The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that no responsibility would be accepted for his right shoulder surgery and associated benefits. A hearing was held on January 16, 2017 to consider the worker's appeal.

Issue

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

Decision

That responsibility should be accepted for the right shoulder surgery and associated benefits.

Background

On October 2, 2015, the worker filed a claim with the WCB for an injury to his right shoulder that occurred on April 7, 2014, when he and a co-worker threw a dead weight onto the back of a work vehicle. The Employer Injury Report dated October 3, 2015 confirmed the accident description as outlined by the worker.

Initial medical information showed that the worker attended a physician for right shoulder complaints on April 8, 2014. The physician stated:

April 7/14 - felt pain to R shoulder when lifting a dead deer on to back of a truck - concerned may have reinjured previously dx'd (diagnosed) rotator cuff. Hx (history) 3 yrs. ago - previously dx'd with torn rotator cuff per MRI done at HSC…decision was left up to pt. - He declined the surgery at the time. Burning pain to R shoulder; no numbness, tingling to r arm. No c/o neck pain.

The April 8, 2014, diagnosis outlined by the treating physician was a right rotator cuff contusion and possible tear.

On October 16, 2015, the worker advised the WCB that he had a prior WCB claim for a right shoulder injury. He could not recall the specifics of the accident but did recall that surgery had been an option and that he declined. He did experience some periodic soreness in his right shoulder but his range of motion was good. He denied any further accidents or injury to his right shoulder from 1997 through to April 7, 2014. The worker reported that he continued to work without any time loss following the April 7 accident and that his shoulder condition had improved but he continued to have pain when reaching and lifting over shoulder height.

The WCB obtained test results and consultation reports related to the worker's prior right shoulder condition.

On November 6, 2015, the worker underwent an arthroscopy to repair a "Massive right rotator cuff tear (full thickness supraspinatus and infraspinatus with retraction to the level of the glenoid) and biceps tendonitis."

On January 7, 2016, a WCB orthopedic consultant reviewed the file at the request of the case manager and opined as follows:

• The diagnosis related to the workplace injury of April 7, 2014 was a strain/sprain of the right shoulder.

• The surgery of November 6, 2015 was directed at a pre-existing condition of the right shoulder, i.e. a large tear of the rotator cuff. The surgery was not related to the workplace injury. There was no evidence on MRI of enhancement or aggravation of the rotator cuff defect.

In a decision dated January 14, 2016, the worker was advised that the WCB was unable to accept responsibility for his medical appointments and time loss from work related to his right shoulder surgery as the surgery was directed at a pre-existing condition.

The worker provided the WCB with a statement from his manager for consideration. On May 2, 2016, the worker was advised that the new information had been considered and no change would be made to the WCB decision of January 14, 2016.

On July 14, 2016, the Worker Advisor Office asked the WCB to consider a report from the worker's treating surgeon which stated:

I am confident that at the very least he had a rotator cuff injury associated with the 1997 event as he responded well to standard initial non-operative measures (steroid injections) and was able to return to work. Given that he also reports no discrete traumatic event from the 1997 injury to the time in 2009 when his right shoulder pain increased, the 1997 underlying traumatic injury can be assumed to relate to the 2009 diagnosis of a rotator cuff tear, then confirmed by MRI imaging.

In my medical opinion, yes the April 7, 2014 injury did contribute to [worker's] need for surgical repair.

After the April 7, 2014 injury he had significant functional limitations and associated pain regarding his right shoulder, whereby this injury aggravated his underlying condition (of a known rotator cuff tear) requiring him to go on to surgical management for the intention of pain relief and functional improvement.

On August 4, 2016, the WCB orthopedic consultant reviewed the treating surgeon's report and the worker's 1997 WCB claim file. The consultant opined that the workplace injuries of 1997 and 2014 did not cause the large rotator cuff tear observed at surgery. He also stated there was no medical evidence that the workplace injury aggravated or enhanced the rotator cuff tear that was present prior to 2014. He stated the development of a large rotator cuff defect over the years was more in keeping with the natural history of degenerative disease of the rotator cuff. With a sizeable cuff defect, there are periods of time when an individual may well be symptom free and other times when symptoms become bothersome.

In a decision dated August 8, 2016, the worker was advised that based on the WCB medical opinion, the need for surgery was not related to the April 2014 accident and the accident did not aggravate or enhance his right shoulder condition. On August 12, 2016, the Worker Advisor Office appealed the decision to Review Office.

On September 26, 2016, Review Office determined there was no coverage for the right shoulder surgery or benefits associated with the procedure. Review Office acknowledged that the worker had symptoms and a change in his right shoulder function following the April 7, 2014 accident but it was not able to identify a more sinister injury from that mechanism of injury beyond a right shoulder strain/sprain. Based on these findings, Review Office upheld the decision that there was no coverage for the right shoulder surgery or benefits associated with the procedure. On October 31, 2016, the worker advisor 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 Board of Directors.

The worker has an accepted claim for an injury arising from a 2014 workplace accident. He is asking that responsibility be accepted for his right shoulder surgery and associated benefits.

Section 37 of the Act provides:

Compensation payable

37     Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

The worker's claim involves a pre-existing condition. WCB Board Policy 44.10.20.10, Pre-Existing Conditions, provides, in part:

The Workers Compensation Board of Manitoba 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.

Under the policy benefits are paid in limited situations where a pre-existing condition has been aggravated or enhanced as a result of a workplace accident.

Worker's Position

The worker was represented by a worker advisor. The worker's representative provided both written and oral submissions. The worker answered questions from her representative and the panel.

The worker's representative advised that the worker's position is that the November 6, 2015 surgical treatment and recovery of his right shoulder is associated with the April 7, 2014 compensable injury.

The worker advised the panel that the worker:

• sustained a right shoulder injury in 1997 when he was working on a conveyor belt.

• he had an x-ray which was negative and received two cortisone shots and returned to work.

• between 1998 and 2009 his shoulder was sore periodically but he continued to work.

• in 2009 he had an MRI on the shoulder which found a right rotator cuff tear but as it had little effect on his ability, he chose not to have surgery

The worker described the accident his April 7, 2014 accident. He said:

Me and my co-worker were throwing on a dead deer in the back of a truck there, that’s our, part of our job and had to pick up the animals and that there.

So I had the back feet, he was on the front there, and when we swung the deer I felt a sharp pain in my shoulder, something give way right there and that. I said to him, something happened to my shoulder, right.

He said the animal weighed between 150 and 170 pounds.

The worker advised that the accident had an immediate impact on his ability to perform his work duties. He sought medical attention the next day. He underwent physiotherapy and was referred to a surgeon and a second MRI was conducted. The worker's representative advised that the April 26, 2009, MRI revealed a moderate size full thickness tear of the supraspinatus tendon. The August 24, 2014 right shoulder MRI revealed:

• a full thickness tearing of the posterior fibers of the supraspinatus tendon extending into the superior fibers of the infraspinatus tendon at their footprint,

• a high grade tearing of the anterior fibers of the supraspinatus tendon on a background of tendinosis, mild fatty atrophy of the supraspinatus muscle.

• a high grade articular sided tearing of the inferior fibers of the infraspinatus tendon on a background of tendinosis, moderate fatty atrophy of the infraspinatus muscle.

• a moderate grade articular sided tearing of the footprint of the subscapularis tendon, no significant atrophy of the subscapularis muscle.

The worker's representative noted that the worker had surgery on November 6, 2015. The worker's surgeon reported that the worker had a right shoulder rotator cuff repair and bicep tenotomy performed arthroscopically. The tear was massive and a partial repair was attained of approximately 60 percent.

The worker's representative noted that the worker's surgeon opined that there was a relationship between the surgery and the worker's injury.

The worker's representative submitted that the April 2014 injury enhanced (adversely affected) the worker's pre-existing shoulder injury, therefore responsibility should be accepted for the surgical treatment and recovery.

Employer's Position

The employer was not represented at the hearing but supported acceptance of the worker's claim. The worker's manager noted that prior to the April 7, 2014 injury, the worker was able to fulfill his work-related duties which involved overhead work but after the injury he was not able to fulfill all his duties.

Analysis

The worker is seeking coverage for the medical costs and time loss due to the surgery which he believes is related to the 2014 injury.

The issue before the panel is whether responsibility should be accepted for the right shoulder surgery and associated benefits. For the worker's appeal to be approved, the panel must find that the worker's 2014 accident caused an injury to his right shoulder or enhanced his prior shoulder condition to the extent that he required surgical treatment. The panel was able to make this finding.

In reaching this decision, the panel relies upon the opinion of the surgeon who operated on the worker' right shoulder. She opined in a July 2016 letter to the worker's representative that:

…the April 7, 2014 injury did contribute to [the worker's] need for a surgical repair. Prior to the event he was reported to be functioning well without significant limitations or pain and had responded well to standard rotator cuff tear non-operative measures with no plans for surgical intervention. After the April 7, 2014 injury he had significant functional limitations and associated pain regarding the right shoulder, whereby his injury aggravated his underlying condition (of a known rotator cuff tear) requiring him to go to surgical management for the intention of pain relief and functional improvement. When comparing the MRI imaging from 2009 and 2014, there was no large increase in the size of the rotator cuff tear in 2014, however symptoms are not in a direct relationship or associate to the size of a rotator cuff tear. By history alone, [worker] seeking medical attention and having noted right shoulder dysfunction following the April 7, 2014 event confirms that his event aggravated his underlying condition.

The panel also attaches significant weight to the worker's evidence that he had full use of his arm before the injury, notwithstanding that he had a pre-existing condition, and after the injury he could not use his arm. This evidence was confirmed by the worker's employer.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 14th day of February, 2017