The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the decision made by the Workers Compensation Board ("WCB")that his left rotator cuff tear was not the result of his compensable injury onJune 20, 2013.   Ahearing was held on June 8, 2015 to consider the matter.

Issue

Whether or not the worker's left rotator cuff tear injury isas a result of the June 20, 2013 compensable accident.

Decision

That the worker's left rotator cuff tear injury is a resultof the June 20, 2013 compensable accident.

Decision: Unanimous

Background

The worker filed a claim with the WCB on January 15, 2014 for a left shoulder injury that occurred on June 20, 2013. The worker reported: "I was loading a work bench in my truck and one of the legs broke off and fell back striking me on my left shoulder." The worker indicated that he did not see a doctor for a couple of months as he thought his shoulder was bruised. When he did see a doctor, he was given some cream and was then referred for an MRI exam.

In January and February 2014, the worker spoke with a WCB adjudicator regarding the 2013 work accident. The WCB also contacted the employer and a witness regarding their knowledge of the 2013 work accident and the worker's reporting of a left shoulder injury.

Medical information showed that the worker sought medical treatment on September 12, 2013 and was diagnosed with a rotator cuff injury. At his next appointment on October 28, 2013, the diagnosis was rotator cuff tendonitis.

On February 20, 2014, the worker underwent a left shoulder MRI which showed:

"High-grade bursal sided tearing of the footprint of the supraspinatus tendon on a background of tendinosis. Moderate grade articular sided tearing of the subscapularis tendon."

In a decision dated March 4, 2014, the worker was advised that the WCB was unable to accept his claim for compensation. The WCB stated that it was unclear whether the worker's actions on the alleged date of accident were related to the operation of his business or to personal reasons. After reviewing the reported mechanism of injury and the worker's report of symptoms, it was highly unlikely that an acute tear of the rotator cuff would have occurred. Given the degenerative changes confirmed on the MRI report, the WCB's position was that the partial thickness tearing was probably related to degenerative changes. On June 2, 2014, the adjudicative decision was appealed to Review Office by a worker advisor, acting on the worker's behalf.

On August 15, 2014, Review Office determined that the claim for compensation was acceptable as it found that the worker was performing activities incidental to his employment and that a causal connection to his employment had been established. Review Office also stated that the case was being referred back to Compensation Services to decide whether a relationship existed between the MRI findings of February 20, 2014 and the worker's June 20, 2013 compensable accident.

In a further decision dated September 8, 2014, Compensation Services advised the worker that his claim for compensation had been accepted for a left shoulder contusion but not for a left rotator cuff tear. The WCB's position was that the June 20, 2013 mechanism of injury would not lead to an acute tear of the rotator cuff but was probably related to degenerative changes in his shoulder. On November 25, 2014, the worker appealed the decision to Review Office.

On January 19, 2015, Review Office determined that the worker's left shoulder rotator cuff tear was not compensable. Review Office noted that work-related tears often occur when a worker falls on an outstretched hand or when he or she is lifting something heavy and there is a twisting motion involved. Neither of these mechanisms of injury were described by the worker. Review Office concluded that a table leg falling onto the worker's left shoulder was not consistent with a tear injury.

On January 26, 2015, the worker's case was again considered by Review Office based on a December 23, 2014 report from a surgeon who outlined the following medical opinion: "On a balance of probabilities I feel that it is likely that your tear either began or was aggravated at the time of your workplace injury, and at a very minimum became symptomatic as a result of your injury."

Following review of all the file information which included the December 23, 2014 medical report, Review Office upheld its previous decision that the worker's left shoulder tear was not compensable. On February 17, 2015, a worker advisor 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 Act, regulations and the policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The worker has an accepted claim for an injury to his left shoulder. He is appealing the WCB Review Office decision that his left rotator cuff injury is not related to his June 20, 2013 compensable injury.

Worker's Position

The worker was represented by a worker advisor who submitted that the prior decisions by the WCB and Review Office are based upon a misunderstanding of the mechanism of injury. The worker advisor stated:

An assumption that the worker could not have continued working with symptomatic rotator cuff tearing, as well as the opinion of a WCB medical consultant which, we submit, the panel should not attach significant weight to.

On the other hand, we submit the worker’s rotator cuff tearing, initially confirmed on MRI, and later observed at the time of surgery, is causally connected to the June 20, 2013 workplace accident.

We propose that the panel consider acceptance of this injury, either on the basis that the accident itself caused the tearing, that the accident caused further tearing on top of degenerative pre-existing tearing, or conversely if the panel determines that the tearing pre-existed the workplace accident, that the accident made an asymptomatic condition symptomatic, resulting in the need for surgical repair.

Beginning with the injury mechanism, we note the review office stated, and I’m quoting, “a light object, like a table leg, falling a short distance and striking the shoulder directly is not consistent with a tear type injury.”

The worker provided a detailed description of the accident. He said that he was lifting the table which he made into a work bench. He said it was made from three quarter inch plywood, had steel legs and weighed about 50 pounds. He was sliding it up over the side of his truck to push it into the box. As he was lifting by the bottom, the legs were sticking out towards him and when he got it up to the height that he was going to push into the box, the bottom legs broke off. So the top legs were above him and the table came sliding back, and it hit him on the shoulder. The worker said that it wasn’t like just a leg breaking off and hitting him in the shoulder, it was the whole weight of the table that hit him.

The worker advisor commented that the Review Office seems to imply that had the accident caused an acute tear, the worker likely would have sought medical treatment much sooner than he did due to difficulty, or an inability to perform his work. He submitted, this determination is flawed because even after a symptomatic rotator cuff tearing was later confirmed, the worker continued working until the day before his left shoulder surgery because he was not impaired from doing so. He also noted that in an earlier claim file, for which the WCB accepted responsibility for an acute right-sided rotator cuff tear, the worker continued working following that injury as well, for a period of approximately nine months, leading up to surgery for his right shoulder. This was despite the fact that the right shoulder MRI demonstrated tearing seemingly larger than that found on the left shoulder.

Regarding the medical evidence, the worker advisor noted that a rotator cuff injury was queried at the first examination on September 12, 2013, and complaints of left shoulder pain are documented in chart notes for subsequent appointments thereafter. He also noted that the results of the February 20, 2014 left shoulder MRI appear consistent with those identified in the January 22, 2015 operative report.

The worker advisor asked the panel to accept the opinion of the treating orthopedic specialist who opined that most tears are acute-on-chronic, meaning that a person with degenerative-type tearing can sustain further tearing from external trauma, or that an external trauma can make an asymptomatic degenerative tear symptomatic. He also noted that the orthopedic specialist, who had a more accurate understanding of the injury mechanism, states the accident likely either caused further tearing, or caused it to become symptomatic.

In reply to a question, the worker advisor confirmed that the worker's appeal is in relation to both tears that are noted on the MRI.

Employer's Position

The worker is self-employed.

Analysis

This appeal deals with whether the worker's left rotator cuff tear injury is a result of the June 20, 2013 compensable accident. For the worker's appeal to be approved, the panel must find that the worker tore his left rotator cuff or enhanced a pre-existing tear of his left rotator cuff when he was injured on June 20, 2013. The panel finds on a balance of probabilities, that the worker's shoulder condition was enhanced as a result of a workplace injury.

In reaching this decision, the panel attaches significant weight to the evidence provided by the worker at the hearing, specifically the description of the mechanism of injury and the description of symptoms.

In answer to questions from his representative and the panel, the worker provided a detailed description of the mechanism of injury. He described the workbench he was lifting as a 36 inch by 48 inch table made from double 3/4 inch plywood with hollow metal legs. He estimated the weight of the bench at 50 pounds. He said that he intended to throw the table over the side of his truck which he estimated was about five feet in height. He said that as he was pushing the table by the lower legs, the lower legs broke-off causing the table to fall downward with the left upper leg striking him on the left shoulder. The weight of the table hit his left shoulder at the joint.

The panel finds that the mechanism of injury provided by the worker is consistent with the worker's symptoms and the injury sustained by the worker. In particular, the panel finds that the acute blow to the shoulder enhanced the worker's pre-existing left shoulder condition. The panel also finds that given the worker's prior experience with a shoulder injury, his delay in seeking medical treatment was not unreasonable.

The panel has considered the medical information on file and accepts the opinion of the orthopedic specialist who treated the worker and is familiar with this type of injury. The panel notes the December 23, 2014 opinion of the specialist that:

"A high grade partial-thickness tear such as the one that you have is perfectly in keeping with this type of mechanism. The presence of acromioclavicular osteoarthritis is not associated with rotator cuff pathology and is actually irrelevant to this discussion.

However, on balance of probabilities, I feel that it is likely that your tear either began or was aggravated at the time of your workplace injury, and at a very minimum became symptomatic as a result of your injury and this is the important key."

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of July, 2015