The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by The Workers Compensation Board ("WCB") that his left shoulder rotator cuff tear was not compensable. A hearing was held on June 16, 2016 to consider the worker's appeal.

Issue

Whether or not the worker's left shoulder difficulties are a consequence of the November 28, 2013 compensable accident.

Decision

That the worker's left shoulder difficulties are not a consequence of the November 28, 2013 compensable accident.

Decision: Unanimous

Background

The Employer's Accident Report (No "Workers Incident Report" on file) dated January 14, 2014 stated that the worker injured his shoulder on November 28, 2013 and reported it to his manager on January 10, 2014. The employer stated:

Worker was marking a starting point in yard for a surveyor…when they stumbled and fell forward. Worker tried to brace their fall with their arms resulting in a jarring of their shoulders. This was witnessed by a co-worker however incident was not reported until January 10, 2014.

On January 14, 2014, a WCB adjudicator called the worker to discuss the accident. The worker noted that on November 28 at 6:45 a.m., he was laying out a point and when walking back to his vehicle he tripped on something underneath the snow and fell to the ground. The worker said his arms were outstretched in front of his body and his full body weight went onto both arms. He injured both his shoulders. The worker said he thought nothing of it and hoped it would get better. He reported the injury to his supervisor on January 10, 2014 and a co-worker witnessed his fall. The worker stated he was right hand dominant and that he was still sore but was starting to respond to treatment. He worked his full regular duties and only missed time for medical appointments.

An x-ray report of the right shoulder dated December 11, 2013 revealed minimal AC joint arthrosis. The glenohumeral joint was unremarkable and no calcification of the rotator cuff was seen.

On January 14, 2014, the WCB adjudicator spoke with the co-worker identified by the worker and he confirmed that the worker tripped on a piece of concrete that was underneath some snow. The worker fell forward and landed on the ground onto his chest. His arms were outstretched in front of him and at the last minute he hurt his wrist.

A Doctor First Report showed that the worker was seen on December 10, 2013 with complaints of bilateral shoulder problems over the past month. The worker was doing well until recently and there was no specific injury. The diagnosis was rotator cuff tendinopathy.

On January 14, 2014, a physiotherapist reported that the worker was seen on December 18, 2013 for an initial assessment. The worker's description of accident was that he tripped at work and fell onto his outstretched arms. The diagnosis was scapular instability with weakness and right rotator cuff syndrome.

On January 24, 2014, the worker's claim was accepted based on the diagnosis of scapular instability with weakness and right rotator cuff syndrome.

In a note to file dated February 27, 2014, the case manager noted that the treating physiotherapist reported that the worker re-aggravated his shoulder when he fell on ice and that he required further treatment, not clear whether it happened at work or at home.

On March 17, 2014, the treating physiotherapist reported that the worker complained of persistent left shoulder weakness and that he re-aggravated his shoulder on February 2, 2014.

An MRI of the left shoulder taken March 19, 2014 revealed AC arthrosis and a rotator cuff tear.

On March 27, 2014, a WCB orthopedic consultant stated:

• the workplace injury was a fall on the outstretched arms which jarred both shoulders and exacerbated a pre-existing rotator cuff tear, on a balance of probabilities. The diagnosis related to the workplace injury was a contusion of the shoulders. The delay in reporting to the WCB was noted.

• the left shoulder MRI findings dated March 19, 2014 were probably degenerative in nature rather than traumatic in etiology.

• Any surgery would be related to the pre-existing condition rather than the workplace injury.

On April 10, 2014, the WCB advised the worker that the MRI findings of March 19, 2014 revealed a pre-existing rotator cuff tear and that the WCB was unable to accept that the tear was causally related to the workplace injury of November 28, 2013. The WCB was of the opinion that the workplace injury was a fall on his outstretched arms which jarred both shoulders and exacerbated a pre-existing rotator cuff tear. The WCB concluded that the diagnosis related to the workplace injury was a contusion of the shoulders.

In a further decision dated May 20, 2014, the worker was advised that in the opinion of the WCB, he had reached his pre-injury function and any or all ongoing restrictions would be related to his non-compensable left rotator cuff tear.

On May 30, 2014, an orthopedic surgeon reported that the worker was seen for left shoulder complaints. The surgeon noted that the worker slipped and fell in November 2013 and developed pain in his left shoulder a number of days following that. Since then, his pain had slowly settled to the point where he was relatively pain free with everyday life unless he worked away from his side or overhead. The worker had a history many years ago of having shoulder pain which settled completely with no residual functional disability. The surgeon noted that the MRI showed a large tear, bordering on massive, in the 3 x 3 cm. range and his biceps were subluxing. The surgeon said they discussed rotator cuff tears and the possibilities with surgical intervention.

On June 24, 2014, the WCB advised the worker that after considering the surgeon's report, no change would be made to the decision dated April 10, 2014.

On July 22, 2014, the worker appealed the decision to deny responsibility for his left shoulder condition. The worker noted that he never had pain in his left shoulder before the accident and that the surgeon told him that the tear in his left shoulder was a new tear, as there was very little muscle retraction around the injury.

In a submission to Review Office dated August 11, 2014, the employer's representative agreed with the WCB that the worker's current difficulties and treatment were not related to the November 28, 2013 compensable injury. The employer felt that the worker sustained a soft tissue contusion to his shoulder strain superimposed upon a pre-existing degenerative rotator cuff tear.

On October 23, 2014, Review Office determined that the worker's left shoulder difficulties are not related to the November 28, 2013 compensable injury.

Review Office stated in its decision that the February 2, 2014 aggravation noted by the treating physiotherapist was not related to the November 28, 2013 compensable injury. Review Office agreed with the WCB orthopedic consultant's opinion dated March 27, 2014. It stated the file evidence supported the worker had a pre-existing history of shoulder difficulties which predated the date of accident and that the MRI findings are considered a pre-existing condition that existed prior to November 28. It found that the compensable injury of bilateral shoulder contusion/strains had resolved and it did not find the evidence that the pre-existing condition was enhanced as a result of the compensable injury.

The worker then provided Review Office with a report from an orthopedic specialist dated March 13, 2015 which stated:

It is my opinion that [the worker] likely sustained the large tear of the left rotator cuff in his injury as he stated. It is of course not possible ever to know for sure whether this was the case, and it is possible that he may have had tendinosis or a small tear prior to the injury that he described; however, I definitely do not agree that his clinical or radiographic presentation was consistent with a degenerative large rotator cuff injury, quite the contrary.

On March 30, 2015, Review Office wrote the worker to advise that it found the evidence supported that an accident occurred on November 28, 2013 and it was witnessed by a co-worker. It could not however, substantiate any ongoing left shoulder difficulties in relation to the accident. Review Office stated that the file documentation indicated a pre-existing history of shoulder difficulties, and it was not able to find the evidence that the November 28, 2013 incident materially changed his condition. Given the mechanism of injury, the delays in seeking medical attention and filing a claim, Review Office found that a causal relationship cannot be established between the November 28 accident and the left shoulder rotator cuff tear.

On December 23, 2015, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission on the worker's behalf 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 definitions portion of the Policy gives the following definitions:

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

• Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

The Worker’s Position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker was entitled to further wage loss and medical aid benefits because he had not recovered from the effects of his compensable shoulder injury.

The worker submitted that the mechanism of injury caused or contributed to his left shoulder difficulties. He provided a narrative of the accident and mechanism of injury. Although he said he felt pain immediately after the accident, he did not report the accident right away or seek treatment until a couple of weeks later because he thought the pain and associated problems would resolve on their own. It was only when the problems failed to subside that he sought treatment and reported the claim. Eventually, he was required to undergo surgery and the surgery has improved his shoulder. When asked about the diagnosis subsequent to the surgery, he stated that he was advised that he had an acute on chronic injury.

It was further submitted on behalf of the worker that the injury itself was more than a contusion or strain. The worker asked the panel to accept the opinion of the orthopedic surgeon whom he saw in the spring of 2014 and who concluded that the worker’s shoulder injuries either caused the injury or aggravated a pre-existing one.

The Employer’s Position:

The employer was represented by an advocate who made submissions on behalf of the employer.

The employer advocate advised that the employer agreed with the decision of the WCB Review Office. She reviewed the medical information. She agreed with the WCB medical advisor’s opinion that the injury was soft tissue in nature and that the rotator cuff injury was a degenerative condition. She further submitted that had the worker experienced a rotator cuff tear at the time of the accident, he would have experienced an acute and severe injury with intense pain. Neither the initial medical reports on file nor the worker’s conduct immediately after the accident were consistent with an acute and severe injury. He did not, for example, seek immediate treatment, something which would have been expected in the case of an acute tear. Further, the initial medical reports from the worker’s treating physician note bilateral shoulder problems and reference the absence of a specific injury. Findings from the MRI taken some 4 or 5 months after the workplace accident note the injury to be degenerative rather than traumatic in origin.

Analysis:

The issue before the panel is whether or not the worker’s left shoulder difficulties and, in particular, the worker’s rotator cuff tear, are a consequence of the November 28, 2013 compensable accident. 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 were related to his workplace accident. The panel was unable to make this finding.

In reaching its decision, the panel notes the delay in seeking medical treatment by the worker following the accident and the even greater delay in reporting the accident to the employer as factors in considering how serious the worker's fall was. The panel further notes that when the worker reported the accident to his physician, he did not relate his symptoms to a particular incident. He further acknowledged that the accident did not cause any substantial change in function or change in the activities of daily living. He also experienced significant improvement with treatment in December 2013 and onward until he aggravated his left shoulder in February 2014 when he fell in his garage. Approximately one month later, a massive rotator cuff tear was found on an MRI. The panel notes that this was the first significant left sided finding subsequent to the compensable accident.

The panel accepts the opinion of the WCB orthopedic consultant who had an opportunity to thoroughly review the file history and onset of symptoms and who concluded that the worker had sustained a strain/contusion injury and that the findings on the MRI were probably degenerative rather than traumatic in etiology. The panel places less weight on the opinion from the orthopedic surgeon who examined the worker in the spring of 2014 as he did not have the entire WCB file to review when preparing the opinion.

In conclusion, the panel finds, on a balance of probabilities, that the worker sustained a bilateral contusion/strain to both shoulders as a result of the workplace accident and from which he recovered. The panel does not accept that a causal relationship has been established between the workplace accident and either ongoing left shoulder symptoms or the rotator cuff tear.

The worker’s appeal is therefore dismissed.

Panel Members

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

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer

Signed at Winnipeg this 21st day of July, 2016