The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her right shoulder difficulties were unrelated to her compensable left shoulder injury.  A hearing was held on February 26, 2015 to consider the matter.

Issue

Whether or not the worker's right shoulder difficulties area consequence of the June 19, 2013 compensable accident.

Decision

That the worker's right shoulder difficulties are aconsequence of the June 19, 2013 compensable accident.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her left arm, shoulder, neck and back when she fell on wet stairs at work on June 19, 2013.

On June 24, 2013, the worker advised the WCB that when she slipped on June 19, 2013, she went up in the air and landed onto her left forearm and elbow. She also injured her left shoulder, neck and back. The worker indicated that she ached all over and that her left shoulder was the main issue.

Initial medical reports diagnosed the worker with soft tissue injuries to the left arm, shoulder, neck and back and an MRI of the left shoulder dated July 13, 2013 showed a left rotator cuff tear. On July 24, 2013, a WCB medical advisor opined that the left shoulder rotator cuff tear was consistent with the June 19, 2013 mechanism of injury.

On July 25, 2013, the worker advised the WCB that she had injured her right arm in the June 19, 2013 accident. The worker indicated that she did not notice the pain at first but that the pain had increased over the last couple of weeks. She noted that her right arm condition may be related to "overuse tendonitis" according to her physiotherapist.

In a doctor progress report dated October 3, 2013, the treating orthopedic surgeon stated that the worker had right shoulder pain from the same incident and that an MRI was being arranged.

In a report to the WCB dated October 31, 2013, the orthopedic surgeon stated that the worker did mention to him that her right shoulder was sore when he first saw her on August 15, 2013 but he did not formally investigate it as it was not as bad as the left and the left was the reason for the consultation. As the right shoulder failed to improve with time and exercise, he decided to investigate. The surgeon suspected that the worker may have rotator cuff tendinosis or possibly a rotator cuff tear. He stated he was not sure whether the worker's right shoulder condition was the direct result of her fall.

In a further report dated January 16, 2014, the orthopedic surgeon reported that the worker's right shoulder MRI demonstrated a large rotator cuff repair that was very similar to the one that she had on the contra lateral side and that surgery was planned once the worker's left shoulder motion had normalized.

On January 29, 2014, a WCB medical advisor opined that there was no medical evidence to causally relate the right rotator cuff tear to the left sided tear that occurred as a consequence of the June 19, 2013 workplace fall. This opinion was based on the following findings:

• the lack of evidence-based medical literature to support the development of serious rotator cuff disease in the contralateral limb to the injury side.
• the absence of risk factors known to be associated with rotator cuff disease such as repetitive overhead forceful activity, anatomic variants that predispose to shoulder impingement or scapular or gleno-humeral instability.
• the worker's right shoulder complaints 8 weeks post-injury suggested the presence of pre-existing degenerative right shoulder rotator cuff tendinopathy, rather than associating the right shoulder pain complaints to the left arm injury.
• the proposed surgery would not be authorized as being compensable.

On January 29, 2014, the WCB advised the worker that based on the WCB medical opinion outlined on January 29, 2014, no responsibility could be accepted for her right shoulder difficulties as it was felt that they were not related to her compensable injury.

On June 5, 2014, the worker's union representative asked the case manager to reconsider his decision of January 29, 2014 based on a medical report from the treating orthopedic surgeon dated May 26, 2014. The surgeon stated:

It is difficult to say whether [the worker's] right rotator cuff tear is directly related to her workplace injury. The history of her having a normal shoulder prior to the injury and having it start to hurt afterward is suggestive of this. The findings on the MRI also suggest that the tear is relatively recent with early signs of atrophy that could be related to the delay in getting the MRI, which is at least six months.

However, it is possible that she may have had a preexisting tear that may have gotten larger at the time of her injury or possibly just became symptomatic at the time of her injury as asymptomatic rotator cuff tears are not uncommon. Whether her injury has actually caused the tear is not entirely clear, however, the fact remains that she did not have any symptoms prior to her injury and that is perhaps the more important point.

At the case manager's request, a WCB sports medicine consultant reviewed the file information on June 26, 2014 which included physiotherapy clinical notes and the report from the orthopedic surgeon dated May 26, 2014. The medical advisor concluded that the new medical information did not warrant a change to the WCB medical opinion outlined on January 29, 2014.

On June 27, 2014, the worker was advised that it was still the WCB's opinion that her right shoulder difficulties were unrelated to the workplace accident of June 19, 2013.

On July 24, 2014, the orthopedic surgeon provided the WCB with a copy of the operative report related to the worker's right shoulder surgery performed on June 17, 2014. The surgeon stated:

My conclusions from the intraoperative findings are that [the worker] likely sustained an acute propagation of her chronic rotator cuff tear at the time of her workplace injury. She did not have any shoulder symptoms prior to the injury and their findings (sic) consistent with an acute event at that time. She may not have noticed the right shoulder pain since the left shoulder gave her more significant pain and acted as a distracting injury. I do feel it is likely that she had a chronic tear of significant size in the right shoulder prior to her injury as it is well known that rotator cuff tears are often asymptomatic, particularly when they are chronic and degenerative in nature. She did have an acute worsening of her shoulder symptoms after the injury, however, which is consistent with the operative findings.

The subscapularis tear was not identified on the preoperative MRI. It was noted in the MRI that she had a small partial thickness tear of the subscapularis, which was found to be incorrect at the time of surgery.

On August 5, 2014, the WCB sports medicine consultant commented as follows with respect to the medical report of July 24, 2014:

There is no new diagnosis on file. The diagnosis remains to be a recovering left rotator cuff tear corrected with surgery. The right rotator cuff tear has not been related to the compensable injury. The report from the treating orthopedic surgeon does not add any new information. The relation of interoperative findings to the acuity of the condition would be speculative. The mechanism of injury (fall to the left elbow) does not support a right rotator cuff tear. On a basis of probabilities, the symptomatic right rotator cuff tear would be likely related to degenerative findings rather than the compensable injury.

In a decision dated August 6, 2014, the worker was advised that no change would be made to the previous WCB decision that her right shoulder difficulties were unrelated to her compensable injury based on the medical opinion outlined on August 5, 2014. On September 19, 2014, the worker's union representative appealed the August 6, 2014 decision to Review Office.

On November 17, 2014, Review Office considered the file information along with further submissions made by the accident employer's representative dated October 24, 2014 and by the worker's union representative dated November 7, 2014 and it determined that the worker's right shoulder issues were not related to the June 19, 2013 workplace accident.

Review Office noted that the worker fell onto her left elbow and there was no evidence to support that the worker injured her right shoulder at the time of the accident. The first mention of right shoulder difficulties was when she saw the surgeon on August 15, 2013. Review Office indicated that it accepted the WCB medical opinions dated January 29, June 26 and August 5, 2014. Review Office also stated that it was unable to identify medical information to support the surgeon's comments that the worker's subscapularis tear was acute or that the pre-existing right shoulder findings were enhanced as a result of the accident. On November 24, 2014, the worker's union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

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. (emphasis added)

WCB Policy 44.10.20.10, Pre-Existing Conditions (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 position:

The worker attended the hearing and was assisted by two union representatives. It was submitted that the worker suffered an injury to her right shoulder during the workplace accident. She had been symptom free with no difficulties in her shoulders prior to the accident, and was completely unaware of a chronic tear in her right shoulder. She identified the right shoulder concerns in a timely manner to the WCB, employer, her physiotherapist and her surgeon.

In the alternative, the panel was asked to consider a secondary injury to the right shoulder as a direct result of the compensable accident as the worker was required to rely on her non-dominant arm while awaiting surgery on her left arm. This reliance on her right arm to complete tasks of daily living caused tears and/or worsened the pre-existing tear in her right shoulder. It was submitted that on a balance of probabilities, had the accident not occurred, the worker would not have had any difficulties with her right arm nor would the pre-existing tear have been a disabling condition.

At the hearing, the worker stated that she believed that her right shoulder difficulties were related to the fall in June 2013. She had been a very active person with a stringent workout program which involved lifting hand weights. She had no previous issues with her shoulders and she believed that she tore her shoulder in the fall. Then later, as her post-operative recovery progressed, her right shoulder became more and more unstable. While her surgeon originally talked about doing the surgery a year after her first surgery on the left side (i.e. in September 2014), in April 2014 he stated that the shoulder was so unstable that if they did not repair it sooner, he would not be able to repair it. As a result, the right shoulder surgery was performed in early June 2014.

Employer's position:

The employer was represented an advocate. The employer's position was that it agreed with the WCB's decision to reject responsibility for the worker's right shoulder condition. It was submitted that the medical evidence pointed to a non-compensable cause for the worker's right rotator cuff tear. Initially, the work accident resulted in a left sided shoulder/arm injury with no suggestion of a right sided problem. While the worker did mention she had right shoulder pain shortly after the accident occurred, the mechanism of injury did not support that the accident would have resulted in a right sided injury. Furthermore, the right shoulder issues did not appear to be of significance until several months later.

Overall, it was submitted that the evidence did not support that the right shoulder condition was caused by the work accident and injury of June 19, 2013. In fact, the medical evidence demonstrated that the right shoulder injury was degenerative in nature and was unrelated to the compensable injury. As such, there was no basis to alter the decision already made by the WCB.

Analysis:

The issue before the panel is whether or not the worker's right shoulder difficulties are a consequence of the June 19, 2013 compensable accident. In order for the appeal to succeed, the panel must find that the effects of the worker's compensable left shoulder injury caused or contributed to the worker's right shoulder difficulties. On a balance of probabilities, we are able to make that finding.

In the panel's opinion, the evidence does not support the finding that the worker suffered a right rotator cuff tear when she fell on the stairs on June 19, 2013. The mechanism of injury of a left sided fall is not consistent with a right-sided tear injury and the MRI findings would suggest a pre-existing condition given the retraction and moderate atrophy with early fatty infiltration. The letter dated July 24, 2014 from the treating surgeon acknowledged that the surgical findings identified a large chronic rotator cuff tear, but indicated that his conclusion from the intra-operative findings was that the worker likely sustained an acute propagation of a chronic rotator cuff tear.

On a balance of probabilities, the panel finds that the worker had a pre-existing chronic rotator cuff tear which was aggravated by increased right arm usage as a result of the compensable left shoulder injury, particularly in the post-surgical period after the left shoulder surgery. The aggravation adversely affected the chronic but asymptomatic right rotator cuff tear and made necessary surgery on the pre-existing condition. As such, the worker suffered an enhancement of her right shoulder condition, for which she is entitled to benefits. In coming to this conclusion, the panel relied on the following:

• The panel accepts the worker's evidence that she was active with no problems in her right shoulder before the accident and that she noticed increasing right shoulder pain as she started to use her right arm more extensively due to disability on the left.
• Prior to the worker's left shoulder surgery on September 6, 2013, she still had some limited use of her left arm, so long as she kept her arm tucked against her body. After the surgery, her left arm was completely immobilized and so the worker began to exclusively use her right arm to carry out activities of daily living.
• Further investigation of the right shoulder by way of MRI was ordered by the treating surgeon on September 30, 2013. This was the worker's first post-operative appointment with the surgeon following the left surgery. The panel finds that this timing is consistent with a noticeably worsening condition resulting from increased right-sided use.
• At the hearing, the worker was asked to describe the increased use of her right arm after the left surgery. In addition to daily housework tasks, including emptying the dishwasher and putting dishes on upper shelves, the worker described physiotherapy exercises directed at rehabilitating the left shoulder which required her to use her right arm to passively lift her left arm up and over her head. The worker demonstrated the movements and the panel notes that this exercise required the worker to repetitively raise her right arm over shoulder height while under load (i.e. the weight of her left arm). She would perform this exercise for twenty repetitions per day.
• The panel also notes that in the post-surgical period, the worker was engaged in a significant amount of work-related travel which required her to frequently pack and lift bags. Her evidence was that she switched from one suitcase to travelling with many small bags which she had to load and unload from the trunk of her vehicle. The travel also requested the worker to use her right arm to steer for 6-8 hours each way.
• The panel accepts that the worker was engaged in activities that were consistent with the development of rotator cuff disease. This would especially be so in the environment of pre-existing degeneration which was present in the worker's right shoulder.

Based on the foregoing, the panel is satisfied on a balance of probabilities that the worker suffered an enhancement of her pre-existing right chronic rotator cuff tear. As such, the worker's right shoulder difficulties are a consequence of the June 19, 2013 compensable accident.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of March, 2015