The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was not entitled to benefits after January 29, 2014 with respect to hisleft shoulder condition.   

A hearing washeld on April 30, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits afterJanuary 29, 2014.

Decision

That the worker is entitled to benefits after January 29, 2014.

Decision: Unanimous

Background

During the course of his employment on August 25, 2013, the worker reported that he had passed out due to heat exhaustion and he suffered injury to his left shoulder and right leg when he fell. On November 22, 2013, the worker advised the WCB that his right leg swelled up after the accident and he had a big bruise on his left shoulder. The worker's claim for compensation was accepted based on the diagnoses of heat exhaustion and a left shoulder contusion. Medical aid and wage loss benefits were paid to the worker.

On January 22, 2014, a WCB orthopedic consultant opined as follows:

• the initial diagnosis from a work-related incident was given as contusion of the left shoulder and heat exhaustion.
• recovery from heat exhaustion would occur a few days later with cooling and rehydration. A shoulder contusion would recover within four to six weeks.
• the September 24, 2013 left shoulder MRI was not completed because of claustrophobia but the MRI did show a complete tear of the supraspinatus tendon. A previous MRI confirmed that the rotator cuff tear was pre-existing to the injury of August 25, 2013.
• the proposed surgery of the left shoulder was not appropriate in relation to the work injury of August 25, 2013. In my opinion, the WCB should not accept financial responsibility for the proposed surgery.

On January 23, 2014, the WCB determined that further responsibility for the worker's claim would not be accepted as it was felt that the worker's current difficulties were not accounted for in relation to the August 25, 2013 workplace injury. The WCB's decision was based on MRI results dated September 24, 2013 which showed that the worker had a left shoulder rotator cuff tear previous to his compensable injury of August 25, 2013 and a report from an orthopedic specialist who indicated that the rotator cuff appeared to be chronic. The WCB noted that a left shoulder contusion typically resolves within a few weeks and that the information on file did not support an aggravation or enhancement of the pre-existing rotator cuff tear.

The worker underwent surgery to his left shoulder on March 10, 2014. The post-operative diagnosis was a large irreparable left rotator cuff tear and a superior labral tear. A left shoulder MRI report is on file dated July 25, 2013.

On June 17, 2014, the worker's file was reviewed by a WCB medical advisor who stated:

"There is history of prior left shoulder injuries and the MRI prior to the date of the CI (compensable injury) demonstrating full thickness tearing (large) of supraspinatus and tendinopathy of infraspinatus. The identified retraction, "marked atrophy" and associated humeral head subluxation are all indicative of pre-existing rotator cuff degeneration of longstanding. A significant change is not observed between the two MRI's (sic) pre and post CI... There is no evidence that the pre existing cuff degeneration was altered in any material way by the CI."

In a second decision dated June 20, 2014, the WCB advised the worker that it remained of the opinion that he sustained a left shoulder contusion in relation to the August 25, 2013 compensable injury and that the compensable injury was not aggravated or enhanced by the pre-existing rotator cuff tear. Therefore no change could be made to the January 23, 2014 decision ending responsibility for the claim. On September 10, 2014, the worker appealed the decision to Review Office.

On November 21, 2014, Review Office determined that the worker was not entitled to benefits beyond January 29, 2014. Review Office noted that the pre-existing degenerative changes noted on the two MRIs and the surgery report confirms the worker's shoulder issues are long standing. This was provided not only in the diagnostic test results and operative procedure documentation but also in the clinical histories provided. Review Office accepted the June 17, 2014 WCB medical opinion that a material change did not occur following the compensable accident. Given the anecdotal and diagnostic evidence of prior left shoulder issues and the medical opinion that the worker's shoulder was not made worse as a result of the August 25, 2013 fall, the worker's ongoing health problems, need for surgery and/or loss of earning capacity was not related to the compensable accident. Review Office concluded that the worker was not entitled to benefits beyond January 29, 2014. On January 9, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral 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.

The worker has an accepted claim for an injury arising from a August 25, 2013 workplace accident. He is seeking wage loss benefits after January 29, 2014.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

The worker has an accepted claim for an injury arising from a August 25, 2013 workplace accident. He is seeking wage loss benefits after January 29, 2014.

Worker's Position

The worker was self-represented. The worker explained his reasons for appealing Review Office's decision.

He advised that on August 25, 2013, he was working as a flag person on a road construction site. It was a very hot day and because there was a staff shortage, he worked for 5 or 6 hours without a break. He collapsed and passed out. He awoke in an Emergency Room with a bruise on the outside of his left shoulder extending down to his elbow. He has had a loss of function since this date.

The worker advised that prior to the accident he had a shoulder problem but was able to work as a flag person. Before the injury, he performed chores around the home, including raking, cutting grass, and cleaning floors. Now he is unable to do anything with his arm without shoulder pain. Shoulder pain also interferes with his sleep.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker is entitled to benefits after January 29, 2014. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity due to the injury and required medical assistance due to the injury beyond January 29, 2014. The panel was able to make this finding.

The panel finds that the worker sustained an aggravation of his pre-existing degenerative shoulder condition when he fell at work on August 25, 2013. The panel attaches significant weight to the worker's evidence that prior to the workplace injury he was able to work as a flag person and that after the injury he was not able to perform these duties. The panel finds that the worker's left arm/shoulder function was significantly reduced and the reduced function continued after January 29, 2014 as a result of the workplace injury.

The panel has considered the inaccuracies referred to in the file regarding the worker's prior shoulder condition and places little weight on the inaccuracies. At the hearing, the worker acknowledged that he had an MRI of his shoulder shortly before the workplace accident, that he was told that he had arthritis and that he had problems with his shoulder. However, he maintains that before the fall, he could use his shoulder while working as a flag person and that after the fall he could not even hold the flag. This is consistent with the evidence on file. It is this loss of function which forms the basis for the worker's benefits beyond January 29, 2014.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of June, 2015