Decision #65/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by The Workers Compensation Board ("WCB") that he had recovered from his compensable injury and was not entitled to further benefits. A hearing was held on March 29, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to further benefits.
Decision
That the worker is entitled to further benefits.
Background
On November 27, 2015, the worker was turning a crank to place a tarp over a trailer when he heard a crack and felt a sudden pain in his left shoulder. After the accident, the worker said he had little strength in his left arm. He was able to finish his delivery as he only drives the truck and does not load or unload product. Then on December 1, 2015, he was walking to a delivery location when he slipped but did not fall. When he tried to catch himself from falling, his arms flailed/swung up and the pain in his left shoulder significantly increased. After the incident, the worker reported that he kept his left arm close to his body. On December 2, 2015, the worker returned to work and performed modified one-handed duties. The initial diagnosis outlined by the treating physician was a partially torn left biceps tendon.
On January 15, 2016, the worker under an MRI assessment of his left shoulder and the findings revealed:
1. High-grade tearing of the subscapularis.
2. Minimal abnormal signal insertion supraspinatus.
3. Complete tearing long head biceps
On January 28, 2016, a WCB medical advisor commented that the MRI confirmed the diagnosis of a long head biceps (LHB) rupture and that the diagnosis was medically accounted for in relation to the compensable injury. The medical advisor further stated:
It should be noted that there was also a rotator cuff tearing (subscapularis) on the MRI. This had atrophy and fatty infiltration. Those features take years to develop in a tear, so they support that the tear is there on a degenerative basis and would not have been caused by the workplace accident. The worker's presentation has not been consistent with a subscap tear, further supporting it's not related or contributing to his presentation. Any future tx (treatment) of that tear would not be related to the C/I (compensable injury).
The worker was seen in consultation by an orthopedic surgeon on March 8, 2016 regarding his left shoulder complaints. The surgeon stated, in part:
WCB had rejected him on the basis that his subscapularis tear is old and pre-existing and did not have anything to do with these current injuries. However, he did not have trouble prior to this and most likely had some pre-existing cuff degeneration given his age, but he really tore it at this time.
The surgeon recommended that the worker undergo arthroscopic repair and debridement.
On March 17, 2016, a WCB medical advisor asked the orthopedic surgeon to address three questions related to the worker's rotator cuff tear. A response from the surgeon was received dated May 6, 2016.
On June 17, 2016, a WCB orthopedic consultant reviewed the surgeon's report dated May 6, 2016 and agreed with the opinion of the WCB medical advisor that no responsibility should be accepted for the proposed surgery of arthroscopy and repair of the subscapularis tear of the left shoulder.
On July 13, 2016, the WCB orthopedic consultant reviewed the file information which included physiotherapy reports and two Functional Capability Assessments. He concluded that the worker had made a complete recovery from the compensable injury and there were no workplace restrictions arising out of the compensable injury.
In a decision dated July 29, 2016, the worker was advised that based on the file information and the WCB orthopedic medical opinion, it was the WCB's position that he had recovered from the November 27 and December 1, 2015 left shoulder injury and there was no further loss of earning capacity.
On September 10, 2016, the worker wrote Review Office as he disagreed with the WCB's decision to deny responsibility for his surgery. On September 16, 2016, the employer's representative submitted to Review Office that they concurred with the WCB decision to deny further responsibility for the worker's claim beyond July 29, 2016.
On October 4, 2016, Review Office determined that the worker was not entitled to additional benefits. Based on the medical information on file, Review Office commented that the biceps tear had recovered as much as bicep tears can and it was not preventing the worker from returning to his regular duties at the time benefits were ended.
Review Office also indicated that they were not able to find that the worker's current left shoulder difficulties were related to the workplace accident. Review Office considered the opinions expressed by the treating surgeon and family physician, along with the MRI findings. It agreed with the WCB medical opinions on file dated January 28 and July 13, 2016. Review Office concluded that the rotator cuff tear was not a result of the workplace injury and that any aggravation of the pre-existing tear, suffered at the time of the workplace accident had resolved by the time benefits were ended. On November 24, 2016, a worker advisor, acting on the worker's behalf, appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
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 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 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 “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 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 attended the hearing with a worker advisor who assisted at the hearing.
The worker’s position was that his left shoulder did not functionally recover from the November 27, 2015 and December 1, 2015 compensable injuries. Although the medical information shows that the worker had a pre-existing condition in his left shoulder, the shoulder was nonetheless fully functioning and he had no history of any difficulties with the shoulder. The worker says that after the incident on November 27, 2015, he did not regain functional use of his left shoulder until after he underwent surgical repair. He should, therefore, be entitled to further benefits.
Employer’s Position:
The employer was represented by its health benefits coordinator.
The employer submitted that the WCB decision was correct and should be upheld. Diagnostic imaging reports indicated that the worker had a high grade tearing of the subscapularis in addition to a rupture of the long head biceps. The reports also indicated, however, that the worker had advanced atrophy and fatty infiltration of the subscapularis muscle, which is degenerative in nature. The mechanism of injury described by the worker does not correspond to the diagnostic imaging reports and, therefore, it was submitted that his subscapularis tear was degenerative and related to aging, not a result of trauma. As such, no further benefits should be paid.
Analysis:
The worker has an accepted claim for a compensable injury as a result of the December 1, 2015 incident and for which he has been paid benefits. He is appealing the decision that he is not entitled to further benefits.
For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer the effects of the November 27, 2015 and/or December 1, 2015 incidents. The panel is able to make that finding.
At the hearing, the worker described the mechanism of injury at the time of the November 27, 2015 injury, stating that when he was rolling up the tarp that day, he felt a sudden snapping pain on top of his shoulder. The pain prevented him from further use of the shoulder. Although he continued to perform his duties, he did so by limiting use of his shoulder and arm over the next several days. He then had a second injury to the same arm and shoulder on December 1, 2015 involving a rupture of the long head biceps. Following the second injury, he remained off work. Subsequent MRI imaging confirmed both the rupture of the long head biceps and also the tearing of the subscapularis, or rotator cuff. The imaging also noted age-related degeneration in the shoulder.
Although the worker may have had a degenerative condition in his shoulder, the panel finds, overall, that the evidence is consistent throughout that the worker sustained an acute injury on November 27, 2015 which caused the rotator cuff tear or enhanced the preexisting condition to the point it required surgery. The panel further notes that the surgical findings to repair the rotator cuff tear are consistent with this conclusion. On a balance of probabilities, therefore, the panel finds that the worker tore his rotator cuff, or enhanced a pre-existing condition, through a traumatic mechanism of injury and that the injury continued to affect his shoulder until it was surgically repaired.
Based on the foregoing, we find that the appeal should be allowed and the worker should be entitled to further benefits.
Panel Members
K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of May, 2017