Decision #46/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further wage loss or medical aid benefits after December 22, 2016. A hearing was held on February 13, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to further wage loss and medical aid benefits after December 22, 2016.
That the worker is not entitled to further wage loss and/or medical aid benefits after December 22, 2016.
The worker injured his left shoulder on July 28, 2016 in an incident which he described as follows:
I was carrying heavy parts, spindle poles & whaler beams up on my left shoulder (4-6 feet & 3 metres long; very very heavy). I was carrying them one at a time. I would pass them up to the young guys when I got to where they needed to be. I could feel super jolting pain while doing this but didn't want to complain. Within two hours I finally complained.
Carrying at least a total of 14 spindle poles, 4 whaler beams & parts (all heavy) on my left shoulder one by one walking across a lay-down and up some stairs and onto the deck of the project we were working on & handing them off to the younger guys.
The worker attended at a hospital emergency department on July 30, 2016, where he was diagnosed with a left shoulder sprain/tendinitis, and was provided with restrictions of modified duties with no use of his left shoulder. The worker attempted to return to work with modified duties on July 31, 2016, but was unable to continue working due to his reported shoulder pain.
An x-ray of the worker's left shoulder, taken August 11, 2016, indicated:
There is near complete obliteration of the glenohumeral joint most marked centrally. Both sides of the joint are sclerotic with subchondral bone cysts. Large osteophytes are extending inferiorly from the humeral head. There is some erosion and degenerative change of the left acromioclavicular joint.
On August 18, 2016, the worker attended another doctor, who referred him to an orthopedic surgeon. On September 1, 2016, the worker saw his family doctor, who diagnosed him with an "acute sprain L shoulder on background of markedly degenerative joint disease."
An MRI report dated November 21, 2016 noted the following:
1. Severe glenohumeral joint osteoarthritis with two osseous intraarticular loose bodies suspected.
2. Rotator cuff tendinosis suspected, but no rotator cuff tear seen.
On December 14, 2016, a WCB orthopedic consultant reviewed the file and provided the following opinion:
1. The worker reported onset of left shoulder pain when lifting and carrying heavy objects on 28-July-2016. The probable diagnosis was a strain of the left shoulder.
2. MRI dated 21-Nov-2016 reported severe gleno-humeral osteoarthritis (OA) and osteolysis of the lateral end of the clavicle.
3. It is probable that the current diagnosis is OA of the left shoulder joint. This is not related to the workplace injury. This opinion is supported by:
a) The mechanism of the workplace incident would not cause damage to the gleno-humeral joint.
b) Severe OA requires many years to develop, so is a pre-existing condition.
c) A person with OA of the shoulder would experience pain lifting and carrying objects.
d) The natural history of shoulder OA is of episodes of pain and stiffness of the shoulder, the episodes becoming more frequent and more severe over the years.
e) There is no objective medical evidence that the workplace incident aggravated or enhanced the degenerative condition of the left shoulder.
4. Orthopaedic referral is appropriate for the current diagnosis but is not related to the workplace incident of 28-July-2016.
On December 15, 2016, the WCB advised the worker that they had determined that his present complaints were in relation to his pre-existing non work-related condition, as the soft tissue injury that occurred at the workplace would have resolved by this point in time (in excess of a 20 week recovery period), and they were not able to accept ongoing responsibility for his claim. The WCB advised the worker that as his loss of earning capacity was not related to his workplace injury, responsibility for further wage loss benefits would end effective December 22, 2016.
On February 9, 2017, a worker advisor, acting on behalf of the worker, requested reconsideration of the WCB's December 15, 2016 decision by Review Office. In its decision dated February 28, 2017, Review Office determined that it was unable to establish a causal relationship between the worker's ongoing left shoulder complaints and his July 28, 2016 workplace accident. Review Office found that the worker no longer had a loss of earning capacity in relation to the workplace injury, and there was no further entitlement to wage loss benefits beyond December 22, 2016.
On April 26, 2017, the worker advisor also requested reconsideration of the WCB's December 15, 2016 decision with respect to the worker's entitlement to further medical aid benefits by Review Office. On May 8, 2017, Review Office upheld the WCB's decision and determined that there was no entitlement to medical aid benefits beyond December 22, 2016. Review Office found that, as previously noted in its February 28, 2017 decision, it could not establish a causal relationship between the worker's ongoing left shoulder complaints and his July 26, 2016 workplace accident, and the worker no longer required medical treatment in relation to the workplace injury.
The worker subsequently appealed the February 28, 2017 and May 8, 2017 Review Office decisions to the Appeal Commission, and an oral hearing was arranged.
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.
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.
WCB Policy 18.104.22.168, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
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.
The following definitions are set out in the Policy:
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.
The worker was assisted by a worker advisor, who made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.
The worker's position was that the evidence, on file and as presented at the hearing, supported that he had not recovered from the effects of the July 28, 2016 workplace accident by December 22, 2016, and benefits should have continued beyond that date due to his ongoing need for medical attention and treatment, as well as his inability to resume his pre-accident work.
The worker advisor submitted that it was important to note that at the time of the accident, the worker had been employed by the employer for approximately two months, working 10-hour days over a 21-day consecutive period. Despite this onerous work schedule, there was no evidence that he was experiencing left shoulder difficulties prior to his accident date. It was submitted that the injury mechanism which the worker identified was significant, considering the size and weight of the items he was lifting and carrying, his reliance on his left shoulder and the time spent performing these activities.
The worker advisor noted that the worker's attending healthcare providers identified various medical diagnoses to account for his presentation. One of these was rotator cuff tendinosis, which was a finding suspected by the radiologist who interpreted the results of the November 2016 left shoulder MRI. It was submitted that the WCB orthopedic consultant who twice commented on the worker's case, remained silent on this finding, and that this diagnosis was still open for consideration.
The worker advisor acknowledged that the worker's osteoarthritis was a condition which existed prior to the July 28, 2016 workplace accident and was not caused by the accident. In his view, the question was whether the accident aggravated or enhanced the worker's condition, or whether his osteoarthritis condition delayed recovery from his shoulder injury or injuries.
It was submitted that while the WCB orthopedic consultant stated there was no objective medical evidence of aggravation or enhancement having occurred, he failed to indicate what would constitute such evidence, and the Policy does not stipulate that objective medical evidence is the only standard. The worker advisor noted that the WCB orthopedic consultant also said that a person with osteoarthritis would experience pain when lifting and carrying, and submitted that this was essentially a description of the worker's mechanism of injury, and the fact that he had experienced no pain or limitations in his shoulder while working before the accident suggested that the accident rendered his condition symptomatic, which was akin to an aggravation or enhancement.
The worker advisor submitted that the WCB orthopedic consultant applied too narrow a view of the worker's case and the Policy, focusing only on diagnostic findings. He submitted that you can't just focus on the diagnostic; you also have to look at the functional change from before and after the accident, the clinical findings and what the worker is reporting, and this should count for more.
Alternatively, it was submitted that if the panel accepted the WCB orthopedic consultant's position with respect to aggravation or enhancement, it was still open to the panel to find that the worker's osteoarthritis delayed his recovery. The worker advisor noted that this was not specifically addressed by the WCB orthopedic consultant, and clinical findings in the attending physician's December 20, 2016 report appeared to be consistent with those in the earliest medical reports, which indicated that the worker's osteoarthritis may be delaying his recovery.
In conclusion, the worker advisor stated that it seemed that the WCB had relied predominantly, if not entirely, on the WCB orthopedic consultant's December 14, 2016 comments. It was submitted that the panel should prefer the opinions of the worker's healthcare providers, and attach significant weight to the post-accident functional changes which the worker experienced and which had not improved by December 22, 2016.
In response to questions at the hearing, the worker referred to a couple of instances in 2014 and 2015 where he had a stiff shoulder, which did not last, and said he did not recall having any other shoulder problems before the July 28, 2016 accident. With respect to the 2014 instance, the worker said that his shoulder had just seized up and was stiff. His doctor prescribed a cream and sent him for an x-ray. The stiffness disappeared within a couple of days, and the x-rays showed nothing. With respect to the second instance, the worker said that around August 2015, he again had a small issue with his shoulder and got more cream and exercises from his doctor, and the stiffness went away within maybe a couple of weeks. The worker said that his last employment had ended in September 2014, after which he travelled by motorcycle for approximately four months. He spent the entire winter painting his house and fixing it up for sale. He did not recall having any problems with his shoulder over those periods of time, including while working on his house.
The worker described the July 28, 2016 incident in further detail. He said that he believed this was the first day he lifted and carried the spindle poles, whaler beams and other parts. He spent all evening collecting the parts and carrying them. He recalled grabbing a particular spindle which was exceptionally heavy, putting it on his shoulder and experiencing a jolting pain. He said that the spindles weighed at least 100 pounds, but acknowledged that he had never weighed them and they might have been 50 pounds or less as stated by the employer. The worker said that when you are walking 500 yards with any kind of heavy weight like that on your shoulder, it bounces up and down on your shoulder.
The worker stated that he left the work camp after his July 28, 2016 accident and returned home because he was in excruciating pain. His first appointment with the orthopedic surgeon he had been referred to was in April 2017, and he had surgery on his shoulder on February 7, 2018. The worker said that there was no improvement to his shoulder after he left work, and he suffered immense pain the entire time up until he had the surgery, which was about one week before the hearing. He said that his shoulder was feeling okay at this point, but added that he was still "doped up."
The employer was represented by a case manager. The employer's position was that the worker was not entitled to further wage loss or medical aid benefits.
The employer's representative noted that the worker was hired on May 31, 2016, and reported on July 28, 2016 that he had experienced joint pain in the left shoulder from carrying whalers and spindles. She noted that whalers and spindles range in weight from 30 to 50 pounds. The worker had indicated that this was the first day he was carrying these parts, and that he had done this for eight hours at the time of the accident. He was diagnosed with a shoulder strain and offered light duties. It was submitted that the worker worked the light duties for approximately one hour, then opted to refuse those duties and returned home.
The employer's representative stated that based on the medical information on file, they were of the view that most of the worker's strain/sprain injury would have resolved in six weeks and any ongoing difficulties would be due to the worker's pre-existing osteoarthritis. She submitted that this was a very minor mechanism of injury and there is no objective medical information on file to support that it would have contributed in any way to the worker's ongoing problems, or his degenerative condition, or that this was anything other than the natural progression of the worker's degenerative condition.
In conclusion, it was submitted that as indicated by the WCB orthopedic consultant, the worker's diagnosis changed to non-compensable osteoarthritis, and the worker was not entitled to further benefits.
The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits after December 22, 2016. For the worker's appeal to be successful, the panel must find that the worker continued to sustain a loss of earning capacity and/or required medical aid after December 22, 2016 as a result of his July 28, 2016 compensable injury. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a left shoulder sprain. The panel accepts that diagnosis.
While it has been submitted that other possible diagnoses have been identified and should also be considered, in particular rotator cuff tendinosis or tendinitis, the panel finds that the medical evidence on file does not support that the worker's injury was anything more than a sprain or strain.
The worker advisor acknowledged at the hearing that the worker's injury was not the cause of his osteoarthritis and that this was a pre-existing condition. The worker advisor went on to argue that the worker's left shoulder condition became symptomatic, or was aggravated or enhanced by the workplace injury. Based on our review of the medical information on file, the panel finds that there is a lack of clinical evidence that the worker's workplace accident resulted in an aggravation or enhancement of his left shoulder condition.
The panel notes that while the worker suggested that he had no problem with his left shoulder before the July 28, 2016 incident, there was nevertheless evidence that on two occasions he had experienced stiffness in his shoulder for which he sought medical treatment. The panel further notes that the severity of the degenerative changes in the worker's left shoulder would suggest that there probably was some pre-existing symptomatology.
Based on our review of all of the evidence which is before us, both on file and as presented at the hearing, the panel is satisfied that what the worker suffered was a relatively minor sprain injury on July 28, 2016 in the environment of severe osteoarthritis. The panel is further satisfied, on a balance of probabilities, that the worker's left shoulder sprain injury had resolved by December 22, 2016, more than 20 weeks after the July 28, 2016 accident occurred.
While the worker indicated at the hearing that there had been no improvement in his left shoulder up until the time of his surgery, the panel notes that in his report dated December 21, 2016, the worker's treating physiotherapist seemed to indicate that there had been some improvement, noting that "since participating in physiotherapy…he is sleeping better and experiencing less, though still a significant amount, of pain."
Based on the foregoing, the panel finds that the worker did not have a loss of earning capacity or require medical aid after December 22, 2016 as a result of his July 28, 2016 compensable injury. The panel therefore finds that the worker is not entitled to further wage loss or medical aid benefits after December 22, 2016.
The worker's appeal is dismissed.
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 13th day of April, 2018