The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB') thathe was not entitled to benefits beyond March 31, 2015 with respect to his leftshoulder difficulties.  A hearingby teleconference was held on December 3, to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits afterMarch 31, 2015.

Decision

That the worker is entitled to benefits afterMarch 31, 2015.

Decision: Unanimous

Background

On June 10, 2014, a tractor the worker was driving slid off the road into a ditch and flipped on its side causing the following compensable injuries:

• left pneumothorax
• left renal contusion
• spleen contusion
• left shoulder strain
• cervical and thoracic sprain/strain

With respect to the left shoulder condition, file records show that the worker underwent chiropractic treatment starting in July 2014 and that his left shoulder complaints did not subside. In September 2014, the worker advised the WCB that he also injured his right shoulder while working on the family farm because of over-compensating for his left shoulder complaints.

A Chiropractor's First Report dated December 2, 2014 diagnosed the worker with chronic left rotator cuff/bicipital tendinitis. In a further report dated December 9, 2014, the chiropractor added an additional diagnosis of a possible tear of the rotator cuff complex.

On February 23, 2015, an MRI of both shoulders was performed which revealed:

No significant abnormalities are identified about the right shoulder. The findings about the left acromioclavicular joint suggest recent trauma to the acromioclavicular joint. Correlation with the patient's clinical symptoms is suggested. No rotator cuff abnormalities are identified about either shoulder.

In a report dated March 11, 2015, an orthopedic surgeon reported that the MRI findings did not suggest rotator cuff tear or tendinopathy in either shoulder. He found that the worker had hyperlaxity syndrome and that there was no good surgery designed for this. He felt that conservative treatment was appropriate such as strengthening exercises and losing weight.

On March 24, 2015, a WCB consultant opined that the worker's current presentation of his left shoulder was not accounted for in relation to the workplace injury. The MRI of the left shoulder was essentially normal. The hyperlaxity syndrome of the left shoulder described by the orthopedic surgeon was a pre-existing condition and was not related to the workplace injury. The medical advisor indicated that there were no restrictions for the left shoulder in relation to the compensable injury.

On March 24, 2015, the worker was advised by Compensation Services that no responsibility could be accepted for his right shoulder symptoms and complaints based on the following factors:

• the worker did not report any right shoulder issues to the WCB or to his chiropractor until 3 months after the workplace injury.
• the worker reported a specific incident or accident that took place on the family farm in September 2015 (he was not working for the accident employer at the time of this incident).
• the MRI findings related to his right shoulder were normal and there was no medical diagnosis for his right shoulder.

Regarding the worker's left shoulder complaints, Compensation Services referred to and accepted the WCB medical opinion outlined on March 24, 2015 that the left shoulder MRI was essentially normal and that the hyperlaxity syndrome of the left shoulder was a pre-existing condition. There were no restrictions related to his left shoulder in relation to the compensable injury. The worker was advised that full wage loss benefits would be paid up to and including March 31, 2015.

On April 24, 2015, the worker appealed the above decision to Review Office. On May 7, 2015, the worker advised Review Office that he was only appealing the decision to deny responsibility for his left shoulder complaints.

In a decision dated May 19, 2015, Review Office determined there was no entitlement to benefits beyond March 31, 2015. Review Office considered the file evidence and found that the worker had recovered from the effects of his compensable injuries sustained on June 10, 2014. Based on x-ray results, MRI findings and the absence of neurological findings, Review Office found that the compensable diagnosis related to the left shoulder was a strain/sprain and that recovery from such an injury was of short duration. Review Office indicated that the workplace accident did not create any residual effect or structural change to the worker's pre-existing condition (hyperlaxity syndrome) and that any difficulties associated with the pre-existing condition and recommended treatment plan and time loss from work was not related to the workplace injury. On June 16, 2015, the worker 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.

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 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. 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 resulting from the accident ends.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Conditions Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:

The Workers Compensation Board 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 Pre-Existing Conditions Policy further provides:

WAGE LOSS ELIGIBILITY

(a) When a worker’s loss of earning capacity is caused in part by a compensable injury 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 compensable injury.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The Worker’s Position:

The worker was self-represented and participated in the hearing by teleconference.

It was submitted that responsibility should be accepted for the worker’s injury and the worker should be entitled to benefits beyond March 31, 2015.

The worker provided a detailed narrative of the accident and mechanism of injury. Although he recovered fairly uneventfully from the majority of his injuries following the accident, he has continued to suffer difficulties with his left shoulder, including weakness, lack of strength and numbness. He does not agree that his ongoing problems with his left shoulder relate to a pre-existing condition that was unrelated to the accident as he has not had any difficulties with his shoulder in the past and had never been previously advised that he had a shoulder injury.

The Employer’s Position:

The employer did not participate in the hearing.

Analysis:

The issue before the panel is whether responsibility should be accepted for the worker’s left shoulder difficulties after March 31, 2015. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker’s on-going shoulder difficulties are related to his workplace accident. The panel was able to make this finding.

At the hearing, the panel was provided a detailed narrative of the accident and mechanism of injury. At the time of the accident, the worker was thrown from the window of the farm tractor he was operating as it rolled into the ditch. He landed on his left side, with the tractor partially on top of him. The accident was significant and the injuries fairly extensive, including multiple internal injuries, a collapsed lung, dislocated rib, spinal injuries and an injury to the worker’s left shoulder. Although most of the worker’s injuries have since resolved, the worker continues to suffer from shoulder difficulties.

The medical evidence suggests that the worker’s shoulder condition, hyperlaxity syndrome, was pre-existing at the time of the accident. The panel finds, however, that the condition was not symptomatic prior to the accident and did not interfere with the worker’s ability to work and function. Since the accident, the evidence reveals that the worker’s left shoulder symptoms, including lack of strength and function, have been consistent and continuous. The worker has attempted a return to work and has worked as best as he has been able. His symptoms, however, have not fully resolved and he has not returned to his pre-accident state.

Given the continuity of loss of function and symptoms, the panel finds, on a balance of probabilities, that the worker has, at a minimum, aggravated his pre-existing condition through a traumatic mechanism of injury and that the aggravation continued to affect his shoulder after March 31, 2015. The panel is unable to make a finding of enhancement as there is no medical opinion on the file in this regard, and is yet to be considered by Compensation Services.

Based on the foregoing, we find that responsibility should be accepted for the worker’s left shoulder difficulties and the appeal should be allowed. The extent of the worker’s wage loss and other benefits are to be determined by the WCB.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer

Signed at Winnipeg this 28th day of January, 2016