The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her right shoulder supraspinatus tendon tear is not a consequence of the September 2, 2015 accident and/or the snow shoveling activities performed on November 19 and 20, 2015 and she is not entitled to benefits after January 22, 2016. A hearing was held on August 23, 2018 to consider the worker's appeal.

Issue

Whether or not the worker's right shoulder supraspinatus tendon tear is a consequence of the September 2, 2015 accident and/or the snow shoveling activities performed on November 19 and 20, 2015;

Whether or not the worker is entitled to benefits after January 22, 2016.

Decision

The worker's right shoulder supraspinatus tendon tear is a consequence of the September 2, 2015 accident and the snow shoveling activities performed on November 19 and 20, 2015;

The worker is entitled to benefits after January 22, 2016.

Background

The worker reported to her employer and the WCB on September 3, 2015 that she injured her right upper neck and shoulder area in an incident, on September 2, 2015, described as:

I was stripping and scrubbing floors with a swing scrubber. Around 9 am my scrubber slipped a little bit and I felt the muscle pull in my neck. I continued to work. When I got home last night I iced and took some [medication] and when I got up this morning my neck was stiff. I went to work this morning and phoned [supervisor] and I also set up an appointment up at the [location].

The worker attended at her chiropractor's office for an appointment on September 3, 2015 and was diagnosed with a "Cervico-thoracic sprain/strain injury with resultant cervico-thoracic subluxation complex" and it was recommended that she remain off work, to be reassessed on September 9, 2015.

On September 9, 2015, the employer provided the WCB with a copy of the chiropractor's note indicating the worker could return to work on September 10, 2015 with restrictions for two to three weeks of avoiding heavy lifting (tables) and strenuous activity (swing scrubber). It was also noted that the worker's diagnosis was a cervico-thoracic/rotator cuff strain. On September 25, 2015, the worker's chiropractor provided a further medical note that the worker was to continue with her restrictions and updated the worker's diagnosis to a right shoulder strain.

The worker attended an appointment with her family doctor on September 29, 2015. The worker's family doctor provided the assessment that the worker had a "Resolving mechanical neck pain (sprain/strain)." The doctor's recommended treatment plan was for the worker to "Maintain modified work duties, may slowly increase work duties as per tolerance over the next 3-4 weeks, in which the expectation should be near fully resolved in terms of symptoms and to increase to full work duties."

At her initial session with the physiotherapist on November 20, 2015, the worker reported pain and spasms in her shoulder and issues with sleeping. The physiotherapist diagnosed the worker with a rotator cuff strain and associated spasm. The recommended restrictions from the physiotherapist were no lifting more than twenty pounds, no pushing, pulling or shoveling snow for four to six weeks.

The employer advised the WCB on November 24, 2015 that the worker reported due to snow shoveling she performed as part of her job duties on November 20, 2015, she experienced pain in her shoulder and scheduled an appointment with her doctor for November 23, 2015. The employer also provided the WCB with a copy of the medical note from the worker's doctor indicating that she was to remain off work until November 30, 2015 as a result of his examination of the worker on November 23, 2015.

On November 30, 2015, in a discussion with the WCB, the worker advised that her doctor had cleared her to return to work with restrictions of avoiding/limiting snow shoveling and lifting tables, which were to remain in effect for a month. On December 9, 2015, the employer advised the worker that they could accommodate her restrictions and she would return to work on December 10, 2015.

A WCB medical advisor reviewed the worker's file on January 7, 2016. The WCB medical advisor provided the opinion that the most probable diagnosis for the worker's injury was a resolving nonspecific neck pain. It was further provided that the natural history for such an injury would be for an uncomplicated recovery in at most three to four weeks. The WCB medical advisor noted that recovery would have been expected at this point as it was four months after the workplace accident and, on a balance of probabilities, the worker's current presentation was not medically accounted for. In a discussion with the worker on January 25, 2016, the WCB was advised that the worker's doctor had authorized her to return to work doing her regular duties effective January 25, 2016.

On January 26, 2016, the WCB advised the worker that no further responsibility would be accepted for her claim. It was noted by the WCB that there was no medical evidence to support that the worker's current difficulties were related to her September 2, 2015 workplace accident.

The worker contacted the WCB on August 25, 2016 to advise that she had been seen by an orthopedic surgeon who conducted an MRI and confirmed she had a rotator cuff tear. She requested that the WCB reconsider their January 26, 2016 decision to end her entitlement to further benefits.

The WCB gathered medical information, including an MRI conducted on June 30, 2016, from the worker's family doctor and the treating orthopedic surgeon. On October 20, 2016, the WCB advised the worker that her ongoing symptoms related to her right shoulder were not related to her workplace accident of September 2, 2015.

The worker's representative requested reconsideration of the WCB's decision on January 3, 2017 to Review Office. Review Office requested further information from the worker's family doctor. On February 8, 2017, a WCB medical advisor opined, in part, that while it was possible that the worker's use of a heavy floor sweeping machine could have caused a rotator cuff injury, an acute rotator cuff lesion would have caused sudden acute pain and immediate loss of shoulder function, neither of which was reported by the worker. As well, it was also possible that the worker's snow shoveling in November 2015 could have caused a rotator cuff injury but a report from the worker's sports medicine specialist dated December 29, 2015 noted a good range of motion in her neck and shoulder, which suggested that a recent rotator cuff tear had not occurred.

The information was shared with all the parties and on March 1, 2017, Review Office determined that the worker's right shoulder supraspinatus tendon tear was not related to the workplace accident of September 2, 2015 and that the worker was not entitled to benefits after January 22, 2016. Review Office placed more weight on the medical evidence in closer proximity to the workplace accident that noted the worker's difficulties in the area of her neck but not her right shoulder. Review Office noted that the worker was able to finish her shift on the date the workplace accident occurred and did not seek medical attention until the following day, indicating that the injury to her right shoulder was not acute, making it probable that the worker did not tear her rotator cuff on September 2, 2015. It was also noted that the worker's physician reported that the worker was improving overall and ready to return to work after his examination on January 22, 2016 and the worker did return to work as of January 25, 2016. Accordingly, Review Office found that there was no loss of earning capacity or need for further medical aid related to her workplace accident after January 22, 2016.

The worker's representative requested that Review Office reconsider their decision on July 5, 2017 and submitted further medical information from the worker's orthopedic surgeon. On July 7, 2017 Review Office advised the worker that there was no change to their March 1, 2017 decision that her right shoulder supraspinatus tendon tear was not related to the workplace accident on September 2, 2015 and she was not entitled to benefits after January 22, 2016.

The worker's representative filed an appeal with the Appeal Commission on November 10, 2017. An oral hearing was held on August 23, 2018.

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 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 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.

The WCB Board of Directors established WCB Policy 44.10.20.10, Pre-existing Conditions, which provides that the WCB 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 policy deals with situations where the worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition.

The WCB Board of Directors has also established WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, which deals with the relationship between a subsequent injury and the compensable injury.

Worker's Position

The worker was represented by a Worker Advisor who provided a written and oral brief on behalf of the worker.

The worker's representative stated that

From the beginning of this claim the areas of injury were right-sided cervical, thoracic areas and the right shoulder extremity.

The worker's representative submitted that on a balance of probabilities, the worker had not fully recovered from her September 2, 2015 right shoulder injury when she experienced a further exacerbation of the same areas with another work-related incident of shoveling snow on November 19 and 20, 2015.

She advised that it remains the worker's position that the subjective complaints, examination findings, objective medical evidence by MRI, and the specialist's medical opinion, supports that the worker's tear is related to her workplace incidents.

Regarding the September 2, 2015 injury, the worker advised that:

I was working in the gymnasium on a floor scrubbing machine, it’s called a swing scrubber, a Pacesetter swing scrubber. And I was stripping the floor so it was quite slippery, and I kind of lost my footing and it yanked and pulled and twist me before I let go of it. It yanked this whole right side in my neck and my shoulder. I stopped doing that duty and started doing something else. I put ice right away. The next day I came back into work and tried to make an appointment because I couldn’t move my neck at all, and it was very inflamed. I couldn’t move, barely move my arm or anything, and so I ended up going to a chiropractor, because I actually thought maybe I dislocated something, I wasn’t sure what I had done

The worker advised that her shoulder did not resolve after the September incident. She continued to seek treatment. She stated:

I was not 100 percent before that, I was gradually trying to get back to my duties, my shoulder was still bad.

Regarding the November snow shoveling incident, the worker said that the snow was wet and heavy. She used a snow blower but had to keep shoveling to keep the entrances clear.

The worker advised that since the September incident, she has required assistance performing certain workplace duties.

The worker's representative submitted that the medical information from the November 19th and 20th timeframe confirms the worker's position. She noted that the November 20, 2015 report from a sports injury clinic noted pain and spasm in the shoulder causing sleeping issues and the objective examination findings confirm a hitch in the shoulder with flexion and abduction. The diagnosis provided was that of a rotator cuff strain with associated spasm. She submitted that this information supports the worker's position that she sustained an exacerbation of her continuing compensable right shoulder injury.

In support of the worker's appeal the worker's representative noted:

• that when examined on December 15, 2015 a physician noted that the worker still complained of ongoing right shoulder pain at rest and with elevation above the shoulder. 

• another physician, in a report dated December 29, 2015, confirmed continued ongoing shoulder and neck complaints with restrictions for the next month. 

• due to the ongoing difficulties, an MRI was performed on June 30, 2016 that confirmed the cause of the worker's ongoing shoulder difficulties was a rotator cuff tear. 

• an orthopedic surgeon's report of August 26, 2016 indicated that the tear was work-related and he proposed a rotator cuff tendon repair based on a moderate restricted range of motion, mild guarding, mild weakness of the supraspinatus, positive impingement signs.

The worker confirmed that she had right shoulder difficulties up to the time of her surgery.

The worker's representative noted that a WCB orthopedic consultant opined that it is not possible to state with certainty when the tear of the rotator cuff occurred. The worker's representative asked that weight be given to the opinion of the orthopedic surgeon who operated on the worker's shoulder in February 2017. The representative submitted that the worker had no difficulties with her right shoulder that removed her from her performing any of her employment duties or obligations until September 2, 2015 accident, and the further exacerbation of pain on November 19 and 20, 2015.

The worker confirmed that she retired on October 31, 2017. She said that she retired because she could not return to work and had no resources. She advised that she was not aware that the employer had a long term disability program until October 17, 2017, shortly before she retired. In reply to a question, she advised that the WCB representatives never told her about vocational rehabilitation services.

Employer's Position

The employer did not attend the hearing but provided a written submission which noted that

As the file indicates, [worker] was accommodated in the workplace as per the restrictions indicated by her physician. In addition, her physician cleared her to return to work full duties.

The employer also noted that the worker retired from her position on October 31, 2017.

Analysis

Issue 1. Whether or not the worker's right shoulder supraspinatus tendon tear is a consequence of the September 2, 2015 accident and/or the snow shoveling activities performed on November 19 and 20, 2015

For the worker's appeal of this issue to be approved, the panel must find, on a balance of probabilities, that worker's right shoulder supraspinatus tendon tear is a consequence of the worker's 2015 workplace accidents. The panel makes this finding. Specifically the panel finds that the worker injured her right shoulder at work on September 2, 2015 and sustained an exacerbation of her injury on November 19 and 20, 2015.

The panel has considered the various opinions and in particular the opinions of the WCB orthopedic consultant and the worker's orthopedic surgeon. In this case the panel attaches greater weight to the opinion of the orthopedic surgeon, as he operated on the worker's shoulder and saw the actual tear which was significant in his assessment of the injury. On June 16, 2017, the orthopedic surgeon opined:

Question 1: In your medical opinion, does the mechanism of injury being that of a sudden pull when operating the scrubbing machine, on a balance of probabilities, support the diagnosis of a right shoulder cuff tear? If so, please provide a rationale for your opinion.

Answer 1: Mechanism of Injury. Please compare your background note referring to a muscle pull in the neck, with my August 26 report of traction injury onto her right shoulder as a machine pulled on her shoulder as she slipped.

The first point of interest that this is an unusual injury pattern, something which we don't often see. It would be very easy to overlook this as a rotator cuff injury, as there is some other acute pain around the cervical region.

It appears the possibility of a rotator cuff injury was overlooked in the differential diagnosis from the start and an ongoing basis related to this pattern of presentation.

There are a myriad presenting histories in patients with full-thickness rotator cuff tendon tears. The presentation is certainly compatible with a tear.

Of course no one from WCB or her providers had the opportunity to see what was going on in the shoulder.

As my enclosed OR report of February 8, 2017 indicates, this was indeed a significant tear, more extensive and stressing than suggested by the MRI. Also of significant interest was the type of acromial space, and the impinging nature of both the acromion and the AC joint.

Question 2: In your medical opinion, would the symptoms of a supraspinatus tear be normally acute and pronounced with an immediate loss of shoulder function, and a deficit in a range of motion as opined by the WCB Orthopedic Consultant? If not, please provide a rationale for your opinion.

Answer 2: As noted above, there is a huge spectrum of presentation for patients presenting with rotator cuff injury. Immediate loss of shoulder function sometimes occurs but is by no means a universal presentation. Many patients continue to function at some level and move the shoulders at the injury, and it often takes a long time before the diagnosis is confirmed.

Question 3: In your medical opinion, on a balance of probabilities, would the action of shoveling show (sic) (2 days) cause a moderate full-thickness tear found on the MRI? If so, please provide a rationale for your opinion.

Answer 3: I assume this is the snow-shoveling work of November 19-20, 2016. This was probably not the original cause of the tear, but in WCB parlance, caused one or more of acceleration, aggravation, or enhancement. In any event, the tear was already there so interpretation of this snow-shoveling incident as an "aggravation" would not be relevant in the overall course, other than to highlight the failure of conservative treatment and the propensity for further injury and progression of the cuff tear.

Question 4: Based on your assessment of [the worker's] right shoulder condition, in your medical opinion is there a relationship between the initial workplace accident of September 2, 2015 and/or the November 2015 snow shoveling duties? If so, what supports your opinion.

Answer 4: As noted above. These two (2) episodes appear to be part of a continuum. The initial insult was the floor polishing incident and the snow-shoveling incident is an example of ease with which a cuff which has been torn, is increasingly vulnerable to further insults that might not have been sufficient to cause the initial tear.

The worker's appeal of this issue is approved.

Issue 2. Whether or not the worker is entitled to benefits after January 22, 2016.

Given the panel's findings on Issue 1 above, the panel finds that the worker is entitled to further benefits, the amount to be determined by the WCB.

The worker's appeal of this issue is approved.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of September, 2018