Decision #04/19 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB"):

February 8, 2017 Accident - he is not entitled to further benefits in relation to the February 8, 2017 accident;

November 16, 2017 Accident - he is not entitled to benefits after March 8, 2018 in relation to the November 16, 2017 accident.

A hearing was held on November 27, 2018 to consider the worker's appeals.

Issue

February 8, 2017 Accident - whether or not the worker is entitled to further benefits in

relation to the February 8, 2017 accident;

November 16, 2017 Accident - whether or not the worker is entitled to benefits after March 8, 2018 in relation to the November 16, 2017 accident.

Decision

February 8, 2017 Accident - the worker is not entitled to further benefits in relation to the February 8, 2017 accident;

November 16, 2017 Accident - the worker is not entitled to benefits after March 8, 2018 in relation to the November 16, 2017 accident.

Background

February 8, 2017 Accident

The worker reported to the WCB that he injured his left shoulder in an incident on February 8, 2017 that he described as:

While I was operating a sidewalk plow. I was crossing [Street 1] & [Street 2] & just approaching the sidewalk on [Street 2] when I hit a kick or curb on the sidewalk abruptly stopping the machine and jolted the heck out of my left shoulder. I was seat belted.

The worker was seen at a local emergency department on February 8, 2017 where he was diagnosed with a sprain/strain to his shoulder. An x-ray of his left shoulder taken on the same date indicated "Severe degenerative changes are present at the glenohumeral joint. Moderate AC joint arthrosis is seen. No fracture or dislocation is seen however."

On February 13, 2017, the worker was seen by a sports medicine physician who questioned a possible rotator cuff tear and referred the worker for a further x-ray. The x-ray conducted on February 13, 2017 noted, in part, "There are fairly advanced glenohumeral degenerative changes as well as moderate acromioclavicular degenerative changes." The worker attended at his family physician's office on February 14, 2017 and a referral was made for an MRI.

After a discussion with the worker on February 27, 2017, the WCB advised the worker on February 28, 2017 that they would be closing his claim at his request. On March 8, 2017, the employer advised the WCB that the worker had returned to modified duties on February 28, 2017 and full regular duties on March 4, 2017.

November 16, 2017 Accident

On November 22, 2017, the worker filed a Worker Incident Report indicating that he injured his left shoulder on November 16, 2017. He described the incident as:

I was driving the sidewalk plow. I hit a water valve that was 4 inches above the sidewalk. It was covered in snow so I didn't know it was there.

My left arm was on the steering wheel straight out, my right hand was on the joy stick. The machine stopped dead in its tracks.

My left shoulder jarred. I saw stars and spots as the pain was excruciating.

The pain travelled from my left shoulder down to my fingertips.

I did not finish my shift.

The worker attended at his family physician's office on November 21, 2017. The worker reported complaints of "severe pain along the left shoulder bursa region" and was diagnosed with an "acute tear left rotator cuff tendinitis bursitis left shoulder." The worker was referred for an MRI.

The MRI study conducted on the worker's left shoulder on December 7, 2017 indicated advanced degenerative changes at the glenohumeral joint and moderate degenerative changes at the acromioclavicular joint. There was no evidence of a rotator cuff tear.

At the request of the WCB, the worker's claim was reviewed by a WCB medical advisor on January 15, 2018. The WCB medical advisor opined, in part:

1. The original November 16, 2017 mechanism of injury was consistent with a sprain/strain injury. The diagnosis to account for [the worker's] currently reported left shoulder symptoms appears to be a stiff and painful left shoulder in the presence of severe pre-existing degenerative gleno-humeral change/osteoarthritis.

… 

2. The natural history of recovery from a shoulder sprain/strain mechanism typically occurs over the course of 4-8 weeks with durations up to 12 weeks known in the presence of significant pre-existing degenerative shoulder change. [The worker] has very significant pre-existing left shoulder degenerative change as described in the December 17, 2017 left shoulder MRI report.

It is noted that the December 17, 2017 left shoulder MRI does not demonstrate any structural change in [the worker's] left shoulder that could likely be accounted for on the basis of the November 16, 2017 workplace incident. 

… 

4. The medical evidence currently on file would not support total disability. Current restrictions include:

• No lift/push or pull greater than 3 lbs with the left upper limb. 

• No repetitive activity with the left upper limb. 

• No lift above shoulder height. 

• No lift away from the body envelope. 

• Any reaching above shoulder height shoulder be to tolerance though not specifically restricted. 

• No work with the left upper limb in awkward positions. 

• These restrictions should be reviewed in 4 weeks.

On January 25, 2018, the employer advised the WCB that they would not able to accommodate the worker's restrictions.

The worker was seen by an orthopedic surgeon on January 10, 2018. It was recommended that the worker undergo a total shoulder arthroplasty to deal with his "left shoulder severe glenohumeral joint osteoarthritis."

The worker's file was once again reviewed by a WCB medical advisor on February 28, 2018 with respect to the January 10, 2018 report of the worker's treating orthopedic surgeon. The WCB medical advisor opined, in part:

… 

2) Recovery from a mild shoulder sprain/strain mechanism typically occurs over the course of 8 weeks with somewhat longer durations known in the presence of severe pre-existing degenerative shoulder change. It is now approximately 15 weeks since the November 16, 2017 workplace incident and [the worker] is at the anticipated temporal limit for recovery from a shoulder sprain/strain in the presence of degenerative shoulder change/arthritis.

[The worker's] description of increasing left shoulder pain over the previous three months as documented in the January 10, 2018 orthopedic report is not concordant with the natural history of a shoulder sprain/strain. Rather, [the worker's] history of increasing symptoms over the three months prior to the orthopedic appointment is concordant with the natural history of severe degenerative change ongoing in his left shoulder that was not likely materially influenced by the February 8, 2017 MOI (mechanism of injury) or the November 16, 2017 MOI. 

… 

4) The total left shoulder arthroplasty is not accounted for on the basis of the November 16, 2017 MOI. The surgery is being performed to treat the severe degenerative change at [the worker's] left glenohumeral joint.

On March 2, 2018, the worker was advised by the WCB that it was determined he had recovered from the November 16, 2017 workplace accident, and wage loss and medical aid benefits would end on March 8, 2018. The WCB advised that based on the description of the workplace accident, the objective medical evidence on the file, including the diagnostic imaging, and the accepted diagnosis of a left shoulder sprain/strain, the natural recovery period of four to eight weeks, with a duration of up to 12 weeks in the presence of a significant pre-existing degenerative shoulder change, it was decided that the worker had recovered from the effects of the workplace accident.

The worker requested reconsideration of the WCB's decisions on both claims to Review Office on March 9, 2018. The worker noted that he had not had any injuries to his left shoulder prior to the February 8, 2017 and November 16, 2017 accidents, both of which he felt were the result of blunt traumatic injuries.

On May 3, 2018, Review Office determined the worker was not entitled to further benefits in relation to his claim for the February 8, 2017 accident and further, that the worker was not entitled to benefits beyond March 8, 2018 on his claim for the November 16, 2017 accident.

Review Office noted that in order for the worker's reconsideration request to be accepted, it would have to find that the worker's left shoulder difficulties were causally related to his February 8, 2017 workplace accident. Review Office was unable to make this finding. Review Office considered how the workplace accident occurred, the accepted diagnosis of a left shoulder strain, the normal recovery time for such an injury and the evidence that the worker returned to his full regular duties within the normal recovery time and found that the worker had likely recovered from the workplace accident. Review Office noted that evidence provided indicating the worker required modified duties between April and November 2017 related to the February 8, 2017 accident was not supported.

With respect to the worker's November 16, 2017 workplace accident, Review Office had to find that the worker's ongoing left shoulder difficulties were causally related to the workplace accident. Review Office was unable to make this finding. Review Office placed weight on the February 28, 2018 opinion of the WCB medical advisor. Review Office accepted the WCB medical advisor's opinion that the worker's recovery from the accepted left shoulder strain was likely prolonged as a result of the worker's pre-existing left shoulder condition. It was also found that the reported mechanism of injury was not sufficiently forceful enough to have caused a material change to the worker's pre-existing condition, which was supported by diagnostic imaging. Accordingly, Review Office determined, on a balance of probabilities, the worker's ongoing left shoulder difficulties requiring workplace restrictions, ongoing treatment and time loss was not related to the November 16, 2017 workplace accident and the worker was not entitled to benefits beyond March 8, 2018.

The worker filed appeals for both claims with the Appeal Commission on June 12, 2018. An oral hearing was arranged.

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 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.

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 employment'."

Worker's Position

The worker was self-represented. He was accompanied by his spouse who addressed the panel.

Issue 1. Whether or not the worker is entitled to further benefits in relation to the February 8, 2017 accident.

The worker indicated that this accident occurred when he was clearing snow with a sidewalk plow, hit a "kick or curb on a sidewalk" and injured his left shoulder.

The worker advised that he closed his February 8, 2017 accident file because of the way he was being treated by his WCB case manager. However, he also told the panel that his shoulder injury "all relates to that first accident more or less." He stated that he had pre-existing degenerative arthritis in his shoulder but had never seen his physician for any advice about his left shoulder. He stated that he never had a problem with his left shoulder before February 2017.

The worker advised that he is appealing the WCB decision that his degenerative arthritis is the cause of his continuing problem. He believes his difficulties are due to his February and November work injuries.

The worker advised that he cancelled an MRI and medical appointment and returned to work while on his February 2017 claim. He stated that:

Then I went back to regular duties, I couldn’t do it, I went back in like four weeks. And then I saw my family doctor April 4th, he put me off on light duties right up to the November 16th accident.

He advised that he missed a lot of work after this accident and was reprimanded by his employer. He said his condition "just progressively got worse and worse and worse right up to the accident, November 16th." He advised that when he returned to work he had difficulty performing his duties. He confirmed that he ultimately returned to regular duties.

Issue 2. Whether or not the worker is entitled to benefits after March 8, 2018 in relation to the November 16, 2017 accident.

The worker said his second accident occurred on his first day back operating the sidewalk plow and was similar to his first accident, including the same piece of equipment. He said that he was operating a sidewalk plow and hit a water valve that was 4 to 5 inches above sidewalk level. The worker said he was holding onto the steering wheel with his left hand when he hit the obstruction. He said this incident destroyed his shoulder for a second time.

Regarding his medical condition, he advised that:

So I have a Compensation doctor telling me it’s a strain that should be a good eight to 12 weeks off work. But I have one of the best orthopedic surgeons, [surgeon's name], saying different, that I need a complete replacement.

The worker advised that he had an MRI but said it was inconclusive because he could not fit in the machine and moved his arm too much. He has not had any further diagnostic procedures. He said that:

So to this day, I still don’t know if it’s torn, because I got [physician name] and my family doctor, I think it’s torn rotator cuff. But we still don’t know because of the MRI was not a true reading.

The worker indicated that he might have post-traumatic arthritis arising from the accidents but he acknowledged that no physician has told his condition started on the accident date. He acknowledged that he had the arthritis prior to the accident although he had no symptoms.

The worker questioned why the WCB would not accept his left shoulder arthritis. He said he had a similar condition in his left knee and the WCB accepted surgery for the knee.

The worker said that he thought he tore his left shoulder because it felt the same as his right shoulder after he tore it. He said all the symptoms he sustained in the accident, the loss of mobility, and loss of strength were same as he experienced when he tore his right shoulder. The worker advised that his family physician can confirm that he never reported any left shoulder symptoms before the accidents in 2017.

Employer's Position

The employer did not participate in the hearing. However, the employer's representative submitted that the worker is not entitled to additional benefits/services under either claim and supports the decisions made by the Review Office and primary level.

Analysis

There are two issue under appeal arising from two workplace injuries.

1. Whether or not the worker is entitled to further benefits in relation to his February 8, 2017 workplace accident.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities that the worker suffered a further loss of earning capacity and required medical aid as a result of his February 8, 2017 workplace accident. The panel was not able to make this finding.

Regarding the worker's February 2017 injury, the panel notes the February 8, 2017 x-ray which indicated:

Severe degenerative changes are present at the glenohumeral joint. Moderate AC joint arthrosis is seen. No fracture or dislocation is seen however.

The panel also notes the February 17, 2017 x-ray which indicated:

There are fairly advanced glenohumeral degenerative changes as well as moderate acromioclavicular degenerative changes. The joint is congruent. There is heterogeneous lucency in the humeral head which is most suggestive of subchondral cyst formation related to degenerative change.

The panel finds that the worker sustained a sprain/strain type injury on February 8, 2017 which resolved to the extent that he was able to return to work. The panel notes the worker's evidence that he was able to return to his position and work up to the date of this second injury, November 17, 2017.

The panel notes that the worker initially received benefits but then purported to cancel his claim due to issues with the WCB case manager and then returned to work. As stated previously, the panel finds that the medical information on file does not support a continued loss of earning capacity due to the February 8, 2017 injury.

While the panel notes that on April 2, 2017, the worker was placed on light duties, the panel is not able to find medical evidence to support that any ongoing difficulty was due to his February 2017 workplace accident.

2. Whether or not the worker is entitled to benefits after March 8, 2018 in relation to his November 16, 2017 workplace accident.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities that the worker suffered a loss of earning capacity and required medical aid benefits after the March 8, 2018 accident as a result of his November 16, 2017 workplace accident. In other words, the worker's November accident aggravated or enhanced the worker's February injury or his pre-existing condition.

The worker believes that he has a rotator cuff tear and requires rotator cuff surgery. He based this on his own assessment of the symptoms and pain he is having in his left shoulder and his experience with his right shoulder in which he had rotator cuff tears and surgery. He said the pain and symptoms were identical. The worker does not believe that his ongoing problems and pain in his left shoulder is due to pre-existing degenerative arthritis.

The panel carefully listened and considered the worker's position but was unable to find that his left shoulder difficulties are due to rotator cuff tears resulting from his February and/or November 2017 workplace accidents. The panel finds that the evidence does not support the worker's belief that he sustained rotator tears in the noted accidents.

The panel finds that the evidence, on a balance of probabilities, supports a finding that the worker's difficulties are due to his pre-existing degenerative condition. The panel attaches weight to the January 10, 2018 opinion of the orthopedic fellow who examined the worker and noted that:

IMAGING STUDIES: Radiographic examination back in February of 2017 demonstrates severe glenohumeral joint osteoarthritis with the posterior subluxation and cysts both on the glenoid side as well as the humerus side.

MRI demonstrates allowing for moderate amount of motion artifact that the rotator cuff appeared to be normal without evidence of tear. However, there was obvious evidence of advanced degenerative changes at the glenohumeral joint as well as moderate degenerative changes at the AC joint and no evidence of rotator cuff tear.

Regarding the suggestion that the worker's pre-existing condition has been aggravated or enhanced by the workplace accidents, the panel finds that the evidence does not support this position. The panel attaches weight to the February 28, 2018 opinion of the WCB Medical Advisor who opined that:

1. File reviewed including file [number]. There is no new diagnosis on this file. The December 17, 2017 left shoulder MRI documented advanced degenerative change at the gleno-humeral joint, moderate degenerative change at the acromio-clavicular joint, and normal rotator cuff with no evidence of a tear. The degenerative changes at the glenohumeral joint were described as severe on a February 8, 2017 left shoulder x-ray and acromioclavicular joint changes were described as moderate.

The aforementioned gleno-humeral joint changes and acromio-clavicular changes are degenerative in nature and are not accounted for in the basis of the November 16, 2017 MOI. The medial evidence currently on file would not support that the degenerative changes at [worker's] left shoulder were materially altered by the November 16, 2017 MOI.

To the extent that the November 16, 2017 MOI was provocative of a left shoulder sprain/strain (tear), no MRI evidence of a macroscopic rotator cuff/ligamentous tear was seen on the December 7, 2017 left shoulder MRI. As such, any sprain/strain that existed initially would have been Grade 1 in nature (microscopic/not visible/mild).

2. Recovery from a mild shoulder sprain/strain mechanism typically occurs over the course of 8 weeks with somewhat longer durations known in the presence of severe pre-existing degenerative shoulder change. It is now approximately 15 weeks since the November 16, 2017 workplace incident and [the worker] is at the anticipated temporal limit for recovery from a shoulder sprain/strain in the presence of degenerative shoulder change/arthritis.

The panel finds, on a balance of probabilities that the worker is not entitled to benefits after March 8, 2018 in relation to his November 16, 2017 workplace accident.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of January, 2019

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