The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable injury and was not entitled to further benefits. A hearing was held on March 24, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Decision: Unanimous

Background

The worker filed a claim with the WCB on August 28, 2013 for injury to her right arm, shoulder and neck with an accident date of April 1, 2013. The worker attributed her injuries to her job as a server which involved wiping, setting and clearing tables, bringing out food, doing dishes and stocking supplies. The worker also reported that for approximately six years she had had to lean against the cooler door with her right shoulder to open it, as the door had no handles or knobs. She was also constantly reaching up to grab glasses. When wiping down tables on August 5, 2013, she saw that her right hand was swelling up.

In a memo to file dated November 7, 2013, a WCB medical advisor made the following comments:

The a/p has reported a diagnosis of right shoulder strain (May 5 13 report), noting decreased strength of shoulder movement and decreased ROM. In an Oct 15 13 report the a/p noted that [the worker] "has been having issues with her right shoulder over the last two years." A degree of the shoulder issues are proposed to relate at least in part to workplace factors. Aug 28 13 x-ray report noted findings consistent with rotator cuff degeneration.

Based on the information on file a diagnosis of shoulder strain, or more specifically rotator cuff strain seems likely, in the likely environment of pre existing cuff degeneration. With avoidance of provocative activities +/- physiotherapy, this condition often settles over a period of a few to several weeks.

Subsequent information on file showed that the worker attended physiotherapy treatments and received a cortisone injection to her right shoulder on December 10, 2013.

On January 6, 2014, a right shoulder MRI revealed supraspinatus tendinopathy with an associated insertional tear.

On February 3, 2014, the worker was seen at the WCB's office for a call-in assessment. Based on his examination findings, the WCB medical consultant concluded that the right supraspinatus tendinopathy and associated insertional tear were medically accounted for in relation to a degenerative process affecting the supraspinatus tendon, independent of an injury. He noted that the worker described an injury to her right shoulder from impacting her right shoulder to open a cooler door when serving product. The forces associated with this task could not be verified via that day's assessment. Longstanding repetitive firm impact of the upper right lateral shoulder against a firm object would be a mechanism that could contribute to a supraspinatus tendinopathy.

On February 12, 2014, the worker returned to work with the accident employer, performing modified duties.

On April 9, 2014, the worker underwent surgery to her right shoulder. The pre-operative diagnosis was right shoulder rotator cuff tendinopathy with partial thickness rotator cuff tear. The worker went for physiotherapy treatment, and on July 30, 2014, it was determined that she was fit for modified duties with temporary work restrictions. By October 27, 2014, file information indicated that the worker resumed her regular work duties.

On March 24, 2015, the worker advised the WCB that she was still having problems with her right shoulder (pain and crunching sounds) and that certain shoulder movements were difficult for her.

On April 7, 2015, an MRI of her right shoulder showed "Postsurgical changes related to rotator cuff tendon repair" and "No MRI evidence for repair failure."

On May 5, 2015, the treating orthopedic surgeon's report noted that the worker had had persistent rotator cuff subacromial type pain to her shoulder especially with repetitive lifting activities. The surgeon noted that the repeat MRI showed post surgical changes, but the rotator cuff repair was intact with no obvious gap or other signs of repair failure. There was no obvious pathology or abnormalities noted. The surgeon stated:

…I do not see any anatomic reason for ongoing pain. However, this does appear to be continued subacromial/rotator cuff etiology clinically and therefore recommended further rehab/rotator strengthening...

I do not have anything further to offer surgically. Given that it is over one year since the surgery, she is likely at her point of maximal medical improvement.

A WCB orthopedic consultant reviewed the medical information on June 10, 2015. In his opinion, the worker's current presentation was caused by the pre-existing condition in her shoulder rather than the workplace injury. The consultant concurred with the treating orthopedic surgeon that the worker had reached maximum medical improvement ("MMI") and felt that workplace restrictions were no longer required in relation to the workplace injury.

On June 11, 2015, the WCB advised the worker that the file information supported that she had recovered from her work injury and that the current symptoms in her shoulder were the result of a pre-existing degenerative condition. The same information also supported that she had achieved maximum medical improvement from her work injury, that further treatment would not be authorized, and that there were no ongoing restrictions related to her work injury. In July 2015, the worker appealed the decision to Review Office.

On September 9, 2015, Review Office confirmed that the worker was not entitled to further benefits. Review Office found that the worker had a pre-existing history of degeneration in her right shoulder based on the evidence on file. It did not find evidence to support that the pre-existing condition was enhanced as a result of the compensable injury. It noted that the worker returned to her full regular job duties on October 27, 2014 and there had been no further activity recorded on file until March 2015. Review Office found that the worker demonstrated her ability to continue to work her regular job duties for several months without complaint to the WCB and without the need to seek medical attention. This demonstrated that the worker had functionally recovered from her compensable injury.

Review Office found that a relationship had not been established to account for the worker's current right shoulder difficulties in relation to the compensable injury and there was no further entitlement to benefits. In December 2015, the worker 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 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that medical aid will be paid by the WCB for as long as is necessary to cure and provide relief from the injury.

Subsection 39(2) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions, (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states:

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 Policy further provides:

1. 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) Where 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 Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented. She said that she was asking to be compensated based on a permanent injury.

The worker submitted that the current problems with her right shoulder are related to her injury and continue to cause her a lot of pain and difficulty in doing her job and other daily activities. Her shoulder still causes her a lot of pain and trouble and she cannot do her job as she did prior to her injury. There are many things in her daily life which she now needs help with or can no longer do.

The worker said that she did her best to return to fulltime work and to continue working, even though she was in pain. She said that she can only work 13 to 15 hours per week due to her injury, and cannot continue to work in this pain. She has done everything the WCB has asked her to do, and has tried the best she could, but is still very sore and has not returned to her pre-injury abilities. Nothing has been the same since her injury.

The worker noted a letter from her attending physician dated October 23, 2015, where her doctor says that it is clear that she continues to have symptoms in her right shoulder post surgically, that she has evidence of continuing dysfunction, and that these symptoms have primarily been related to the workplace and clearly have not been improving.

The worker referred to several photographs of different areas of the workplace on file and described what she would be doing and the difficulties she would have in those areas. She indicated that there had been no changes in the workplace, and that she continues to work in the same environment and conditions that contributed to her injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find that the worker continues to suffer from the effects of her April 1, 2013 compensable injury. Having carefully considered all of the evidence, and the submissions of the worker, the panel is unable to make that finding.

The panel notes that on November 7, 2013, having reviewed the file and noting that the attending physician had reported a diagnosis of right shoulder strain, the WCB medical advisor provided a diagnosis of rotator cuff strain, in the environment of pre-existing cuff degeneration, and noted that this condition often settles over a period of a few to several weeks.

When a tear was later identified, the WCB accepted responsibility for surgery to repair the tear, which was done in April 2014. Follow-up reports indicate the worker was progressing well, and the MRI done one year later showed no obvious gap or other signs of repair failure. After reviewing the MRI results, the treating orthopedic surgeon concluded on May 5, 2015 that there was no anatomic reason for the worker's ongoing pain, that the worker needed rehab/rotator cuff strengthening, that there was nothing further to offer surgically, and that the worker was "likely at the point of maximum medical improvement." The panel accepts the treating surgeon's report, and further notes that the worker successfully completed physiotherapy treatment post-surgery and was able to return to her regular work duties. In the panel's view, the evidence discloses that the worker had recovered from the acute injury she had suffered to her right shoulder.

The panel further accepts and places significant weight on the June 10, 2015 opinion of the WCB orthopedic consultant who, after reviewing the medical file, including the treating surgeon's report, concluded that:

1. The pre-existing degenerative tendinopathy of the right rotator cuff was recognized as a pre-existing condition. The high grade partial thickness tear at the insertion of the rotator cuff has been surgically repaired. MRI of May 5, 2015, does not demonstrate a persistent or recurrent tear. On balance of probabilities, the current presentation is caused by the pre-existing condition rather than the workplace injury.

2. In the absence of pre-existing degenerative rotator cuff disease, anticipated post-operative recovery would have been achieved within six months. It is considered that the pre-existing degenerative rotator cuff disease was responsible for continuing symptoms after that time.

3. I concur with the opinion of the attending surgeon that MMI has probably been achieved. It is not possible to identify any further treatment that would reasonably be expected to lead to a sustained improvement in function.

The panel considered the worker's evidence with respect to her ongoing problems with her right shoulder and her doctor's comments that her continuing symptoms "have primarily been related to the workplace and clearly have not been improving." The panel places greater weight, however, on the findings and opinions of the worker's treating surgeon and the WCB orthopedic consultant, as noted earlier. The panel acknowledges that the worker has ongoing pain complaints and limitations. We are unable, however, to relate those complaints and limitations to the worker's April 1, 2013 compensable injury based on the evidence.

The panel therefore finds, on a balance of probabilities, that the worker's ongoing right shoulder issues are not related to the April 1, 2013 compensable injury and the worker does not continue to suffer from the effects of that injury.

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 20th day of May, 2016