnosis to be a massive rotator cuff tear with significant retraction, which is generally seen with a chronic tear. Other degenerative changes were also seen. It remained her opinion that the surgery was for the pre-existing condition and not the effects of the compensable injury. The WCB medical advisor also noted that it would be useful to review the video footage (which was not available to her) to determine what degree of force was applied to the shoulder. Given the panel's assessment that the video did not depict a significant injury, we accept the WCB medical advisor's opinion that the surgery was for the pre-existing condition and not the compensable injury.

Overall, the panel finds that the evidence does not satisfy us on a balance of probabilities that the rotator cuff tear which led to the November 4, 2013 surgery was caused by the June 14, 2013 workplace accident. As a result, we find that the worker is not entitled to benefits after September 13, 2013. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 11th day of December, 2014