Decision #130/20 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for her left shoulder surgery and she is not entitled to further benefits after December 9, 2019. A teleconference hearing was held on July 28, 2020 to consider the worker's appeal.
Issue
Whether or not responsibility should be accepted for the worker's left shoulder surgery as being a consequence of the June 17, 2019 accident; and
Whether or not the worker is entitled to further benefits after December 9, 2019.
Decision
That responsibility should not be accepted for the worker's left shoulder surgery as being a consequence of the June 17, 2019 accident; and
That the worker is not entitled to further benefits after December 9, 2019.
Background
The employer filed an Employer's Accident Report with the WCB on July 11, 2019, indicating the worker injured her shoulder in an incident at work on June 17, 2019 when she was assisting a student and was struck in the shoulder. The employer noted on the report that the worker submitted her incident report the following day but did not seek medical treatment until June 27, 2019.
On July 16, 2019, a WCB adjudicator contacted the worker to discuss her claim. The worker confirmed the mechanism of injury and that she reported it to her employer right away. She advised that she did not seek medical treatment right after the incident as she believed it would go away with ice and rest. The worker said she continued to work, but her shoulder got worse and she sought treatment at a local walk-in clinic.
In the June 27, 2019 report from the walk-in clinic physician, the physician noted the worker's complaint of left shoulder pain and a finding of decreased range of motion. The physician diagnosed the worker with left shoulder pain (not yet determined) and queried a rotator cuff tear. On July 16, 2019, the worker saw a sports medicine physician, who diagnosed the worker with a left shoulder rotator cuff strain and referred the worker for an MRI and physiotherapy.
On July 22, 2019, the worker attended an initial physiotherapy assessment, where the physiotherapist noted the worker's complaints of constant pain into the left shoulder joint with intermittent clicking/clunking, aggravated with movements. The physician diagnosed the worker with a left shoulder sprain/strain, and queried a labral tear.
On September 24, 2019, the worker underwent an MRI of her left shoulder, the findings from which included that the worker had superior labral tearing, widespread rotator cuff tendinosis without tear, and mild glenohumeral and acromioclavicular osteoarthritis. As a result of the findings on the MRI, the worker was referred for an expedited assessment with an orthopedic surgeon.
On October 29, 2019, the worker was seen by the orthopedic surgeon, who noted that the worker reported ongoing pain referable to the top of the shoulder with clicking and decreased range of motion. The orthopedic surgeon reported that the worker's symptoms were in keeping with biceps and rotator cuff related symptoms, and opined that the worker had "…widespread rotator cuff tendinosis and mild glenohumeral and AC (acromioclavicular) osteoarthritis…" The orthopedic surgeon recommended "arthroscopic intervention with view to decompression plus biceps tenotomy."
On November 27, 2019, the worker's file was reviewed by a WCB sports medicine consultant, who opined that the worker's diagnosis in relation to the workplace accident was aggravation of a pre-existing left rotator cuff tear and her current diagnosis was a left rotator cuff tear. The sports medicine consultant further opined that given the mechanism of injury and the family physician's notes on file, the worker's current diagnosis of a left rotator cuff tear was likely a pre-existing condition and was not related to the compensable injury. The consultant also opined that the aggravation related to the workplace accident had likely resolved, and the worker's pre-existing condition was likely causing the worker's current symptoms.
On November 27, 2019, the worker's orthopedic surgeon was advised that the WCB was unable to provide funding for the proposed procedure. On December 2, 2019, the WCB's Compensation Services advised the worker that they had determined her workplace accident had resolved and she was not entitled to benefits after December 9, 2019.
On December 11, 2019, the worker requested reconsideration of the WCB's decisions by Review Office. The worker noted that she may have had discomfort in her shoulder prior to the workplace accident, but it was nothing compared to the discomfort and loss of movement in her shoulder since the accident. The worker said she had not recovered, and would be having surgery on December 16, 2019 because of her injury. The worker submitted that the surgery should be the responsibility of the WCB, and she was entitled to further benefits, including wage loss replacement, due to her injury.
On February 11, 2020, Review Office determined that responsibility was not accepted for the worker's left shoulder surgery and there was no entitlement to benefits beyond December 9, 2019. Review Office found that the injury which the worker suffered as a result of the June 17, 2019 workplace accident was a strain injury, and they were unable to relate the need for the requested procedure to her compensable injury. Review Office found that there was no continued cause and effect relationship between the worker's current left shoulder problems and the compensable injury beyond December 9, 2019, and the decision to end benefits was implemented correctly.
On March 17, 2020, the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.
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 worker for comment. On November 9, 2020, the appeal panel met further to discuss the case and render its final decision on the issues 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 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 "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. 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.
With respect to wage loss eligibility, the Policy states, in part, that:
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.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
Worker's Position
The worker was self-represented, and was accompanied by her spouse at the hearing. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker's position was that she had not recovered from the effects of her June 17, 2019 workplace accident and injury when her benefits were terminated; that her left shoulder tear and surgery were a consequence of her workplace accident, and she is entitled to further benefits after December 9, 2019.
In her presentation at the hearing, the worker reviewed how her injury occurred and provided a brief history of her injury and her WCB claim. The worker said she continued working four hours a day after her accident, on very light duties. As she was unable to do one component of her job, the WCB paid her partial wage loss benefits for the other three hours she could not work. The worker noted that the employer told her to do what she could, and was very good to her.
The worker said she felt she had been treated unfairly by the WCB, with her benefits being cut off shortly before her surgery. She said that everything seemed to be okay until the WCB learned she had a tear which had to be surgically repaired. The worker submitted that everything seemed to change at that point, and the WCB decided they were "done".
The worker said she was afraid her surgery would be cancelled when her benefits were cut off, but she spoke to the surgeon's office and was told they would proceed if she still wished to do so. The worker said she knew she had to have the surgery, as her injury was bad and needed to be fixed. Fortunately, the surgery went ahead on December 16, 2019. She had to use her sick time after the surgery, however, due to her benefits having ended.
The worker submitted that the WCB's decision to terminate her benefits was based on a lot of assumptions, not fact. She noted that the WCB relied on an opinion from a consultant who had never seen her.
The worker said she told her surgeon about the WCB's decision to end her benefits just before the surgery, and he said she should appeal the decision and that the tear was likely a direct result of the injury she received on June 17, 2019.
The worker suggested that even the WCB's own consultant had indicated that the WCB should be responsible for her surgery. She noted that the consultant had written in his November 27, 2019 report, in part, that "…Given the mechanism of injury, it is unlikely the rotator cuff tear was not caused by the compensable injury…" The worker said she read this as saying that her injury was related to her workplace accident, and that she had not recovered from the effects of that accident.
In conclusion, the worker noted she had never been on WCB before. She had worked for the employer for many years and had never been off work with an injury. She said she was not the kind of person to be off work because of an injury, but she knew she had to do something about her injury this time as it was not going to go away.
Employer's Position
The employer did not participate in the appeal.
Analysis
Issue 1: Whether or not responsibility should be accepted for the worker's left shoulder surgery as being a consequence of the June 17, 2019 accident.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's December 16, 2019 left shoulder surgery was necessary to cure and provide relief from an injury resulting from her June 17, 2019 workplace accident. Based on the evidence which is before us and on a balance of probabilities, the panel is unable to make that finding.
The worker has an accepted claim for a left shoulder rotator cuff strain. The worker has argued that the injury she suffered was more than a strain, and resulted in her requiring surgery which was performed on December 16, 2019.
The panel carefully reviewed the mechanism of injury with the worker at the hearing. The worker described how she was trying to told a student to keep her from running or hurting herself, and the student "just pushed me backwards…she was fighting me to get away from me…I had my arms around her. I was trying to hold onto her, and she just pushed, she swung back and she pushed my arm…" The panel finds that the mechanism of injury, as reported and as described on file and at the hearing, is consistent with a left shoulder sprain/strain injury. The panel further finds, on a balance of probabilities, that the mechanism of injury would not have resulted in a labral or rotator cuff tear or a more sinister injury to the worker's left shoulder than a sprain/strain injury.
Following the hearing, the panel requested and was provided with a copy of the Operative Report from the December 16, 2019 surgery, which identified the procedures performed as "left shoulder scope, biceps tenotomy and acromioplasty" and the postoperative diagnoses as "left rotator cuff tear plus partial biceps tendon tear and partial-thickness bursal-sided tear."
The worker indicated at the hearing that it was her understanding that the injury she sustained and which was addressed at surgery was a labral tear, and never a rotator cuff injury or tear. The panel notes, however, that the Operative Report specifically refers to procedures relating to, and a postoperative diagnosis of, a left rotator cuff tear.
The panel is satisfied that the medical evidence indicates that the worker had a pre-existing left shoulder condition and difficulties. The panel notes that the September 24, 2019 MRI and the December 16, 2019 Operative Report refer to various conditions, including widespread tendinosis and osteoarthritis and grades III and IV chondromalacia, which the panel understands to be degenerative in nature.
Information on file further shows that the worker saw her family physician on April 3 and April 16, 2019, approximately two months before her June 17, 2019 workplace accident, complaining of left shoulder pain. The panel places significant weight on the physician's chart notes of those visits. The panel notes that the April 3, 2019 chart notes record the worker's complaint of left shoulder pain and a finding of decreased range of motion in the left shoulder. The physician diagnosed the worker at that time with left shoulder pain (not yet determined) and ordered an xray. The April 16, 2019 chart notes indicate left shoulder decreased and a left rotator cuff tear was queried.
The panel recognizes that in response to questions at the hearing, the worker indicated that nothing had happened in April 2019. She said she woke up one morning with pain in her shoulder, which was like a dull ache. She said the pain just disappeared and she never thought anything more of it. She said she did not miss work or have searing pain until the time of her June 2019 injury.
The panel notes that the physician the worker saw at the walk-in clinic on June 27, 2019 was the same physician as she had seen two months earlier for left shoulder pain. On June 27, 2019, the physician again noted left shoulder pain and decreased range of motion in the left shoulder. The physician provided a similar diagnosis of left shoulder pain (not yet determined) and again queried a rotator cuff tear. The physician prescribed muscle relaxants and ordered an MRI.
The worker argued that the November 27, 2019 opinion from the WCB sports medicine consultant supported her position that her ongoing difficulties and surgery were related to the workplace injury, referring specifically to the consultant's comment that:
The current diagnosis is not related to the compensable injury. Given the mechanism of injury, it is unlikely the rotator cuff tear was not caused by the compensable injury. Given the clinic notes from the family physician on file, it is likely the injury was pre-existing.
Following the hearing, the panel requested that the sports medicine physician clarify that statement. In a memo dated September 15, 2020, the consultant responded that on review, he recognized there was an erroneous word in that paragraph, "specifically the word 'not' in the second sentence…" and that the paragraph was intended to read:
The current diagnosis is not related to the compensable injury. Given the mechanism of injury, it is unlikely the rotator cuff tear was caused by the compensable injury. Given the clinic notes from the family physician on file, it is likely the injury was pre-existing.
The panel accepts the sports medicine consultant's clarification of that statement, and finds that the revised wording is consistent with the balance of the consultant's comments and with our understanding of the mechanism of injury. The panel finds that the consultant's opinion is not supportive of the worker's position.
The worker argued that her surgeon told her that the December 16, 2019 surgery was related to her workplace accident. The panel notes that in a January 8, 2020 follow-up report from the surgeon, provided after the hearing in response to the panel's request for additional information, the treating surgeon noted that the worker did have partial biceps tendon tear and a partial rotator cuff tear "related to her work injury."
The panel is unable to attach much weight to the surgeon's comments in this regard. The panel notes that in his October 29, 2019 report, the treating orthopedic surgeon had specifically stated that the worker had no history of previous shoulder problems, which is not consistent with the evidence on file. Further, the surgeon's comment is not consistent with our previous finding that the mechanism of injury would not have resulted in anything more sinister than a sprain/strain injury.
The panel has also considered whether the worker's pre-existing left shoulder condition was enhanced as a result of her workplace accident. As indicated above, "enhancement" is defined under the Act as when a compensable injury "permanently adversely affects a pre-existing condition." The panel finds that there is insufficient evidence in this case to enable us to conclude that the workplace accident or injury enhanced the worker's left shoulder condition.
In conclusion, the panel finds, on a balance of probabilities, that the worker's compensable left shoulder strain injury would have resolved by the end of November 2019, being more than five months after her workplace accident.
The panel therefore finds, on a balance of probabilities, that the worker's December 16, 2019 left shoulder surgery was not necessary to cure or provide relief from an injury resulting from her June 17, 2019 workplace accident, and that responsibility should not be accepted for her surgery as being a consequence of the June 17, 2019 accident.
The worker's appeal on this issue is dismissed.
Issue 2: Whether or not the worker is entitled to further benefits after December 9, 2019.
For the worker's appeal on this issue 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 December 9, 2019 as a result of her June 27, 2019 workplace accident. The panel is unable to make that finding.
Based on our finding with respect to Issue 1 above, that the worker's compensable left shoulder strain injury would have resolved by the end of November 2019, the panel finds that the worker did not suffer a loss of earning capacity or require medical aid beyond December 9, 2019 as a result of her June 27, 2019 workplace accident.
The panel therefore finds that the worker is not entitled to further benefits after December 9, 2019.
The worker's appeal on this issue is dismissed.
Panel Members
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of December, 2020