The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her left shoulder condition is not a consequence of the October 24, 2014 workplace accident. A hearing was held on April 19, 2016 to consider the worker's appeal.

Issue

Whether or not the worker's left shoulder difficulties are a consequence of the October 24, 2014 workplace accident.

Decision

That the worker's left shoulder difficulties are not a consequence of the October 24, 2014 workplace accident.

Decision: Unanimous

Background

On October 24, 2014, the worker reported that her foot got caught on the rubber mats outside of a building and that she fell face down landing on her front right side. The worker reported that she did not remember injuring her face in the fall but had severe pain in her right shoulder and arm. She also reported immediate numbness from her fingertips up to her right shoulder.

Initial medical reports showed that the worker was assessed with brachial plexus neuropraxia and further tests were ordered to rule out a rotator cuff tear. The worker attended a physiotherapist on October 30, 2014 and underwent an MRI of her right shoulder on November 7, 2014. The findings of the MRI revealed a large full-thickness insertional tear supraspinatus and infraspinatus.

The claim for compensation was accepted and benefits and services were paid. On December 19, 2014, the worker underwent shoulder surgery and the post-operative diagnosis was "Right shoulder traumatic supraspinatus and infraspinatus tendon tear, biceps tendon subluxation and partial thickness subscapularis tear."

On March 10, 2015, the treating physiotherapist reported that the worker complained of lifting and pushing difficulties with her left arm as well as an achy and spasm-like feeling. The diagnosis outlined was left impingement syndrome.

On April 1, 2015, the treating orthopedic surgeon reported that the worker's right shoulder was coming along well with physiotherapy and the main thing that was holding her back was pain in her left shoulder which started about six weeks prior. His impression of the worker's left arm condition was acute biceps tendinitis.

A WCB sports medicine advisor reviewed the file on April 20, 2015. He stated that the criteria for the development of a left shoulder biceps tendonitis as a result of the right shoulder post-op recovery included the performance of activities requiring frequent repetitive resisted left shoulder/arm flexion. Based on the medical reports, there was no evidence to support the development of left shoulder issues as a result of the right shoulder condition.

On April 23, 2015, the worker was advised that the WCB was not able to accept responsibility for her left shoulder complaints as it was felt that this was not related to her right shoulder claim. On May 29, 2015, the worker appealed the decision to Review Office.

On July 20, 2015, Review Office determined that the left shoulder difficulties were not related to the right shoulder compensable injury. Review Office made reference to the worker's submission that she reported to her physiotherapist on February 5, 2015 that she began to experience a lot of difficulty with her left arm during tubing and stretching exercises while at physiotherapy and at home in her daily activities. The worker noted that the physiotherapist and orthopedic surgeon both supported that her left shoulder condition was related to overuse.

Review Office indicated that the worker's difficulties with her left (dominant) shoulder/biceps area began on or around February 5, 2015, which was approximately seven weeks post right shoulder surgery. It noted that the evidence did not show that the worker sustained an injury to her left shoulder/biceps at her initial visit on February 2, 2015 or at her treatment on February 5, 2015.

Review Office also placed weight on the opinion of the WCB medical advisor dated April 20, 2015 that there was no evidence to support the development of left shoulder issues as a result of her right shoulder condition. While it acknowledged that the worker had left shoulder/bicep difficulties and that certain activities caused her pain, Review Office found that the criteria set out in Board Policy 44.10.80.40 had not been met.

On October 5, 2015, Review Office considered a further appeal from the worker which included the following additional medical information to support that her left shoulder condition, diagnosed as a rotator cuff tear, was related to the fall of October 24, 2014:

• a report of an MRI of the worker's left shoulder dated July 20, 2015;

• a report from the treating orthopedic surgeon dated August 12, 2015;

• a report from the treating sports medicine physician dated August 20, 2015;

• a report from the treating physiotherapist dated September 1, 2015.

Based on its review of the new information and the initial reporting of the mechanism of injury that occurred in October 2014, and the reasons set out in the July 20, 2015 decision, Review Office indicated that it failed to find a chain of causation between the October 24, 2014 trip and fall and the worker's left shoulder difficulties/tear, or a relationship to the accepted right shoulder injury. On October 8, 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 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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.

Worker's Position

The worker was self-represented at the hearing. The worker made a presentation and answered questions from the panel.

The worker's position was that the results of the July 20, 2015 MRI prove that she has a large rotator cuff tear in her left shoulder, which she knows for certain occurred on the same day as her right side compensable injury. She said that she documented her injuries as well as she could while waiting to be seen by the doctor that day. She described her pain and symptoms in great detail to the treating physician, fully explaining that she fell on the front of her chest and was badly bruised across the entire chest area, that both arms hurt, and her right hand, arm and shoulder had gone numb.

The worker said that when the treating physician ordered an MRI for the right side only, she clearly asked whether it should not be for both shoulders. His response was that they could only address one injury at a time and would start with the right shoulder, as it had sustained more trauma than the left. She was led to believe that the physician had nevertheless documented all her injuries in full. Later, when she ordered a copy of her WCB file, she was stunned to find that there was no mention of the impact to her chest and the pain in her left arm and shoulder.

The worker said that the treating physician, orthopedic surgeon and physiotherapist had told her that the pain in her left shoulder was from overcompensating for her right shoulder injury. She continued to tell them, however, that she had hurt her left shoulder the same day as her right one and that it had not been properly addressed. She finally pushed to have the MRI of her left shoulder done. She submitted that the treating physician, orthopedic surgeon and physiotherapist subsequently all sent amendment letters, stating that the MRI showed recent trauma and a full rotator cuff tear and that they believed the left shoulder trauma happened the same day as the injury to her right shoulder.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue which is before the panel is whether or not the worker's left shoulder difficulties are a consequence of the October 24, 2014 workplace accident. For the worker's appeal to be successful, the panel must find that the worker's left shoulder difficulties are causally related to the October 24, 2014 workplace accident. The panel is unable to make that finding.

The worker has insisted that she sustained a left shoulder injury on October 24, 2014 and reported that injury at the time. Having reviewed the evidence, the panel notes that the evidence does not support that assertion. File evidence shows that the worker was seen by a number of different healthcare professionals at or close to the date of the accident, none of whom recorded the worker having any left shoulder symptoms. On the day of the accident, the worker was interviewed by a triage nurse, who reported that the worker "fell, landed on right arm/side. Denies head or other injury." The worker then saw the treating physician, who assessed an injury to the right side based on what the worker told him. The worker incident report and notice of injury which the worker completed also refer to the right side only.

Approximately one week after the accident, the worker saw the physiotherapist for an initial assessment. The physiotherapist reported that the worker's pain and symptoms were located to the right shoulder and arm, and that "during the physical assessment, [the worker] demonstrated full left shoulder flexion and abduction." The physiotherapist specifically assessed both the right and left shoulder and did not identify any symptoms or concerns with respect to the left side. Two months later, when the worker saw the treating surgeon, the examination was also focused on the right side. The worker acknowledged in response to questioning from the panel, that the surgeon interviewed and assessed the worker at the time, and was therefore not just relying on information he had received from others. File information shows that problems with respect to the left shoulder were not reported until February 2015, more than three months after the accident.

The panel is therefore satisfied that the worker's position that she sustained and reported a left shoulder injury on October 24, 2014 is not consistent with the contemporaneous evidence on the file.

The panel further notes that the July 28, 2015 MRI of the worker's left shoulder revealed a "full thickness tear supraspinatus and infraspinatus tendons with tendon retraction and muscle atrophy, tendinosis long head biceps tendon, and acromioclavicular degenerative change." Given the nature of those findings, the panel is of the view that it would have been obvious on October 24, 2015 that the worker had sustained such an injury at that time.

The worker relied on letters from her treating physician, her treating orthopedic surgeon and her treating physiotherapist provided subsequent to the July 28, 2015 MRI, as supporting her appeal. While the physicians and physiotherapist have surmised as to what must have been or could have happened, the opinions they have expressed are speculative and are not medically supported. The panel is unable to place significant weigh on these letters.

The panel also considered whether the worker's left shoulder injury constituted a further injury under the Policy, e.g. that the left shoulder was injured as a result of overuse or overcompensating for the right shoulder. The panel notes that when asked at the hearing whether she believed that the left shoulder problems came from overuse or the original injury, the worker stated that she believed it came from the fall. The panel also notes that the worker had been off work for a lengthy period of time when the symptoms started showing up in the left shoulder. The surgery to her right shoulder was on December 19, 2014, and she said she was really just sitting and her husband was doing everything for her for a month and a half after that. The worker started back to physiotherapy on February 4, 2015 and her left shoulder symptoms started showing up soon after that. The exercises were focused, however, on her right arm, and the panel is not satisfied from the examples of the exercises that were described that they would have resulted in her left shoulder being hurt during treatment.

Based on the evidence, the panel therefore finds, on a balance of probabilities, that the worker's left shoulder difficulties are not a consequence of, or causally related to, the October 24, 2014 workplace accident.

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 14th day of June, 2016