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 his current right shoulder difficulties as being a consequence of the November 7, 2014 accident. A hearing was held on May 23, 2019 to consider the worker's appeal.

Issue

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

Decision

That responsibility should be accepted for the worker's current right shoulder difficulties as being a consequence of the November 7, 2014 accident.

Background

On November 10, 2014, the worker reported to the WCB that he injured his right elbow at work on November 7, 2014, in an incident which he described as follows:

I was going up a ladder and the ladder slid out, I fell with the ladder about six feet. I landed on my two hands on top of the ladder and on the ground. I do not remember if I hit my right elbow on anything.

The worker was seen at a local emergency room on November 7, 2014, where he was diagnosed with a right radial head fracture. He was assessed by an orthopedic surgeon at a second hospital on November 8, 2014, and underwent a right radial head arthroplasty for a radial head and neck fracture.

The worker's claim was accepted by the WCB on November 18, 2014, and payment of benefits commenced.

Due to ongoing difficulties with his right elbow and wrist, the worker underwent further surgeries including a right elbow open contracture release (September 17, 2015), right elbow arthrotomy with removal of radial head, arthroplasty and anterior contracture release (April 28, 2016), right radiocarpal arthrotomy (October 12, 2016) and neurolysis procedures (February 7, 2017).

In a discussion with his WCB case manager on May 31, 2016, the worker indicated:

Lately his shoulder is becoming more painful from the way he uses and holds his arm. Can sort of use his arm if eating. Pain is all the time. Sleeping is difficult however that is when he takes his medication. It works but too strong to use during the day. Wife has been performing all the cleaning.

…Worker spoke to his physio about his shoulder but they do not have time to treat his shoulder too. Suggested massage therapy for shoulder or physio treatment for shoulder.

Progress notes from the treating physiotherapist dated June 2, 2016 indicated that post treatment the worker had full shoulder range of motion overhead. On September 29, 2016, a WCB orthopedic consultant recommended restrictions of "No tasks with the right upper limb" for the foreseeable future. On June 29, 2017, those restrictions were determined to be permanent.

On May 1, 2018, at an initial physiotherapy assessment relating to his right shoulder, the worker reported that his shoulder pain had been increasing after his accident. He complained of soreness into his shoulder and upper back when his arm was up, sharp pain with movement and it being "constantly achy." The physiotherapist's findings included a positive Hawkins test, pain on palpation in the trapezius and rhomboids and unable to perform all shoulder tests due to elbow. The physiotherapist diagnosed the worker with "shoulder impingement and upper back postural issues likely due to elbow position," and noted that the worker would benefit from therapy, with a massage - stretching component.

On June 4, 2018, the worker advised his WCB case manager that he first noticed issues with his right shoulder over a year earlier. The worker advised that he believed his right shoulder issues were related to his compensable injury because his right arm did not extend like it used to and he used his right shoulder more in daily activities.

On June 6, 2018, the WCB orthopedic consultant reviewed the worker's claim file, including the May 1, 2018 physiotherapy report, and provided an opinion. On June 7, 2018, Compensation Services advised the worker that the WCB orthopedic consultant had reviewed his claim with respect to the possible relationship between the right shoulder symptoms and compensable injury and had commented:

The cause of reported painful symptoms at the right shoulder has not been diagnosed.

Physical restrictions because of the right elbow involve no functional use of the right upper limb. Shoulder symptoms are not related to use of the right upper limb. There is no objective medical evidence that right shoulder symptoms are related to the workplace injury.

Compensation Services advised the worker that in their opinion, the symptoms related to his right shoulder could not be established as predominantly attributable to the November 7, 2014 compensable injury, and responsibility could therefore not be accepted for treatment pertaining to those symptoms.

On June 21, 2018, the WCB received a report from the worker's family physician which stated, in part, that the worker had marked restriction in right elbow movement with pain in his upper right trapezius and reduced range of motion in the cervical spine. The family physician advised that "…in my opinion shoulder/neck pain is caused by elbow injury."

On June 29, 2018, the worker requested that Review Office reconsider Compensation Services' June 7, 2018 decision. The worker subsequently provided a further submission in support of his appeal, dated August 1, 2018. The worker submitted that his right shoulder difficulties were related to his compensable injury. He stated that due to the loss of movement in his right elbow/wrist and restrictions, he had to use his right shoulder more than before. He further stated that his right arm was shorter due to the injuries and surgeries, and he had to extend it more outwards and compensate in his daily activity because of his compensable injury, which affected his right shoulder.

On August 9, 2018, in response to a request from Review Office for an opinion regarding a diagnosis of shoulder impingement, the WCB orthopedic consultant opined:

1. The physiotherapy report dated 1-May-2018 noted right shoulder flexion of 143 degrees and abduction 118 degrees and positive Hawkins test suggestive of shoulder impingement syndrome. It was noted that there was inability to perform all shoulder clinical tests because of the dysfunction of the right elbow.

2. Shoulder impingement syndrome is a collection of clinical features (signs and symptoms) which may be caused by a number of different possible pathological diagnoses, such as subacromial bursitis, rotator cuff tendinopathy, rotator cuff tear or glenoid labral tear. Typically, such conditions arise from forceful resistance to active abduction of the shoulder with the arm away from the side of the body, the trauma being either acute and very forceful or repetitive against resistance. A precise diagnosis of shoulder pain has not been clarified to date.

3. Disuse and dysfunction of the elbow often leads to stiffness of the entire upper limb. For this reason, patients are encouraged to exercise by range of motion of joints that are not damaged. Lack of mobilization after several upper limb operations would certainly cause risk of loss of full motion of the shoulder. Physiotherapy notes concerning upper limb motion on several occasions noted difficulties with full range of motion of the shoulder. The elbow condition and lack of use of the right upper limb would not be expected to cause signs and symptoms of shoulder impingement syndrome.

On September 6, 2018, Review Office determined that responsibility was not accepted for the worker's current right shoulder difficulties. Review Office found that although there were intermittent medical findings of reduced range of motion and achiness in the right shoulder before May 2016, no medical information identified any structural damage related to the worker's shoulder joint and the findings were likely soft tissue in nature. Review Office noted that while the worker reported shoulder pain to the WCB on May 31, 2016, the treating physiotherapist documented on June 2, 2016 that the worker had full range of motion in his right shoulder when reaching overhead. Review Office noted that the worker did not seek medical treatment or mention persisting complaints regarding his right shoulder again until May 1, 2018.

Review Office also placed weight on the opinion of the WCB orthopedic consultant regarding the physiotherapist's diagnosis of impingement and upper back postural issues. Review Office found that the restrictions listed and activities described by the worker did not meet the identified causes for his current right shoulder difficulties. Review Office further found that the worker's claim of increased use of his right shoulder for daily activities did not meet the causes outlined by the WCB orthopedic consultant for shoulder impingement syndrome, as increased use of the right shoulder and modified body posture while using the shoulder did not require forceful repetitive resistance. Review Office was therefore unable to find sufficient evidence to support that the worker's current shoulder symptoms were related to his compensable injury or the effects of that injury.

On November 26, 2018, the worker appealed the Review Office decision to the Appeal Commission and 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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), 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 Further Injuries 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 represented by an advocate, and was accompanied at the hearing by his spouse. The advocate made a presentation at the hearing and the worker and his spouse responded to questions from the panel.

The worker's position was that his shoulder/neck difficulties are the result of his compensable elbow injury and compensating for that injury, and that they should be accepted and that treatment be provided.

It was submitted that the medical reports from the treating practitioners brought the worker's difficulties and need for therapy for his shoulder to the WCB's attention. The worker's family physician and treating physiotherapist both noted that the worker's shoulder difficulties were from his elbow injury. Review Office based their decision on the impingement mentioned by the physiotherapist, but did not take the physician's report into consideration.

The worker informed the case manager in May 2016 of his right shoulder pain and difficulties, for which the physiotherapist suggested therapy. The worker said that after therapy was denied, he did not ask for it again, and thought his shoulder would get better. Instead, it got worse.

It was noted that since the injury, the worker has not been able to use his whole right arm as before. He has to use the arm in different positions in activities of daily living due to his elbow injury. It was noted, in particular, that when driving, he has to adjust the positioning of his body and move his right shoulder forward. He uses both hands to drive, and is continuously trying to maneuver into appropriate positions to compensate for the inability to use his elbow, which causes the muscles behind his shoulder blade and in his shoulder and neck to tighten.

The worker is participating in a vocational rehabilitation program and indicated that he had to drive more when attending school as part of that program. He said he had reduced his medications because they made it harder to drive and affected his thought processes and schooling. He was looking for therapy to alleviate the pain so he can continue moving forward without taking more medications.

It was submitted that because of the lack of range of motion, the worker is using muscles further up in his arm and anything he does which involves reaching causes him pain. As he is right-handed, he automatically tries to reach with his right arm, and with any such movement is always compensating with his shoulder because his arm does not extend as much. It is not a matter of overextending, but of compensating because he cannot use his elbow. Simple motions, such as reaching for a glass or to help his child, causes pain and his shoulder becomes sorer as the day goes on. The worker has also had problems sleeping because of the position he has to keep his arm and elbow in while sleeping, which irritates his shoulder.

In conclusion, it was submitted that the worker's shoulder and neck difficulties are due to his elbow injury, and treatment should be provided to lessen his pain and assist him in his daily activities and fully concentrating on his schooling and rehabilitation.

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 current right shoulder difficulties as being a consequence of the November 7, 2014 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's current right shoulder difficulties are caused by the November 7, 2014 workplace accident or predominantly attributable to his compensable injury. The panel is able to make that finding.

Based on the current medical information on file, the panel accepts the worker's right shoulder difficulties as a soft tissue injury to his shoulder girdle area, which is predominantly attributable to his compensable injury.

In arriving at that conclusion, the panel places weight on the clinical findings by the treating physiotherapist on the May 1, 2018 assessment report, of "pain on palpation: traps and rhomboids." The panel also places weight on similar clinical findings of the family physician, whose reported findings on the June 21, 2016 examination included pain in the worker's upper right trapezius and reduced range of motion in the cervical spine, and on an August 21, 2018 examination included "marked dec ROM [decreased range of motion] R elbow…trapezius spasm ++ with normal shoulder ROM trapezius spasms due to over working shoulder due to dec ROM elbow." The panel is satisfied that these findings are consistent with the symptoms and affected areas of the shoulder and upper body which the worker described and demonstrated at the hearing.

At the hearing, the worker demonstrated a shortfall of approximately 10 to 15 degrees in terms of stretching his right arm out straight. He also described the pain he experienced as being towards the area of the scapula generally, up towards the neck and down the top of the chest on the front. The panel finds that the areas of the shoulder which the worker described were related to the unusual postures he adopted in the course of his activities of daily living, to compensate for his elbow injury. The panel further finds that the evidence supports there was overuse of the right shoulder in awkward and unusual ways, to enable the worker to perform simple and basic activities of daily living post-accident. The panel is satisfied that the worker's general positioning has been creating the shoulder conditions and difficulties which he was describing.

The panel notes that while there are suggestions of right shoulder impingement, we are unable to find that such a condition is suggested by the performance of the worker's activities of daily living based on the evidence which is before us. The panel recognizes that a positive Hawkins test was reported by the treating physiotherapist on May 1, 2018, but is unable to relate such a finding or condition to the worker's activities or use of his right arm. Based on the current medical and other information, the panel is therefore unable to accept a diagnosis of impingement.

In conclusion, the panel finds that the worker's right shoulder pain and difficulties are acceptable under the Further Injuries Policy as a soft tissue injury to the shoulder girdle area, resulting from his accommodating and compensating for his compensable right elbow injury and limitations arising from that injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's current right shoulder difficulties are predominantly attributable to his compensable injury. The panel therefore finds that responsibility should be accepted for the worker's current right shoulder difficulties as being a consequence of the November 7, 2014 accident.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of July, 2019