Decision #154/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after September 28, 2017. A hearing was held on October 24, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after September 28, 2017.
That the worker is not entitled to benefits after September 28, 2017.
On December 18, 2017, the worker filed a Worker Incident Report with the WCB, in which he indicated that he had injured his left arm, head and neck in an incident at work on September 27, 2017. He described the incident as:
…I was trying to open a big can of glue. I grabbed it and could not open. I grabbed again and I gave a good force. Because of too much force, I was dizzy and almost lost consciousness. My two arms dropped and I could not lift them up. I had a hard time going back to my truck. My left arm was sore. I finished my shift. When I was going home, my nose started bleeding which never happened.
The Employer's Accident Report, dated December 19, 2017, noted that the worker attended his family physician on September 28, 2017 and went for blood tests on September 29, 2017. It was further noted that the "Worker was checked for a heart attack and stroke and all tests came back negative. Worker is doing less with his left arm and it is getting progressively worse. [Worker] has recently been visiting a chiropractor and massage therapist for his left shoulder."
A Doctor's First Report was received from the worker's family physician who saw the worker on September 28, 2017. The family physician noted that the worker reported he injured his left shoulder while trying to forcibly open a jar of glue at work, then felt weakness, fatigue and left shoulder pain. The physician noted the worker's subjective complaints of pain going up to his neck and down to his left arm and provided a diagnosis of "left shoulder pain." Physiotherapy and anti-inflammatory medications were recommended.
On December 11, 2017, the worker sought treatment from a chiropractor. The worker reported to the chiropractor that he was straining to "…untwist lid off a small jar of glue" and immediately felt bilateral symptoms of upper extremity numbness and tingling. The worker also reported progressive and worsening upper back and neck pain since the injury, with ongoing pain in his left triceps and wrist extensors and ongoing upper extremity muscle weakness greater on the left than the right. The worker advised the chiropractor that he had been modifying his job duties due to this weakness. The chiropractor noted that "Orthopedic findings are not supportive of a specific diagnosis. History is suggestive of osteoarthritis of cervical spine w/ [with] possible canal stenosis." It was recommended that the worker follow up with his doctor and have an MRI before proceeding with acute treatment. The worker saw a second chiropractor on December 12, 2017.
On December 21, 2017, the worker attended a further appointment with his family physician. The physician did not provide a diagnosis but noted the worker's complaints of left shoulder pain going up to his shoulder blade and down to his left arm and hand, which was worse with heavy lifting and above head movements. The physician noted that the worker had tenderness by his bicipital groove and a positive empty can test. It was further noted that an MRI was pending.
On December 22, 2017, the worker was seen for a initial assessment by an athletic therapist. The athletic therapist noted that she did not fully assess the worker's left shoulder at that time, as the worker only advised her of the injury on that date and was being treated for another injury. She noted the worker's complaints of left shoulder pain, which increased with movement. The therapist queried whether the worker had a rotator cuff injury and noted that she could not rule out a cervical spine injury based on her assessment.
On January 2, 2018, the worker discussed his claim with a WCB adjudicator. He confirmed the mechanism of injury and advised that he had delayed in reporting his claim as he thought it was just an aching muscle. The worker further advised that he was in a supervisory position where he was able to delegate work, and his co-workers who reported to him were aware of the ongoing difficulties with his left arm. On January 30, 2018, the WCB spoke with four co-workers who confirmed that they were aware of his difficulties with his left shoulder. On February 6, 2018, the WCB received confirmation from the worker's family physician that his clinical diagnosis was rotator cuff syndrome.
On February 9, 2018, the WCB's Compensation Services advised the worker that his claim was accepted for a workplace injury that occurred on September 27, 2017 only, but they were not accepting his claim for wage loss or medical treatment in relation to his ongoing left shoulder difficulties. Compensation Services advised that given the 10-week gap in medical treatment, they were unable to establish a relationship between the compensable injury of September 27, 2017 and the worker's ongoing shoulder difficulties.
An MRI of the worker's left shoulder was performed on February 14, 2018. In a subsequent report dated March 8, 2018, the worker's treating chiropractor noted that findings from an MRI of the worker's left shoulder on February 14, 2018 included "…subluxated left biceps tendon, moderate tearing of the subscapularis and supraspinatus and high grade tear of the infraspinatus tendon. There was also an associated mild acromioclavicular orthrosis." The chiropractor opined that the MRI findings were consistent with the mechanism of the worker's injury, and physical and MRI reports supported the worker's ongoing shoulder difficulties.
On March 19, 2018, the worker's file, including the February 14, 2018 MRI report, was reviewed by a WCB medical advisor. The WCB medical advisor opined that there was no established diagnosis as related to the worker's reported incident of September 27, 2017, based on objective findings, and the current diagnosis was reported as a rotator cuff strain for the left shoulder. The WCB medical advisor stated that he was unable to relate the mechanism of injury to the original unestablished diagnosis based on objective findings or to the current diagnosis. The WCB medical advisor noted that the findings of the MRI could not be related to the original mechanism of injury or the original presentation of bilateral arm pain. He further noted that the typical mechanisms of injury for rotator cuff tearing on MRI are a fall on the shoulder, fall on an outstretched hand or high velocity abduction or flexion, and that the mechanism of injury involving twisting a cap on a can of glue would "…not likely cause a biceps subluxation and tearing of the subscapularis, infraspinatus and the supraspinatus."
On March 20, 2018, Compensation Services advised the worker that after a review of the new medical information provided, the February 9, 2018 decision to accept his claim for an injury only remained unchanged. On April 3, 2018, the worker's representative submitted a further letter from the worker's treating athletic therapist in support of his claim. The letter was reviewed by the WCB medical advisor, and on April 19, 2018, Compensation Services advised the worker's representative that there would be no change to their March 20, 2018 decision.
On June 12, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the evidence supported that the worker suffered a left shoulder injury on September 27, 2017, which did not resolve and continued to impact his ability to lift his left arm, and the February 14, 2018 MRI and consistent orthopedic testing of a positive empty can test supported a rotator cuff injury. The representative submitted that the worker was entitled to benefits connected to his September 27, 2017 workplace incident and his ongoing shoulder difficulties. On July 23, 2018, the employer's representative provided a submission in support of Compensation Services' decisions, and on August 2, 2018 the worker's representative provided a response to that submission.
On August 14, 2018, Review Office determined that the worker had no entitlement to benefits beyond September 28, 2017. Review Office found that while the worker sought treatment immediately after the workplace incident, he did not miss time from work or seek further treatment until December 2017. Review Office found that it could not establish a relationship between the worker's increased symptoms and need for medical treatment several weeks later in relation to the workplace accident of September 27, 2017.
Review Office further found that while the co-workers' statements confirmed they were aware the worker was experiencing difficulties with his left shoulder, they did not support the worker's need to seek medical attention several weeks after the accident or that the symptoms he was experiencing were related to the workplace accident. Review Office noted that the medical evidence provided in close proximity to the workplace accident supported a minor left shoulder injury, and could not account for the worker's current difficulties or the findings of the MRI in relation to the reported mechanism of injury.
On October 16, 2018, the worker's representative submitted further information, including a report from the worker's orthopedic surgeon dated October 9, 2018, and requested that Review Office reconsider their August 14, 2018 decision. In his October 9, 2018 report, the orthopedic surgeon opined that the worker's left shoulder pain was caused by "…medial subluxation of the long head of the biceps and a partial thickness tear of the subscapularis, biceps tendon tearing and a partial thickness tear of the supraspinatus and infraspinatus. This would be combined with rotator cuff tendonitis…" The orthopedic surgeon further opined that the worker's diagnosis was directly related to the workplace incident of September 27, 2017, noting cause and effect where the worker opened the jar and had pain, and did not have pain prior to the incident. The employer's representative provided a responding submission on November 26, 2018, and the worker's representative submitted a response to that submission on November 30, 2018 and a further response on December 10, 2018.
On December 11, 2018, Review Office advised the worker that the further medical information had been reviewed and there was no change to the earlier decision. Review Office noted that the information provided close to the date of the workplace accident was consistent with a "minor compensable shoulder injury" and that the delay in seeking further medical treatment impeded their ability to establish a relationship between the workplace accident and the worker's current shoulder difficulties.
On January 14, 2019, the worker appealed the Review Office decision to the Appeal Commission and 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 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 to the worker.
Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act provides 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."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
WCB Policy 44.40.10, Evidence of Disability, provides that: "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition."
WCB Policy 188.8.131.52, Pre-Existing Conditions, 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.
The worker was represented by a worker advisor, who made an oral submission at the hearing, 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 a left arm and shoulder injury as a result of a workplace accident on September 27, 2017, as evidenced in the February 14, 2019 MRI, and is entitled to benefits beyond September 28, 2017.
In response to questioning from his representative, the worker described the September 27, 2017 incident in detail. The worker indicated that he had no difficulties with his left shoulder or arm prior to the September 27, 2017 incident.
The worker's representative submitted that the Doctor First Report based on the September 28, 2017 examination of the worker by his family physician confirmed that the visit was for a left shoulder injury, with the mechanism of injury being reported as the worker trying to open a can of glue forcibly at work. The representative noted that although a diagnosis was not provided on the report, the diagnosis of the September 28, 2017 visit was confirmed on February 6, 2018 to be rotator cuff syndrome.
The worker's representative noted that the WCB spoke to five of the worker's co-workers in January 2018, all of whom confirmed that he reported ongoing difficulties with his left shoulder related to the accident of opening the can of glue, and that they observed him having such difficulties. The representative submitted that the co-workers' statements confirmed that the worker had ongoing shoulder disability as a result of the accident up until at least the end of January 2018, when the WCB contacted them.
It was submitted that the findings in the family physician's report from his December 21, 2017 examination of the worker confirmed that his left-sided rotator cuff symptoms from September 28, 2017 continued to December 21, 2017. The representative submitted that the December 12, 2017 chiropractor's report also confirmed that symptoms of a rotator cuff injury, as described in medical literature supplied by the employer, were all reported by the worker, and that the December 22, 2017 assessment by the treating athletic therapist also queried a rotator cuff injury.
The worker's representative submitted that the February 14, 2018 MRI confirmed that the prior left shoulder examination findings were related to tearing of the subscapularis, supraspinatus and infraspinatus tendons. The representative submitted that the MRI report is evidence of a disability which arose from the compensable injury, particularly since the worker had no left shoulder difficulties prior to the September 27, 2017 workplace accident, and confirmed that the left shoulder injury was not as minor as Review Office suggested.
The worker's representative referred to medical literature which she had previously provided and was on file, and which indicated that a sudden or acute injury may occur from abnormal twisting or bending of the shoulders. The representative submitted that the mechanism of injury in this case was a sudden forceful twisting and bending of the shoulder three times, the third being with extreme force, with symptoms into the shoulder and shoulder blade, which accounted for the tendon injuries.
Alternatively, in the event the panel was unable to support that the MRI findings were directly related to the mechanism of injury, it was submitted that the mechanism of injury contributed to the tear conditions in the worker's left shoulder. In this regard, the worker's representative noted that there was a definite change in the worker's shoulder "from pre to post injury." She submitted that their position with respect to enhancement was supported by the October 9, 2018 report from the treating orthopedic surgeon, who opined that the mechanism of injury was in keeping with the worker's tear injuries and noted that "if the person is older muscles degenerate and tendon insertions can give way."
The worker's representative noted that the treating orthopedic surgeon further stated in his October 9, 2018 report that surgery is necessary as a result of the workplace accident. Accordingly, the representative submitted that there continued to be a need for medical aid and treatment, being surgery, which should be a WCB responsibility.
In conclusion, the worker's representative submitted that the medical evidence supports that the worker's injuries had not resolved as of September 28, 2017, and that he has an ongoing left shoulder disability as a result of his workplace injury for which he is entitled to benefits.
The employer was represented by an advocate, who provided a written submission in advance of the hearing and made an oral submission to the panel. The employer's position was the Review Office decision was correct and the worker is not entitled to benefits beyond September 28, 2017.
The employer's representative acknowledged that the worker has shoulder problems, but stated that they do not believe those problems were caused by opening a can of glue.
The employer's representative submitted that greater weight should be placed on the initial medical findings in close proximity to the incident. She noted that the worker saw his family physician the day after the incident, at which time there were no objective findings or clinical diagnosis, just reference to "left shoulder pain." She further noted that there was no call for light duties or for a follow-up appointment, and that all of this pointed to there being no serious shoulder injury.
The employer's representative submitted that there were a lot of things that did not add up. She noted that the worker's next medical appointment was not until December 11, 2017, some 11 weeks later. She submitted that such a long gap in time made it hard to establish that examination findings were related to the initial incident. The representative submitted that the chiropractor who saw the worker on December 11, 2017 did an in-depth assessment and noted complaints and findings to both upper extremities. It was submitted that his examination, involving bilateral findings and a worsening condition with no clear diagnosis, did not establish a relationship to the mechanism of injury.
The employer's representative submitted that findings of three tears such as were on the February 14, 2018 MRI, would not typically be from the type of mechanism of injury as described. She submitted that the evidence did not support that the significant findings on the February 14, 2018 MRI were caused by the September 27, 2017 workplace accident, and these findings could not be related back to an incident trying to open a can of glue. The representative asked that the panel accept the opinion of the WCB sports medicine consultant, which the employer shared, that the minor mechanism of injury would not result in the findings on that MRI.
Finally, the employer's representative submitted that there is no medical evidence to support the proposition that opening a can of glue could have aggravated or enhanced an underlying condition, and that such a proposition is speculative. The representative noted that in any event, the worker had stated that he had no prior problems and no pre-existing condition.
The issue before the panel is whether or not the worker is entitled to benefits after September 28, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid after September 28, 2017 as a result of his September 27, 2017 workplace incident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a left shoulder injury. The panel acknowledges that the worker suffered an injury on September 27, 2017, but is unable to find that the evidence supports that the worker's shoulder difficulties beyond September 28, 2017 were causally related to his workplace incident.
The worker described the September 27, 2017 incident at the hearing, and responded to further questioning from the panel with respect to that incident and the mechanism of injury. The panel is not satisfied that the mechanism of injury, as described on file and at the hearing, would have resulted in the findings on the February 14, 2018 MRI.
The panel is further of the view that there are a number on inconsistencies or gaps in the evidence. Medical information on file shows that the worker was seen by his family physician on September 28, 2017, the day after the incident. The evidence shows that the doctor was more concerned on that visit with whether the worker had suffered a heart attack or stroke. The worker acknowledged in his evidence at the hearing that his family physician was more interested in the stroke or heart attack side. Tests were ordered, and the worker's evidence at the hearing was that a heart attack or stroke was ruled out "about a week and a half later."
A Doctor's First Report in respect of the September 28, 2018 visit with the family physician, dated December 22, 2017, was subsequently filed with the WCB. The report noted left shoulder pain with the clinical findings of "no seads" (swelling, erythemia, muscle atrophy deformity, skin changes), and did not identify any restrictions or any need for time off work. The panel recognizes that although the diagnosis on that Report was said to be "left shoulder pain," the physician indicated on February 6, 2019, in response to a WCB inquiry, that the clinical diagnosis was rotator cuff syndrome.
Information on file and at the hearing indicates that the worker did not seek further medical attention or file a claim with the WCB until approximately 11 weeks later, when he went to see the chiropractor. While the worker relied on statements from his co-workers as confirming that he had ongoing shoulder disability as a result of his workplace incident throughout this period of time, the panel is unable to find that those statements are sufficient to establish a connection between any ongoing difficulties and the September 27, 2017 incident.
The worker indicated that he continued to experience considerable left shoulder or arm pain and disability after September 28, 2017. In spite of that, and in spite of the fact that a possible heart attack or stroke had been eliminated as the cause of his difficulties or symptoms, the worker did not pursue further medical attention.
The worker's evidence in this regard was that he continued working after September 27, 2017, that "I keep going to do my shift. Can't do anything with my arm, and just managing like that… From September 28th, I wasn't able to do anything, just sit in my truck and watch the guys work." He said that his arm was not getting better," and then finally it started getting worse and getting worse." He could not say, however, when that happened.
The worker noted at the hearing that he travelled to a particular destination outside the province in mid-November 2017, and that driving there "I was in so much pain that I did go see for a massage to try to relieve the pressure in my arm and shoulder." He indicated that the massage therapist "was able to massage it" and "it was still hurting on the way back, but…she must have toned it down a tad…"
The worker said that he finally went to see the chiropractor on December 11, 2017 because "I was in so much pain I needed to get treatment…" He then returned the following day to see the second chiropractor. When asked whether something had changed at that point in time, which caused him to go see the chiropractors, the worker's response was that "nothing changed."
In the panel's view, it does not make sense if the worker was in such pain or so incapacitated in the use of his left arm, that he did not seek further medical attention or treatment for more than two and one half months.
The worker's evidence at the hearing was that he saw his athletic therapist every week from September through December 2017, for treatment of another, unrelated condition. Yet the evidence indicates, and the worker confirmed at the hearing, that he did not mention any left shoulder difficulties to his athletic therapist until December 22, 2017, which was four days after he had filed his claim with the WCB. The panel further notes that in her report relating to that appointment, the athletic therapist indicated that she did not fully assess the worker's shoulder at that time as he was booked for treatment of his other, unrelated injury. Again, in the panel's view, it makes no sense that the worker would not have mentioned his left shoulder difficulties to the athletic therapist during his many attendances prior to December 22, 2017.
The panel notes that the worker's WCB claim was filed on December 18, 2017, and did not follow-up with his family physician or raise issues or ongoing concerns with his athletic therapist until three or four days after he filed his claim with the WCB.
In conclusion, the panel is unable to find, based on the evidence that is before us, that the worker's shoulder difficulties after September 28, 2017 were causally related to his September 27, 2017 workplace incident.
The panel is further unable to accept the worker's alternative position that the incident resulted in an enhancement of a pre-existing condition. The panel is unable to find that the evidence shows there were pre-existing tendon tears or other shoulder conditions or that any such conditions were enhanced by the September 27, 2017 incident. While the worker placed weight on certain comments in the October 9, 2018 report from the treating orthopedic surgeon as supporting his argument, that panel finds that the argument itself and the orthopedic surgeon's comments are speculative in nature.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid after September 28, 2017 as a result of his September 27, 2017 workplace incident. The worker is therefore not entitled to benefits after that date.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of December, 2019