The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing decisions made by the Workers Compensation Board ("WCB")regarding the worker's entitlement to wage loss and medical aid benefits on histwo compensation claims for injuries occurring on October 1 and December 19,2013.  A hearing was held on July16, 2015 to consider the employer's appeal.

Issue

Injury Date: October 1, 2013

Whether or not the worker's claim for a right rotator cuff tear is acceptable; and

Whether or not the worker is entitled to wage loss and medical aid benefits in relation to his right rotator cuff tear; and

Injury Date: December 18, 2013

Whether or not the worker's claim for a left rotator cuff tear is acceptable; and

Whether or not the worker is entitled to wage loss and medical aid benefits in relation to his left rotator cuff tear.

Decision

Injury Date: October 1, 2013

That the worker's claim for a right rotator cuff tear is acceptable; and

That the worker is entitled to wage loss and medical aid benefits in relation to his right rotator cuff tear; and

Injury Date: December 18, 2013

That the worker's claim for a left rotator cuff tear is acceptable; and

That the worker is entitled to wage loss and medical aid benefits in relation to his left rotator cuff tear.

Decision: Unanimous

Background

Injury date: October 1, 2013

The worker filed a claim with the WCB for a right shoulder injury that occurred on October 1, 2013. The worker stated that he felt a sharp pain like he pulled a muscle in his right shoulder while attempting to pull out trailer extensions.

A doctor first report showed that the worker attended for treatment on October 4, 2013 with complaints of pain in his right shoulder, worse with external rotation, abduction and flexion. The diagnosis was right rotator cuff tendonopathy and a referral was made for physiotherapy treatment.

On November 1, 2013, a second treating physician reported that the worker had been seen twice over the last month for right-sided shoulder discomfort. There was no injury to speak of although the worker suspected it was related to his physical work activities and had noted that his left shoulder was starting to hurt. Following the examination, the physician assessed the worker with probable bilateral rotator cuff tendinopathy of the right greater than left. An MRI was requested.

On November 4, 2013, the worker was seen for an initial physiotherapy assessment. The report stated that the worker related his right shoulder discomfort to pulling/pushing trailer extensions and a sudden episode when a bolt broke. The diagnosis outlined was a rotator cuff strain and a possible, although unlikely, tear.

On November 20, 2013, the worker was seen by the treating physician who reported that the worker still had a fair amount of shoulder pain, more so on the left side. The diagnosis outlined was "Query bilateral rotator cuff tendinopathy versus cervical radiculopathy."

On December 10, 2013, the treating physiotherapist reported that the worker had pain when trying to do tasks above shoulder height or with quick motions. The examination showed good range of motion in both shoulders with muscle tests equal to 4+/5 on the right and 4/5 on the left. An "Impingement Program" for rotator cuffs was recommended.

On January 18, 2014, the worker underwent an MRI assessment of both shoulders and bilateral supraspinatus tendon tears were identified.

On February 28, 2014, the WCB wrote the treating physiotherapist and the treating physician for additional medical information related to the worker's shoulder condition(s) from January 2, 2012 onward. On March 19, 2014, a WCB orthopedic consultant reviewed the new information and provided the following opinion to WCB case management:

• A diagnosis has been made of "rotator cuff strain" of the right shoulder…an x-ray showed degenerative changes (osteoarthritis) of both shoulders. An MRI of the right shoulder…showed a full thickness tear at the insertion of the supraspinatus tendon with retraction…osteoarthritis of the acromioclavicular joint…moderate joint effusion. On the MRI of the left shoulder…there appeared to be a full-thickness tear of the supraspinatus with retraction…atrophy of the supraspinatus muscle…moderate joint effusion. The "Impression" given was bilateral supraspinatus tendon tears.
• In my opinion there is no evidence the findings on the imaging studies noted above are materially related to the injury of October 1, 2013. If the claimant had a shoulder strain it should have resolved by now.
• The current diagnosis appears to be pre-existing supraspinatus tendon tears and degenerative changes of both shoulders. This diagnosis does not appear to be related to the work place injury.
• …there are pre-existing conditions of both shoulders as noted.
• There is no evidence the pre-existing rotator cuff tears with supraspinatus retraction, atrophy and fatty infiltration would have been enhanced by the work-related injury. Fatty infiltration takes some time to develop…In my opinion there could have been temporary symptomatic discomfort by a work injury. Such a discomfort would not last more than 3 or 4 weeks.

By letter dated March 19, 2014, the worker was advised that based on the mechanism of injury, the accepted diagnosis of a rotator cuff strain of the right shoulder, the presence of a pre-existing supraspinatus tear and degenerative changes in his shoulder, the WCB felt he had recovered from the effects of his compensable injury and that his current symptoms were unrelated to the workplace injury of October 1, 2013.

In a consultation report dated March 19, 2014, the worker's orthopedic surgeon stated MRI results showed a right shoulder full thickness supraspinatus tear and the left shoulder showed a large full thickness supraspinatus tear with retraction. Based on his clinical examination, the left shoulder tear was larger in size. The surgeon commented that the bilateral rotator cuff tears were no doubt related to injury at work.

On July 8, 2014, a second WCB orthopedic consultant stated:

The findings of the right shoulder on the x-ray of November 1, 2013, and the MRI of January 18, 2014, would have been pre-existing to the work related incident of October 1, 2013. In my opinion the symptoms were probably related to these pre-ex conditions and therefore these symptoms would have delayed or impaired the claimant's recovery.

On November 3, 2014, Review Office considered the worker's appeal of June 20, 2014 along with a submission by the accident employer's legal representative dated October 2, 2014. Review Office determined that the October 1, 2013 accident contributed to or caused the worker's right shoulder tear and that the worker was entitled to wage loss and medical aid benefits in relation to the injury.

Review Office's decision was based on the finding that the worker had no prior problems with his right shoulder that necessitated an MRI or consultation with a specialist before the October 1, 2013 workplace event. Within four weeks of the accident, an MRI was arranged to rule out other pathology and the results showed a tear to account for the worker's right shoulder symptoms, not simply a strain as accepted by primary adjudication. Review Office noted further that the treating physiotherapist's post-injury query of whether the worker had a tear in the rotator cuff, and the worker's continuous signs and symptoms and repeated work aggravations in the use of his right arm following the October 2013 accident supported their decision that the right shoulder tear was related. Review Office also referred to the comments made by a WCB medical advisor on the worker's December 18, 2013 WCB claim that the right shoulder tear on the MRI was more likely recent as the tear did not show any atrophy.

On November 28, 2014, the accident employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Injury Date: December 18, 2013

The worker filed a claim with the WCB for a left shoulder injury with the accident date of December 18, 2013. The worker described the incident as follows: "I was taking the chains off my semi and I had them on the ground. I was about to throw them in the half ton. I am currently on light duties for a previous claim for my right shoulder. If I work below my waist I'm fine, but if I work above my waist or swing my left arm I get pain. As I was throwing the chains I felt severe pain in my left shoulder. I am right handed."

When seen on January 8, 2014, the attending physician reported that the worker's shoulder was unchanged and he appeared well. An MRI report dated January 18, 2014 revealed rotator cuff tears on both the left and right shoulders.

On February 4, 2014, a WCB medical advisor made the following comments:

The MRI's of Jan 26 (sic) 14 demonstrate rotator cuff tears at both shoulders.

At the left side there is evidence of atrophy of the torn supraspinatus muscle indicating that the tear is not new (ie at least several months old). There is also evidence of prior surgery, likely a previous attempt at cuff repair.

On February 12, 2014, the WCB medical advisor noted:

Considering the nature of the MOI, the presence of old rotator cuff tearing on MRI, and reports of the status of the left shoulder post injury (see PT reports on claim for injury dated October 1, 2013) the diagnosis in relation to the Dec 18 13 ci (sic) is likely left shoulder strain. The rotator cuff tear demonstrated on MRI appears to be old based on the presence of atrophy which takes time to develop.

By letter dated March 7, 2014, the worker was advised of the WCB's decision that he had recovered from the effects of his compensable left shoulder strain and that he was not entitled to any wage loss or medical aid benefits. It was the WCB's position that based on the mechanism of injury and the MRI results, the tear in his left shoulder was not related to the December 18, 2013 injury.

Subsequent file records contain a report from a physical medicine specialist dated February 1, 2014 and a report from a neurosurgeon dated March 19, 2014 noting that the worker required surgery to repair the left shoulder tear.

On April 23, 2014, the worker appealed the March 7, 2014 decision to Review Office. On October 2, 2014, the accident employer's legal representative made a submission to Review Office supporting the decision dated March 7, 2014.

On November 3, 2014, Review Office determined that the worker's left rotator cuff tear was acceptable and that the worker was entitled to wage loss and medical aid benefits after February 23, 2014. Review Office made reference to specific file evidence including the mechanism of injury with report of severe pain to support that the December 18, 2013 work event contributed to the worker's left shoulder tear to the point that he had a loss of earning capacity and required medical aid.

On January 16, 2015, the accident employer appealed Review Office's decision to the Appeal Commission and a 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.

This appeal deals with claim acceptance and the key issue to be determined by the panel deals with causation and whether the worker's bilateral rotator cuff tears arose out of and in the course of his employment.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted, 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.

Policy 44.10.20.10 Pre-Existing Conditions (the "Pre-Existing Condition Policy") sets out the WCB Policy regarding consideration of the relationship of injuries and pre-existing conditions. It provides in part that:

1. (a) When 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 Workers Compensation Board will accept responsibility for the full injurious result of the accident.

…

B. Definitions

1. 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.

2. Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

3. Pre-existing Condition: A condition that existed prior to the compensable injury.

Employer's position

The employer was represented by legal counsel who participated via teleconference and made a presentation to the panel. At the onset of the hearing, the employer's representative stated he was appealing the acceptance of both claims for rotator cuff tears. The panel noted the Review Office decisions had considered and made a finding of claim acceptance in both decisions so the two issues were added to the hearing with the agreement of the worker.

It was the employer's position that they disagreed with the decisions of the WCB to accept the worker's bilateral rotator cuff tears as a consequence of the compensable strain injuries.

In respect of the right shoulder claim, it was submitted that while there were differing medical opinions on the file, the stronger weight of medical evidence suggested that the worker's right shoulder rotator cuff tear predated the date of accident. Likewise there is medical evidence that supports the left side shoulder rotator cuff tear also predated the date of accident.

In the employer's submission, it was noted that the treating physician wrote on a November 1, 2013 chart note that the worker had been seen twice in the prior month for right sided shoulder discomfort, and further, that the worker was not able to identify a mechanism of injury but thought it was related to his heavy work duties.

It was further submitted that an MRI on January 18, 2014 disclosed bilateral tears in each of the right and left shoulders which was reviewed by a WCB medical advisor. The WCB advisor had provided an opinion that the injuries found on MRI were not related to the mechanism of injury on this claim, and that these conditions pre-existed the date of accident. It was stated that the acute injury sustained on this claim (right shoulder) is limited to a shoulder strain that has since recovered.

In respect to the left shoulder claim, employer's counsel submitted that chart notes on the right shoulder claim describe the difficulties that the worker was having with his left shoulder that predate the date of accident by at least a month.

Employer's counsel contended that the MRIs were reviewed by a WCB medical advisor who noted evidence of atrophy and a prior surgery indicating the tear is not new and at least several months old. The WCB medical advisor stated that the rotator cuff tear demonstrated on the MRI of the left shoulder appears to be old based on the presence of atrophy.

It was the employer's position the panel should give greater weight and consideration to the opinions of the WCB medical advisors. The employer stated that the file documents provide enough medical evidence that both the right and left injuries predate the accident, are longstanding, degenerative and not compensable under the legislation.

Worker's position

The worker was self-represented at the hearing and made a presentation and answered questions from the panel. The worker provided the panel with 2 photographs of himself in positions around a semi truck and trailer. The worker also brought one of his load binder chains, approximately 16 feet (5 meters) long and weighed 28.5 lbs (13 kg). With no objection from the employer's representative, the photographs and chain were accepted as exhibits. The photographs were later shared with the employer's representative via email.

The worker stated he had hurt his right shoulder on October 1, and his left on December 18. He noted that after injuring his right shoulder, his left shoulder started getting sore because it was carrying the load of the right shoulder. It was the worker's evidence that there was no prior injury to the left shoulder.

In support of his position, the worker asked the panel to consider the aforementioned pictures showing the activity that led to the right shoulder injury. Also, the worker referred to the actual load chains he was required to lift with his left arm after his right shoulder was torn. The worker stated "the chain was evidence as to the weights his left shoulder had to put up with."

Analysis: