The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for her right shoulder difficulties as being a consequence of the May 7, 2014 accident. A hearing was held on October 18, 2018 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the May 7, 2014 accident.

Decision

That responsibility should not be accepted for the worker's right shoulder difficulties as being a consequence of the May 7, 2014 accident.

Background

The worker filed a claim with the WCB for an injury to her left shoulder which she sustained in a workplace accident on May 7, 2014. The claim was accepted and payment of wage loss and medical aid benefits commenced. An MRI of the worker's left shoulder on June 13, 2014 indicated "Mild AC arthrosis. Full-thickness tear of the supraspinatus with infraspinatus tendinosis." The worker received opinions from two orthopedic surgeons but decided against having surgery on her left shoulder for her rotator cuff tear.

On June 16, 2015, the worker advised her case manager that her right shoulder hurt if she used it too much. The worker called her case manager on August 13, 2015 to advise that she had extreme pain in her right shoulder and could hardly move it. She said she thought it was related to her compensable injury, as she was compensating with her right arm for her left and believed that her right shoulder had been deteriorating because she was using it more.

The worker attended a physician on August 13, 2015, and reported that due to her left shoulder injury, she was "favouring that side, overusing her right side." The physician noted "no special trauma," diagnosed the worker with right rotator cuff syndrome and referred her for an MRI.

On August 21, 2015, Compensation Services advised the worker that the WCB was not accepting responsibility for her right shoulder difficulties. Compensation Services advised that since the worker had been off work for over a year, they were unable to attribute the symptoms in her right shoulder to her work activities.

On September 25, 2015, the worker requested that Review Office reconsider Compensation Services' decision. On September 28, 2015, Review Office advised the worker that it was premature to rule on her appeal regarding her right shoulder difficulties and returned her claim to Compensation Services for further review. On October 8, 2015, Compensation Services advised the worker that there was no change to their August 21, 2015 decision.

On August 11, 2016, the worker requested that Review Office reconsider Compensation Services' decision not to accept responsibility for her right shoulder injury. The worker noted that as her left shoulder already had a full thickness tear, she relied more on her right shoulder to the point of overusing it, and as a result, suffered a right supraspinatus tendon tear from lowering herself into a chair on August 13, 2015.

On November 10, 2016, Review Office determined that the worker's right shoulder difficulties were not related to her compensable left shoulder injury. Review Office noted that the worker related her right shoulder difficulties to overuse as a result of her compensable left shoulder injury. Review Office stated that the August 27, 2015 medical report from the worker's treating physician indicated that the worker "has now injured right shoulder, but not at work, happened after heaving herself out of chair not using left arm, thinks right shoulder is due to overuse." Review Office did not find medical evidence to support that the worker's right shoulder difficulties were caused by overuse. Review Office noted that a November 2015 MRI showed a full thickness tear of the critical zone supraspinatus tendon in the worker's right shoulder, which was consistent with the mechanism of injury noted on August 27, 2015 by the treating physician. Review Office found that the worker made a personal choice in the method she used to get out of the chair which resulted in the injury to her right shoulder.

On December 13, 2017, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was held on October 18, 2018.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was received and forwarded to the interested parties for comment. On December 19, 2018, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides that:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation at the hearing, a copy of which was also provided to the panel. The worker responded to questions from the worker advisor and the panel.

The worker's position was that her right shoulder difficulties arose as a consequence of her compensable left shoulder injury, which was caused by her May 7, 2014 workplace accident, and the WCB is therefore also responsible for her right shoulder injury.

In response to questions from the worker advisor, the worker described her May 7, 2014 accident. She said that when she fell, she felt excruciating pain in her left arm and could not move it at all. Her right shoulder was also sore, but she could move it. She had been getting ready to put fuel in the vehicle she was driving, but when she moved her right arm to put the hose in the gas tank, she felt extreme pain, such that she cried out and her arm dropped a bit.

The worker said that when she went to the emergency room that day, she told the doctor that her right arm was sore too, but he just kept examining her other injuries. She said that right away after leaving the hospital, she saw another doctor, who checked out all her injuries. She told him that her right arm was sore too, and he looked at it, but was more concerned about her other injuries. The worker said she had no difficulties with her right shoulder before the accident.

It was submitted that the May 7, 2014 accident caused significant tears to the worker's left shoulder, which required her to use her right hand to compensate. The worker said that when she told her case manager on June 16, 2015 that her right shoulder hurt when she used it too much, the case manager would not acknowledge her comments. It was noted that she continued to report that her right arm was getting sore from compensating for her left arm injury to her new case manager on August 6, 2015.

The worker advisor noted that on August 14, 2015, the worker reported to the case manager that she was lowering herself into a chair on August 13, 2015 by placing her full body weight on her right arm and shoulder because she had significant impairment to her compensable left shoulder. It was submitted that this action caused an acute exacerbation to the right shoulder difficulties with symptoms of extreme pain. The extreme pain and disability which the worker suffered as a result of the August 13, 2015 incident had been confirmed as a right shoulder tear.

It was submitted that this injury and the increase in the worker's symptoms were predominantly caused by the fact that the worker still had a compensable left shoulder injury. The worker's action on August 13, 2015 was not a random choice, which was unrelated to the compensable injury. Rather, it was because of the worker's left shoulder injury. It was submitted that as long as a compensable injury causes a further injury, there is a WCB responsibility. Further, if it were not for the worker's compensable left shoulder injury, the worker would not have had to lower herself into the chair solely with her right arm and shoulder. It was submitted that the worker's placing weight on her right arm and shoulder due to her left shoulder difficulties was the catalyst to the onset of her right shoulder pain and disability.

In conclusion, it was submitted that the worker's right shoulder injury was predominantly attributable to her compensable left shoulder injury, as a consequence of that injury and the May 7, 2014 workplace accident, and that the WCB is therefore responsible for the worker's right shoulder injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the May 7, 2014 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right shoulder difficulties were caused by the May 7, 2014 workplace accident or predominantly attributable to her compensable injury. The panel is unable to make that finding, for the reasons that follow.

The worker advisor confirmed at the hearing that the right shoulder "difficulties" at issue on the appeal were the "full thickness tear critical zone supraspinatus tendon," as found on the November 2, 2015 MRI.

While the worker stated at the hearing that she also hurt her right shoulder on May 7, 2014, the panel is unable to make that finding. The panel accepts that the worker's arm was sore on May 7, 2014, but is unable to accept that she suffered an acute injury to her shoulder at the time of that accident. The worker said at the hearing that she fell on both arms outstretched and that she experienced "extreme pain" when she tried to fill up the vehicle. The panel finds that this description of the incident is not consistent with or supported by the reports and early information on file.

The panel further finds that there is a lack of early medical evidence of an acute right shoulder injury at the time of the May 7, 2014 accident. The worker saw a number of doctors in the year following the accident, who tested her for left shoulder problems. Their reports are silent, however, with respect to complaints of right shoulder difficulties. The report from the second orthopedic surgeon who saw the worker on November 14, 2014, some five to six months after the accident, indicates that he compared the worker's left and right shoulders, yet makes no mention of any pain complaints or range of motion issues on the right side.

The first mention of right arm or shoulder complaints in the medical reports on file was more than one year after the accident, on August 13, 2015, where it was noted: "[worker] had L shoulder injury, she is favouring that side, overusing R side, no special trauma." At a subsequent appointment on August 27, 2015, the worker's treating physician noted that the worker was in to discuss her left rotator cuff injury, and that she had "now injured right shoulder, but not at work" and that the worker "thinks right shoulder is due to overuse."

Following the hearing, the panel requested and was provided with medical chart notes from January 1, 2014 to December 31, 2015 relating to the worker's left and right shoulder difficulties. The panel carefully reviewed the chart notes, but was unable to identify any reference to right shoulder complaints or symptoms prior to August 13, 2015.

The worker also related her right shoulder injury to overuse of her right arm and shoulder as a result of her left shoulder injury. Based on our review of the worker's activities, as described on file and at the hearing, the panel is unable to accept that argument. The panel notes that the worker is right-hand dominant. Information on file and as presented at the hearing indicated that a number of changes were made after the May 7, 2014 accident to assist the worker. Among other things, dishes and clothing were moved down so the worker did not have to reach up for things. The worker stopped doing certain activities, such as gardening and landscaping, and had help for other things she was unable to do because of her left shoulder injury. She was also off work. The panel finds that the evidence does not support that the worker overused her right arm or shoulder as a result of her left shoulder injury.

The panel notes that a Functional Capacity Evaluation ("FCE") was carried out on April 20, 2015 to determine the worker's safe maximal lifting capacity, range of motion and strength. The report of the FCE showed significantly different range of motion results on the worker's right side as opposed to her left, and indicated that the worker "does not have any limitations to use her right upper extremity."

It was further argued that the worker's right shoulder injury was the result of the August 13, 2015 incident. The panel notes that in her evidence at the hearing, the worker described her movements on August 13, 2015 as "carefully" and "gently" lowering herself into the chair using her right arm and shoulder. Based on our review of all of the evidence, and given our finding that the worker was not overusing her right arm or shoulder, the panel is unable to find that the August 13, 2015 incident, more than 15 months after the worker's May 7, 2014 accident, was attributable to the initial workplace accident or compensable injury.

In the result, the panel finds, on a balance of probabilities, that the worker's right shoulder difficulties were not caused by her May 7, 2014 workplace accident or predominantly attributable to her compensable left shoulder injury.

The panel therefore finds that responsibility should not be accepted for the worker's right shoulder difficulties as being a consequence of the May 7, 2014 accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of January, 2019