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 benefits after December 16, 2016. A hearing was held on June 19, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 16, 2016.

Decision

That the worker is entitled to benefits after December 16, 2016.

Background

On July 22, 2015, the worker reported to the WCB that he injured his left shoulder at work on July 6, 2015, in an incident which he described as follows:

We do high rise window cleaning in the city. We were working at [location]. At the top of the building there is an overhang, and I have to pull my body weight in using a suction cup on the window and extend my arms and pull my body weight and the weight of a 5 gallon bucket of water. I was holding on to the handle on the suction cup, and I felt a pull in my left shoulder. The pain subsided, but the next day it was hurting a lot.

In an initial discussion with a WCB adjudicator on July 23, 2015, the worker advised that he did not immediately attend for medical treatment of the injury as he felt he could treat the symptoms himself. When he could no longer do self-care, he attended at a health centre on July 21, 2015. The doctor at the health centre diagnosed the worker with "Rotator Cuff Tendonitis" and recommended that he remain off work until August 3, 2015, inclusive, then return to light duties for three weeks, with restrictions to avoid working with arm overhead and no heavy lifting, pushing or pulling.

An x-ray on July 21, 2015 showed findings of "Normal left glenohumeral and acromioclavicular joint alignment is seen. There is no acute fracture. The soft tissues are unremarkable."

On July 28, 2015, Compensation Services advised the worker that his claim was accepted, and payment of wage loss and other benefits started.

The worker attended for physiotherapy treatment and was referred to a sports medicine doctor. A September 30, 2015 MRI of the worker's left shoulder showed a normal study.

On November 24, 2015, the worker was seen at a call-in examination by a WCB physical medicine consultant. On December 4, 2015, in response to questions posed, the WCB physical medicine consultant opined that the most probable diagnosis as related to the work incident of July 6, 2015 was of a suspected left shoulder internal injury. The WCB physical medicine consultant further opined that the worker's current presentation appeared to be medically accounted for in relation to the workplace injury and recommended that the worker be referred to an orthopedic surgeon for assessment.

On December 23, 2015, the worker attended an appointment with an orthopedic surgeon and was subsequently referred to a second orthopedic surgeon for a further opinion.

On February 3, 2016, the worker saw the second orthopedic surgeon who reported, in part, that:

I have had a long discussion with [the worker] about the pain he is having in his shoulder. I feel that this is likely related to a long head of biceps pathology within the groove, but it could also be related to a SLAP lesion which is not well visualized on the conventional MRI. I have advised him there are three options…

After a long discussion, his preference is to proceed with an ultrasound-guided injection which I feel is a good option for him both diagnostically and therapeutically. I have sent a referral letter to [sports medicine physician], who can hopefully arrange for this.

On March 21, 2016, the worker was seen by the sports medicine physician, who diagnosed him with "Biceps longhead tendonopathy or a possible labral tear of the left shoulder." On March 31, 2016, the sports medicine physician administered the ultrasound-guided injection to the worker's left shoulder.

On April 29, 2016, the worker attended a follow-up appointment with the second orthopedic surgeon, who reported that the ultrasound-guided steroid injection had "resulted in essential resolution of his biceps tendinopathy." The surgeon noted, however, that the worker had "gone on to develop neurologic symptoms in his arm related to his left shoulder." The orthopedic surgeon opined that the worker's symptoms seemed related to brachial plexus traction.

The worker attended a further call-in examination with the WCB physical medicine consultant on August 16, 2016. On September 21, 2016, the WCB physical medicine consultant opined, in part, that the worker's "current presentation, which has been attributed to a left brachial plexopathy, is not medically accounted for in relation to the workplace injury of July 6, 2015." The physical medicine consultant further opined that there was a "current lack of documented objective findings and evidence for a work incident physical or pathoanatomic diagnosis nor any expected related impairment for which the placement of restrictions would be required" and that no claim related diagnosis for the left shoulder had been presented to support that recovery to pre-injury status had not occurred.

On December 9, 2016, Compensation Services advised the worker that his entitlement to benefits would end effective December 16, 2016, as there was no medical evidence to support an ongoing disability directly related to the workplace accident. In January 2017, the worker submitted a further medical report from the second orthopedic surgeon dated December 19, 2016 and requested that Compensation Services reconsider their decision.

On January 17, 2017, Compensation Services advised the worker that the December 19, 2016 report from the orthopedic surgeon did not provide any new objective medical evidence and their December 9, 2016 decision remained unchanged.

On May 18, 2017, a worker advisor acting on behalf of the worker provided a copy of a further medical report from the second orthopedic surgeon dated May 8, 2017 and requested that Compensation Services reconsider their December 9, 2016 and January 17, 2017 decisions. On May 31, 2017, Compensation Services advised the worker that the May 8, 2017 medical report did not provide any new objective medical evidence to support overturning the previous decisions.

On August 22, 2017, the worker advisor requested that Review Office reconsider Compensation Services' decisions. The worker's representative submitted that the evidence supported that the worker had not recovered from his compensable injury and was entitled to further benefits. It was noted that the WCB accepted the worker's left shoulder injury as tendonitis and then accepted it as a suspected internal shoulder injury based on the WCB physical medicine consultant's opinion. It was further noted that the worker's healthcare providers had provided a more specific diagnosis of biceps longhead tendinopathy and continued to support this diagnosis beyond December 16, 2016.

On September 28, 2017, Review Office determined that the worker was not entitled to benefits beyond December 16, 2016. Review Office acknowledged that the worker had ongoing difficulties beyond December 16, 2016 which might prevent him from returning to his regular duties, but was unable to find that the evidence supported that those difficulties were related to his workplace accident. Review Office accepted the September 21, 2016 opinion of the WCB physical medicine consultant that the worker's current presentation, which was attributed to a brachial plexus injury, was not medically accounted for in relation to the workplace injury. Review Office placed significant weight on the WCB physical medicine consultant's report of a discussion with the worker's treating orthopedic surgeon on October 12, 2016 where he noted that the orthopedic surgeon had agreed that with no initial neurological symptoms, a brachial plexus injury would be unlikely.

On December 14, 2017, the worker advisor appealed the Review Office decision to the Appeal Commission, and an oral hearing was held on June 19, 2018.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On August 14, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.

The worker has an accepted claim for a left shoulder injury arising from a July 6, 2015 workplace incident. He is seeking benefits after December 16, 2016.

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.

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 wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation on the worker's behalf. The worker responded to questions from the worker advisor and the panel. The worker provided a video which showed him performing and explaining his work duties. He also produced a photograph of the exterior of the building he was working on when his injury occurred and a three-dimensional scale model which he used to illustrate the actions and forces which were involved in his July 6, 2015 workplace accident.

The worker's position was that he has not recovered from the July 6, 2015 workplace accident that resulted in a left shoulder injury and is entitled to benefits after December 16, 2016 as a direct result of that accident.

The worker advisor noted that the WCB accepted responsibility for a left shoulder tendonitis and suspected left shoulder internal injury. It was submitted that the worker's current diagnosis remains the same as what the WCB accepted and paid benefits on prior to December 16, 2016, being an internal left shoulder injury or a tendon injury.

It was submitted that the medical opinions all confirm that there is an ongoing left shoulder injury which remains symptomatic and continues to be related to the workplace accident. The evidence supports that the worker's medically accepted injury of a longhead biceps tendinopathy continues to be a material factor in his current disability and prevents him returning to his pre-accident duties. As such, the worker continues to have a loss of earning capacity, and the evidence supports that there is a further WCB responsibility for benefits beyond December 16, 2016.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after December 16, 2016. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after December 16, 2016 as a result of his July 6, 2015 workplace incident. For the reasons that follow, the panel is able to make that finding.

The worker has been diagnosed with longhead biceps tendinopathy of the left shoulder. The panel accepts that diagnosis, and finds that it is consistent with the medical information on file following the injury and with the mechanism of injury.

The panel notes that a second issue appears later in the claim file related to a neurological problem in the brachial plexus, and that there is a considerable amount of information and analysis on file with respect to that issue. The worker stated at the hearing that he was not concerned with neurological symptoms on this appeal and was not taking the position that a neurological problem in the brachial plexus was part of his claim. Accordingly, the panel's focus on this appeal is on the worker's biceps tendon injury. In other words, and to be clear, the panel will only be dealing with the issue of the worker's left shoulder longhead biceps tendinopathy in this decision.

The panel is satisfied that medical information on file supports that the worker has continued to suffer from the same ongoing condition and symptoms in the same area as at the time of the initial injury. The worker's evidence at the hearing was that his current symptoms are "in the same place as where I felt it initially, so front of the shoulder."

The worker underwent an ultrasound-guided steroid injection on March 31, 2016. Information on file and at the hearing indicated that the injection helped and the worker's pain decreased for a period of time following the injection, but that the effects of the injection did not last. It is the panel's understanding that ultrasound-guided steroid injections can sometimes have the effect of resolving or alternatively reducing symptoms. The evidence indicates in this instance that the worker's symptoms were reduced following the injection, but they subsequently came back.

The worker's evidence at the hearing was that when he met with the second orthopedic surgeon on February 3, 2016, they identified a proposed treatment plan which involved proceeding with the ultrasound-guided injection, after which they could further evaluate and plan their treatment options, which included non-operative management, and in particular physiotherapy. The worker indicated that having confirmed the worker's diagnosis through the injection, the orthopedic surgeon's recommendation and their plan was to proceed with physiotherapy to treat his symptoms and help get him back to his pre-accident condition and to work. The worker was never able to go for physiotherapy, however, as he could not afford to pay for physiotherapy himself.

At the hearing, the worker stated that he had had two further injections done by the sports medicine physician since his benefits ended, in June 21, 2017 and February 15, 2018, at his own expense, to deal with the acute pain he was experiencing. He said that the injections provided some relief for a couple of months, so he continued to get them. Each time it was recommended that he proceed with physiotherapy after the injections, but he did not have the money to do so.

Following the hearing, the panel requested further medical information from December 16, 2016 onwards from the treating (second) orthopedic surgeon and the treating sports medicine physician. The panel finds that the medical evidence provided in response to our request further supported and confirmed the worker's diagnosis and ongoing symptoms of longhead biceps tendonitis. The panel notes that the treating orthopedic surgeon and treating sports medicine physician are specialists in this area, who have been treating the worker since relatively early in the claim.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker has continued to suffer from the effects of his compensable left shoulder injury. The panel therefore finds that the worker sustained a loss of earning capacity and/or required medical aid beyond December 16, 2016 as a result of his July 6, 2015 workplace incident. In the result, the panel finds that the worker is entitled to benefits after December 16, 2016.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of October, 2018