The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing left shoulder condition is not related to his compensable workplace accident. A hearing was held on June 15, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after July 3, 2012 in relation to his left shoulder.

Decision

That the worker is not entitled to benefits after July 3, 2012 in relation to his left shoulder.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries to both shoulders that he related to the nature of his job duties as a janitor that included overhead work, twisting and turning with both arms, stripping, waxing, washing walls, changing cloth towels and loading/unloading equipment. The date of accident was recorded as September 1, 2009.

The Employer's Accident Report indicated that the worker complained about his shoulder occasionally in the past, and the accident date of September 1, 2009 was very general as there was no specific injury. In April 2010, the worker had indicated his shoulder was aggravated over time during his employment. The employer noted that in February 2010 the worker had been laid off as a result of lack of work.

On May 11, 2010, a WCB adjudicator documented information she obtained from the worker regarding the onset of his bilateral shoulder difficulties and further details with respect to his job duties.

On May 28, 2010, the worker's family physician submitted a report documenting his findings of full range of motion, decreased strength in flexion and abduction. He noted a positive impingement sign but the neurovascular and ligament exams were normal. His diagnosis was bilateral shoulder impingement secondary to repetitive strain from work as a floorer.

On November 30, 2010, the worker underwent an MRI of his left shoulder. The results showed osteoarthritic changes at the acromioclavicular ("AC") joint with some impingement on the supraspinatus tendon and muscle. No rotator cuff tear was identified.

On December 22, 2010, a WCB medical advisor opined that the worker had bilateral shoulder impingement and that the described workplace activities could account for his presentation. The medical advisor noted that osteoarthritic changes described in an MRI report of the left shoulder were a major factor and were contributing to the worker's delay in recovery. Workplace restrictions were outlined with respect to the left shoulder.

The worker underwent a right shoulder MRI on January 18, 2011. The results showed a small full thickness insertional tear anterior supraspinatus and a posterior labral tear complicated by paralabral cyst. There was focal atrophy teres minor.

On February 8, 2011, an orthopedic surgeon recommended right shoulder arthroscopy with right rotator cuff repair. On February 15, 2011, the WCB accepted financial responsibility for all costs associated with the procedure which later took place on April 4, 2011.

On July 7, 2011, the orthopedic surgeon reported that the worker's left shoulder had been symptomatic during his recovery from the right shoulder surgery and a left shoulder arthroscopy was recommended.

On July 12, 2011, a WCB medical advisor reviewed the file noting that the claim was accepted for a bilateral shoulder impingement. He opined that the left shoulder surgery was a consequence of the compensable injury.

The worker then underwent diagnostic arthroscopic surgery of his left shoulder on September 26, 2011. The orthopedic surgeon observed that there was no abnormality of the glenohumeral joint and that the labrum was normal. He noted the long head of the biceps was intact and there was no evidence of rotator cuff tearing. He then performed an AC joint resection and subacromial decompression of the left shoulder.

On December 28, 2011, the worker advised his WCB case manager that his left shoulder was not coming along as well as his right shoulder. He experienced numbness from time to time for no apparent reason in his pinky finger and the one next to it. The worker indicated that he had been going to physiotherapy 2 to 3 times per week for his left shoulder.

In May 2012, the worker underwent a Functional Capacity Evaluation ("FCE") to clarify his functional status and current workplace restrictions for both shoulders.

On June 5, 2012, a WCB sports medicine advisor reviewed the file information and commented as follows with respect to the worker's shoulder condition:

Right shoulder:

August 11/11 physiotherapy discharge reporting concerning the right shoulder appears to be indicative of a favorable outcome post-right shoulder surgery. Ongoing restrictions were not advised at this time. In view of this, resumption of usual activities with the right shoulder appears to be appropriate at this time.

On June 20, 2012 the WCB sports medicine advisor commented:

Left shoulder:

... the findings by [treating physician] demonstrate no medical requirement for ongoing restriction of left shoulder activity. The diagnosis to account for the ongoing report of left shoulder pain is likely nonspecific pain given the normal clinical findings as indicated above. There is also note of left ulnar paresthesias which are not accounted for by the 2009 workplace injury.

Based on the WCB healthcare review, the worker was advised by Rehabilitation and Compensation Services on June 21, 2012 that he had recovered from the workplace injury to both right and left shoulders and that wage loss benefits would end effective July 3, 2012.

In November 2012, the worker advised the WCB that he was still having issues with his left shoulder which he related to the September 2009 workplace accident.

Medical information showed that the worker underwent a left shoulder MRI on October 3, 2012. On November 22, 2012, the treating orthopedic surgeon reported that the repeat MRI of the left shoulder demonstrated some labral pathology and tendinosis involving the infra and supraspinatus. Surgery was recommended to explore the labral pathology to see if a repair was necessary and to ensure that there was no full thickness component to his rotator cuff.

On January 17, 2013, the WCB sports medicine consultant commented that the current diagnosis related to the left shoulder was not yet determined. The October 3, 2012 left shoulder MRI report indicated new findings of rotator cuff and labral tears. These findings were not present at the time of the left shoulder arthroscopy in September 2011. There was also no surgical procedure directed at these structures during the September 2011 arthroscopy. The interval development of these MRI findings did not appear to be related to the workplace injury on a balance of probabilities. She said the current surgery was not related to the workplace injury.

Based on the WCB medical opinion, the worker was advised on January 18, 2013 that the WCB was unable to medically account for his left shoulder condition in relation to the September 1, 2009 workplace injury.

In a report dated June 13, 2013, the treating sports medicine specialist noted that the worker underwent a left shoulder acromioplasty that was considered related to the workplace injury. A subsequent MRI showed a supraspinatus tendinosis and tearing as well as infraspinatus tendinosis and fraying. Given no other mechanism of injury and the fact that the worker was not performing any other activities, it was his opinion the current findings on the left shoulder MRI would relate to the compensable surgery and/or the compensable injury.

On July 3, 2013, the worker was advised by Compensation Services that the June 13, 2013 report had been reviewed and that the WCB's January 18, 2013 decision was unchanged.

On May 28, 2015, the Worker Advisor Office submitted additional medical information for consideration which included an operative report dated January 26, 2015, and reports from an occupational health physician and a physiatrist. The worker advisor indicated that the information supported that the worker suffered from ongoing symptoms and restrictions as a result of his compensable injury which persisted until the January 26, 2015 surgery. The worker advisor requested WCB to accept responsibility for the worker's surgery and the associated rehabilitation, and to support his efforts to return to work.

A WCB orthopedic consultant reviewed the entire file including the new information and on June 18, 2015 opined that the new diagnosis of the left shoulder was a tear of the rotator cuff noted on the January 26, 2015 surgery and, on a balance of probabilities, it was not caused by the workplace injury.

In a decision dated June 23, 2015, the worker was advised that the new medical information had been reviewed and that no responsibility would be accepted for the January 26, 2015 surgery and that no change would be made to the previous WCB decision. On July 7, 2015, the worker advisor appealed the decision to Review Office.

On August 21, 2015, Review Office determined there was no entitlement to benefits beyond July 3, 2012 in relation to the left shoulder. After review of the information including the WCB medical opinions noted on file, Review Office found no causal relationship between the worker's ongoing left shoulder difficulties and the September 1, 2009 workplace injury. On October 15, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation:

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

Worker's position:

The worker was self-represented at the hearing and made a brief submission and answered questions from the panel. It was the worker's evidence that the work he had been doing was responsible for tears to both his shoulder rotator cuffs. He outlined his tasks and symptom onset.

The worker submitted that he had been sent for an MRI that showed the tear in his right shoulder and he underwent surgery with an uncomplicated recovery. He also noted that his left shoulder was also operated on and he went to physiotherapy following that surgery. He submitted that during the physiotherapy treatment, his "left shoulder started to really hurt."

The worker's evidence was that his left shoulder continued to be painful and they took another MRI and found the tear for which he had to undergo a second left shoulder surgery. The worker submitted that after this second surgery to his left shoulder it was finally fixed.

The worker noted he still has ongoing problems with numbness in his fingers and is being sent for a nerve conduction study to determine the source. He submitted that he can still do janitorial work but wants to be sure about his shoulders.

Employer's position:

The employer did not appear at the hearing.

Analysis:

The issue before the panel is ongoing benefits after July 3, 2012. For the worker to be successful in his appeal, the panel must find that he continued to require ongoing treatment of his left shoulder and suffered a loss of earning capacity related to the injuries suffered in the compensable accident. For the reasons that follow, the panel is unable to make these findings.

The panel reviewed the medical imaging reports on the file and compared the findings. We note that the first left shoulder MRI, November 30, 2010, was taken after the compensable injury and would be representative of the damage from the reported compensable injury. The panel also notes the second left shoulder MRI, October 3, 2012, was compared to the November 2010 MRI by the radiologist. The first MRI shows no rotator cuff tear is identified and the second MRI shows a partial-thickness tear of the supraspinatus tendon at the footprint.

The panel also notes the comment by the WCB orthopedic consultant on June 18, 2015 when he opined:

Discrepancies between MRI and arthroscopic visualization sometimes occur, and arthroscopy is regarded as the more accurate.

Given the orthopedic consultant's comment, the panel turned its attention to the arthroscopic surgery reports, giving more weight to the "eyes on" findings documented at that time.

The panel notes the second surgery of January 26, 2015 found "The rotator cuff was carefully inspected and a partial but near full thickness rotator cuff tear was identified within the supraspinatus." This notation confirms the MRI finding of a partial thickness tear. However, the finding of the diagnostic surgery of the left shoulder performed on September 26, 2011 was unequivocal that "There was no evidence of rotator cuff tearing." The panel notes this to be compelling evidence and we find that the compensable injury did not cause a tear in the worker's left rotator cuff.

The panel then reviewed the ongoing physiotherapy reports following the September 2011 left shoulder surgery. We were unable to find any mention of difficulty or acute injury during treatment. The panel also reviewed the case manager's memos of discussions with the worker during that time and find no reference to an acute injury or difficulties during physiotherapy.

The panel reviewed the attending physician's report of June 18, 2012 done after the left shoulder surgery and prior to the second MRI. His examination findings were:

left shoulder

O: No bony abnormalities, redness, or bruising.

Flexion full, abduction full, internal rotation full, external rotation full, strength normal, impingement negative, ligaments normal, neurovascular intact.

A: chronic shoulder pain.

P: Activities modification fu Dr [sports medicine physician]

Based on the foregoing, the panel finds there was no injury to the left shoulder from treatment to the worker's left shoulder.

The panel carefully reviewed the medical reports submitted by the worker advisor during the appeal process. The reports of the occupational health physician, the sports medicine specialist and the treating physiatrist were carefully scrutinized. We note the only diagnosis by the occupational physician was one of myofascial pain syndrome. The treating physiatrist was directing efforts at areas not involved with the rotator cuff musculature. The 2012 examining sports medicine specialist report shows the worker was seen in follow-up and reported he was doing well with prednisone so the prescription was repeated pending his upcoming orthopedic surgery. As these reports contain no examination findings related to the supraspinatus tear found at surgery on January 26, 2015, we place no weight on the expressed opinions.

As the panel was unable to find a disabling medical condition after July 3, 2012 related to his compensable injury of September 1, 2009, the panel finds there is no loss of earning capacity beyond July 3, 2012.

Based on our analysis, the panel finds on a balance of probabilities that the worker is not entitled to benefits after July 3, 2012 in relation to his left shoulder.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

P. Walker - Commissioner

Signed at Winnipeg this 5th day of July, 2016