The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right shoulder problems after November 2, 2015 were not related to his compensable accident. A hearing was held on October 26, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after November 2, 2015.

Decision

That the worker is not entitled to wage loss benefits after November 2, 2015.

Background

The worker filed a claim with the WCB for a right shoulder injury that occurred on July 6, 2015. The worker reported that he was carrying a bucket that weighed approximately 50 pounds or more. As he was walking, he stepped into a hole and his whole right side was jarred. It was a pulling motion, a jerk on his shoulder. The hole was 18 to 20 inches deep. He continued working and finished his shift. The worker noted that he did not think he was hurt that badly until the next morning.

On November 18, 2015, a WCB adjudicator spoke with the worker and he confirmed the accident description as outlined in his report of injury. The worker indicated that he felt a sharp shooting pain in his right shoulder, weakness in his arm, and pins and needles in his right hand and fingers, and he could not move his arm the next morning. He had no prior problems with his shoulder.

A Doctor First Report from a sports medicine specialist dated July 8, 2015 noted that the worker was "lifting steel forms/sheets of plywood sudden pain post to ant R shoulder." Based on x-ray findings, the worker was diagnosed with right shoulder second degree AC joint sprain and a possible GH joint subluxation.

On October 24, 2015, an MRI of the right shoulder showed mild to moderate AC arthrosis. At the supraspinatus insertion, there was a predominantly bursal sided tear with a full-thickness component, which measured 1.4 cm AP and transverse. There was associated tendinosis and degenerative cysts at the insertion site. More posteriorly, there was a small superficial bursal sided tear with tendinosis. There was no evidence of atrophy. There was also mild tendinosis in the cephalad subscapularis.

On November 2, 2015, a second sports medicine specialist reported that the worker continued to report problems with his right shoulder that adversely affected his overall level of function. The specialist said he was unable to identify the cause of the worker's pain levels and functional loss.

On December 29, 2015, an orthopedic surgeon reported that the MRI findings which showed a bursal sided 1.4 cm supraspinatus tear were reviewed with the worker, and that the worker wished to proceed with surgery to repair the tear.

On January 28, 2016, the worker was seen at the WCB's office for an assessment by a WCB orthopedic consultant, who stated:

• Based on the contemporary clinical and x-ray findings, the workplace injury caused a partial separation of the right acromioclavicular (AC) joint. This was consistent with the mechanism of injury of a jolt causing downward traction on the right upper limb.
• The ligamentous structures of the AC joint normally heals with or without prominence of the lateral end of the clavicle. The clinical appearances on the date of the assessment did not show any more prominence on the right AC joint than the left. The absence of local tenderness of the AC joint suggested that the AC joint was not a current pain generator.
• The clinical findings on the examination were inconsistent. The exact cause of the sensory disturbance and motor weakness of the right upper limb had yet to be determined. All of the findings on the MRI of the right shoulder were explained by degenerative rather than traumatic pathology. The rotator cuff pathology was unlikely to be related to the mechanism of the workplace injury.

On February 17, 2016, the WCB orthopedic consultant responded as follows to questions posed by the adjudicator:

• The small bursal sided tear of the rotator cuff was degenerative rather than traumatic in etiology, and was not related to the workplace injury.
• An average recovery period for a partial separation of the AC joint would be three months.

On February 19, 2016, the worker was advised by the WCB that his claim was accepted for a right shoulder partial AC separation resulting from the July 6, 2015 workplace injury and that no responsibility was being accepted for the right shoulder superficial bursal sided tear or any ongoing entitlements and medical treatment related to that diagnosis. The worker was advised that he was deemed recovered from the compensable component of his right shoulder symptoms at or before November 2, 2015 based on the medical findings from his October 24, 2015 MRI and the medical assessment from his November 2, 2015 appointment.

On April 11, 2016, the worker underwent surgery to repair the right rotator cuff tear.

On April 18, 2016, the worker appealed the WCB decision of February 19, 2016 to Review Office. In a report dated April 19, 2016, the family physician commented that he examined the worker on July 8, 2015 and was unaware of any pre-existing right shoulder issues prior to the July 6, 2015 incident.

In a decision dated May 18, 2016, Review Office determined the worker was not entitled to wage loss benefits beyond November 2, 2015. Review Office found that the worker's right shoulder symptoms which led to surgery on April 11, 2016 were not in keeping with the accident description of the worker's initial right shoulder complaints from July 6, 2015. It found that the worker's right shoulder condition in relation to the compensable accident was materially resolved and his ongoing complaints and need for surgery were related to the pre-existing degenerative condition. The findings of the sports medicine specialist on November 2, 2015 and those of the WCB orthopedic consultant supported that the worker's need for treatment or any loss of earning capacity beyond November 2, 2015 was not due to the workplace accident of July 6, 2015.

On June 7, 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 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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such 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 (the "Policy"), addresses the issue of pre-existing conditions when administering benefits. With respect to wage loss eligibility, the Policy states:

(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 following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

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.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was assisted at the hearing by an advocate, who made a presentation of his behalf. The worker's advocate and the worker responded to questions from the panel. The worker's position was that he was still suffering from his workplace injury on November 2, 2015, and should have continued receiving benefits beyond that date and up until the time he was able to return to gainful employment.

It was submitted that the worker sustained a workplace injury to his right shoulder on July 6, 2015 which was accepted by the WCB. The worker was still experiencing problems with his shoulder on November 2, 2015, and continued to be unable to return to work after that date. The October 24, 2015 MRI confirmed that he had a supraspinatus bursal sided tear, for which he required surgery. The worker stated that he had no problems with his right shoulder prior to the workplace injury.

The advocate submitted that the accident either caused the tear, or to the extent that there was a pre-existing degenerative condition, that it caused that pre-existing condition to become symptomatic. It was submitted that in either event, the workplace injury resulted in the worker's ongoing difficulties and the need for surgery to his right shoulder.

Employer's Position

The employer was represented by its Operations Manager and by its President/Owner. The employer's representative indicated that the employer supported the Review Office decision. They were not in a position to disagree with the WCB medical consultant's findings that the worker's ongoing complaints were related to a pre-existing degenerative condition and not to the workplace injury.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after November 2, 2015. In order for the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity after November 2, 2015 as a result of his July 6, 2015 workplace injury. The panel is unable to make that finding.

The worker has an accepted claim for a right shoulder partial AC separation as a result of his July 6, 2015 workplace accident.

Based on our review of the information before us, the panel finds, on a balance of probabilities, that the partial separation of the worker's right AC joint had resolved by the time the worker was assessed by the sports medicine specialist on November 2, 2015. In arriving at this conclusion, the panel relies on the specialist's failure or inability to make any specific clinical findings regarding the right AC joint at that time. The panel notes that this conclusion is further corroborated by the findings of the WCB orthopedic consultant following his examination of the worker on January 28, 2016, and in particular, his determination that the AC joint was not a current pain generator.

The panel notes that in response to questions from the panel at the hearing, the worker's advocate stated that the worker's AC separation probably could have been healed, but the worker was still experiencing pain, and that after further investigation, it was determined that the worker had a tear.

The panel notes, however, that there is no mention or indication of right rotator cuff pathology in the early medical information and reports on file, including the initial reports from the worker's treating physicians and reported x-ray findings.

The panel places significant weight on the February 5 and 17, 2016 reports of the WCB orthopedic consultant who, after reviewing the file and conducting a call-in examination of the worker, opined that all of the findings on the October 24, 2015 MRI of the worker's right shoulder were explained by degenerative rather than traumatic pathology, and that it was unlikely that the rotator cuff pathology was related to the mechanism of the workplace injury. The panel accepts the WCB orthopedic consultant's opinions in this regard as being consistent with our own review of the medical evidence on the file.

Further, the panel is unable to find any indication, based on the evidence, that the worker's pre-existing degenerative condition became symptomatic as a result of, or was aggravated or enhanced by, the July 6, 2015 workplace accident.

Based on the foregoing and on a balance of probabilities, the panel finds that the worker did not sustain a loss of earning capacity after November 2, 2015 as a result of his July 6, 2015 workplace injury.

The panel therefore finds that the worker is not entitled to wage loss benefits after November 2, 2015.

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
(on behalf of the panel)

Signed at Winnipeg this 23rd day of December, 2016