Decision #87/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding his entitlement to further benefits in relation to his compensation claim. A hearing was held on April 25, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Background

On February 13, 2003, the worker injured his chest and left shoulder when he slipped while climbing down a ladder. His claim for compensation was accepted and the worker was paid wage loss benefits and other services to May 12, 2005 when it was determined by both primary adjudication and Review Office that he had recovered from the effects of his workplace injury. A hearing was held at the Appeal Commission, and on May 15, 2007 it was determined that the worker's ongoing left shoulder complaints were related to his February 2003 accident and he was entitled to medical aid benefits, but not wage loss benefits, after May 12, 2005.

On August 16, 2007, the worker underwent surgery in the form of a left superomedial scapular resection based on the pre-operative diagnosis of a left snapping scapula. Responsibility for the surgical procedure was accepted by the WCB and the worker's wage loss benefits were reinstated effective August 16, 2007.

File records show that the worker attended physiotherapy and was seen for follow-up by his orthopedic surgeon.

On March 19, 2008, the treating orthopedic surgeon reported that the worker had no significant complaints and had full range of motion in his left shoulder when seen at the clinic.

On March 25, 2008, the worker was seen at the WCB offices for a call-in assessment. Following the examination, the orthopedic consultant noted that the worker demonstrated a full recovery of function in his left upper limb and that he appeared to be in excellent physical condition in general. He opined that the worker did not require a work hardening program prior to his return to full duties.

On April 9, 2008, the worker was advised by Rehabilitation and Compensation Services that the WCB would not be responsible for wage loss or medical payments beyond March 28, 2008, as it was determined that he had fully recovered from the effects of his compensable left shoulder injury and had returned to work on March 31, 2008.

In 2009, the worker was seen at the WCB's offices for a permanent partial impairment (PPI) assessment.

On July 30, 2010, the worker called the WCB to say that he was having ongoing pain in his left shoulder and left shoulder blade. He said the pain had always been there and it had progressively worsened in the last two weeks. The worker thought that he returned to work too early after his injury and the physiotherapist pushed him too hard.

In a decision dated September 7, 2010, the worker was advised that the WCB was unable to provide him with further compensation benefits as the medical information did not establish a cause and effect relationship between the 2003 accident and the difficulties he was experiencing after March 28, 2008. The adjudicator's decision was based on findings which included:

• At the PPI examination at the WCB, the worker reported that he was doing well since his return to work with overall good improvement with surgery.

• Medical information dated August 6, 2010 indicated subjective complaints of pain and noted the worker was unable to be examined because of pain. The report indicated that there was no wasting of muscle. The report also confirmed that he was currently working as a taxi driver.

• There was no ongoing medical treatment for his shoulder between March 19, 2008 and August 6, 2010.

• His last day at work with the accident employer was April 20, 2009 and he had been employed as a taxi driver since October 2009.

On August 27, 2015, the worker advised that he saw his treating surgeon in 2014/2015 for his left shoulder and was told he had a failed left shoulder surgery. The worker said he sought

treatment in another country where they noted that he had a bone spur behind his shoulder and fixed it.

The WCB obtained up-to-date medical information related to the worker's treatment:

• On January 2, 2014, the worker saw a sports medicine specialist and was diagnosed with chronic scapular dysfunction.

• On May 28, 2014, the treating orthopedic surgeon reported his examination findings of "obvious winging in the scapula on movement, although there seems to be some function straight as anterior has global atrophy of the shoulder. He has a superomedial angle of the scapula incision and far detachment of rhomboids around the same. He is tender around that area. He has a full range of motion of the shoulder…MRI done recently is negative. We are going to get a CT scan to look for bony impingement of the scapula and the ribs and…an EMG/nerve conduction test to ascertain the status of the long thoracic nerve."

• A July 7, 2014 CT scan of the left upper extremity found no evidence of a rib deformity or healed rib fractures. No significant fluid was found in the scapulothoracic bursa and the tendons of the rotator cuff were not well assessed, but the muscle bulk of the rotator cuff was well maintained. There was no other bony or soft tissue abnormality identified.

• Nerve conduction studies taken July 29, 2014 were read as normal. There were no findings of a left long thoracic or other neuropathy.

• On August 20, 2014, the treating orthopedic surgeon indicated that none of the testing showed any bony pathology or nerve compromise. The worker at present had scapulothoracic crepitus and obvious functional winging despite the normal EMG and nerve conduction studies. The orthopedic surgeon did not think any further surgical options were viable.

• On November 14, 2014, the worker was seen at a pain management clinic. It was reported that the pain generator was unclear and it might be related to a myofascial trigger point.

• On December 23, 2014, an orthopedic specialist reported that the worker complained of pain in his left shoulder. Treatment suggestions included conservative management and exercises to his neck and to his shoulders.

• A medical report dated May 16, 2015 by the treating orthopedic surgeon stated: "Left shoulder chronic pain with scapulothoracic crepitus…previous surgery in 2007 - failed to alleviate problem…prognosis is poor, permanent disability…unable to use affected arm."

• In July 2015, a neurosurgeon diagnosed the worker with snapping scapula left shoulder and subacromial impingement syndrome. A July 16, 2015 letter from the treating neurosurgeon reported that the worker underwent the following surgical procedures earlier that month: scapula-thoracic arthroscopy with resection/removal of deformities and cicatrizations, bursectomy and removal of the osteophytes in the area of the left superomedial scapula angle; and arthroscopy of the left shoulder with tansarthroscopical and subacromial decompression. At the time of discharge, the worker was still describing common postoperative shoulder pain which would decline during the next weeks.

On September 2, 2016, a WCB orthopedic consultant reviewed the file information and stated:

On file, a discharge report from [out of country location], with a diagnosis of snapping scapula left shoulder and subacromial impingement syndrome.

The surgery appears to have been a scapulothoracic arthroscopy with removal of some deformities, scar tissue, bursectomy, and osteophytes in the left superomedial scapular angle.

This is the area already addressed by [treating orthopedic surgeon] and from which the surgical procedure had been successful.

The second procedure was an arthroscopic subacromial decompression, with no information as to the status of the rotator cuff, subacromial bursa, or acromioclavicular joint.

Note prior to this an assessment by [an orthopedic specialist] December 23, 2014, identifying a full range of shoulder movement with normal motor power and sensation in the left arm. The report describes a galaxy of symptoms of pain, pulsation, body weakness "as if he were in shock."

The WCB orthopedic consultant opined that the surgical procedure conducted in July 2015 was not warranted in relation to the compensable injury.

In a decision dated September 7, 2016, the worker was advised by Compensation Services that the WCB was not able to accept responsibility for surgical expenses related to the surgery

performed outside Canada. On September 19, 2016, the worker appealed the decision to Review Office.

On November 25, 2016, Review Office determined that the worker was not entitled to further benefits. Review Office noted that the medical reports on file supported that the worker made a good functional recovery from his left shoulder surgery performed in Manitoba, and that he did not require restrictions on his return to work and was capable of returning to his pre-accident job.

Review Office referred to the WCB orthopedic opinion of September 2, 2016 and concluded that the surgical procedure performed outside Canada was a duplicate of the earlier surgical procedure from which the worker had recovered. The additional procedures on the left shoulder were unrelated to the compensable injury and there was no cause and effect relationship between the worker's left shoulder problems from July 2010 forward and the workplace accident of February 13, 2003. On December 22, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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.

Under subsection 4(2), 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 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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.

Worker's Position

The worker was self-represented and participated in the hearing by teleconference. The worker made a brief presentation and responded to questions from the panel.

The worker's position was that his left shoulder injury had never resolved from the time of his injury in 2003 up until his surgery in July 2015. He said that nothing changed in his left shoulder during this period of time. He always had the same popping and snapping and continual pain, and his shoulder was never good. The surgery in 2007 failed to solve the problems or alleviate his pain, and he was cleared to return to work too early. He had stayed optimistic, hoping that he would be better after the 2007 surgery. He had tried to work through the pain, but it was obvious in hindsight that his condition had not improved. The treating orthopedic surgeon later acknowledged that the surgery failed and the worker had a permanent disability and limitation of functions.

The worker said that the doctors here could not identify the problem and did not want to do anything further. Physiotherapy only aggravated his condition and his pain. He was unable to get help in Canada, and was in so much pain that he had to do something, so he sought help outside the country. The surgeon who subsequently treated him identified abnormalities in the bone in his left shoulder and operated in July 2015. The worker noted that he is not a doctor and can only go on what the treating surgeon found. He said that since the surgery, his shoulder seems to be improving and gaining muscle and he is very happy with it; he doesn't have that pain and can think again.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find that the worker suffered a further loss of earning capacity and/or required further medical aid as a result his February 13, 2003 workplace injury. For the reasons that follow, the panel is unable to make that finding.

The panel notes that in its previous decision on May 15, 2007, the Appeal Commission accepted the diagnosis of a soft tissue injury in the left shoulder or left scapula injury. Surgery was authorized and accepted for a left superomedial scapular resection, which was performed on August 16, 2007.

Information on file shows that the 2007 surgery had a good outcome, that the worker made a full recovery and returned to work his full regular duties at the end of March 2008. Based on the evidence which is before us, the panel is satisfied that the worker had full functionality for a substantial period of time, where he was working heavy duties.

In this regard, the panel places weight on the January 16, 2008 follow-up report of the treating orthopedic surgeon, who stated that "Overall, this has improved significantly. [Worker] has full range of motion. His strength is improving. He is not quite ready for the heavy duties involved in work, and we have advised him to begin light duties…"

The panel also places weight on the notes of the WCB orthopedic consultant who examined the worker at a call-in examination on March 25, 2008, and opined:

Examination findings on this examination have demonstrated a full recovery of function in the left upper limb.

After discussion, I confirmed my agreement with the physiotherapy consultant's decision not to authorize further physiotherapy and to continue with a regular home exercise program.

I also explained that on the basis of the examination, the claimant appeared to have fully recovered and there would be no need to apply for light duties for a month, particularly as it was evident from the file that there were no available light duties.

The claimant appeared to agree…

From this assessment, the claimant appears to be in excellent physical condition in general and I do not believe that a work hardening program would be required prior to returning to full duties.

The panel also places weight on the notes of the WCB physiotherapy consultant who wrote, following his PPI interview and examination of the worker on February 27, 2009, that the worker "reported he is doing well since his return to work with overall good improvement with surgery."

The panel accepts that the worker subsequently appears to have had further symptoms and left shoulder difficulties, but is unable to find that those symptoms or difficulties were related to his compensable injury or medical treatment that arose from the compensable injury.

The panel notes that the July 16, 2015 letter from the treating neurosurgeon refers to the worker's diagnoses as "snapping scapula left shoulder and subacromial impingement syndrome." The panel accepts these diagnoses, but is unable to find, on a balance of probabilities, that they are related to the worker's 2003 compensable injury.

As previously indicated, the diagnosis which was accepted by the Appeal Commission in its May 15, 2007 decision was a soft tissue injury in the left shoulder or left scapula injury. A shoulder joint or rotator cuff issue was not accepted, and medical reports do not indicate the presence of a subacromial impingement syndrome at that time. The panel is therefore unable to find that the treating neurosurgeon's recent diagnosis of subacromial impingement syndrome and surgery to address that condition are related to the 2003 compensable injury.

The panel also notes that the July 16, 2015 letter from the neurosurgeon states that "Xrays and MRI of the shoulder show osteochondrotic changes and osteophytes," and that the July 2015 surgery was aimed in part at relieving the symptoms relating to those conditions. It is the panel's understanding that such conditions were specifically tested for and ruled out in a CT scan of the worker's left scapula on December 22, 2006. That CT scan was read, in part, as showing: "No osseous abnormalities are evident. There is no evidence to suggest the presence of an osteochondroma." In a letter to the Appeal Commission dated February 22, 2007, the treating orthopedic surgeon explained that they "…were attempting to rule out an osteochondroma as the source of a snapping scapula. His CT scan was negative and, therefore, his snapping is likely from soft tissue…" The panel is therefore unable to find that osteochondrotic changes and osteophytes, as identified in 2015, were related to the compensable injury.

The panel also places weight on the September 2, 2016 opinion of the WCB orthopedic consultant who opined that the surgical procedure conducted in July 2015 was not warranted in relation to the compensable injury, noting that:

The worker had fully recovery from the surgical procedure of August 15, 2007, at the time of the call-in examination of March 25, 2008.

The surgical procedure in [country] (carried out by a neurosurgeon), was in part a repeat of the surgery performed in Manitoba.

The subacromial decompression procedure was not related to the compensable injury of this claim.

The panel accepts the orthopedic consultant's opinion, as consistent with our review and understanding of the information which is before us.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require further medical aid as a result of his February 13, 2003 workplace injury.

The panel therefore finds that the worker is not entitled to further benefits.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2017

Back