The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from his compensable injury by April 21, 2014 and was not entitled to further benefits. A hearing was held on January 21, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after April 21, 2014

Decision

That the worker is not entitled to benefits after April 21, 2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left shoulder injury that occurred on November 15, 2012. The worker reported that while he was holding the back door of a truck trailer, it blew open because of the wind and jarred his shoulder. The worker indicated that he did not report the accident to his employer until November 16, 2012 as he did not think it was a serious injury at the time. Based on medical reports and confirmation from the employer that the worker reported a shoulder injury on November 16, 2012, the claim for compensation was accepted and benefits were paid to the worker.

On December 21, 2012, the worker underwent an MRI examination of his left shoulder which revealed tendinopathy at the insertion of the supraspinatus and possible partial bursal-sided insertional tear of the supraspinatus. Following referral to an orthopedic surgeon, the worker underwent arthroscopic rotator cuff repair and subacromial decompression on September 16, 2013. The post-operative diagnosis was a high-grade partial thickness rotator cuff tear of the supraspinatus.

In a report dated December 12, 2013, the treating orthopedic surgeon reported that the worker continued to have ongoing pain and stiffness in his shoulder joint despite treatment, and his symptoms were in keeping with postoperative adhesive capsulitis or frozen shoulder.

In a memorandum to file dated February 28, 2014, a WCB physiotherapy consultant documented that he spoke with the treating physiotherapist who reported that the worker was unable to tolerate manual treatment and was unable to get beyond 90 degrees due to reported pain.

On March 18, 2014, the treating orthopedic surgeon reported that the clinical examination and description of symptoms were in keeping with adhesive capsulitis. He recommended the worker not continue with physiotherapy until such time as his shoulder began to thaw.

On April 7, 2014, the worker was seen at the WCB offices for a call-in assessment. Based on his examination findings, the WCB sports medicine consultant was unable to determine a pathoanatomical diagnosis to explain the worker's persisting symptoms, and found that a diagnosis of adhesive capsulitis was not clinically supported. The consultant concluded that without a pathoanatomical diagnosis, he was unable to relate the current presentation to the workplace injury and unable to suggest restrictions related to that injury.

By letter dated April 14, 2014, the worker was advised that based on a review of his file and the April 7, 2014 call-in examination, the WCB was of the opinion that he had functionally recovered from his compensable injury and was unable to accept further responsibility for his injury. Wage loss benefits would therefore be paid to April 21 inclusive and final. On May 16, 2014, the worker appealed the decision to Review Office.

On June 26, 2014, Review Office confirmed that the worker was not entitled to benefits beyond April 21, 2014. Based on the information obtained from the treating physiotherapist on February 28, 2014 and the inconsistencies and pain behaviours noted at the April 7, 2014 call-in examination, Review Office stated that it was unable to account for the worker's current left shoulder issues in relation to his compensable injury.

On September 27, 2014, the worker underwent another left shoulder MRI. The impression from that MRI read as follows:

1. Near full-thickness, bursal sided re-tear of the posterior supraspinatus and anterior infraspinatus tendons, just proximal to the insertion.

2. Mild acromioclavicular joint osteoarthritis.

On November 6, 2014, Review Office asked the WCB sports medicine consultant to review the September 27, 2014 MRI results. In a response dated November 10, 2014, the consultant stated:

Given: i. the writer was unable to determine a (sic) anatomical diagnosis at the call-in examination, ii. the reported repair of the previous rotator cuff tear, iii the reported lack of use of the left shoulder by (the worker), iv. the reported possible adhesive capsulitis that would limit range of motion, and v. no history of an alternate injury.

The writer is unable to explain the presence of new tears on MRI. The writer recommends a third party review of the Sept. 27, 2014 MRI in order to assess these tears.

On December 3, 2014, an independent radiologist was asked by the WCB to review and compare the worker's left shoulder MRIs.

In a response dated December 9, 2014, the independent radiologist stated that he had reviewed MRI examinations dated June 7, 2010, December 21, 2012 and September 27, 2014. He stated, in part:

There is abnormal signal present involving the insertion supraspinatus similar in location to that described on the 2012 examination. Following surgery, there is a definite decrease in the diagnostic accuracy of MRI in diagnosing recurrent or residual rotator cuff tendon tears. Abnormal signal present post-surgically does not necessarily imply a tear. I agree there is abnormal bursal sided signal on this current examination. However, I would interpret the significance of this with caution given the history of previous surgery.

In Claim Notes dated December 15, 2014, the WCB sports medicine consultant noted that the independent radiologist was unable to establish tears in the rotator cuff on a probable basis due to difficult interpretation after surgery and/or motion artifact. It was further noted that the radiologist's report did not alter the opinions provided by the sports medicine consultant insofar as the consultant was unable to establish a pathoanatomical diagnosis.

In a second decision dated February 2, 2015, Review Office advised the worker that based on the abnormal presentation in his examination at the WCB on April 7, 2014 and the questionable MRI findings of September 27, 2014, its position remained that he was capable of resuming his regular duties and was not entitled to benefits beyond April 21, 2014. On August 12, 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 WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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) 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."

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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

Worker's Position

The worker was self-represented and participated by teleconference at the hearing. The worker's position was that his ongoing shoulder difficulties are related to his November 15, 2012 compensable injury.

The worker submitted that it was during the surgery in September 2013 that the extent of what had happened from the first tear was found. The second tear did not appear on the first MRI because the surgery had not yet been done. As his treating physician had said, you cannot see everything that is there. They were able to find the problem during surgery, and dealt with it as well as they could, hoping that would do.

The worker submitted that he was diagnosed with adhesive capsulitis by his treating orthopedic surgeon, and it has not resolved. He asked that greater weight be placed on the opinions of his treating orthopedic surgeon who is a specialist and also his attending physician, who has seen him physically and has been looking after him.

The worker stated that after April 2014, he saw his treating orthopedic surgeon who ordered another MRI that showed the second tear. He provided that evidence to the WCB to support a request for reconsideration. The WCB sent the information out for reassessment, but the reassessing doctor did not see a tear, and his request for reconsideration was denied.

The worker submitted that he has done everything his doctors and physiotherapists have told him to do. He said that even though he knew he still had a problem, he had to go back to work in February 2015. He managed to continue working until the first part of September, 2015, only to reinjure his shoulder. He said that a recent MRI shows he now has a third tear in the same shoulder, and is looking at more surgery on the shoulder.

The worker submitted that his doctor has advised that he has capsulitis, but nobody else seems to want to see this. He has a specialist saying that there is a problem, and that they need to give his shoulder time to heal.

Employer's Position

The employer was represented by its office manager, its vice president, and an advocate. The employer's position was that the Review Office decision was appropriate, and the weight of the evidence does not support that the worker's left shoulder symptoms are related to his compensable left shoulder injury of November 15, 2012.

It was submitted that:

• there was evidence of a pre-existing condition involving the left shoulder that could, on its own, possibly account for the worker's ongoing symptoms;

• the work-related injury in November 2012 was considered minor. This was supported by the December 2012 MRI, which referred to concern for a small partial bursal sided tear, commenting that this was not definitive;

• by the time the worker had shoulder surgery in September 2013, this tear had changed in size and location;

• between the surgery and the second MRI, in September 2014, the tear had moved again and was larger and, as acknowledged by the worker, was a different tear. The worker had not been at work, which would suggest that if there was a new tear, it happened from a new incident or other cause that was not related to his employment;

• if the 2014 MRI is interpreted as confirmation that the left shoulder has changed and worsened with a new tear of the rotator cuff tendon since the original minor compensable injury, it would be due to non-compensable reasons as the worker was absent from the workplace;

• the WCB medical advisor could not explain the worker's ongoing symptoms post-surgery with a pathoanatomical diagnosis, due to inconsistent clinical findings;

• the treating orthopedic surgeon has conceded that the reported symptoms are not likely due to any new minor tear in the rotator cuff and are more likely due to capsulitis or frozen shoulder. The majority medical opinion (from the WCB medical consultant and independent radiologist) does not, however, support this as a diagnosis;

• although the December 2015 MRI report was not available, the worker has advised there is a third tear, which would have occurred after he had worked at other jobs involving driving;

• the worker has also advised that the December 2015 MRI indicates that the second tear, which was possibly documented in the September 2014 MRI, appears to have healed.

In conclusion, it was submitted that the worker's compensable injury was healed long ago, and before his benefits were terminated on April 2014.

 

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after April 21, 2014. For the appeal to be successful, the panel must find that the worker's medical condition was related to the injury he sustained in the November 15, 2012 work-related accident. The panel is unable to make that finding.

In reaching that conclusion, the panel places considerable weight on the WCB medical consultant's report of his call-in examination of the worker on April 7, 2014. The consultant reported that there was no atrophy in the worker's left rotator cuff musculature, and documented numerous inconsistencies in test results. The consultant concluded, in part:

Given today's examination, the writer is unable to determine a pathoanatomical diagnosis to explain the persisting symptoms. This is based on the noted inconsistencies on clinical examination and the lack of significant progress after presumably correcting the possible pain generators via surgical intervention. There is (sic) inconsistent clinical findings. A diagnosis of adhesive capsulitis is not able to be clinically supported given today's examination.

The panel accepts the WCB medical consultant's conclusion that a diagnosis of adhesive capsulitis was not clinically supported. The panel notes that repetitive testing was done on the same areas in the course of the examination, yielding different and inconsistent results. The panel accepts that the consultant's findings of no atrophy, and that good range of motion with the lack of confirming test results some 7 months after surgery, indicated that the worker's functioning range of motion was not consistent with frozen shoulder.

The panel further accepts that the WCB medical consultant looked for but did not establish any pathoanatomical diagnosis to explain the worker's ongoing symptoms, and that without a diagnosis, he was unable to relate the current presentation to the workplace injury and could not suggest limitations or restrictions as related to that injury.

The panel also places weight on the independent radiologist's determination, based on his review and comparison of the 2012 and 2014 MRIs, that he was unable to establish that there were tears in the rotator cuff. The panel notes that the WCB medical consultant subsequently reviewed the independent radiologist's report and found that it did not alter his conclusion that he was unable to establish a pathoanatomical diagnosis to explain the worker's symptoms.

The panel further notes that the reference in the 2014 MRI to a tear of the infraspinatus tendon is new and in a different anatomical location from the original injury. Given that it did not appear earlier and that the worker had been off work throughout the intervening time period, there is nothing to suggest to the panel that such a tear could be related to the compensable injury.

The panel has also considered the December 7, 2015 MRI findings. At the hearing, the worker provided an update on his status and medical condition and responded to questions from the panel. He said that in February 2015, he returned to work driving a truck for two companies. He continued working until September 8, 2015, when he reinjured his shoulder backing into a worksite.

The worker indicated that he then sought medical care, including a visit with the treating orthopedic surgeon, who ordered another MRI of his left shoulder. He filed a claim with the WCB with respect to that injury, which was accepted.

The worker confirmed that he underwent an MRI of his left shoulder on December 7, 2015. The worker had obtained a copy of the results of the December 7, 2015 MRI, and read the impression portion of the MRI into the record at the hearing, as follows:

1. Partial moderate to high grade bursal sided tear involving anterior fibers of the supraspinatus tendon at the footprint. This appears to be more anterior than the previously noted bursal sided tear, which is no longer confidently identified.

2. Mild to moderate osteoarthritis in the AC joint.

3. Mild subacromial/subdeltoid bursitis.

The panel notes that due to the worker's intervening accident and injury in September 2015, the tear which is referred to in the report of the December 7, 2015 MRI cannot be related to the November 15, 2012 compensable injury. The panel also notes that the results of the 2015 MRI again indicate that "the previously noted bursal sided tear" could not be identified.

In conclusion, the panel finds, on a balance of probabilities, that as at April 2014, the worker's left shoulder issues or difficulties were not related to his November 15, 2012 accident and compensable injury. The panel recognizes that the worker has ongoing pain complaints and limitations, but is unable to relate those complaints and issues to his November 15, 2012 compensable injury.

As a result, the worker is not entitled to benefits after April 21, 2014.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 18th day of March, 2016