Decision #41/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his left shoulder difficulties as being a consequence of his February 6, 2012 workplace accident. A hearing was held on February 8, 2018 to consider the worker's appeal.
Issue
Whether or not responsibility should be accepted for the worker's left shoulder difficulties as being a consequence of the February 6, 2012 accident.
Decision
That responsibility should not be accepted for the worker's left shoulder difficulties as being a consequence of the February 6, 2012 accident.
Background
In his Worker's Accident Report filed March 30, 2012, the worker reported that he sustained an injury to his right shoulder on February 6, 2012, as follows:
While getting out of work truck slipped on ice and fell on my right arm and elbow and buttocks. I continued to work.
The worker was seen at his doctor's office on March 16, 2012, where he reported that he "slipped on ice while getting out of truck." The doctor noted "contusion - Rt (right) shoulder" as the diagnosis.
The worker attended an initial physiotherapy appointment on April 9, 2012 where it was noted that he fell on his left hand, right elbow and buttocks on February 2, 2012, and he was diagnosed with a second degree right rotator cuff strain.
The worker's claim was accepted by the WCB on April 20, 2012. At an appointment on June 7, 2012, the worker's doctor referred him to an orthopedic specialist and recommended light duties with no lifting, pulling or pushing.
The worker was seen by the orthopedic specialist, who noted in a report dated June 14, 2012:
On examination, he was noted to have full range of motion of the cervical spine. He complained of slight discomfort, especially on right rotation and on lateral flexion on the left side. He had slightly restricted motion of abduction in the right shoulder as well as internal rotation was restricted slightly on the right shoulder compared with the left side. He had painful abduction arc at 90-120 degrees of abduction range suggesting rotator cuff syndrome. He had full range of motion in his lumbar spine and hip joints. There was no pain. Sensation, muscle power and reflexes were noted to be normal in the lower limbs.
On July 5, 2012, the worker had an MRI of his right shoulder, which indicated:
1. Full thickness, full width tear of the supraspinatus tendon.
2. Moderate acromioclavicular joint osteoarthritis.
On July 6, 2012, a WCB medical advisor reviewed the claim file and recommended the following restrictions for light duty work, to be reviewed in 4 to 6 weeks or after review of the MRI scan:
• Avoid heavy lifting or push/pull with the right arm
• Avoid movements above shoulder level with the right arm
• Avoid use of the right arm outside the body envelope.
The WCB medical advisor reviewed the file again on July 16, 2012, after the MRI results had been received. The WCB medical advisor opined that referral of the worker "to an orthopedic surgeon with expertise in shoulder conditions and their surgical treatment would be appropriate." He also opined that the restrictions noted on July 6, 2012 remained appropriate and suggested that the restrictions be reviewed after assessment by the orthopedic surgeon.
The worker was seen by an orthopedic surgeon on July 23, 2012, who proposed an arthroscopic repair of the right shoulder rotator cuff tear, for which the WCB accepted responsibility, and the surgery took place on September 25, 2012. On November 26, 2012, the worker returned to work on modified duties with the restrictions of no overhead activity, no lifting greater than 10 pounds and no repetitive activity.
On October 17, 2013, a WCB orthopedic consultant reviewed the file and recommended permanent restrictions of:
• No lifting above shoulder height with the right upper limb
• No repetitive tasks above shoulder height with the right upper limb.
The worker was advised of these permanent restrictions on October 25, 2013.
At a follow-up appointment with the attending orthopedic surgeon on January 28, 2015, the worker advised that he was still having ongoing pain in his right shoulder. An MRI conducted on August 7, 2015 indicated:
1. Postsurgical changes related to rotator cuff tendon repair.
2. Large gap consistent with re-tear rotator cuff.
On March 21, 2016, the attending orthopedic surgeon proposed arthroscopic debridement and subscapular nerve release for the worker's re-torn right rotator cuff, which was subsequently authorized by the WCB. The surgery was performed on May 26, 2016, and on July 4, 2016, the worker was provided with permanent restrictions as a result of his right shoulder injury of:
• Avoid lifting above shoulder level
• Avoid repetitive tasks above shoulder level
• Avoid repetitive resisted tasks with the right upper limb away from the side of the body.
The worker returned to work on a graduated basis starting August 15, 2016, and to full time work, with the permanent restrictions, in early September 2016.
On December 6, 2016, the worker had an MRI of his left shoulder, the results of which were added to the file and indicated:
Full-thickness full-width tear of the supraspinatus tendon measuring 2 x 2 cm without atrophy but grade 1 fatty infiltration
At an appointment on January 9, 2017, the attending orthopedic surgeon noted:
[The worker] is seen today regarding his left shoulder work related problems. He has had previous surgery on his right shoulder. His MRI showed a 2x2 cm Left RC (rotator cuff) Tear. We discussed the risks and benefits of surgery. He is quite symptomatic and since the right side had an unrepairable re-tear we decided to proceed with an arthroscopic repair.
On January 19, 2017, the case manager spoke with the worker with respect to his left shoulder problems, and noted on the file:
[The worker] and I discussed his left shoulder difficulties. He reported that the left shoulder started bothering him a few months ago. He had the MRI done, and it shows a tear that he believes is related to the original workplace injury. He advised that he did put both arms out to stop his fall and he cut his left wrist. I advised that the claim is for his right shoulder and that there is no indication of left shoulder difficulties throughout the claim. I advised [the worker] that at this time if no mention of left shoulder difficulties throughout the claim, I can't relate the left shoulder difficulties to his original workplace injury.
On January 25, 2017, the WCB advised the worker that the mechanism of injury described on the injury reports did not support an injury occurred to his left shoulder and the WCB was unable to account for the difficulties he was experiencing in his left shoulder in relation to his claim.
On May 15, 2017, the worker requested reconsideration of the decision by Review Office, stating in part that on February 6, 2012:
…I suffered a cut on my left wrist at my hand, a bruised right elbow, sore right shoulder, and a sore back. I had a little pain in my left shoulder but the pain in my right shoulder was severe and therefore I did not write it down on my initial injury report form. From Feb. 06/12 thru 2016, I was being treated for a very painful shoulder/neck. During that time, I was using my left arm primarily for the majority of work. The pain got worse and I went for an M.R.I. on Dec. 06/16. The result is a torn left rotator cuff. I had surgery to repair this on Apr. 04/17. I am writing the above because it describes physics/mechanics/mechanisms, where if one were to fall, that one would naturally put their arms out to brace for the fall.
On May 18, 2017, a WCB orthopedic consultant opined:
1) It is unlikely that the workplace injury of 6-Feb-2012 was the direct cause of a rotator cuff tear of the left shoulder. This is supported by:
a) Physician reports dated 16-March-2012 and 30-March-2012 mention only the right shoulder.
b) Although the physiotherapy report of 9-Apr-2012 stated that the worker fell on his left hand, right elbow and buttocks, there was no mention of pain or restriction of motion of the left shoulder.
c) There is no mention of left shoulder symptoms prior to the right shoulder surgery for rotator cuff repair on 25-Sept-2012.
2) The development of a left rotator cuff tear is probably not related to overcompensation because of the condition of the right shoulder. This is supported by:
a) The orthopaedic surgeon first mentioned left shoulder problems on 15-June-2016. This is during the post-operative year following right shoulder surgery when physical activities were minimal.
b) MRI dated 6-Dec-2016 of the left shoulder reported a 2 x 2 cm rotator cuff tear with no muscle atrophy or fatty infiltration. If the tear had been present for more than a year, one would have expected muscle atrophy and fatty infiltration.
c) It is more probable that the left rotator cuff tear was degenerative rather than traumatic. Degeneration and rotator cuff tears are common in individuals over 55 years of age, particularly in smokers.
On May 31, 2017, the WCB advised the worker that they had further determined that his current difficulties with his left shoulder were not as a result of overcompensating due to his right shoulder condition or a secondary injury of his February 6, 2012 workplace injury, and they were unable to account for his left shoulder difficulties in relation to his claim.
On July 31, 2017, following receipt of submissions from both the worker and the employer, Review Office determined that there was no coverage for the worker's left shoulder difficulties. Review Office noted that neither the worker nor the employer identified a left shoulder injury when they filed their respective accident reports, and multiple healthcare providers had examined the worker since his workplace accident in February 2012. However, the first findings of a left rotator cuff injury were not reported until June 2016.
On September 20, 2017, the worker appealed the Review Office 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.
WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides:
A further injury occurring subsequent to a compensable injury is compensable:
(i) when the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.
Worker's Position
The worker was self-represented. The worker made a presentation at the hearing and responded to questions from the panel.
The worker described the accident which occurred on February 6, 2012. He stated that as he exited his work vehicle, he slipped on the ice with both feet. He said that it was a terrible fall; he went airborne and fell backwards into the opening of the cab. He sustained a cut wrist on his left hand, bruised right elbow, sore right shoulder, and a sore lower back.
The worker said that he had no shoulder pain prior to the accident. At his initial meeting with his orthopedic surgeon, he mentioned that he had some left shoulder pain, but the pain in his right shoulder was more severe when compared to the left.
The worker stated that the pain in his right shoulder became really bad, and he compensated by using his left arm for most of his work. The more he used his left arm, the more the pain grew. He said that he mentioned this to his orthopedic surgeon in December 2015, and finally had an MRI of his left shoulder in August 2016, followed by surgery in April 2017.
In response to questions from the panel, the worker said that he believed that his left shoulder tear was caused by the 2012 workplace accident. He had a bad fall and nothing else happened after that. He submitted that the tear would not have occurred by itself. He noted that all he had been doing since the accident was going to work, and when he was not at work he was resting and recuperating. The worker described the pain in his left shoulder as being like a pinch that grew and grew over time, becoming worse and worse until it got to the point where he felt that there had to be some damage there.
The worker submitted that the reason there was such a gap in the reporting of his left shoulder difficulties was that he was dealing with his right shoulder injury. He was injured in February 2012, and did not have the second surgery on his right shoulder until 2016. That four year span was spent dealing with chronic pain in his right shoulder, which was still torn. Throughout that period of time he was trying to work with his left shoulder, and although his shoulder kept getting worse, it was his right shoulder which was keeping him awake and causing him the most difficulties and pain.
Employer's Position
The employer was represented by its Workers Compensation Coordinator. The employer's position was that the weight of evidence demonstrates, on a balance of probabilities, that the worker's left shoulder difficulties are not related to or a consequence of his February 6, 2012 workplace accident, and the worker's appeal should be dismissed.
The employer's representative submitted that the worker's right shoulder injury was the primary or major healthcare and case management issue from February 6, 2012, when the workplace accident occurred, to June 2016, when the worker's left shoulder condition was first reported. He noted that the worker's left shoulder was not mentioned in the Notice of Injury, which the worker completed, the Worker Incident Report or any of the medical reports between February 2012 and June 2016.
It was noted that during that period of time, the worker provided the WCB with updates on the status of his right shoulder injury and medical investigations/treatment. While the worker reported experiencing neck or back difficulties on more than one occasion, he did not mention a left shoulder injury during any of these contacts. In the employer's view, it was noteworthy that the worker underwent an investigation with an x-ray of his left hand in November 2012, but there was no mention of his left shoulder at that time. The first time the worker mentioned his left shoulder appeared to be on June 28, 2016, when he advised the WCB that he was now experiencing left shoulder difficulties, due to overcompensating because of his right shoulder problems.
It was submitted that while the worker had obtained support for his appeal from more than one of his healthcare providers, the opinions which had been provided were purely speculative and should be given little weight.
In conclusion, it was submitted that the evidence which should be accorded the greatest weight was the more than four year absence of any reports or complaints of left shoulder difficulties by the worker and the more than four year absence of any healthcare regarding the worker's left shoulder. In the employer's view, this four year gap cannot be reconciled and a relationship between the worker's claim and his left shoulder condition cannot be established.
Analysis
The issue before the panel is whether or not responsibility should be accepted for the worker's left shoulder difficulties as being a consequence of the February 6, 2012 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's left shoulder difficulties were caused by the February 6, 2012 workplace accident or predominantly attributable to his compensable injury. The panel is unable to make these findings, for the reasons that follow.
The panel finds that the worker's left shoulder difficulties are not consistent with the mechanism of injury as described in the information on file and as presented at the hearing.
The panel is further unable to account for the more than four year gap between the date of the workplace accident and the first reference to left shoulder difficulties or a left shoulder injury on the file.
The panel notes that neither the worker nor the employer referred to the worker having a left shoulder injury in the reports which they filed with the WCB. While the worker relied on the Notice of Injury which he completed on February 6, 2012 as providing a more complete description of the injuries he suffered that day, the panel notes that the injury as described in that form was "A cut on my left wrist, bruised right elbow, sore right shoulder, sore lower back," and there was still no mention of any injury to the worker's left shoulder.
The panel notes that the first reference to the worker experiencing left shoulder difficulties appears to be in a note from the attending orthopedic surgeon relating to a visit on June 15, 2016, where it was reported that the worker had "Pain opposite shoulder…MRI requested."
The medical information on file shows that the worker was examined by a significant number of healthcare providers between February 2012 and June 2016, but there are no references to or findings of a left shoulder injury or difficulties during that period of time. It is significant, in the panel's view, that there were references to injuries relating to other parts of the worker's body and investigations or treatments relating thereto, including the worker's back, his neck and his left hand, during this period of time. The panel would have thought that if the worker was experiencing increasing difficulties and pain in his left shoulder, he would have mentioned it to his healthcare providers.
It is also significant, in the panel's view, that the worker was examined by a WCB medical advisor on December 4, 2013 to determine whether he had a permanent partial impairment due to his right shoulder injury, and that although the worker's left shoulder was measured and compared to his right shoulder in the course of that examination, there is no indication that he mentioned any left shoulder difficulties or injury at that time.
The panel places significant weight on the May 18, 2017 opinion of the WCB orthopedic consultant, as previously quoted, which we find to be consistent with our assessment and understanding of the evidence which is before us.
The panel considered a visit note from the attending orthopedic surgeon dated March 17, 2017 in which the surgeon opined that "given the nature of the workplace injury and how [the worker] has had trouble with both shoulders since, it is most likely that the Left RC Tear occurred at the same time as the right," but is unable to attach much weight to that opinion. The panel finds the surgeon's opinion to be speculative in nature and notes that no clinical findings were provided in support of same.
Based on the foregoing, the panel is unable to find, on a balance of probabilities, that the worker's left shoulder difficulties were caused by his February 6, 2012 workplace injury or that his left shoulder difficulties were predominantly attributable to his compensable right shoulder injury.
The panel therefore finds that responsibility should not be accepted for the worker's left shoulder difficulties as being a consequence of the February 6, 2012 accident.
The worker's appeal is dismissed.
Panel Members
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of April, 2018