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 further benefits in relation to his right shoulder difficulties. A hearing was held on August 29, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to his right shoulder difficulties.

Decision

The worker is not entitled to further benefits in relation to his right shoulder difficulties.

Background

The worker filed a Worker's Incident Report with the WCB on February 25, 2009 reporting that he injured his left wrist and ribs in an incident at work on February 20, 2009, described as:

I was cleaning a furnace on the ladder, and the ladder slipped away from me, it was on a bad angle, I was approx. 15 feet up. I fell to the ground, and [supervisor's name] saw it happen. They drove me to the hospital.

The worker sustained a fracture of his left wrist and two ribs. His claim was accepted by the WCB on March 5, 2009 and the payment of wage loss and other benefits started.

On April 16, 2009, the worker started physiotherapy for the workplace accident. On the Physiotherapy Initial Assessment dated April 16, 2009, in addition to the injury to his wrist and ribs, the worker also reported a constant ache in his right shoulder. In a discussion with the WCB on April 28, 2009, the worker reported that he injured his right shoulder from the workplace accident and when he sensed he was going to fall, he held on to a hoist with his right arm but couldn't hold on and fell, straining his right shoulder. On April 29, 2009, based on the opinion of the WCB medical advisor, the WCB accepted the worker's injury as a right shoulder strain and authorized physiotherapy treatments to help with the treatment.

The WCB advised the employer on May 6, 2010 that the worker had permanent restrictions of:

• No lifting or carrying with the left hand 

• No bilateral lifting more than 10 lbs occasionally, zero frequently 

• No firm gripping with the left hand

On May 28, 2010, the employer advised the WCB that they were unable to accommodate the worker's permanent restrictions. The WCB provided the worker with vocational rehabilitation assistance in 2011 and 2012 for employment in another field that fit within his restrictions. On January 12, 2012, the worker advised the WCB that he had found a position and would start it as of January 16, 2012.

The WCB received a report dated March 15, 2017 from the worker's physician noting that the worker had ongoing pain in his right shoulder that the worker attributed to his workplace accident. The physician referred the worker for an MRI and recommended restrictions of no work involving pushing, overhead reaching or repetitive arm movements.

On November 21, 2017, the worker advised the WCB that he had continued to have difficulties with his right shoulder since 2009. He confirmed that he did not suffer any new injury and had been seeking chiropractic and massage therapy for his shoulder on his own.

The WCB gathered information from the worker's chiropractor and physiotherapist and advised the worker on January 10, 2018 that he was not entitled to further benefits in relation to his right shoulder difficulties. The WCB noted that the worker attended for a call-in examination with a WCB medical advisor on June 15, 2011 and at that time, his right shoulder strain had resolved and no further complaints regarding his shoulder were made.

On January 24, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker advised that his shoulder had been causing him pain since the workplace accident in 2009 and since he had returned to work, it had gotten worse and he had developed a rotator cuff tear. Review Office requested a WCB orthopedic medical advisor review the worker's current medical information. On February 1, 2018, the WCB medical advisor provided the opinion that the original diagnosis from the workplace accident was a strain/sprain and there was no indication of right shoulder problems in examinations of the worker on August 17, 2009, April 22, 2010 or June 15, 2011. This information was shared with the worker and the worker stated, in a letter dated February 5, 2018, that his right shoulder difficulties did not show up in medical reports done in 2009, 2010 and 2011 because he had not been working at the time. He started working in 2012 and felt that his shoulder issues became progressively worse after that time until he finally sought treatment in late 2016.

Review Office advised the worker on February 6, 2018 that he was not entitled to further benefits in relation to his right shoulder difficulties. Review Office accepted the February 1, 2018 opinion of the WCB medical advisor that there was no previous medical evidence to support that the worker sustained a rotator cuff tear in relation to the workplace accident on February 20, 2009. As such, there was no further loss of earning capacity or need for medical treatment in relation to the worker's right shoulder injury.

The worker filed an application with the Appeal Commission on February 19, 2018. An oral hearing was held on August 29, 2018.

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.

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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

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.

Worker's Position

The worker has an accepted claim for a workplace injury in 2009. He is appealing the WCB decision that denied responsibility for certain difficulties with his right shoulder which he submits are related to the compensable injury. He is seeking further benefits in relation to his accident of February 20, 2009.

In his appeal form, the worker advised that:

I have had constant shoulder pain since my accident in 2009. No MRI was taken at the time of injury and therefore the extent of the damage was not seen. I recently needed surgery on my right shoulder, the surgeon informed me that the injury is the direct result of an accident. I have had no other accidents since 2009, therefore the only logical explanation is that my injury is from that accident.

At the hearing, the worker was self-represented. He explained that he believes his right shoulder difficulties are due to his February 20, 2009 workplace accident. He acknowledged that he also sustained a left wrist injury and rib injury in the accident. He noted that the focus at the time of the accident was on his left wrist which had been broken in the accident.

The worker explained the mechanism of injury which caused the accident. He said that he was on a ladder when the bottom slid away, leaving him hanging on the hoist (which the ladder had been leaning against) with his right hand and hanging on to the ladder. He said he could not hold on any longer and fell to the ground injuring his left wrist, ribs and right shoulder.

He advised that initially his shoulder injury was not accepted. Throughout his treatment the focus was on his left wrist. He said that he was being prescribed "heavy" medications for his wrist which masked his shoulder pain. Ultimately the WCB accepted that he hurt his shoulder in the accident. When his shoulder injury was accepted, he received 5 physiotherapy treatments.

He advised the shoulder always bothered him and that for years he treated his right shoulder with heating pads and hot water bottles. He also said that he had a little bit of pain, but not very much, as he was a person who can bear pain.

The worker noted that the pain suddenly worsened in 2016 and explained that in late 2016:

Just all of a sudden I just found out that if I would just make a quick movement like this, it would just, I would have such sharp shooting pains that I couldn't bear it.

The worker saw a surgeon who assessed his injury as "… an accident where you had a jerk or something on your shoulder." He said the surgeon explained that the injury was a clear sign of a jerk and the muscles were partially torn, when the accident happened. He understood that he had received the wrong treatment for his shoulder.

Regarding his current employment, the worker advised while he loved working as a mechanic, as he can no longer do this, he is retraining for Class 1 driver's license.

In response to questions about the lack of documentation on his right shoulder on the file, the worker commented that:

So, yes, I mean, that's the explanation I would be able to give, is because I was denied to get more treatments, so I learned, like I said before, to live with the pain with heat pads at night. And then that was -- and I also wasn't very physical, like, working at that point. I was off for three years, like, at that time, so I wasn't very, like, very active.

Regarding the lack of mention of the worker's shoulder at the time of his Functional Capacity Evaluation, the worker commented that:

Yes. So what I would say to that is I had pain, but not severe pain, to -- and that's also how I lived through all these years, with --Like, during the day it would get more and more sore, and then at nighttime I would have a hot bath in the jacuzzi, and then even lay with a hot pad during the night, and then that's how I could go to sleep, and then the next day it would be a little bit refreshed…

Employer's Position

The employer did not participate the appeal of this issue.

Analysis

The worker is appealing the WCB decision that he is not entitled to further benefits in relation to his accepted accident of February 20, 2009, specifically in relation to his right shoulder.

For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and/or required additional medical aid benefits for his right shoulder injury. The panel is not able to make this finding. The panel is not able to link the worker's current right shoulder difficulties to the February 2009 accident.

While the panel accepts that the worker sustained a sprain/strain type injury to his right shoulder in February 2009, the panel finds, on a balance of probabilities, that the worker is not entitled to further benefits in relation to his shoulder injury. The panel also finds, on a balance of probabilities, that the worker's current right shoulder difficulties are not related to his 2009 workplace accident.

In support of this finding, the panel notes that:

• in 2009, after the accident, the worker received 5 physiotherapy treatments for his injuries with no mention of the right shoulder in the last 2 reports.

• on May 8, 2009, the treating physiotherapist reported that the right shoulder was "resolving." He noted that the worker had full range of movement and strength was "4+ to 5". The physiotherapist noted that the right shoulder recovery was satisfactory.

• subsequent visits to a physician in September 2009, a chiropractor in November 2009 and a physician in March 2010 did not identify right shoulder complaints or treatment to that area.

• on December 14, 2009, the specialist who treated the worker's left wrist commented on the prognosis for the wrist and stated that "He is otherwise healthy."

• on April 22, 2010 the worker told a WCB representative at a meeting with his wife present, that his current problem was with his left wrist and that "all other injuries have recovered."

The panel notes that the current diagnosis of the worker's injury as reported in the July 5, 2017 MRI of the shoulder is:

Impression: Full-thickness/tear involving the mid to posterior supraspinatus and anterior infraspinatus distal rotator cuff superimposed tendinopathy.

Subscapularis tendinopathy with a suspected insertional articular surface partial thickness tear.

Suspected SLAP tear involving the superior and anterior superior labrum.

The panel also notes that a WCB orthopedic consultant provided an opinion that the above pathology is not related to the workplace accident. The panel accepts the opinion of the WCB orthopedic consultant who had the opportunity to review the worker's medical file before providing the opinion.

For the foregoing reasons, we find, on a balance of probabilities, that the worker's current right shoulder difficulties are not related to his 2009 workplace accident.

The worker is not entitled to further benefits in relation to his right shoulder difficulties.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of September, 2018