The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after March 9, 2014 in relation to his left shoulder or right knee complaints. A hearing was held on October 5, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 9, 2014.

Decision

That the worker is entitled to benefits from March 9, 2014 to April 28, 2014 inclusive.

Background

The worker filed a claim with the WCB for injury to his left shoulder and right leg when he passed out and fell from heat exhaustion on August 25, 2013.

On January 22, 2014, a WCB medical advisor reviewed the file information along with all medical reports and made the following conclusions:

• The initial diagnosis was contusion of the left shoulder and heat exhaustion. The heat exhaustion would have recovered completely within a few days with cooling and rehydration. A contusion of the shoulder would recover within 4 to 6 weeks.
• The September 24, 2013 MRI examination of the left shoulder showed a complete tear of the supraspinatus tendon. A previous MRI also showed a complete tear of the left supraspinatus tendon. These findings confirm that the rotator cuff tear was pre-existing the injury of August 25, 2013.
• The proposed left shoulder surgery was not related to the workplace injury and should not be authorized by the WCB.

On January 23, 2014, the worker was advised that he was not entitled to further compensation benefits as the WCB was of view that the compensable diagnosis of a left shoulder contusion typically resolves within a few weeks. The rotator cuff tear pre-existed the injury of August 25, 2013 and the file information did not support an aggravation or enhancement of the pre-existing rotator cuff tear.

On March 10, 2014, the worker underwent surgery to his left shoulder and the post-operative diagnosis was a large irreparable left rotator cuff tear and a superior labral tear.

On June 17, 2014 a WCB medical advisor stated there was no evidence to show that the pre-existing cuff degeneration was altered in any material way by the compensable injury.

In a further decision dated June 20, 2014, the worker was advised that the WCB remained of the opinion that he sustained a left shoulder contusion in relation to the August 25, 2013 compensable injury and that it was not aggravated or enhanced by the pre-existing rotator cuff tear.

On September 10, 2014, the worker appealed the June 20, 2014 decision to Review Office and then to the Appeal Commission. On June 3, 2015, the Appeal Commission determined that the worker was entitled to benefits beyond January 29, 2014 and the case was referred back to Compensation Services to determine the worker's entitlement to benefits beyond January 29, 2014.

Following receipt of additional medical and other information obtained from the worker, it was determined by the WCB on September 2, 2015 that he had recovered from the accepted compensable injury of shoulder contusion and heat exhaustion by April 28, 2014. The decision was based on findings that the worker tried to return to his previous job as a flag person after his surgery which indicated that at a certain point, he felt well enough to return to his previous employment. Given the surgery on March 10, 2014 and the following 6 weeks of recovery and physiotherapy treatment, it was felt that he was able to return to the flag person position by that time.

On September 16, 2015, the worker appealed the case manager decision on the basis that he was unable to work due to his shoulder condition and because of pain and numbness in his fingers.

On November 3, 2015, Review Office determined that the worker was not entitled to benefits beyond March 9, 2014. Beyond that date, the worker's loss was considered to be related to his numerous non-compensable medical issues, including but not limited to bilateral osteoarthritis of his hands, post-operative low back problems, non-compensable bilateral shoulder problems, a ruptured baker's cyst in his arthritic right knee, insomnia and anemia.

Review Office was unable to find that the compensable injury contributed to the worker's ultimate need for surgery or that the workplace injury made the surgery necessary, or that it accelerated the need to perform the procedure.

Review Office accepted the WCB medical opinion that the osteoarthritis of the right knee joint was not related to the effects of the compensable injury. The associated "contusion/bruise" was a self-limited condition. Osteoarthrosis was an age related degenerative disease of life.

Review Office found that the worker was entitled to benefits up to March 9, 2014, the day before his non-compensable surgery. As the decision was a reversal of a prior decision to award benefits beyond this date, any overpayment of benefits would not be pursued.

An April 21, 2016, 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 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 ends, or the worker attains the age of 65 years.

WCB policy 44.10.20.10, Pre-Existing Conditions, provides the following definitions:

1. Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
2. 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.
3. Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker’s Position

The worker was self-represented. The worker explained his reasons for appealing Review Office’s decision.

He advised that on August 25, 2013, he was working as a flag person on a road construction site. It was a very hot day and because there was a staff shortage, he worked for 5 or 6 hours without a break. He collapsed and passed out. He awoke in an emergency room with a bruise on the outside of his left shoulder extending down to his elbow. He has had a loss of function since this date. The worker also indicated that he has started to have problems with his right knee, which he claimed was on account of the workplace accident.

The worker advised that prior to the accident he had a shoulder problem but was able to work as a flag person. Before the injury, he performed chores around the home and now he is unable to do anything with his arm without shoulder pain. The worker also advised the panel that he retired on April 22, 2015 as he had turned 65.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The worker has an accepted claim for a compensable injury which occurred at work on August 25, 2013. He is appealing the Review Office decision that he is not entitled to benefits after March 9, 2014.

For the worker's appeal to be approved the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid benefits as a result of the workplace accident due to the injury beyond March 9, 2014. With respect to the worker’s complaints associated with his right knee, the panel was not able to make this finding. However, with respect to the worker’s left shoulder, the panel was able to make this finding.

In making this decision, the panel considered the evidence on the claim file, the worker's testimony, other evidence and argument received at the hearing, and the medical information obtained. The panel notes that a prior Appeal Commission decision confirms that the worker sustained an aggravation of his pre-existing degenerative shoulder condition when he fell at work on August 25, 2013.

The panel notes that on January 2, 2014 the treating physician opined that the worker had “an obvious long head of biceps rupture with distal displacement of the biceps muscle belly” and that he had “significant pain and weakness related to a rotator cuff tear which appears to be chronic”. The medical evidence does not indicate any change in condition to the point of the surgery.

Further, the panel finds that this is supported by the March 10, 2014 post-operative report where it is noted that the there was “a split in the subscapularis tendon, but it appeared to be intact along its full length, medial to lateral. A small shaver was placed anteriorly. The flap tear was removed from the anterior labrum.” Based on the foregoing, the panel concludes that the workplace injury adversely affected the worker's pre-existing condition with respect to his left shoulder as evidenced by the flap tear which needed to be removed in the March 10, 2014 surgery. The panel acknowledges that the surgery also dealt with other non-compensable shoulder issues, but finds that the surgery, at least in part, dealt successfully with the aggravation of his pre-existing condition. The panel also accepts the recommended 6 weeks of post-operative recovery and physiotherapy treatment, and finds that the worker's ongoing shoulder issues after that 6 week recovery period are not related to his compensable injury.

Regarding the worker's right knee complaints, the panel finds that there is no medical evidence close in time to the injury to support that the worker suffered an acute injury to his knee and a derangement of the knee in August 2013 that would lead to arthritis, which was diagnosed in 2015. The evidences notes some bruising to the right knee which later resolved, and no ongoing complaints of pain.

The panel therefore finds that the worker is entitled to benefits from March 9, 2014 to April 28, 2014 inclusive, being the day before the surgery with a six (6) weeks recovery period.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of December, 2016