Decision #138/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his bilateral shoulder surgeries as being a consequence of the August 3, 2017 accident. A hearing was held on October 1, 2019 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker's bilateral shoulder surgeries as being a consequence of the August 3, 2017 accident.
Responsibility should be accepted for the worker's bilateral shoulder surgeries as being a consequence of the August 3, 2017 accident.
The worker reported to the WCB on August 17, 2017 that he suffered multiple injuries in a workplace accident that occurred on August 3, 2017, described as follows:
I was delivering a load of furniture. The sofas were standing on end. I was using a 2-wheeler and I tripped on one of the boxes. I was trying to hold the sofa up and I fell down. This was inside the trailer. The floor of the trailer was a ribbed metal floor. When I landed, I was on my butt and my right hand was still holding on to the cardboard on the couch. My left hand automatically shot out to keep it from crushing my face. It all landed on me.
The worker attended for an initial doctor's appointment on August 11, 2017. X-rays were taken and the worker was diagnosed with bilateral shoulder strains along with a low back and left hip strain. The x-ray findings indicated mild osteoarthritis in the right acromioclavicular ("AC") joint as well as some widening of the left AC joint with slight separation.
On August 24, 2017, the WCB accepted the worker's claim for bilateral shoulder strains, back and left hip strain.
The worker saw a sports medicine specialist on August 25, 2017, who reviewed the x-rays previously taken and diagnosed shoulder strains/tendonitis and back and hip strain. The sports medicine specialist noted that the left shoulder separation did not appear to be clinically acute.
At a follow-up appointment with his family doctor on August 30, 2017, the worker was referred for MRI studies and a bone scan.
At an initial physiotherapy appointment on September 3, 2017, the worker reported constant right and left shoulder pain, sharp pain in the left side of his neck and head, and the sensation of instability when moving his arms. With respect to the worker's shoulders, the physiotherapist diagnosed bilateral shoulder sprain/strain, questioning a left subluxation.
The worker saw his treating physician on September 21, 2017 who noted the worker's report of bilateral shoulder pain, with the right shoulder now worse. Objective findings include decreased range of motion in both shoulders. An MRI study of the worker's left shoulder conducted on the same day revealed a 21 x 9 mm full-thickness tear affecting the supraspinatus and infraspinatus tendon as well as mild AC joint osteoarthritis.
On October 16, 2017, an MRI study of the worker's right shoulder resulted in findings of:
1. Full-thickness, full width tear of the supraspinatus tendon.
2. Low grade, partial thickness, intrasubstance tearing of the infraspinatus tendon.
3. Osteoarthritis of the acromioclavicular joint, inferior directed ostephytes suspicious for external impingement.
4. Tendinosis of the long head biceps tendon.
5. Mild osteoarthritis of the glenohumeral compartment.
The worker was examined by a WCB orthopedic consultant during a November 8, 2017 call-in examination. The WCB orthopedic consultant stated that the worker's diagnosis at the time of the accident was multiple contusions and sprain/strain injuries involving the chest, both shoulders, low back and left hip. At the time of the call-in examination, the current symptoms in both shoulders were caused by rotator cuff tears that "…probably pre-existed the workplace injury, albeit with no significant shoulder symptoms reported prior to the workplace injury."
The WCB orthopedic consultant noted the worker's pre-existing conditions to include:
a) Degenerative rotator cuff tears to both shoulders.
b) Osteoarthritis of both AC joint (sic), probably not contributing to current symptoms,
c) Multilevel degenerative lumbar disc disease,
d) Degenerative tear of the labrum of the left hip joint.
The WCB orthopedic consultant stated that with the exception of the osteoarthritis of the AC joints, the pre-existing conditions would be expected to prolong recovery from the workplace injury and that the condition of the worker's shoulders appeared to have plateaued over the previous two months.
The WCB advised the worker on November 22, 2017 that a review of his claim had been conducted and it was determined that he had recovered from his workplace accident and that he would not be entitled to wage loss and other benefits after November 29, 2017.
On November 27, 2017, the worker requested reconsideration of the WCB's decision to Review Office.
In a letter dated December 5, 2017, the worker's treating physician stated that the worker may have had pre-existing rotator cuff tearing but there was no imaging available to support that conclusion, and the worker had presented as asymptomatic prior to the workplace accident. The physician also noted that a 1998 MRI of the worker's right shoulder indicated tendinopathy and wasting of the "rotator cuff muscles posteriorly" but no evidence of tearing at that time.
The WCB requested and received progress reports from the worker's family physician dated November 23, 2017, November 28, 2017, January 26, 2018 and March 19, 2018. These reports noted ongoing bilateral symptoms of pain in the worker's shoulders and that the worker had been referred to an orthopedic surgeon.
Review Office determined on March 7, 2018 that the worker was entitled to further benefits after November 29, 2017.
The employer filed an appeal with the Appeal Commission on March 7, 2018.
On April 4, 2018, the worker's file was reviewed by a WCB medical advisor and temporary restrictions were established. At that time, the worker was advised to seek physiotherapy treatment.
At his initial physiotherapy assessment on April 18, 2018, the worker reported limited mobility, pain and weakness in both shoulders, in addition to symptoms in his back. The physiotherapist noted after examining the worker that "all shoulder movements are limited to half of normal range with pain." The worker was diagnosed with "Tear of supraspinatus tendon on right shoulder, tear of supraspinatus and infraspinatus tendon on left, disc protrusion at the L3-S1 region." Restrictions were recommended.
On May 4, 2018, the worker was assessed by an orthopedic surgeon. After examining the worker and reviewing imaging studies, the orthopedic surgeon opined that the worker had a "…left supraspinatus rotator cuff tear and acromioclavicular joint instability from a Grade 1 separation with ongoing pain. On the right, he has long head biceps tendinitis and a supraspinatus tear." Rotator cuff repair surgery with a scope and debridement was recommended for the worker's left shoulder with surgery on his right to follow approximately three months later.
The worker's file and the surgical recommendation were reviewed by a WCB medical advisor on May 16, 2018. The WCB medical advisor noted the diagnosis and provided an opinion that the pathology of the AC joints likely was pre-existing, and that the pre-existing degenerative condition would have significantly delayed recovery beyond the normal period for resolution from the symptoms of a strain/sprain to the shoulders. The medical advisor stated that it is probable that the worker's current shoulder symptoms were related to the workplace accident. The WCB medical advisor recommended temporary restrictions, to be reviewed in two months, and opined that the proposed shoulder surgery was directed at the worker's pre-existing conditions.
On this basis, the worker's treating orthopedic surgeon was advised on May 17, 2018 that the WCB would not authorize funding as the proposed right shoulder surgery dealt with the worker's pre-existing condition. On May 30, 2018, the worker's file was again reviewed and on the same date, a letter was sent to the worker's orthopedic surgeon noting that funding authorization would not be provided for the proposed surgeries on both of the worker's shoulders.
On September 11, 2018, the worker's representative submitted further medical information from the worker's treating orthopedic surgeon dated August 22, 2018 and requested that the WCB review their decision to deny responsibility for the worker's shoulder surgeries. The worker's orthopedic surgeon stated that based on the clinical and MRI findings, the "…bilateral shoulder supraspinatus rotator cuff tears are related to the mechanism of injury from the workplace accident." and that the "…proposed surgeries are principally related to the specific conditions and injuries caused by the workplace accident, that is the rotator cuff tears and proposed repairs."
The information was reviewed by a WCB medical advisor on September 12, 2018 and on September 13, 2018, the worker was advised there was no change to the earlier decision to disallow funding for the surgeries as the submitted medical information did not provide further support that his current difficulties were related to the August 3, 2017 workplace accident.
The worker underwent surgery on September 24, 2018 for a right shoulder rotator cuff repair, subacromial decompression, biceps tenotomy and distal clavicle coplaning.
The worker's representative requested reconsideration of the WCB's decisions to Review Office on October 9, 2018. The worker's representative submitted that the medical information provided by the worker's treating orthopedic surgeon supported that the workplace accident caused the worker's bilateral shoulder injuries, which were confirmed by MRI studies and required surgery to minimize the symptoms.
On November 28, 2018, the Appeal Commission denied the employer's appeal from the Review Office decision of March 7, 2018, confirming that the worker was entitled to wage loss and medical aid benefits after November 29, 2017.
Review Office determined on December 6, 2018 that the worker was not entitled to benefits in relation to bilateral shoulder surgeries, accepting the opinion of the WCB medical advisor that the worker had pre-existing degenerative rotator cuff tears and the requirement for the surgeries was related to the pre-existing condition and not the workplace accident.
The worker's representative filed an appeal with the Appeal Commission on January 9, 2019. An oral hearing was arranged.
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 s 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.
Section 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
The WCB established Policy 126.96.36.199, Pre-Existing Conditions (the "Policy") to clarify the impacts of non-compensable pre-existing conditions on compensable injuries. The Policy sets out that when a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.
The worker was represented in the hearing by a worker advisor who provided the panel with a written submission as well as making oral submissions in the hearing. The worker responded to questions from the worker advisor as well as from members of the panel.
The worker's position, as outlined by the worker advisor, is that the mechanism of injury caused sufficient impact upon the worker's shoulders to result in the disabling rotator cuff tear. The worker advisor referenced an article from the American Association of Orthopedic Surgeons submitted to the panel in advance of the hearing, and as referenced in the Review Office decision of December 6, 2018, to confirm that acute rotator cuff tears can occur when an individual falls down on their outstretched arm or lifts something too heavy with a jerking motion.
The worker advisor stated that the worker did not have any disabling bilateral shoulder conditions prior to the accident of August 3, 2017 and that the worker was able to complete his job duties prior to the accident. As well, the report from the worker's treating physician, dated December 5, 2017, suggests that even if the worker had pre-existing tearing of his rotator cuffs, and there is no imaging to confirm it, until the accident, he was asymptomatic and able to carry on his work without restriction.
The worker advisor noted that the MRI studies of both shoulders from September and October 2017 confirm presence of full thickness tears in both the worker's right and left supraspinatus tendons.
The WCB orthopedic consultant, following the November 8, 2017 call-in examination, stated that the worker's diagnosis at that time was rotator cuff tears in both shoulders that likely existed prior to the workplace injury and that the pre-existing conditions would prolong recovery from the workplace injury. While recovery from the accepted diagnoses of a sprain/strain injury might be expected to occur in 8-12 weeks, here the WCB accepted that the worker's ongoing symptoms in May 2018 were likely related to the workplace injury and continued to pay benefits until September 23, 2018, the day before the worker's right rotator cuff repair surgery.
The worker advisor suggested that if benefits were payable on and until September 23, 2018, then the worker's condition on September 24, 2018, the date of his right rotator cuff repair surgery, and beyond, was also still compensable.
The worker advisor took the position that if the rotator cuff injuries were not caused by the compensable accident, then these pre-existing injuries, asymptomatic prior to the accident, were enhanced by the accident. The WCB should therefore accept responsibility for the surgeries as medically necessary to address the consequences of the enhancement of the pre-existing shoulder conditions. In other words, the compensable injury enhanced the pre-existing condition, with the result that the compensable injury in concert with the pre-existing condition, was causing the worker's ongoing inability to work and necessitated surgical intervention to cure and provide relief.
The worker's position is that whether undertaken to cure and provide relief from a new injury to both shoulders, or to address the effects of enhancement of pre-existing shoulder conditions arising out of and as a result of the compensable injury, the evidence supports that the surgeries were medically necessary to minimize the impact of the worker's injury and enhance his recovery. The WCB should therefore be responsible for the surgeries undertaken to address the consequences of the worker's compensable accident.
The employer was represented in the hearing by its safety and compliance officer. The employer's position is that the Review Office was correct in its determination that responsibility should not be accepted for the worker's bilateral shoulder surgeries as these were not the consequence of the accident of August 3, 2017.
The employer agreed with the conclusions of the Review Office that the medical reports support that the worker's rotator cuff tears were the result of pre-existing degenerative changes, rather than related to the workplace accident and that there is no evidence that the workplace injury caused a permanent change in the degenerative pathology of the worker's shoulders.
The employer's representative noted that the worker chose to undergo the right shoulder surgery even though it was not authorized by the WCB and that it was as a result of the surgery that the worker was unable to return to work.
The question for the panel to determine is whether or not responsibility should be accepted for the worker's bilateral shoulder surgeries as being a consequence of the August 3, 2017 accident. In order to determine that responsibility should be accepted by the WCB for the surgeries, the panel must find that the surgeries were required to cure and provide relief from a compensable injury. The panel was able to make that finding.
The worker experienced significant personal injury to multiple sites arising out of the workplace accident of August 3, 2017. The injury to the worker's shoulders was at first diagnosed as a bilateral strain injury, but as the worker's symptoms in his shoulders worsened over time, rather than improving, further investigations were undertaken, resulting, ultimately in the MRI study of the worker's left shoulder of September 21, 2017 and of his right shoulder on October 16, 2017.
Ultimately, an orthopedic surgeon assessed the worker and recommended rotator cuff repair surgery for both shoulders, beginning with the left and the right to follow several months later. WCB took the position in May 2018 that the proposed surgery was directed at the worker's pre-existing conditions and did not authorize the surgery. At the same time, however, WCB also determined that the pre-existing conditions would have delayed recovery from the workplace injury and that the worker's current shoulder symptoms were related to the workplace injury. The worker's benefits therefore continued until the worker's surgery on his left shoulder that took place on September 24, 2018.
The treating orthopedic surgeon, in a further report dated August 22, 2018 stated unequivocally that the clinical and MRI findings support that the worker's bilateral rotator cuff tears are related to the mechanism of injury and that the proposed surgeries related to the specific conditions and injuries caused by the workplace accident. The WCB medical advisor reviewed this further opinion and again disagreed with the conclusion reached by the treating orthopedic surgeon.
Given the mechanism of injury reported by the worker and the clinical findings reported, the panel is not convinced by the worker's position that the bilateral rotator cuff tears were caused by the accident of August 3, 2017. The medical findings rather point to pre-existing bilateral shoulder pathologies that were enhanced as a result of the workplace accident. The treating and consulting physicians agree that there were pre-existing degenerative changes in the worker's shoulders and that the MRI findings support this conclusion.
The panel considered the opinion of the worker's treating physician of November 8, 2017 that the worker's current symptoms were caused by rotator cuff tears that probably pre-existed the workplace accident but were asymptomatic. The panel also considered the view of the WCB orthopedic advisor of May 16, 2018 that it was probable that the worker's current symptoms at that time were related to the workplace injury.
Further, the evidence supports that significant changes in the worker's shoulders were noted following the accident. Immediately prior to the accident, the worker was able to undertake the significant physical tasks associated with loading and unloading his truck without difficulty, and he had done so over the more than 20 years he worked in this role.
The worker had no symptoms in his shoulders prior to the accident, as confirmed by his family physician of 30-plus years. The employer also confirmed that it was not aware of any prior complaints of shoulder injury.
Having regard to the mechanism of injury and the clinical findings, the panel is satisfied, on a balance of probabilities that the accident of August 3, 2017 enhanced the worker's pre-existing shoulder condition, resulting in significant changes afterwards.
The panel considered the conflicting conclusions reached by the treating orthopedic surgeon and the WCB medical advisor as to whether or not the recommended surgical treatment of both shoulders was related solely to repair of the pre-existing conditions or was directed at repair of pre-existing injuries that were enhanced by the workplace accident of August 3, 2017. In this regard, the panel prefers and accepts the recommendation of the treating orthopedic surgeon that the worker required surgical treatment of both shoulders to address the worker's bilateral rotator cuff injuries which were enhanced by the mechanism of injury on August 3, 2017 and that the proposed surgeries therefore do relate to the specific conditions and injuries caused by the workplace accident.
The panel finds, on a balance of probabilities, that the worker's bilateral shoulder surgeries are a consequence of the accident of August 3, 2017. Responsibility should therefore be accepted.
The appeal is allowed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of November, 2019