The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after June 27, 2017. A hearing was held on April 30, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 27, 2017.

Decision

The worker is not entitled to wage loss benefits after June 27, 2017.

Background

The worker filed a Worker Incident Report with the WCB on February 23, 2017 for a workplace incident that occurred on January 19, 2017. The worker described injuring his left shoulder while trying to "reverse a winder spring" on a garage door.

At his initial doctor's appointment on February 21, 2017, the worker was diagnosed with an unspecified shoulder injury and it was recommended that he be off work for four weeks. An x-ray taken the same day, when compared to x-rays taken in 2016, noted that the workers' "glenohumeral joint is normal. There is no calcified tendinosis." At a follow-up appointment on February 23, 2017, the worker received an injection in his left shoulder and it was noted that he was unable to perform modified duties for a period of four weeks.

The worker attended an initial physiotherapy appointment on February 28, 2017. The physiotherapist noted the worker's subjective complaints of constant left side shoulder pain, he described as a burning sensation and occasional left elbow numbness. The physiotherapist questioned whether the diagnosis was a possible rotator cuff strain/tendonitis. The alternate duties recommended by the physiotherapist were no pushing of greater than twenty pounds occasionally, no pulling of greater than forty pounds occasionally, no lifting of greater than twenty pounds floor to waist occasionally, no shoulder flexion greater than 900, and the worker should have the ability to take short micro breaks (1 to 2 minutes) as required.

On March 17, 2017, the worker had a further follow-up appointment with his family doctor. The worker's doctor advised that the worker could return to work with restrictions. The recommended restrictions were minimal lifting, not overhead, forty pounds maximum push and pull and part time work for a period of four weeks.

The worker was advised on March 27, 2017 that his claim was accepted and the payment of wage loss benefits and other benefits commenced.

A follow-up physiotherapy appointment on May 9, 2017 noted that the worker "has improved significantly" and noted that the worker could "attempt full regular duties. May need to be adjusted depending on tolerance." After the worker attended a further follow-up appointment with his physiotherapist on May 23, 2017, the employer was advised on May 25, 2017, the worker's temporary restrictions were to avoid repetitive overhead reaching with his left arm, no push/pull of greater than sixty pounds bilaterally, no lifting greater than thirty-five pounds to shoulder height occasionally and short breaks every half an hour as needed. These temporary restrictions were to be reviewed in two weeks.

An MRI conducted on the worker's left shoulder on June 1, 2017 noted that his rotator cuff tendons and muscles were normal and there was mild glenohumeral osteoarthritis. The worker's doctor provided a progress report on June 8, 2017 after reviewing the MRI results. The worker's doctor noted that the MRI reported mild osteoarthritis but he felt that given the description of the extent of the osteoarthritis in combination "with cystic changes as well as the flattening of the humeral head indicates that the OA (osteoarthritis) is more advanced than just mild." The worker's doctor felt that it would be unlikely that the worker could continue in his current job duties.

At the request of the WCB, a WCB medical advisor reviewed the worker's file on June 19, 2017 and noted the worker has reported pain in the left shoulder for some time and that it got worse after installing an overhead door on January 19, 2017. He also noted that the worker has improved with time and treatment. He now has ROM and strength equal to the other side. And that he has had an MRI which did not show any acute changes, but shows evidence of OA (osteoarthritis). The WCB medical advisor commented that:

OA would not have been caused by this workplace accident as it is a degenerative condition that develops over years. While there is medical literature support for chronic rotator cuff disease being associated with long term overhead work, there is no evidence of same association with the development of OA. Advanced rotator cuff disease can lead to shoulder OA, but there is no evidence of cuff changes on the MRI. As such, the OA cannot be medically accounted for in relation to this C/I (compensable injury). For the effects of the compensable injury, ongoing exercises and gradual return to normal activity would be appropriate treatment. He commented that:

Avoidance of overhead activity may be useful to prevent further episodes of pain related to the OA; but in terms of acute episode of tendonopathy, considering there is equal ROM and strength, there would be no objective evidence to support the need for restrictions.

The worker was advised on June 20, 2017, that further responsibility would not be accepted for his left shoulder difficulties as it was determined that he had recovered from his accepted compensable workplace injury. Wage loss benefits would be paid to June 27, 2017.

The worker requested reconsideration of the WCB's decision on July 4, 2017 to Review Office. The worker disagreed with the WCB's decision as he advised he was still suffering from residual effects from the workplace injury. The worker also disagreed that his diagnosed osteoarthritis was a pre-existing condition.

On August 9, 2017, Review Office upheld the WCB's previous decision. Review Office accepted the WCB medical advisor's opinion that the worker's current difficulties could not be related to the injury caused by the workplace incident which was diagnosed as a left shoulder strain/tendonopathy. Accordingly, Review Office concluded that the worker was not entitled to wage loss benefits after June 27, 2017 as a causal relationship between the worker's current difficulties and the January 19, 2017 workplace injury could not be established.

The worker filed an application with the Appeal Commission on September 28, 2017. An oral hearing was held on April 30, 2018.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, 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 a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years. 

The Board of Directors enacted WCB Policy 44.10.20.10, Pre-Existing Conditions which addresses the issue of pre-existing conditions when administering benefits. The Policy states:

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 has an accepted claim for a workplace injury on January 19, 2017. The worker is appealing the WCB decision that he is not entitled to benefits after June 27, 2017.

Worker's Position

The worker was self-represented. He advised that he was injured on January 19, 2017 while winding springs on an overhead door.

Regarding the diagnosis of a pre-existing condition, the worker attributed the pre-existing condition to "20 years of doing doors, 20 years of cranking springs." The worker brought sample springs to the hearing to assist the panel with understanding his job duties which involved installation and maintenance of overhead garage doors.

The worker explained the only way that the springs for overhead doors can be wound is manually winding them using bars. He explained the process involved in winding springs. He also spoke about the varying size of springs used for different doors.

Regarding the incident on January 19, 2017, the worker explained that he had to reverse wind the springs on this particular door. He said:

In other words, instead of lifting up, I had to pull down. And I got a few of them on until I couldn’t go any further, at which time I had to get somebody else up on the ladder beside me.

I pulled down and set it, and he put the next bar in, and I pulled down, and he put the next bar in. And I had to do that 44 times. I did about 30 of them before I couldn’t do anymore by myself, because I’m standing at the top of a ladder, and it’s a little awkward. So that's how I did some damage in here.

The worker advised that prior to the 2017 injury, he had "a mild burning sensation" in September of 2016. He said he got a cortisone shot and "it never bothered me again". The worker said that he continued to work without problems until the January 2017 incident. The worker advised that he did not know he had arthritis in the shoulder nor any kind of condition in his shoulder.

He advised that in 2004 he had pebbling in the cartilage in my right shoulder but didn’t make a WCB claim. He said he had surgery and it never bothered him again.

The worker was asked about an x-ray of his left shoulder in 2016. The worker said that the 2016 x-ray may have been when he received the cortisone shot in 2016. He said that:

I’ve never had an injury to my left shoulder. I had a slight burning sensation, I got a cortisone shot, he sent me for an x-ray, and I had about three days off and then I was back to work.

The worker confirmed that he has had pain in his hips and knees.

Regarding the June 1, 2017 MRI of his left shoulder which identified mild glenohumeral osteoarthritis and intact rotator cuff tendon, the worker indicated that his physician disagreed with the findings. The worker added that:

I never noticed anything the matter with my arms, that shoulder, up until September when I got one cortisone shot. And I never had any problem with that arm up until, again, January 19th.

The worker acknowledged his treating physiotherapist opinion regarding his shoulder and commented:

Physio says I can move around, yes, but as soon as I put any kind of strain on it -- I have gone home in literal tears because I tried to do something that they say that I should be able to do, until the doctor put a note on there saying, like, 25 pounds, no going over the shoulder, no heavy lifting or anything else with my left arm.

Regarding the osteoarthritis, the worker said that he believes it was caused by years of doing this type of work. He agreed that he recovered from the rotator cuff tendinopathy and also agreed that "the arthritic part of it was not caused by the accident". However he believes that his shoulder is still injured as a result of the accident.

The worker indicated that he thought that both the January 19, 2017 accident and the claim for years of wear and tear were before the panel.

In reply to questions from the panel about the impact of the January 19, 2017 injury upon his osteoarthritis, the worker agreed that he had the osteoarthritis before the accident and said that his condition was worsened by the accident. He stated:

…this is what I said right from the start, basically, is that whatever happened, aggravated it to the point where I can’t use it anymore. So whether I had the, when I had the pre-existing condition, which I didn’t actually know about, I knew that I had -- there was a little burn, I got a shot, it was great, no problems, until I had to do this other thing where I reversed on, where I got the compensable injury.

Employer's Position

The employer was represented by the manager of the local branch where the worker was employed.

The employer representative explained that the worker started working for the employer on April 24, 2014 as a technician. He worked on residential and commercial door installs and service.

On January 19, he was working with a helper. She noted that the worker reported that a spring was particularly difficult to wind. He reported having pain in his arm and took some time off. When he returned to work he was given more shop time so he would progress back to his duties.

She advised that in March he had tried to wind a spring and it seemed to make the condition worse. He has been working as a trainer since then. She said that at this point he is only working part-time.

Regarding the worker's ongoing condition, the worker's representative indicated that she thinks something happened to the worker in the accident that has rendered his arm in the condition that it is today.

Analysis

The worker is appealing the WCB decision that he is not entitled to wage loss wage loss benefits after June 27, 2017 in relation to his January 17, 2017 workplace accident. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity after June 27, 2017, or in other words, the worker was not able to return to his regular work due to this accident.

In addressing this appeal the panel considered two related questions:

1. Did the January 19, 2017 accident, cause an injury to the left shoulder which caused a loss of earning capacity after June 27, 2017 

2. Did the January 17, 2017 accident aggravate or enhance a pre-existing condition, resulting in a continued loss of earning capacity after June 27, 2017

The panel notes that the June 1, 2017 MRI found that the rotator cuff tendons were intact which suggests no structural change, and also found a pre-existing condition, "mild glenohumeral osteoarthritis."

A WCB Medical Advisor noted that the worker complained of pain in his left shoulder before the accident that worsened while working on an overhead door on the January 19, 2017. The medical advisor noted that: 

• the pattern of findings were consistent with rotator cuff tendinopathy, the natural history of which would resolve in 2-3 months. 

• the worker 's condition had improved and his ROM and strength were equal to the right side 

• there was no evidence of cuff changes on the MRI and as such the osteoarthritis cannot be medically accounted for in relation to the compensable injury

After careful consideration of the evidence and the arguments advanced at the hearing the panel finds that the answer to both questions above is negative. The panel was not able to find an ongoing loss of earning capacity due to the accident. The evidence does not support a finding that the worker sustained a permanent injury as a result of the January 19, 2017 accident. Although the worker downplayed the condition of his left shoulder prior to the accident, it is clear the worker had prior symptoms for which he obtained treatment.

The panel finds, on a balance of probabilities, that the worker's loss of earning capacity after June 27, 2017 is not related to his workplace accident. Further the panel finds that the workplace accident did not aggravate or enhance the worker's pre-existing condition. The MRI evidence does not identify a worsening of the worker's pre-existing condition after the worker's accident. The panel notes that the worker has filed a separate claim alleging a causal relationship exists between his many years of overhead work duties and his osteoarthritis, and his physician has provided a supporting letter. This decision does not deal with that issue.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of June, 2018