Decision #102/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits after January 17, 2019. A teleconference hearing was held on August 25, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after January 17, 2019.
That the worker is not entitled to wage loss or medical aid benefits after January 17, 2019.
On July 24, 2017, the worker filed a Worker Incident Report with the WCB, reporting that he injured his shoulders in an incident at work on June 28, 2017. The worker reported that:
…I was lifting 100 pound pails…from the ground up onto the deck of the three ton truck. I lifted about 30 pails that day. I drove it to the job site and unloaded the pails from the truck to the ground.
The worker noted that:
…I had an aching pain in my right shoulder by the time I got home from work that day. The pain came and went over the next two weeks. Last week the pain started waking me 3 – 4 times a night. Both shoulders are sore but my right one is worse. I was using both arms that day but I had most of the weight on my right arm.
On July 19, 2017, the worker attended at a local hospital emergency department, where he reported increasing pain in his right shoulder with moving or lifting and at night. The emergency department physician noted pain in the anterior aspect of the worker's right shoulder/bicep tendon and over the supraspinatus tendon on palpation, and a positive impingement test. An x-ray did not identify a fracture or dislocation, but a "…small soft tissue calcification adjacent to the greater tuberosity at the site of the rotator cuff insertion" was noted. The emergency department physician recommended the worker remain off work for three days until he could be seen at a sports medicine clinic.
On July 24, 2017, the worker was seen by a sports medicine physician, who diagnosed him with an acute rotator cuff tear. The physician referred the worker for an MRI and physiotherapy, and recommended he remain off work.
A WCB adjudicator discussed the claim with the worker on August 1, 2017. The worker confirmed how the injury occurred, and said he did not feel pain in his shoulder until after the job was done and he was driving to another job site. He said he continued working and self-treated his shoulder with ice and anti-inflammatory cream at home. When his symptoms continued, he reported the workplace accident to his supervisor on July 19, 2017. On August 2, 2017, the WCB's Compensation Services accepted the worker's claim and wage loss and medical aid benefits were approved.
On August 3, 2017, the worker attended an initial physiotherapy assessment, where the physiotherapist diagnosed him with a long head biceps strain and queried a strain of his right acromioclavicular joint. A restriction of no use of his right shoulder was recommended.
On September 7, 2017, the worker underwent an MRI of his right shoulder, which indicated:
1. Low to moderate grade, small, partial articular sided tear involving the mid insertional supraspinatus tendon fibers. Background of supraspinatus and infraspinatus tendinosis.
2. Moderate degenerative/hypertrophic change at the acromioclavicular joint. There is mild capsular hypertrophy/edema and subchondral edema demonstrated. Is there a history of recent trauma in this location?
3. Suspected mild subacromial/subdeltoid bursitis.
On November 8, 2017, the treating sports medicine physician referred the worker to an orthopedic surgeon for his advice regarding possible surgical options for the worker's ongoing right shoulder difficulties.
The worker was seen by the orthopedic surgeon on November 21, 2017. Upon examination, the surgeon noted the worker was "very tender over AC (acromioclavicular) joint" with positive O’Brien and cross chest tests. The orthopedic surgeon requested approval from the WCB to proceed with arthroscopic surgery including 1/4 distal clavicle lateral excision and subacromial decompression as well as possible cuff tear repair. On December 20, 2017, the WCB accepted responsibility for the proposed procedure.
On March 22, 2018, the worker underwent a right shoulder scope, debridement of the degenerative torn labrum subacromial decompression, acromioplasty and resection of distal clavicle. On April 19, 2018, the worker began post-surgery physiotherapy. Restrictions of no active use of his right arm were noted on that date.
At a follow-up appointment on June 27, 2018, the treating orthopedic surgeon noted that the worker was "…not reaching maximal medical improvement post surgery" and recommended a further three months of physiotherapy. The surgeon also noted that the worker was not fit for light duties and should remain off work during that time. At a physiotherapy appointment on July 19, 2018, the treating physiotherapist provided temporary restrictions of overhead lifting limited to less than 5 lbs occasionally; 2 handed lifting to waist no greater than 10-15 lbs; and right arm only lifting no greater than 5-10 lbs occasionally.
On August 14, 2018, the worker contacted the WCB to advise that he had fallen, landing on his right elbow, and had increased pain in his shoulder. On August 15, 2018, the worker sought treatment from his family physician, who noted the worker's report of the fall and indicated that the "recent fall aggravated shoulder." At a subsequent physiotherapy appointment on August 21, 2018, the therapist noted that they were able to complete the exercise program that was in place prior to the worker's recent fall and that the worker felt his shoulder had recovered from the fall.
At an October 2, 2018 follow-up appointment, the treating orthopedic surgeon noted the worker estimated that his shoulder "was worse than it was preoperative" and referred the worker for a further right shoulder MRI. The MRI, performed December 31, 2018, indicated "Enlargement of a known partial thickness rotator cuff tendon tear currently measuring 8 x 4 mm."
On January 10, 2019, the worker's file, including the December 31, 2018 MRI, was reviewed by a WCB orthopedic consultant, who opined that the worker's current diagnosis was an increased partial thickness tear of his right rotator cuff, and that the likely cause of the increase in the size of the tear was the fall injury in August 2018, after which increased shoulder symptoms were noted. The WCB orthopedic consultant noted that the worker's rotator cuff tear had not been surgically repaired in March 2018 as it was only a partial thickness tear, and there was pre-existing rotator cuff tendinosis. The WCB orthopedic consultant further opined that if the August 2018 fall had not occurred, the worker would likely have recovered from the workplace injury, and any further time loss would be related to the worker's pre-existing tendinosis and the effects of the August 2018 non-compensable injury. On January 11, 2019, Compensation Services advised the worker that they had determined he had recovered from the June 28, 2017 workplace accident and his entitlement to benefits would end on January 17, 2019.
The WCB received a further report from the worker's treating orthopedic surgeon dated February 19, 2019, in which the surgeon opined that the worker "… had a fall in December (sic) …which likely aggravated his previous WCB-related injury" and that this "recent injury" was related to the workplace accident and surgery. Further physiotherapy and possible pain injections were recommended. On February 28, 2019, the WCB orthopedic consultant reviewed the February 19, 2019 report and stated that his earlier opinion remained unchanged. On March 7, 2019, Compensation Services advised the worker that there was no change to their January 11, 2019 decision.
The WCB received an additional report from the worker's family physician dated March 7, 2019. The physician noted that after the March 22, 2018 surgery, the worker reported increased shoulder pain with limited range of motion. The physician further noted that after the August 10, 2018 fall onto his back and both elbows, the worker underwent another MRI which showed the rotator cuff tear was larger, but the worker's reported pain was no worse than following the surgery. The family physician noted that it was the worker's observation and his own contention that the worker had "…significant shoulder pain following the surgery and this continued past his fall from the chair." The March 7, 2019 report was reviewed by the WCB orthopedic consultant on March 13, 2019, who provided an opinion to file. On March 13, 2019, Compensation Services again advised the worker that their January 17, 2019 decision remained unchanged.
On April 5, 2019, the worker requested that Review Office reconsider Compensation Services' decisions, on the grounds that he had not recovered from the effects of his workplace injury, and that he could therefore not return to work and required further medical treatment.
On May 21, 2019, Review Office upheld Compensation Services' decision that the worker was not entitled to benefits beyond January 17, 2019. Review Office accepted and agreed with the WCB orthopedic consultant's January 10, 2019 opinion and found that there was no evidence to support the worker's opinion that his ongoing difficulties were related to the original workplace accident and surgery to the right shoulder.
On September 12, 2019, the worker attended a call-in examination with a WCB medical advisor for a permanent partial impairment (PPI) assessment. Following that examination, Compensation Services advised the worker that he was entitled to a PPI rating of 2%.
On November 14, 2019, the worker's representative requested that Review Office reconsider their May 21, 2019 decision. The representative provided further medical information, including a report from the worker's emergency department attendance after his August 10, 2018 fall, and submitted that this fall caused, at worst, a temporary aggravation of the worker's shoulder and was not likely the cause of the increase in size of the worker's partial thickness rotator cuff tear. The worker's representative noted the worker's permanent partial impairment rating and award, and submitted that the worker had not recovered from the workplace accident in January 2019 if he was entitled to a permanent partial impairment award in September 2019 for loss of range of motion. On January 14, 2020, Review Office again determined that the worker was not entitled to benefits beyond January 17, 2019.
On January 16, 2020, the worker's representative requested clarification from Review Office of two issues. In a letter dated January 21, 2020, Review Office provided a response to that request for clarification.
On February 7, 2020, the worker's representative expressed concerns with the appeal process and requested that another review officer reconsider their appeal based on the existing information on file. On March 10, 2020, following such reconsideration, Review Office advised the worker and his representative that there was no entitlement to wage loss and medical aid benefits beyond January 17, 2019. Review Office accepted and placed weight on the January 10 and March 13, 2019 opinions of the WCB orthopedic consultant that the worker's ongoing shoulder difficulties were caused by his pre-existing rotator cuff tendinosis. Review Office further noted that for compensation purposes, impairment and disability were different, and found that the worker's compensable impairment did not equate to him being unable to return to his pre-accident duties ten months after surgery. Review Office therefore determined the worker did not have a loss of earning capacity or require medical aid in relation to the workplace injury beyond January 17, 2019.
On March 18, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference 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.
Subsection 4(2) provides that 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.
The WCB's Board of Directors has established WCB Policy 184.108.40.206, Pre-existing Conditions (the "Pre-existing Conditions Policy"), the stated purpose of which 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.
With respect to wage loss eligibility, the Policy states, in part, that:
(a) 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.
(b) When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
WCB Policy 220.127.116.11, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), establishes the principles where a further injury is compensable, and states:
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 was represented by a worker advisor, and was accompanied at the hearing by his spouse. The worker's representative provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker and his spouse responded to questions from the worker's representative and from the panel.
The worker's position was that his compensable right shoulder difficulties had not resolved by January 17, 2019, but continued beyond that date due to the combined effect of the performed surgical procedures, post-surgery medical treatment/management, and pre-existing tendinosis.
The worker's representative submitted that the worker's compensable surgery led to a significant increase in his shoulder pain which he described as being different from his pain prior to the surgery. Following his surgery, the worker attended WCB-funded physiotherapy for four to five months in 2018, during which time he also had a non-compensable fall.
The worker's representative suggested that even before the August 2018 event, the anticipated recovery prognosis remained guarded. He noted that in April 2018, the worker's treating surgeon wrote that the worker was disabled from work for at least another 3-4 months and might require retraining, and that in June 2018, the surgeon recommended another three months of physiotherapy and that the worker was not able to work for that period of time.
The worker's representative submitted that it was unlikely that the worker's non-compensable fall on August 10, 2018 caused an increase in the size of his partial rotator cuff tear or materially altered the course of his post-surgery rehabilitation. The representative noted that the worker had reported several times prior to the incident that his shoulder pain felt worse than before his surgery and that the physiotherapy and home exercises were aggravating his shoulder.
The worker's representative submitted that from a clinical standpoint, there was no clear sustained deterioration following the August 2018 incident. The representative further submitted that the worker's healthcare providers indicated that the August 2018 event caused a short-term aggravation at most, with the treating physiotherapist indicating that his shoulder had reached pre-fall status less than two weeks later. The worker's representative noted that the physiotherapist recommended another four weeks of treatment to focus on improving the worker's strength and mobility, but this was declined by the WCB. The physiotherapist also noted the need for ongoing restrictions which, it was submitted, were inconsistent with the demands of the worker's pre-accident job duties. The representative submitted that the worker's functional progression simply plateaued in September 2018, following which no active treatment was provided for his shoulder and he was therefore unable to recover further.
The worker's representative asserted that the October 2, 2018 report of the appointment with the treating orthopedic surgeon was important, being the first time a healthcare provider queried the possibility of a larger rotator cuff tear and requested another MRI to determine if there had been any progression of the partial thickness tearing. The representative submitted that the increase in size of the worker's tear likely represented a further injury subsequent to a compensable injury, by virtue of the partial tear having been debrided rather than repaired during surgery and/or as a natural consequence of the worker's lengthy attendance at WCB-funded medical treatment. The representative submitted that the debridement left the worker's partial tear susceptible to additional tearing from WCB-funded physiotherapy treatment and associated home exercises, as well as from normal daily living activities.
The representative referred to two medical articles which he had provided in advance of the hearing, noting that it appeared from those articles that it can be part of the natural history of a partial rotator cuff tear to progress to further tearing.
The worker's representative stated that all of the worker's attending physicians had written that his shoulder difficulties were due, at least in part, to his original workplace injury and/or WCB-approved surgery. His family physician, sports medicine physician and orthopedic surgeon all seemed to point to there being a combined effect, and that the rotator cuff which had been debrided but not formally repaired was at least part of the source of his pain and functional limitations.
The worker's representative further referred to the WCB having provided the worker with a PPI award for loss of range of motion. The representative submitted that the WCB cannot have it both ways: they cannot say on the one hand that the worker is entitled to an impairment award for loss of range of motion, while maintaining on the other hand that the worker had fully recovered from his compensable injury and surgery and was therefore not entitled to further wage loss or medical aid benefits for his ongoing shoulder difficulties. The representative submitted that if a portion of the worker's loss of mobility was related to his partial rotator cuff tear, it was logical and reasonable to conclude that a portion of his pain and other signs and symptoms were related to that tear.
In conclusion, the worker's representative submitted that by the date his benefits ended and beyond, at least a portion of the worker's right shoulder difficulties were due to his compensable injury and WCB-approved surgery. The representative noted that the Pre-existing Conditions Policy states that the WCB is responsible for the full injurious result of any combined effect injury. The representative submitted that the worker is therefore entitled to benefits for the full injurious result of his combined effect injury, and his appeal should be allowed.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after January 17, 2019. 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 beyond January 17, 2019 as a result of his June 28, 2017 workplace incident. The panel is unable to make that finding.
The worker indicated at the hearing that his symptoms seemed to be getting better prior to his March 2018 surgery, but after the surgery his pain not only increased but was also different.
The panel is satisfied, however, based on our review of all of information which is before us, that the medical evidence supports that overall, the worker was generally improving and moving towards recovering from his March 2018 surgery, albeit slowly.
The worker has argued that his August 2018 fall did not affect his arm or shoulder. The panel notes, however, that the treating physicians indicated in their reports at or about that time, that the fall did aggravate his shoulder injury. In his August 15, 2018 report, the worker's family physician thus reported as a complication to the worker's recovery that the worker's "recent fall aggravated shoulder." In his August 30, 2018 report, the treating sports medicine physician similarly reported the worker's subjective complaint of "R shoulder still sore, aggravated with slip and fall Aug 10 2018…"
The December 31, 2018 MRI of the worker's right shoulder showed an enlargement of the worker's partial thickness rotator cuff tendon tear. While the worker's representative has argued that the increase in size of the worker's tear likely represented a further injury arising out of the compensable surgery and/or his attendance at WCB-funded medical treatment, the panel is unable to accept that argument. In particular, the panel is unable to find that the worker's ongoing right shoulder issues and difficulties were predominantly attributable to or arose out of the surgery or delivery of treatment for his original compensable injury.
In this regard, the panel notes that there is an absence of medical opinion or documentation on file to support the worker's position on this point. When questioned about this at the hearing, the worker's representative stated that:
…I mean strictly I don't think even the involved physicians can definitively say, or that they haven't definitively said, with the possible exception of the WCB orthopedic consultant, they haven't been able to say specifically how the partial tear got larger between…the date of the surgery and the date of the MRI which was I think about nine months after the surgery.
But when I looked, for example, at [the orthopedic surgeon's] first report following surgery, and his comment that even at that point that the worker might never return to [job], I took that to mean, well, a positive outcome, you know, it may not happen, it's not a guarantee.
And when I read those articles that I provided it seems to me that part of the natural history of debriding a rotator cuff tear can include people developing further tearing as just part of that natural course.
So in that sense…in my mind the physiotherapy and the home exercises that [the worker] was performing, and him describing how much pain they were causing, they may have been a factor, but I don't know for certain because none of [the worker's] healthcare providers have been able to say so.
The panel reviewed the medical articles which were referred to by the worker's representative, but is unable to attach weight to those articles as evidence or a basis for concluding that the increase in size of the worker's partial thickness rotator cuff tear was related to his workplace injury, or that it was a natural progression of, or further injury subsequent to, his compensable injury.
The panel notes with respect to the exception of the WCB orthopedic consultant which the worker's representative referred to above, the consultant opined in his March 13, 2019 report, that the worker's ongoing symptoms were caused by pre-existing rotator cuff tendinosis and not by the diagnosis of the workplace injury.
The panel notes that the worker's representative further indicated at the hearing that he did not believe there was any medical opinion that the worker's tendinosis was work-related, and that in their view, his tendinosis was simply a pre-existing degenerative condition which was present along with the partial rotator cuff tear. The representative stated that this was why he had turned to the Pre-existing Policy, to say that there seemed to be a combined effect of the pre-existing tendinosis and partial rotator cuff tear, both of which were therefore the WCB's responsibility.
The worker indicated at the hearing that his right shoulder condition was getting worse. The panel notes that a more recent MRI of the worker's right shoulder dated February 16, 2020, which the worker's representative provided in advance of the hearing, identifies cuff tendinosis which is now described as being "quite severe" and "moderately severe." It is the panel's understanding that this would be consistent with the degenerative process of tendinosis, which would be generally expected to deteriorate steadily over the years. The panel notes that there is no indication and or suggestion that the worker's tendinosis was enhanced as a result of his compensable injury.
The worker's representative has argued that the WCB's determination that the worker was entitled to a 2% impairment award for loss of range of motion was inconsistent with the WCB's position that the worker had recovered from his compensable injury and was not entitled to further wage loss or medical aid benefits. The panel notes that impairment and disability are not the same for compensation purposes. While the worker has a compensable partial rotator cuff tear injury and the loss of range of motion in the worker's right shoulder may be related, in part, to his workplace injury, a major part of the loss of range of motion was due to a pre-existing condition. The panel finds that the worker's compensable impairment award does not equate to him being unable to return to his pre-accident work duties in January 2019 as a result of his compensable injury.
In the circumstances, the panel is satisfied, on a balance of probabilities, that the worker's June 28, 2017 workplace incident was no longer contributing to a material degree to a loss of earning capacity or need for medical aid as at January 17, 2019.
The panel acknowledges the worker's issues with respect to ongoing pain and right shoulder difficulties, but is unable to relate his loss of earning capacity or need for medical aid beyond January 17, 2019 to his June 28, 2017 workplace incident and injury.
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 beyond January 17, 2019 as a result of his June 28, 2017 workplace incident. The worker is therefore not entitled to wage loss or medical aid benefits after January 17, 2019.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of October, 2020