The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current low back and left shoulder difficulties are not accepted as being a consequence of the October 18, 2017 accident. A hearing was held on September 9, 2019 to consider the worker's appeal.

Issue

Whether the worker's current low back and left shoulder difficulties should be accepted as being a consequence of the October 18, 2017 accident.

Decision

That the worker's current back and left shoulder difficulties should not be accepted as being a consequence of the October 18, 2017 accident.

Background

On October 25, 2017, the worker reported to the WCB that he injured his right shoulder and lower back in an October 18, 2017 incident at work, which he described as follows:

I was caring (sic) a sheet of drywall out of building that I was working at. I was going on (sic) the front door and slipped on some cardboard that the plumber had left behind. My feet went out from beneath me and I fell on my tail bone and right shoulder, still holding onto the drywall. I did stand up slowly and felt a burning sensation in my lower back. I did finish my shift.

The worker saw his family physician on October 23, 2017. The worker reported lower back pain, with stiffness and spasms of his lumbar region muscles, reduced range of motion and difficulty flexing his right shoulder. The treating physician noted tenderness over the L4-L5 midline region and over the biceps tendon implantation of the right shoulder, and pain with shoulder flexion. An x-ray of the worker's thoracolumbar spine, taken that same day, indicated slight narrowing of the L4-L5 disc space in keeping with degenerative disc disease. The treating physician recommended a restriction of not lifting anything heavier than 20 pounds for four weeks. The worker's claim was accepted by the WCB.

The worker underwent an MRI of the right shoulder on November 8, 2017, which showed a "Full-thickness full-width supraspinatus tendon tear," and an MRI of the lumbar spine on November 27, 2017, which showed degenerative changes. At a follow-up appointment on December 1, 2017, the worker's family physician referred the worker to a spine surgeon. The physician also ordered an MRI of the worker's left shoulder, after noting that the worker was reporting that shoulder was "acting up."

On January 11, 2018, the worker's file was reviewed by a WCB orthopedic consultant. The orthopedic consultant opined that the worker's diagnosis was a strain/sprain of the right shoulder and a contusion of the low back. The orthopedic consultant further opined that a referral to a spine surgeon would not typically be required for an injury of this type, and noted that clinical indication for an MRI of the worker's left shoulder related to the workplace incident of October 18, 2017 was lacking.

On January 24, 2018, the worker attended a call-in examination with the WCB orthopedic consultant. Following his examination of the worker, the WCB orthopedic consultant opined that it was probable the October 18, 2017 workplace injury caused a contusion of the low back and a rotator cuff tear of the right shoulder, and that this was supported by the onset of the worker's symptoms and inability to lift the arm shortly after the injury, the worker's lack of any prior shoulder problems, and the November 8, 2017 MRI of the right shoulder. The consultant stated that the cause of the worker's current pain and left shoulder disability was unclear. He noted that an MRI was pending, but also that the reported mechanism of injury was not typical of a left shoulder injury and the onset of symptoms was delayed by at least a week. The WCB orthopedic consultant recommended restrictions for the worker's right shoulder of no lifting and carrying more than 10 pounds with the right upper limb, no repetitive resisted tasks with the right upper limb away from the side of the body, no tasks with the right upper limb above shoulder level, and no pushing and pulling more than 15 pounds. No restrictions were recommended for the worker's low back injury.

An MRI of the worker's left shoulder was carried out on February 16, 2018, which showed "Tendinosis and partial intrasubstance tearing complicated by mild delamination."

On March 19, 2018, the worker underwent right shoulder rotator cuff repair surgery.

On July 17, 2018, Compensation Services advised the worker that they had determined he had recovered from the effects of his accepted low back contusion injury. On July 19, 2018, Compensation Services advised the worker that the February 16, 2018 MRI of his left shoulder had been reviewed in consultation with the WCB orthopedic consultant, who had opined that the MRI findings were a degenerative process and would not have been caused by an acute trauma. Compensation Services advised that as there was currently no medical evidence of a causal relationship between the left shoulder pathology and the October 18, 2017 workplace accident, they were unable to accept responsibility for his left shoulder symptoms/condition.

On August 3, 2018, the worker requested that Review Office reconsider Compensation Services' July 17 and July 19, 2018 decisions. With respect to his low back injury, the worker submitted that his symptoms began after the workplace accident and were still continuing. He noted that he had been referred to a spine surgeon and felt the surgeon's report should be considered. With respect to his left shoulder claim, the worker noted that the treating orthopedic surgeon recommended that he recover from his right shoulder rotator cuff surgery before dealing with his left shoulder. The worker noted that he was able to perform his job duties prior to the workplace accident but was now in "constant pain."

The worker was subsequently seen by the spine surgeon who, in a report dated August 13, 2018, opined that the worker "…developed a central disc herniation of L5-S1" and sought permission to proceed with further management which would probably entail "…an anterior discectomy and arthroplasty." The spine surgeon's report was referred to the WCB's orthopedic consultant, who requested that a third party radiology consultant provide an opinion regarding the L5-S1 disc protrusion and whether that protrusion was a new finding on the November 27, 2017 MRI or was present on an earlier February 27, 2014 MRI.

On September 13, 2018, the radiology consultant opined that there was no "material change" in the MRI scans of the worker's lumbar spine between February 27, 2014 and November 27, 2017, and specifically at the L5-S1 level, there was "…a small right paracentral disc protrusion with high signal intensity annular tear without spinal stenosis or nerve root compression" which was unchanged. In a note to file dated September 13, 2018, the WCB's orthopedic consultant opined that the spine surgeon's proposal for lumbar disc surgery was not supported.

On September 17, 2018, Review Office determined that the worker's current low back and left shoulder difficulties were not accepted in relation to the October 18, 2017 accident. Review Office found that the worker first mentioned issues with his left shoulder approximately seven weeks after the accident. Review Office accepted and agreed with the opinion of the WCB orthopedic consultant that the MRI of the worker's left shoulder indicated a degenerative process, and found that a cause and effect relationship could not be established between the workplace accident and the worker's left shoulder difficulties.

With respect to the worker's low back condition, Review Office noted that the worker had a long history of low back complaints, including surgery and an MRI in 2014 relating to similar problems. Review Office accepted the opinion of the radiology consultant that there was no material change between the 2014 and 2017 imaging studies. Review Office noted that the spine surgeon was proposing surgery to address the same pathology and areas of concern as were present in 2014. Review Office found that the medical evidence did not support that there was a material change in the worker's pre-existing condition, and was unable to conclude that the worker's low back condition was enhanced in any way.

In a subsequent letter dated October 30, 2018, the spine surgeon noted that a recent MRI, conducted October 18, 2018, showed the worker had a "…triple level disc herniation in the thoracic spine" and opined that this could be related to the workplace injury. On November 27, 2018, a worker advisor acting on behalf of the worker requested that Review Office reconsider the September 17, 2018 decision in light of the new evidence from the spine surgeon. The worker advisor submitted that the new MRI and the ongoing nature of the worker's symptoms supported that the worker suffered a more severe injury to his back than a simple contusion and that he had not yet recovered from that injury.

On January 11, 2019, Review Office determined that the worker's current low back difficulties were not compensable. Review Office noted that the worker had "…multilevel degenerative findings and disc protrusions throughout his lumbar and thoracic spine" which were characterized as degenerative. Review Office further noted that the worker initially reported that he had low back pain which included a tender lumbar area at the base of his spine due to landing on his coccyx, but the "disc herniation" which the spine surgeon suggested could be related to the worker's fall at work was located in the worker's mid-back area. Review Office noted that there was no reporting by the worker or any of his treating healthcare providers of any concerns with his mid-back area in the months following the workplace accident. Review Office found that the worker's mid-back problems were not related to the worker's initial complaints of low back pain or the compensable injury.

On February 4, 2019, the worker advisor appealed Review Office's September 17, 2018 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 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The stated purpose of the Policy is identified, in part, as follows:

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 following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor, and was accompanied by his spouse at the hearing. The worker's representative provided a written submission in advance of the hearing, and made an oral presentation, a written copy of which was also provided to the panel. The worker responded to questions from his representative and from the panel.

The worker's position was that he suffered an injury to his back and his left shoulder as a result of the compensable injury, and his appeal should be accepted.

With respect to the worker's back injury, it was submitted that the worker suffered more than a simple contusion as a result of the workplace accident.

The worker's representative acknowledged that the worker had pre-existing degenerative changes in his spine. The representative also noted that the worker underwent surgery to his back in 2011, with a T12-L1 fusion. She submitted that the worker had recovered from that surgery and returned to work in construction, with no further problems or symptoms until the day of the accident.

The representative submitted that the force of the impact from the October 18, 2017 workplace accident was significant. The worker was carrying a heavy load, and when he fell, the entire force of that load and his own weight would have been on his tailbone and distributed up his spine. The worker's pre-existing condition would have caused his spine to be more fragile, and the previous fusion surgery resulted in his back being less flexible.

The representative noted that immediately after he fell, the worker felt burning pain in his lower back which spread to his groin. It was submitted that the immediate onset of symptoms and the continuation of symptoms up to the present time spoke to the relationship between the accident and the worker's injury.

The representative submitted that the worker had similar low back and groin pain the last time his spine was injured. That pain was eliminated or resolved by earlier surgery in or around 2012, but returned with the worker's October 18, 2017 accident.

The worker's representative noted that the treating spine surgeon proposed surgery at the L5-S1 level based on an MRI of the lumbar spine. An MRI of a larger segment of the worker's spine was subsequently ordered and showed a triple disc herniation directly above the previous spinal fusion. It was submitted that the spine surgeon believed that the disc herniation in the thoracic spine was related to the accident and should be considered part of the worker's claim.

The representative noted that the treating spine surgeon supports that the mechanism of injury could cause the triple disc herniation in the worker, and submitted that greater weight should be placed on the evidence of the spine surgeon who is familiar with the worker and has treated his spine since 2012.

With respect to the worker's left shoulder, the worker's representative noted that while imaging scans showed mild degeneration in both of the worker's shoulders, the worker was unaware of this condition prior to the scans. He had been able to work full-time in a very physically demanding job, without complaint.

The worker's representative submitted that imaging of the worker's left shoulder showed tendinosis and a partial thickness cuff tear. The representative noted that the treating orthopedic surgeon supports that the worker's left shoulder tear is related to his accident. Referring to the mechanism of injury, the treating orthopedic surgeon noted that the worker wrenched both shoulders when he fell. The history showed that the left shoulder injury occurred at the same time, and there was no intervening or prior injury.

The worker's representative noted that the Review Office decision relied heavily on the orthopedic consultant's July 19, 2018 opinion. She submitted that the consultant's opinion failed to take into account many of the facts on the file. The representative noted that the worker is right-hand dominant and worked in a physically demanding job. He returned to work immediately after the accident, despite the pain he was experiencing. The representative submitted that while the employer had modified duties, the evidence suggested that the duties were not that light, given the work environment. As the worker was unable to move his right shoulder outside the body envelope after the accident, he performed all of his work duties and his activities of daily living with his non-dominant left arm and hand. It was submitted that the statement by the orthopedic consultant that the worker's general level of activity on his left side was less than normal was therefore not fair or accurate.

The worker's representative acknowledged that there was some pre-existing mild degeneration in the worker's left shoulder, but submitted that the existence of such a condition does not preclude a new injury. Rather, the presence of such conditions increases a worker's susceptibility to new injuries and/or aggravation or enhancement of the pre-existing condition.

It was submitted that the evidence supports, given the mechanism of injury, that the accident could have caused the left partial thickness rotator cuff tear in the environment of a shoulder with pre-existing degeneration. Even if it did not cause the tear, it could have enhanced a pre-existing degenerative tear. Either way, the worker's exclusive use of his left arm to perform physically demanding duties over the next seven weeks would have enhanced any tear, and would explain the delay in onset of the worker's symptoms and increasing severity of those symptoms over the course of his employment.

In conclusion, the worker's representative submitted that the evidence supported that both the left shoulder tendon tear and the triple herniated discs in the worker's thoracic spine were injured in or related to the workplace accident and should be accepted as compensable injuries.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker's current low back and left shoulder difficulties should be accepted as being a consequence of the October 18, 2017 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing low back and/or left shoulder difficulties are causally related to his October 18, 2017 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The panel notes that the initial medical information on file speaks to low back and right shoulder difficulties and symptoms, and refers to tenderness and spasms at the L4-L5 and L5-S1 levels. The panel accepts that the worker suffered a lower back injury as a result of his October 18, 2017 workplace accident. The claim was accepted, with the compensable diagnoses being a contusion of the low back and rotator cuff tear of the right shoulder.

Medical information on file shows that the worker's spine surgeon initially identified the L5-S1 area as being the most likely source of the worker's pain. The surgeon opined that the worker had developed a central disc herniation of L5-S1, and proposed surgery to address the disc protrusion.

In light of that proposal, the WCB sought an opinion from a radiology consultant as to whether the disc protrusion was a new finding on the recent MRI or whether it was present previously. In his September 5, 2018 report, the radiology consultant compared the MRI scans of the worker's lumbar spine dated February 27, 2014 and November 27, 2017, respectively, and opined that there was no material change between them. The panel accepts the radiology consultant's opinion. Given that the L5-S1 disc herniation was already present in 2014, the panel is satisfied that there is no causal relationship between the findings on the November 27, 2017 MRI of the lumbar spine and the compensable injury.

Subsequently, in his October 30, 2018 letter to the worker's family physician, the treating spine surgeon opined that a more recent MRI of the worker's thoracic and lumbar spine showed a triple level disc herniation in the thoracic spine which "certainly could be related" to the injury as it had been described to him.

Based on our review of the medical and other information which is before us, the panel is unable to arrive at such a conclusion. The panel notes that the surgeon's statement that the disc herniation "could" be related is speculative and is not sufficient to meet the applicable standard of proof on a balance of probabilities. The findings from October 18, 2018 MRI with respect to the thoracic spine are of "Multilevel degenerative changes within the thoracic spine, greatest at the T8-T9 level where a right central disc extrusion which severely flattens the right aspect of the spinal cord. No obvious spinal cord edema." Multilevel degenerative changes in the lumbar spine were also noted.

The panel notes that the disc herniation which the treating spine surgeon references, being located in the thoracic spine, is in an area of the spine which is significantly higher up than the area of the accepted compensable injury and the area of injury which is consistently described in the initial medical reports.

The panel also places weight on the opinion of the WCB's orthopedic consultant who saw the worker for a call-in examination and reviewed the worker's file on several occasions, and concluded that the workplace injury was a contusion of the low back, which has since resolved.

With respect to the worker's left shoulder, the panel is satisfied, based on our review of all of the evidence, on file and as presented at the hearing, that the worker's left shoulder tear or difficulties are not related to the workplace accident or compensable injury.

The panel notes that there is an absence of complaints or clinical findings with respect to a left shoulder injury or difficulties in the initial medical reports on file. The first reference to a left shoulder issue is in a report from the family physician of a December 1, 2017 visit, more than six weeks after the worker's accident. While the worker's representative suggested at the hearing that it took a week for the worker's pain to set in and it continued to steadily increase over the next seven weeks as the worker used his left hand exclusively, that suggestion is not supported by the evidence on file.

The panel further notes that the worker described the mechanism of injury in detail at the hearing, with reference to photographs and a diagram of the location where the incident occurred. The panel is satisfied that the mechanism of injury, as identified on the file and described by the worker, is not consistent with the development of a thoracic spine or left shoulder injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's ongoing back and left shoulder difficulties are not causally related to his October 18, 2017 workplace accident. The panel therefore finds that the worker's current back and left shoulder difficulties should not be accepted as being a consequence of that accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of November, 2019