The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to his right shoulder. A hearing was held on October 19, 2016 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder difficulties after December 10, 2013; and

Whether or not responsibility should be accepted for the right shoulder surgery.

Decision

That responsibility should not be accepted for the worker's right shoulder difficulties after December 10, 2013; and

That responsibility should not be accepted for the right shoulder surgery.

Background

The worker filed a claim with the WCB for injuries to his right shoulder and neck with the accident date of November 30, 2012. The worker reported that he originally injured his right shoulder and neck on August 14, 2012 from stepping in a hole and on November 30, 2012 he aggravated the injury when carrying a 28 foot ladder into a back lane.

Initial medical reports showed that the worker attended a physiotherapist on December 6, 2012 and was diagnosed with right cervical radiculopathy. The worker's claim for compensation was accepted and benefits were paid to the worker.

On August 16, 2013, a WCB medical advisor opined to the file that the current diagnoses appeared to be right upper back/right shoulder strain.

On August 27, 2013, the worker underwent an MRI which showed mild AC arthrosis with minimal rotator cuff tendinosis.

On December 10, 2013, the worker was examined by a WCB medical advisor to assess his medical status. The worker reported that he had symptoms on the right side of his neck and right shoulder since August 2012. The examination findings revealed normal range of motion in both arms and no signs of impingement on the right. The worker had a good but incomplete recovery of his right cervical radiculopathy that was diagnosed in December 2012.

In March 2014, an orthopedic surgeon requested WCB approval to perform a right shoulder arthroscopy as he felt the worker's symptoms were secondary to AC arthritis. On April 3, 2014, the WCB denied financial responsibility for the proposed surgery as the osteoarthritis of the acromioclavicular joint was considered to be a pre-existing condition.

On May 16, 2014, Compensation Services wrote the worker to advise that the WCB was unable to accept further responsibility for his claim as it was felt that his current difficulties were related to a pre-existing condition rather than the injury sustained at work on August 14 and November 30, 2012.

On June 30, 2014, a worker advisor submitted to Review Office that the worker continued to suffer from the effects of his workplace accident and if not for his compensable accident, he would not have continuous right-sided shoulder difficulties. The worker advisor contended that the WCB was responsible for the worker's right shoulder difficulties which included the surgery and the recovery time.

Prior to considering the appeal, Review Office obtained medical advice from a WCB orthopedic consultant on August 7, 2014.

On September 10, 2014, Review Office determined that the worker was entitled to further benefits in relation to the diagnosis of cervical radiculopathy and that no responsibility should be accepted for the right shoulder surgery.

Review Office concluded that the worker's right shoulder strain/sprain had resolved by December 10, 2013 based on the WCB examination findings and that the proposed right shoulder surgery was not related to the compensable injury. Review Office noted that the worker had a pre-existing condition in his shoulder as documented in the MRI of August 27, 2013 and that the evidence did not substantiate that the workplace injury caused a structural change or enhancement of the pre-existing condition. Review Office referred to the opinion of the WCB orthopedic consultant who stated: "Surgical correction of this pathology may be successful with respect to the shoulder joint, but will be unlikely to improve the symptoms related to the cervical spine."

On January 19, 2015, Review Office considered a report from the worker's doctor dated September 10, 2014 which stated in part: "associated severe subacromial bursitis and the combination is what is causing his symptoms…he also has some tearing into the long head of his biceps which again, would corroborate with his injury." Review Office stated the report did not alter its previous decision that the proposed shoulder surgery was related to a pre-existing condition and was not related to the compensable injury.

On May 11, 2015, the worker underwent right shoulder surgery and the post-operative diagnosis outlined was: Severe subacromial bursitis, biceps tenosynovitis with tearing into biceps tendon, partial thickness articular-sided supraspinatus tear and AC arthrosis.

On November 24, 2015, Review Office considered the findings on the operative report and confirmed its previous conclusions that the evidence did not support a structural change or an enhancement of the pre-existing condition in relation to the compensable injury.

On February 3, 2016, a WCB orthopedic consultant responded to questions posed by Review Office. The consultant stated, in part, that all the pathologies noted on the operative report of May 11, 2015 were explained by degenerative etiology rather than traumatic etiology. There was no medical evidence that the workplace injury aggravated or enhanced the degenerative changes.

On April 29, 2016, Review Office determined that no change would be made to its previous decision based on the WCB medical opinion. On September 19, 2016, the worker advisor appealed Review Office's decisions to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of the Act. Medical aid is provided to injured workers in accordance with subsection 27(1) of the Act.

The worker has an accepted claim and is seeking coverage for his right shoulder condition which he believes is related to his workplace accident.

Worker's Position

The worker was represented by a worker advisor. The worker and his representative answered questions from the panel.

The worker's representative submitted that in the worker’s case there are two ongoing compensable areas of injury, the right side of the neck and the right shoulder. She noted that the WCB continues to treat the worker’s neck injury as compensable but have refused to accept responsibility for the worker's right shoulder injury. She disagreed with the WCB's assessment of the worker's neck condition as a sprain/strain. She submitted the worker has a tear or tears as a result of the accident.

The worker's representative submitted that the evidence supports the right shoulder was injured as a result of the accident. She said:

Based on [worker's] ongoing symptoms, confirmed disability, medical evidence, and medical opinion, all these are evidence of disability that connects the right shoulder difficulties beyond December 10, 2013 as related to the workplace accident.

She submitted that although the WCB did not take responsibility beyond December 10, 2013 for the right shoulder, the medical information confirms the worker's ongoing right shoulder physical difficulties and symptoms, which the WCB accepted as a result of the accident prior to December 10, 2013, continued after this date.

The worker's representative submitted that:

It is our position that with the inability to lift above the shoulder and away from the body, on a balance of probability, there was more of a structural kind of injury than a sprain/strain, as [worker's] difficulties were well outside the normal recovery rate for a sprain/strain.

The worker's representative advised that the injury was confirmed by an MRI of August 27, 2013, as a partial tear of the supraspinatus insertion. She noted that in a September 11, 2013 memo, a WCB medical advisor stated that the findings on the MRI are, in part, pre-existing and partially related to an acute injury.

The worker's representative noted that under Policy 44.10.20.10, Pre-existing Conditions, where there is a combined relationship between a compensable injury and a pre-existing condition, the WCB will accept responsibility for the full injurious result of the compensable injury. She concluded that:

Based on this policy, there should have been ongoing WCB responsibility for the right shoulder.

The worker's representative noted that a second MRI was performed on September 4, 2014, and that it documents that the technique used in this particular MRI was of a multiplanar, multisequence MRI imaging obtained in three orthogonal planes. She submitted that this MRI appears to be more in-depth, than the first MRI. She noted that it indicates a tear of 50 percent of the tendon thickness and a tear of the bicep tendon.

The representative relied upon the opinion of the orthopedic surgeon who operated on the worker's shoulder on May 14, 2015 and found that the supraspinatus tear corroborates with the worker’s severe subacromial bursitis. She noted that the surgeon provided a medical opinion that the injury fits with the mechanism of injury and should be covered by WCB.

The worker described the accident as follows:

I was carrying a 28-foot ladder down the side of the ditch, had it across my shoulder with my arm up. And I went down, and as I got to the bottom, I stepped on the bottom and there was a hole there. And I went into the hole, jarred my leg and my shoulder/neck area, and once I hit, I blacked out. I don’t remember, but when I woke up, I was laying in the bottom of the ditch, and the ladder was over top of me across the ditch.

The worker denied any prior right shoulder difficulties. The worker advised that after the surgery on his shoulder, he is still not 100 percent, but has less pain than he ever had before the surgery. He can now lift above his shoulder but now can't lift "a lot of weight or do a lot of things with it, but I can lift it."

The worker's representative submitted that:

It is our position that [worker’s] right shoulder difficulties definitely arose from the jarring motion of falling while carrying the ladder. The injuries were right-sided injuries and he was holding up the ladder with his right shoulder and arm…

Although the WCB accepted that there was a right shoulder injury based on a provisional diagnosis of a sprain/strain, it was evident that there was more than a sprain/strain injury, as the symptoms did not fully resolve in a timely manner for this diagnosis.

Employer's Position

The employer did not participate in this appeal.

Analysis

The worker has an accepted claim and is appealing two issues in relation to his workplace injury which occurred in 2012. He is appealing the WCB decision to deny responsibility for his right shoulder condition after December 10, 2013 and to refuse responsibility for his right shoulder surgery. For the worker's appeals on this claim to be successful, the panel must find that the worker sustained an injury to his shoulder which continued to cause a loss of earning capacity and required ongoing medical treatment beyond December 10, 2013.

Upon consideration of the full claim file and the submissions made on behalf of the worker, the panel has determined, on a balance of probabilities, that the worker's right shoulder difficulties after December 10, 2013 and the right shoulder surgery are not related to the compensable injury.

In making our decision, the panel attaches greater weight to the information that was provided nearest the accident date. The panel relies upon the following information in making this decision:

• December 6, 2012 Initial Physiotherapy Report indicates a diagnosis of right central radiculopathy
• May 1, 2013 Doctor's First Report indicates a diagnosis of sprain right shoulder
• May 17, 2013 examination notes prepared by the WCB physiotherapy consultant indicate that the worker has continued his regular duties with some difficulty and participated in recreational hockey but occasionally had to miss games due to shoulder pain. The physiotherapist's impressions included:

The initial physiotherapy report indicated a diagnosis of cervical radiculopathy. Today's examination does not reveal an active radicular process. There are features of residual right lower cervical facet irritation and right upper quadrant muscular irritation, specifically at the upper trapezius and levator scapulae musculature. Shoulder examination revealed adequate range of motion and strength in the neutral position while strength is pain limited with the elbow away from the side. There is no strong evidence to support rotator cuff involvement or an active subacromial impingement. The scapular stabilizers are noted to be weak.

• August 27, 2013 MRI Right Shoulder indicates:

There is mild AC arthrosis with minor inferior osteophytes. Mild tendinosis at the cephalad subscapularis insertion is present. The long head of the biceps is unremarkable. There is also minimal tendinosis in the supraspinatus insertion with a very tiny articular surface partial tear. No atrophy is identified.

Impression:

Mild AC arthrosis. Cuff changes as described.

• December 10, 2013 Examination notes by WCB medical advisor indicate:

[Worker] reported symptoms in the right side of the neck and right shoulder since August 2012. [Worker] signs of weakness in the right triceps extension. There was relatively normal range of motion of both arms and no signs of impingement in the right. [Worker] has had a good, but incomplete recovery of the right cervical radiculopathy that was diagnosed in December 2012.

• February 3, 2016 opinion of WCB orthopedic consultant that indicates:

The report of the call-in examination of December 10, 2013, by a WCB Medical Advisor, notes in part that there was a full range of motion of the shoulder and shoulder stress tests were negative. My understanding of this assessment is that shoulder pathology did not contribute to symptoms in December, 2013. Rather, the symptoms were attributable to cervical pathology, which is known to cause referred pain to the shoulder region and into the upper limb. In contrast to the December 2013 findings, orthopedic examination on March 20, 2014, noted symptoms of arthritis of the AC joint, and injection of the AC joint was reported as giving temporary relief. It was my opinion, stated in the letter to orthopedic surgeon dated April 3, 2014, that OA of the AC joint was a pre-existing condition. A person with OA of the AC joint would be expected to experience painful symptoms with increased activity, particularly tasks above shoulder level with the shoulder flexed…

The operative report findings at arthroscopy on May 15, 2015 were of a partial thickness tear of the rotator cuff (debrided), a superior tear of the labrum (debrided), biceps tenosynovitis and tearing (biceps tenotomy done) and subacromial bursitis (subacromial decompression done). All these pathologies are explained by degenerative etiology rather than traumatic etiology…

The panel finds, based on the above evidence, that there was no evidence of rotator cuff problems in the first months of the claim. The panel finds that the rotator cuff condition is not related to the workplace accident.

The panel notes that the worker's representative relied upon the opinion of the operating orthopedic surgeon in support of the worker's appeal. The panel is not able to attach weight to this opinion as the surgeon's later findings are not consistent with the early/initial shoulder symptoms.

The panel finds that the claim for rotator cuff difficulties (Issue 1) and related surgery (Issue 2) are not accepted. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of November, 2016