The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits in relation to his current right shoulder difficulties. A teleconference hearing was held on July 23, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits in relation to his current right shoulder difficulties.

Decision

That the worker is not entitled to benefits in relation to his current right shoulder difficulties.

Background

The worker has an accepted claim for a labral tear in his right shoulder which occurred at work on March 5, 2013 when the worker slipped and grabbed a hand rail with his right hand to stop himself from falling. The worker underwent conservative treatment, following which surgical repair was recommended and performed on August 1, 2014. On February 11, 2015, the worker attended a functional capacity evaluation at the WCB, and restrictions were recommended by a WCB orthopedic consultant on March 12, 2015. The worker returned to work on April 1, 2015. On May 15, 2015, the worker advised the WCB that he was performing his full regular duties with the exception of lifting heavy items overhead.

On June 5, 2019, the worker contacted the WCB to advise he had suffered a recurrence of the injury to his right shoulder. He noted that approximately three months after he returned to work, he was using a tool at work and felt a pull in his right shoulder. The worker advised that the symptoms in his shoulder never went away. The worker said the pain had been increasing over the past four years. He had a constant ache now and would wake up at night every time he rolled onto his right shoulder. The worker noted he sought medical treatment from his family physician and was referred to an orthopedic surgeon, who sent him for an MRI and recommended surgery.

On June 21, 2019, the WCB requested chart notes from March 2015 to the present from the worker's family physician. The chart notes indicated the worker's family physician referred him to an orthopedic surgeon on June 22, 2018. At an initial appointment with the orthopedic surgeon on October 16, 2018, the surgeon noted that the worker had"…significant limitation of motion with abduction of about 80 degrees, painful and weak external rotation and a positive impingement sign. The Jobe's test is also positive." The surgeon ordered a new MRI, which was performed on March 23, 2019 and indicated "Acromioclavicular ligament tear with no subluxation. Partial articular surface tear of the infraspinatus." At a follow-up appointment on May 28, 2019, the orthopedic surgeon opined that the worker had an impingement of the rotator cuff and an inferior surface tear as well as acromioclavicular joint osteoarthritis. Surgery was proposed.

On July 10, 2019, a WCB medical advisor reviewed the medical information on file. The medical advisor noted that surgery was being recommended for a rotator cuff tear, which was not an accepted diagnosis on the worker's claim. It was also proposed that the surgery deal with the worker's acromioclavicular joint arthritis which was a degenerative condition and not caused by the compensable injury. On July 31, 2019, the WCB's Compensation Services advised the worker that he was not entitled to further benefits in relation to his current right shoulder difficulties as they had determined he had recovered from his March 5, 2013 workplace accident, and his current symptoms were not medically accounted for in relation to that accident.

By letter dated September 3, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that he continued to experience difficulties with his shoulder after his return to work and had never fully healed. The worker referred to a medical study which indicated that the development of post-traumatic arthritis can be caused by the wearing out of a joint that has had any kind of physical injury. On October 24, 2019, the employer's representative provided a submission in support of Compensation Services' decision.

On November 8, 2019, Review Office advised the worker that there was no entitlement to benefits in relation to his current right shoulder difficulties. Review Office stated that they were unable to establish that the previous right shoulder injury and surgery were causally related to the later development of the current right rotator cuff tear. Review Office also found that the acromioclavicular joint pathology developed after the original workplace accident, and its development was not related to the previous workplace injury or August 1, 2014 surgery.

On February 10, 2020, the worker appealed the Review Office decision to the Appeal Commission. A hearing was arranged and proceeded by way of teleconference on July 23, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On October 20, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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.

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 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."

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 44.10.20.10, Pre-existing Conditions, 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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides that:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was self-represented, and provided a written letter of appeal in response to the Review Office decision. The worker also made a presentation at the hearing, and responded to questions from the panel.

The worker's position was that he is entitled to benefits in relation to his current right shoulder difficulties and surgery on February 13, 2020, as those difficulties and the resultant surgery in 2020 were causally related to his March 5, 2013 workplace injury.

The worker said that he never fully recovered following the August 1, 2014 surgery for his March 5, 2013 workplace injury, and was seeking assistance to correct what he submitted was an unsuccessful surgery. The worker submitted he was sent back to work too soon following the 2014 surgery, and re-injured himself in the process. He said he was told by the WCB physician on February 11, 2015 that he was not even close to being ready to go back to work, and to speak with his treating surgeon. He met briefly with his surgeon one month later, and was told he could go back to work, which he did on April 1, 2015.

The worker said that when he returned to work, there was no gradual return to work program or light duties. He returned to his full regular duties, with no instructions or restrictions, and just dealt with the pain.

The worker said that as time went by, his condition gradually became worse and worse. He said that not one day went by where he was unhampered by pain and limitations in his shoulder joint. He said that he tends to work alone, doing heavy work, and his work requires the use of large tools and of both his arms and legs. The worker said that he could easily fill out a green card every day.

The worker stated that he understood that his "former injury" and his "new injury" are two separate issues, but submitted that the new injury or condition was the result of his 2013 injury and related limited mobility issues. In response to questions from the panel, the worker said he underwent this further surgery in February 2020. The worker said he was attending physiotherapy and was not yet back at work. He said he has more mobility after this surgery than he had before, but still has some difficulty with his shoulder.

In conclusion, the worker submitted that the fact that he had been awarded a permanent partial impairment award recognized that he had an ongoing disability and that the 2014 surgery was not a success. He said that he was not looking for a handout, but was only asking for coverage for the surgery to repair his injury so he could improve the quality of all aspects of his life.

Employer's Position

The employer was represented by its WCB Coordinator, who made a presentation to the panel.

The employer's position was that they agreed with the Review Office decision that the worker was not entitled to benefits in relation to his current right shoulder difficulties.

The employer's representative briefly reviewed the history of the worker's claim and medical information and reports on file.

The representative submitted that the worker's ongoing right shoulder difficulties and the need for additional surgery were related to medical factors which were neither caused by, nor structurally altered by, the March 5, 2013 compensable injury. He submitted that while the worker was still having right shoulder difficulties, those difficulties were related to issues with his shoulder that were not causally related to the compensable injury, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits in relation to his current right shoulder difficulties. In particular, the worker has argued that his right shoulder difficulties which resulted in his need for surgery on February 13, 2020 were the result of his 2013 compensable injury and 2014 surgery.

For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right shoulder difficulties and resultant surgery on February 13, 2020 were causally related to his March 5, 2013 compensable injury. The panel is unable to make that finding.

The worker suffered a workplace injury on March 5, 2013. Based on a September 29, 2013 MRI, that injury was originally thought to be a tear of the right rotator cuff and of the glenoid labrum of the right shoulder. Surgery was authorized and proceeded on August 1, 2014. Arthroscopic findings during the surgical procedure did not, however, reveal a rotator cuff tear. The post-operative diagnosis was osteoarthritis glenohumeral joint, torn labrum and biceps tendon and right shoulder impingement.

A rotator cuff tear was therefore not accepted, and the accepted diagnosis as related to the March 5, 2013 compensable injury was identified as being a labral tear, or more particularly, a "tear of the glenoid labrum in the environment of pre-existing degenerative joint disease of the gleno-humeral joint."

In a report from the worker's original orthopedic surgeon dated March 3, 2015, the surgeon noted that he had seen the worker in follow-up, and that the worker was near full range of motion and had "likely plateaued with his recovery." The surgeon went on to note that the worker's "underlying glenohumeral OA [osteoarthritis] and degenerative changes will likely result in some permanent deficits," but he "could resume his previous job with restrictions," and that a note with restrictions was being provided.

The worker subsequently returned to his regular duties at work on April 1, 2015. While the worker has indicated that he continued to experience difficulties with his right shoulder following his return to work, the panel notes that the information on file shows a significant gap in time of over three years following the worker's return to work where there is no indication of the worker having contacted the WCB and no report of difficulties with respect to his right shoulder.

In June 2019, the worker contacted the WCB to advise that he had a recurrence to his shoulder. The worker indicated that after he had been back at work for three months in 2015, he felt a pull on his right shoulder while using a tool. File information shows that the WCB advised the worker he would need to open a new claim, but he disagreed, and there is no indication that a new claim was opened.

The worker saw an orthopedic surgeon with respect to his right shoulder difficulties. In an August 28, 2019 letter from the orthopedic surgeon, the surgeon indicated that a new March 23, 2019 MRI showed the worker had impingement of the rotator cuff. The surgeon went on to note that the most damaging factor which was shown on the MRI was the AC joint osteoarthritis. The worker subsequently underwent right shoulder surgery on February 13, 2020.

Following the hearing, the panel requested and was provided with a copy of the operative report from the February 13, 2020 surgical procedure. The report confirmed that the post-operative diagnosis was a "rotator cuff tear right shoulder, osteoarthrosis AC joint, and acromial impingement."

The panel is unable to establish that the worker's right shoulder difficulties which resulted in his February 13, 2020 surgery or the surgery itself is causally related to his March 5, 2013 compensable injury or August 1, 2014 surgery.

With respect to the rotator cuff tear, the panel notes, as indicated above, that a rotator cuff tear was initially considered in 2013, but was not found during the 2014 surgery, and was not accepted as a compensable injury. The panel therefore finds that the worker's 2020 diagnosis of, and surgery for, a rotator cuff tear cannot be related to his 2013 compensable injury.

With respect to the other findings or diagnoses on surgery, the panel understands that the diagnoses of osteoarthritis of the AC joint and acromial impingement are degenerative in nature and would not be related to the worker's 2013 compensable injury.

The panel acknowledges the worker's reference in his written submission to a medical study as indicating that post-traumatic arthritis can be caused by the wearing out of a joint that has had any kind of injury, including a work-related injury. The panel is unable, however, to identify any medical evidence to indicate that those conditions or diagnoses were attributable to the worker's 2013 compensable injury or 2014 surgery in this case.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right shoulder difficulties and resultant surgery on February 13, 2020 were not causally related to his March 5, 2013 compensable injury. The panel therefore finds that the worker is not entitled to benefits in relation to his current right shoulder difficulties.

The worker's appeal is dismissed.

Panel Members

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 November, 2020