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 the worker's left shoulder difficulties as being a consequence of the July 15, 2015 accident. A hearing was held on March 6, 2019 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's left shoulder difficulties as being a consequence of the July 15, 2015 accident.

Decision

Responsibility should not be accepted for the worker's left shoulder difficulties as being a consequence of the July 15, 2015 accident.

Background

On July 21, 2015, the worker reported to the WCB that he injured his right shoulder on July 15, 2015 in an incident he described as:

I was moving tables back into the cafeteria, we had waxed the floor so had to move everything out. When I went to pick up the table and was walking with it, carrying the table, I felt like a pop in my right shoulder, had instant pain and burning.

The worker attended for medical treatment at the emergency room on July 15, 2015. It was noted that the worker was "Too sore to adequately check soft tissues but seemed worst in long head of bicep tendon." An x-ray of the worker's right shoulder conducted that day noted a normal examination and the worker was diagnosed with a soft tissue injury. The worker was seen on July 17, 2015 at the local walk-in clinic but due to pain and discomfort, an injury to his rotator cuff could not be established and he was diagnosed with a not yet determined shoulder injury. At a follow-up appointment on July 27, 2015, the worker was referred to a sports medicine specialist for further treatment and an MRI. The worker's claim was accepted on July 29, 2015 and payment of wage loss and other benefits started.

On August 25, 2015, the worker was seen by a sports medicine specialist. The worker reported continued pain in his right shoulder, including pins and needles to his right hand after letting his right arm dangle by his side. The sports medicine specialist diagnosed the worker with a ruptured biceps long head and a rotator cuff tear and recommended the worker attend physiotherapy as well as referred the worker for an MRI.

The worker attended for an initial physiotherapy session on September 1, 2015. The physiotherapist diagnosed the worker with a right shoulder strain, long head biceps tear and a possible rotator cuff tear. The physiotherapist recommended that the worker could return to work, on modified duties with no use of his right arm.

The MRI conducted on the worker's right shoulder on September 22, 2015 indicated a tear in the long head of the worker's bicep along with a focal tear of the superior labrum and a posterior superior labral tear. At a follow-up appointment with the sports medicine specialist on September 30, 2015, the MRI results were discussed with the worker and it was recommended that he continue with physiotherapy for approximately one month and then return for a follow-up. It was noted that should the worker continue to have pain, then possible surgery would be discussed.

On November 2, 2015, the treating sports medicine specialist provided the WCB with a Work Abilities/Modifications form indicating that the worker could return to work, with the restrictions of partial use of his right hand, no raising his right arm above shoulder height, limit lifting to what he is able to, keep his work within his body envelope and that he could work regular hours, to be reviewed in four weeks. The worker returned to work on modified duties on November 2, 2015.

In a discussion with his case manager on December 23, 2015, the worker advised that his left arm had started aching a couple of weeks ago as he could not do anything with his right arm, and was using his left arm instead. He advised his case manager that his workload had increased, aggravating his left shoulder. The worker was advised that the duties he described were outside of his restrictions and should not be allowed to continue.

On January 5, 2016, the worker was seen by an orthopedic surgeon who recommended surgical repair of the worker's right shoulder, which was scheduled for March 7, 2016. At a follow-up physiotherapy appointment on January 12, 2016, the physiotherapist recommended "…staying off work until after surgery as patient has aggravated his shoulder several times attempting modified duties. Surgery date is set for March 7."

The worker underwent a bucket handle superior labrum, anterior to posterior tear and an anterior labral tear repair on March 7, 2016. The worker returned to modified duties on August 15, 2016. Due to ongoing pain, a second surgery to repair two partial thickness tears of the long head of the biceps was performed on June 15, 2017.

The worker's treating orthopedic surgeon provided a report to the WCB on February 1, 2018 indicating that the worker was seen that day in relation to his left shoulder. It was noted that his left shoulder had become "increasingly symptomatic during recovery from his right cuff repair." The orthopedic surgeon opined that the worker had "some rotator cuff pathology" in his left shoulder and referred the worker for an MRI.

On May 16, 2018, the WCB advised the worker that responsibility for his left shoulder difficulties, which he related to overuse of his left arm as a result of his right shoulder injury, would not be accepted. The WCB noted that the worker's doctor reported rotator cuff pathology in his left shoulder, for which risk factors usually include repetitive overhead activity, heavy lifting over a prolonged period of time, age and family history. Given the delay in the worker reporting his left shoulder difficulties to the WCB and/or his healthcare providers and that the onset of his difficulties occurred while he was not at work, the WCB was unable to establish a connection between his left shoulder difficulties and his compensable workplace injury that occurred on July 15, 2015.

The worker's representative requested reconsideration of the WCB's decision to Review Office on August 3, 2018. The worker's representative noted that the worker related his left shoulder difficulties to an increase and reliance on his left arm, both at work and at home, to the persistent ongoing symptoms of his compensable right shoulder injury. It was noted that the worker had returned to work, with restrictions, but the worker's representative provided instances where the worker had been asked to work outside his restrictions.

On September 12, 2018, Review Office determined that responsibility should not be accepted for the worker's left shoulder difficulties. Review Office noted the May 17, 2018 report of the worker's treating orthopedic surgeon who reviewed an MRI conducted on the worker's left shoulder and found a "…superior labral tear with associated tendinosis of the long head of biceps." Review Office found that some of the causes for a labral tear include a fall onto an outstretched arm, forceful pulling on the arm, rapid or forceful movement of the arm when it is above the level of the shoulder or a lot of overhead arm motions. Review Office acknowledged that the worker likely used his left arm more frequently because of his compensable right shoulder injury but the evidence on file did not indicate that the worker was performing any of the activities that normally cause a labral tear. It was further noted that had the worker sustained an acute labral tear, there would have been an immediate report of pain and change of function of his left arm. Review Office concluded that a causal relationship between the worker's left shoulder difficulties and his compensable injury could not be established and as such, responsibility for his left shoulder difficulties was not accepted.

The worker's representative filed an appeal with the Appeal Commission on September 19, 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 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 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 resulting from the accident ends.

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.

The WCB Board of Directors has enacted Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (hereinafter referred to as the "Policy") which deals with cases where a second injury develops as a consequence of a prior injury.

Worker's Position

The worker is appealing the WCB determination that his left shoulder difficulties are not a consequence of the July 15, 2015 accident.

The worker was represented by a union representative. His representative provided a written and oral submission in support of the worker's position. The worker answered questions from his representative and the panel.

The worker's representative submitted that:

It is our position that the WCB is responsible for [worker's] left shoulder condition because the evidence, on a balance of probabilities, supports that it is a further injury which developed as a consequence of his compensable right shoulder injury.

The worker's representative noted that evidence on file confirms that the worker sustained a significant structural injury to his right shoulder as a result of the workplace accident on July 15, 2015 and that he developed post-traumatic adhesive capsulitis in September 2015. The worker's representative said that the evidence suggests that the worker "was, more or less, left to do his own regular duties without the use of his injured arm."

The worker's representative submitted that:

• the worker attempted to do the assigned tasks with very limited use of his right arm and, as such, had to rely more heavily on his left arm. 

• by December of 2015 the worker began to complain of soreness affecting his left shoulder, which he attributed to overuse. 

• in January of 2016, when he was getting up off the floor, he hurt both of his shoulders. 

• the worker underwent surgery to his right shoulder in March 2016, and during his recovery, he had to rely on his left arm to undertake all his daily activities. 

• the worker began another gradual return to work in August 2016. He was careful not to hurt his right shoulder, and reportedly did everything with his left arm. 

• the worker underwent a second surgery on his right shoulder on June 15, 2017. 

• in late 2017 the worker again reported that his left shoulder was causing him problems, due to the fact that he had been compensating for his right shoulder injury for a period of two years. 

• the worker again returned to work in April of 2018 and still had difficulties with his right shoulder, and his left shoulder which quickly became sore as he got back to work. 

• due to problems with both shoulders, the accident employer stopped the worker's accommodation in May 2018. 

• an MRI on May 12, 2018 confirmed that a tear had occurred in the worker's left labrum and a surgeon operated on the worker's left shoulder on June 25, 2018.

The worker's representative submitted that:

We submit that [worker's] compensable right shoulder injury significantly contributed to the development of his left shoulder condition, as well as the need for surgery. In our view, this means it is a further injury for which the WCB is responsible.

The worker's representative submitted that

We accept that [worker] likely had age-related changes in his left shoulder prior to the 2015 workplace accident, but there's no evidence on the file of any issues with either of his shoulders prior to that time.

We submit [worker's] right shoulder condition caused persistent symptoms and functional limitations, which required him to significantly increase the use of his non-dominant left arm.

The worker was asked about the current condition of his arms. He replied:

The one that's giving me the most pain right now is my left, but I'm very careful what I do with my right. Like, I won't lift anything with it. It's useless.

The worker answered questions from the panel on the duties he performed at the worksite which was a large educational institution with a student residence. He advised that he was not permitted to operate the floor scrubber due to his right shoulder issues. He explained how he used a wet mop. He also explained the process he followed in cleaning the bathrooms and mirrors.

The worker was asked about a file note dated December 23, 2015, which indicated that his left shoulder was swelling. He explained that it used to swell up. He said:

It was more, more like the beginning when I first went back to work, it seemed like I used it all the time for everything, at home, at work.

The worker was also asked about a notice of injury to the employer regarding an April 24, 2018, incident. The worker explained that:

I don't know the exact date, but when I hurt myself I was scared to go say something because I knew they were going to send me home again. I just didn't want to go home.

In closing the worker's representative described the worker's left shoulder injury in the following words:

It's not an acute injury, in our view. This is actually, I'll use the word cautiously, degenerative tear, and not degenerative in the terms of this is an age-relating condition purely and simply. No, it's a tear that's -- a condition that's gotten worse over the course of time as a result of overcompensation…

Policy…44.10.80.40, further injuries subsequent to a compensable injury says that there has to be a significant contribution by the compensable injury for the secondary injury to be compensable.

[Surgeon] has stated that is his opinion, the orthopedic surgeon that's seen [worker] since day 1, or day 5, whichever you want to call it, endorsed his view. That's the professional's opinion.

So in our view the medical evidence supports this is a further injury, but, also, the narrative. In reading the file, it really, to me, demonstrates that [worker] has had to rely on this left shoulder far more than he would have had if he hadn't injured his right shoulder, and it's that change in use that has resulted in this left shoulder condition, and on that basis we feel it is a compensable injury.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker is claiming that his current left shoulder difficulties are a consequence of his July 15, 2015 workplace accident.

In adjudicating this appeal, the panel finds that the Policy is applicable. It outlines the circumstances when a further injury can be attributed to a prior injury. It provides:

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.

The worker's position was that the evidence, on a balance of probabilities, supports that his left shoulder condition is a further injury which developed as a consequence of his compensable right shoulder injury.

The panel was not able to make this finding. The panel, finds on a balance of probabilities, the worker's left shoulder difficulties are not related to the worker's right shoulder injury as provided in the Policy. Subsection (i) of the Policy is the relevant section. As already noted, it 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.

The panel is not able to find, on a balance of probabilities, that the worker's further injury is predominantly attributable to the compensable injury. In other words, the panel finds that the worker's left shoulder injury, noted in an MRI to be a superior labral tear and tendinosis of the of the longhead of the biceps, is not caused directly or indirectly by the worker's right shoulder injury.

The panel notes that the worker has significant degeneration in his left shoulder which is not attributable to the worker's workplace duties. It also notes that there is no report of claim for a traumatic event, before the panel, which could have caused a tear or injury.

The panel further notes that for much of the time since the July 15, 2015 injury to the right shoulder, the worker has not worked at all or has been provided job duties which the panel considers to be of low resistance, repetitive, and not strenuous.

The panel understands that the worker was employed as a cleaner. At the hearing he described the duties that he performed while on modified duties and some of the actions related to the duties. The panel considered this evidence but finds that performance of the duties is not, on its own, sufficient to cause a labral tear. The panel is not able to find that performance of these duties, such as wiping down mirrors or sinks, would cause an injury to the worker's left shoulder.

Regarding the opinion of the surgeon, the panel notes that in reply to a question from the worker's representative the surgeon commented:

As to your second question in regards to the balance of probabilities, while we cannot say with any accuracy that his right shoulder injury was the primary cause of the problems with his left shoulder certainly I think it is a very reasonable assumption to say that it was significant contributing factor.

The panel notes that this opinion does not meet the test set out in the Policy which is that the further injury is predominantly attributable to the compensable injury.

In conclusion, the panel does not accept that performing the modified duties would cause the worker's left shoulder difficulties or cause deterioration in the worker's left shoulder. In the absence of a specific injury occurring while performing his duties, the panel finds that simply performing the duties would not cause injury to the worker's left shoulder.

The panel also finds that subsections (ii) and (iii) of the Policy are not applicable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of April, 2019