The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits after April 5, 2017. A hearing was held on December 11, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after April 5, 2017.

Decision

The worker is not entitled to further benefits after April 5, 2017.

Background

The worker reported to her employer that she injured her left shoulder on February 8, 2017 in an accident described as: "[The worker] was getting a resident ready for breakfast. As she turned the resident she felt pain in her left shoulder."

On February 9, 2017, the worker attended for a chiropractor appointment. She advised the chiropractor that she injured her left shoulder performing the repetitive tasks of her job and was diagnosed with rotator cuff tendonitis. The worker was seen by her family physician on February 14, 2017. Her subjective complaints of pain, stiffness and painful movement of her left shoulder were noted and she was diagnosed with a rotator cuff disorder. The worker was referred for an MRI and physiotherapy.

At her initial assessment with the physiotherapist on February 16, 2017, the worker reported that on February 8, 2017, she felt a sharp pain in her left shoulder after turning a resident. She reported pain when reaching, putting on a jacket and that she was unable to lift things. The physiotherapist diagnosed the worker with a left rotator cuff strain/tear and recommended that the worker be off work for two weeks, followed by light duties of no lifting greater than five pounds, no overhead work or pushing or pulling with her left arm.

In an initial conversation with the WCB on February 23, 2017, the worker advised that she first felt symptoms in her left shoulder a couple of months prior, in or around November 2016. She further advised that her symptoms got progressively worse but she continued working her regular duties and did not report her symptoms to her employer or mention ongoing complaints to any of her coworkers. The worker confirmed that on February 8, 2017, she was turning a resident and felt a pull in her shoulder. She reported the incident to her coworker.

On March 20, 2017, the worker was advised by the WCB that her claim for her left shoulder difficulties was not acceptable. The WCB advised that it could not be established there was an increase in her job duties and no specific event or accident was identified to explain the onset of her symptoms.

The worker's representative asked the WCB to reconsider their March 20, 2017 decision to deny the worker's claim and submitted a written statement from the worker's coworker regarding the February 8, 2017 workplace accident. Further medical information was gathered by the WCB including the August 9, 2017 surgical report to address the worker's "Frozen shoulder left side." and an August 22, 2017 opinion of the WCB medical advisor. The WCB medical advisor opined, in part:

Based on the information on file the specific diagnosis at the left shoulder is unclear. Strain injuries typically resolve over a period of several days to a few weeks. Rotator cuff tears do not heal, but functional recovery may be obtained with conservative treatment. When conservative treatment is unsuccessful, surgical repair may be considered.

The recently received surgical report from Aug 9 2017 indicates a pre-operative diagnosis of frozen shoulder (aka adhesive capsulitis). No injury to the rotator cuff (ie tear) was identified. The specific causes of the development of frozen shoulder are not well established. It is recognized to at times develop subsequent to periods of relative shoulder immobilization…Any relationship of the development of frozen shoulder in [the worker's] case to effects of the reported compensable injury or other workplace factors would be considered speculative.

On September 6, 2017, the worker was advised by the WCB that her claim for a rotator cuff strain for her workplace accident on February 8, 2017 was accepted; however, she was not entitled to further benefits after April 5, 2017. It was noted that a specific diagnosis for her injury was unclear but strain type injuries typically resolve over a period of a few days to six to eight weeks.

The worker's representative requested reconsideration of the WCB's decision to deny the worker's entitlement to further benefits after April 5, 2017 to Review Office on October 11, 2017. The worker and her representative disagreed with the decision and submitted that the evidence on file indicated the worker was entitled to benefits beyond April 5, 2017. The worker's representative noted two positions:

• That the worker's diagnosed "frozen shoulder" condition represents a further injury subsequent to her compensable shoulder condition, with the former condition requiring surgical intervention; and 

• If the Review Office does not agree with our primary position, that benefits be extended because the worker continued to require medical aid, and experienced a loss of earning capacity, due to her compensable shoulder injury.

The employer's representative provided a submission in support of the WCB's September 6, 2017 decision on November 6, 2017.

Review Office requested and received the WCB medical advisor's opinion on November 29, 2017. The WCB medical advisor opined that "The stated pre-operative diagnosis was left frozen shoulder (adhesive capsulitis)." and that "Inflammation and scarring was noted in the rotator cuff interval. This is a finding related to adhesive capsulitis and would account for limited range of shoulder motion." The WCB medical advisor further opined that "None of the operative findings point to a single episode or trauma. The operative and pre-operative findings would be those of adhesive capsulitis." The WCB medical advisor's opinion was provided to all the parties on November 29, 2017 and the worker's representative provided a response on December 6, 2017.

On December 11, 2017, Review Office determined the worker was not entitled to benefits after April 5, 2017. Review Office found that the worker's diagnosed adhesive capsulitis was present before the workplace accident on February 8, 2017 and was not aggravated or enhanced by her compensable injury. Review Office was unable to establish that any compensable structural changes occurred as the surgery report stated the worker's rotator cuff was intact. The development and progression of the worker's pre-existing condition followed an expected course and as such, Review Office determined there was no entitlement to benefits after April 5, 2017.

The worker's representative filed an appeal with the Appeal Commission on March 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 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 medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the 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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

WCB Board Policy 44.10.20.10, Pre-existing Conditions ("the policy") provides, in part, that:

The Workers Compensation Board (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 WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The worker has an accepted claim for an injury. She is seeking coverage for wage loss and medical aid benefits after April 5, 2017.

Worker's Position

The worker was represented by a worker advisor who made a presentation on the worker's behalf and provided a written copy of his presentation.

The worker's representative noted that the WCB accepted the worker's claim for a shoulder injury and paid eight weeks of wage loss benefits and medical aid benefits representing the worker's expected recovery. However, the WCB did not accept responsibility for the worker's ongoing difficulty which was diagnosed as adhesive capsulitis, often called frozen shoulder. The worker appealed to Review Office but it denied the worker’s appeal for further benefits.

The worker's representative submitted that:

If the panel finds that this injury continued to play a material role in the worker’s loss of earning capacity and need for medical attention beyond April 5, 2017, the worker’s appeal should be granted.

He noted that the worker is seeking wage loss benefits from April 5, 2017 through to when she began a post-surgery gradual return to work program in October of 2017, as well as for the duration of the gradual return to work period and reimbursement for post-surgery physiotherapy treatment she attended.

The worker's representative submitted that the worker's diagnosed adhesive capsulitis, and surgery to correct it, is compensable by way of aggravation and enhancement. The worker's representative submitted that:

Aggravation is established by the post-accident documentation of clinical findings, as well as the worker’s report that she could barely move her arm by the time she reported her injury to the employer on February 13th.

Enhancement occurred by way of the performed surgery, which in our and an occupational health physician’s opinion, was made necessary by the workplace accident, and the worker’s compensable rotator cuff injury, whether called strain, tendonitis, disorder or syndrome, did not resolve by April 5, 2017.

The worker's representative submitted that there is no tangible evidence to support the limitation of benefits to only eight weeks.

He noted that an online article attributed to the Mayo Clinic indicated that surgery for frozen shoulder is rare, and tends to be considered a last-resort option when nothing else, including physical therapy, has helped, and this condition typically develops in three stages, whereby each one can last a number of months, and complete resolution occurs within one to three years.

The worker's representative also referenced two decisions of the Appeal Commission which accepted adhesive capsulitis as a result of a workplace injury.

The worker's representative submitted that the majority of available evidence, establishes that frozen shoulder is known to develop after relatively minor shoulder injuries, including to the rotator cuff, and from under-mobilization of the shoulder.

He noted that the worker experienced pre-accident shoulder pain that, according to an occupational health physician’s report, represented intermittent symptoms with fatigue following a work shift, some pain in her lateral shoulder in the upper arm, for which she applied ice approximately three days per week.

The worker's representative advised that when the operating surgeon saw her in June 2017, the worker’s range of motion was limited in all directions, and tests to assess for frozen shoulder could not be completed.

The worker's representative submitted that:

In summary, the claim details establish that the worker sustained a compensable rotator cuff injury, while simultaneously experiencing what appears to be the preliminary stage of frozen shoulder. She thereafter underutilized her left arm in the months that followed.

The worker's representative asked that the panel accept that the worker had not recovered from her left shoulder injury by April 5, 2017and had no opportunity to mitigate her loss of earning capacity until the employer arranged her return to work on a gradual basis in mid-October 2017.

In answer to questions, the worker described that movement of her left arm became very restricted and painful. She also described the physiotherapy and the chiropractic treatment that she received.

The worker advised that the surgeon was the first medical professional to tell her that she had a frozen shoulder. She also advised that after the surgery, she had physiotherapy and that the physiotherapist cleared her for a full return to work without restrictions on January 3, 2018.

In reply to a question, the worker advised that her pain level was at a 6 out of 10 level in the months leading up to the February 8th incident. She said it was not constant and it "Never stopped me from doing any of my work."

In reply to a question regarding which conditions are acceptable as having occurred in 2017, the worker's representative stated:

it looks to me like there were two conditions, a rotator cuff injury of some kind, and the frozen shoulder condition, where, by the time surgery happens in August, the only thing that can be seen is evidence of the frozen shoulder condition.

He stated further that:

I don’t think it’s as simple as, in isolation, just looking at what the February 8th mechanism involved. You also have to account for what happened following that, which is, the WCB is acknowledging that, at least for eight weeks, [worker] had an injured shoulder from that February 8th incident.

He noted that WCB doctors acknowledge that underuse following a minor shoulder injury can lead to frozen shoulder.

The worker's representative noted that both the WCB orthopedic specialist and the worker's occupational health physician acknowledge that it was an already-present pre-existing condition. He asked the panel to consider aggravation and enhancement, leading to the surgery that was performed.

Employer's Position

The employer was represented by its disability coordinator and its regional manager for workplace health and safety.

The disability coordinator told the panel that he has two roles with respect to this claim. He is representing the employer which is opposed to acceptance of the claim. He noted that he is also, on a go-forward basis, supporting the worker with her ongoing medical issues.

The disability coordinator expressed concern about the manner in which this claim was handled by the WCB and noted that the employer did not receive timely notice that the claim had been accepted, which deprived the employer of the ability to participate in the management of the claim. The disability coordinator also had concerns regarding cost relief. The panel noted that these issues are not before the panel.

The disability coordinator noted that:

• the worker identified a specific event that subjectively resulted in symptoms to her left shoulder while turning a resident. 

• the worker had no prior history of an injury in the anatomical area in question in this claim. 

• there was no disclosure of any ongoing difficulties expressed by the employee to management. 

• regarding ongoing issues from 2016, prior to the injury, the worker continued to work full duties, never made a complaint, and did not request accommodation. 

• the February 8th accident wasn't traumatic enough to cause any major damage to a shoulder, but it could cause some symptoms.

Regarding the diagnosis of frozen shoulder, the disability coordinator commented that:

There’s a diagnosis here of frozen shoulder, there’s no way frozen shoulder occurred from a February 8th event. Frozen shoulder is an end-stage event, it typically, it builds over a 24 to 36-month period. So you can’t get frozen shoulder totally from an event that occurred on February 8th.

He stated further that:

From an employer’s point of view is the sprain/strain definition, and the six-to-eight-week timeframe that was allotted is more than sufficient to cover that kind of mechanism of injury.

The disability coordinator commented that if there are any ongoing issues, they were unrelated, pre-existed and not work-related.

In closing the disability coordinator commented that:

Even the doctor here says that applied forces involved in the February 2017 injury would not be sufficient in itself to cause the condition of adhesive capsulitis. So, yes, there may have been adhesive capsulitis developing, there’s no evidence that it was work-related. And, yes, there was a work event, so to me, still, the work event, the six-to-eight-week timeframe that was developed, is in line with the mechanism of injury that occurred. And now we’re dealing with issues that may have developed on their own as unrelated.

Analysis

The worker is claiming that her loss of wages and medical condition are a consequence of her 2017 workplace accident. For the worker's appeal of this claim to be approved, the panel must find, on a balance of probabilities, that the circumstances of the workplace accident caused the worker's ongoing rotator cuff difficulties and later diagnosed adhesive capsulitis. The panel was not able to make this finding.

Regarding the workplace incident of February 8, 2017, information on file indicates that the injury occurred when the worker was turning or rolling over a patient who was in bed with the use of a manually operated lift. The worker reported that she felt pain or discomfort at this time. The panel finds this to be a specific event.

The medical reports indicate that the injury arising from the workplace accident has been diagnosed as a left rotator cuff strain or rotator cuff syndrome, which implies inflammation, or tendinopathy or tearing of the rotator cuff. The WCB orthopedic specialist who reviewed the operative report from the August 9, 2017 surgery noted that the rotator cuff was intact on inspection and that none of the operative findings pointed to a single episode of trauma.

The evidence on file indicates the worker had been experiencing increasing pain in her left shoulder for several months before the February 8th incident. The condition in the worker's left shoulder has been diagnosed as adhesive capsulitis, frozen shoulder. This diagnosis was made by the operating surgeon and concurred with by the WCB orthopedic surgeon.

The panel considered the opinion of the occupational health physician but attaches little weight to the opinion that the worker's duties were the likely cause of the worker's shoulder restrictions. The panel finds that the worker's shoulder restrictions were likely caused by the worsening pre-existing condition, given the timelines that established the presence of significant shoulder issues prior to the date of accident, and the long period of time typically associated with development of adhesive capsulitis. In this respect, the panel agrees with the comments of the WCB orthopedic surgeon.

Regarding the precedent that was provided by the worker's representative, the panel note that each case is decided on its individual facts and its own merit.

The panel also finds that the incident of February 8th, did not aggravate or enhance the worker's developing and worsening left shoulder condition. The policy is not applicable to this case.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of January, 2019