The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after July 7, 2019 or medical aid benefits after August 7, 2019. A teleconference hearing was held on October 29, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after July 7, 2019; and

Whether or not the worker is entitled to medical aid benefits after August 7, 2019.

Decision

That the worker is not entitled to wage loss benefits after July 7, 2019; and

That the worker is not entitled to medical aid benefits after August 7, 2019.

Background

On June 6, 2019, the worker reported to the WCB that she injured her left shoulder in an incident at work on May 31, 2019. She described assisting with a patient transfer, and noted that "Since then my shoulder has been very painful and my arm has pins and needle sensation from my shoulder to my fingertips."

At an initial physiotherapy assessment on June 3, 2019, the worker reported that her shoulder was aggravated when she had to increase her grip, when she brought her arm above her shoulder, and when she was taking a shirt on or off. The physiotherapist noted the worker had a positive empty can test on the left and diagnosed a left supraspinatus tear. Restrictions of no overhead movement, no lifting greater than 5 pounds, and no pushing contrast were recommended.

On June 14, 2019, the WCB contacted the worker to discuss her claim. The worker confirmed the mechanism of injury and advised that she was injured in the fall of 2017 and had felt pain in her shoulder ever since. The worker further noted that she had a surgical consult for her shoulder on May 6, 2019, and would be having surgery later in the year for a tear in her shoulder which had previously been identified. The worker was advised that her claim was accepted, but not for the tear, and benefits were authorized.

On July 5, 2019, the worker advised the WCB that her surgery was scheduled for July 8, 2019. A copy of a December 27, 2018 MRI of the worker's left shoulder was requested and received by the WCB. The MRI indicated that "There is a tear of the supraspinatus from the insertion measuring 1.5 cm transverse by 1 cm AP. " The WCB also received a copy of the surgery report from July 8, 2019, noting the worker underwent a left shoulder arthroscopy with debridement, subacromial decompression, biceps tenodesis and rotator cuff repair.

The worker's file was reviewed by a WCB sports medicine consultant on July 28, 2019. The sports medicine consultant opined that the worker's diagnosis in relation to the workplace accident was a left shoulder strain occurring in an environment of pre-existing left rotator cuff tearing as indicated on the December 27, 2018 MRI. The consultant noted that a strain would recover in 2 to 6 weeks. The consultant further opined that the described mechanism of the May 31, 2019 workplace accident would not have aggravated or enhanced any pre-existing difficulties, as the clinical findings by the treating orthopedic surgeon in a May 7, 2019 report and the physiotherapist on June 3, 2019 were "essentially unchanged."

On July 31, 2019, the WCB's Compensation Services advised the worker that the evidence did not support a connection between the tear in her left shoulder and the workplace accident of May 31, 2019. Compensation Services advised that wage loss benefits would therefore be paid up to and including July 7, 2019, being the day before her surgery, and ongoing medical aid benefits would end effective August 7, 2019.

On October 29, 2019, the worker's union representative contacted the WCB to request reconsideration of the July 31, 2019 decision. The representative submitted the medical evidence on file supported that the May 31, 2019 workplace accident enhanced the worker's pre-existing left shoulder condition, and she should therefore be entitled to further benefits. The representative's submission was reviewed by the WCB sports medicine consultant, and on November 6, 2019, Compensation Services advised the worker that there would be no change to their decision.

On December 18, 2019, the worker's union representative submitted a December 5, 2019 opinion from the worker's treating orthopedic surgeon, and requested that the WCB review the worker's claim again. The worker's representative noted that the orthopedic surgeon opined there was a clinical difference between the findings in the December 2018 MRI and the findings in the July 8, 2019 surgery. The representative submitted that the evidence indicated the compensable injury which the worker sustained on May 31, 2019 enhanced her pre-existing condition, and the WCB was responsible for covering wage loss benefits and medical costs related to this enhancement.

On January 3, 2020, the worker's file was again reviewed by the WCB sports medicine consultant, who opined there was no reliable way to determine if the rotator cuff tear had worsened between the time of the December 2018 MRI and the July 8, 2019 arthroscopy "…as both degeneration over time and traumatic injury may or may not extend a tear." On January 21, 2020, Compensation Services advised the worker that there would be no change to their earlier decisions.

On January 29, 2020, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the worker's level of function and symptoms changed after the May 31, 2019 workplace accident, and the clinical findings and the opinion of her treating orthopedic surgeon supported that the May 31, 2019 compensable injury enhanced the worker's pre-existing condition. The employer's representative provided a responding submission in support of Compensation Services' decision.

On April 6, 2020, Review Office determined that the medical evidence did not support there was a material change in the status of the worker's rotator cuff tear as a result of the workplace accident. Review Office found that the worker suffered a left shoulder strain in the setting of a pre-existing rotator cuff tear. Review Office noted that both the WCB sports medicine consultant and the treating orthopedic surgeon agreed that a strain type injury would resolve within 2 to 6 weeks, and the worker was reaching the maximum 6 week recovery norm when she underwent surgery on July 7, 2019. Review Office found that the worker removed any loss of earning capacity when she had the surgery, and was considered recovered from her compensable strain injury.

On May 13, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), 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 word "enhancement" is defined in the Policy as: "When a compensable injury permanently adversely affects a pre-existing condition."

Worker's Position

The worker was represented by a union labour relations officer, who made a presentation to the panel. The worker responded to questions from her representative, and the worker and her representative responded to questions from the panel.

The worker's representative noted that they were not disputing the fact that the worker had a tear prior to her May 31, 2019 compensable injury. Their position was that the worker's compensable injury caused an enhancement of her pre-existing left shoulder condition and the worker was entitled to ongoing wage loss and medical benefits as a result.

The worker's representative submitted that there was a significant change in the worker's presentation and level of function immediately after her May 31, 2019 injury, as documented by her treating medical providers. She noted that the workplace accident, after which the worker's function changed, was a specific and identifiable event.

The worker stated that she had looked into having surgery prior to May 31, 2019, but no decision had been made as to whether she was actually going to go through with it and no date had been scheduled. The worker said that after the accident and because of it, the surgery was quickly set for July 8, 2019.

The worker's representative reviewed the mechanism of injury with the worker, as well as her symptoms and functioning both before and after the workplace incident. In response to questions from her representative, the worker stated that she was working "full-time plus" prior to the accident. She estimated that she was able to perform probably 90% of her job duties, and there was only one portion of her job that she could not do at that time because of her shoulder.

The worker went on to state that her pain and function definitely changed after May 31, 2019. Her left arm was pretty much useless after the accident. She basically just kept the arm up at work, and the only way she was not in excruciating pain was if her arm "was snug up really tight…against my stomach." Her arm would hurt anytime she used it in any way. She did not have any grip strength and could not hold or lift things. She indicated that she was doing very moderate duties at work after the accident, and was sent home in or around mid June 2019 because she was not able to manage at work.

The worker's representative submitted that file documentation confirmed the compensable injury enhanced her pre-existing condition. The representative referred to and relied on a December 5, 2019 opinion from the treating orthopedic surgeon, who stated that:

1. On July 8, 2019, I performed a rotator cuff repair. During this evaluation, the rotator cuff was deemed to be torn measuring 3.5 cm x 1.5 cm. This was considerably enlarged from the MRI in December 2019 [sic], which demonstrated 1.5 cm x 1 cm. This finding suggests that [the worker] had sustained a propagation of a rotator cuff tear rather than a left shoulder strain.

2. …Persistent symptoms are more consistent with a propagation of a rotator cuff tear.

3. …The described mechanism of a forceful transfer of the patient is a plausible cause for such a propagation.

4. In the setting of a known rotator cuff tear a forceful loading to the shoulder resulting in increased pain more likely represents a propagation of her rotator cuff tear rather than the alternative diagnosis of a shoulder strain.

The worker's representative submitted that the MRI findings, in comparison to the surgical findings, are significant. She noted that tears can increase over time, as indicated in the medical articles which had been submitted by the employer, and submitted that the significant change in the worker's presentation after the compensable injury was proof her tear had increased as a result of her injury. The representative noted that there was no evidence the cause of the increase in the worker's tear was degenerative.

The worker's representative noted that the WCB sports medicine consultant provided an opinion and diagnosis of a left shoulder strain without taking a history from the worker or assessing her in person. She submitted that more weight should be placed on the opinions of the treating medical providers, who took a history and assessed and treated the worker in person.

In conclusion, the worker's representative submitted that the evidence establishes, on a balance of probabilities, that the worker's pre-existing condition was enhanced by the May 31, 2019 compensable injury, and the WCB is responsible for covering the compensation and medical costs related to this enhancement.

Employer's Position

The employer was represented by an advocate, who provided a written submission in advance of the hearing and made a presentation to the panel.

The employer's position was that the decision to end the worker's wage loss and medical aid benefits was appropriate, and the worker's appeal should be dismissed.

The employer's representative noted that there was no question the worker had a significant pre-existing left shoulder tear. The representative submitted that it was also clear that the decision to proceed with surgery to repair that tear had been made before the May 31, 2019 workplace incident.

The employer's representative reviewed the worker's symptoms and clinical findings from before and after the May 31, 2019, and submitted that the file documentation in close proximity to the incident showed that the clinical findings and the worker's subjective complaints were largely unchanged by the workplace incident.

The employer's representative noted that the claim was accepted by the WCB as a shoulder strain. The worker was able to continue working following the incident, albeit with light duties, which was consistent with a shoulder strain. The clinical findings indicated a fairly good range of motion, which also supported the diagnosis of a strain.

The employer's representative submitted that there was no evidence the compensable injury enhanced the worker's rotator cuff tear. She submitted that the argument that as the tear was larger on arthroscopy than on the MRI taken 7 months earlier, this had to be due to the May 31, 2019 incident, was entirely speculative. The treating orthopedic surgeon's comment that the May 31, 2019 incident was a "plausible" cause of such an enhancement was similarly speculative.

The employer's representative noted that medical articles which had been provided in advance of the hearing indicated that time impacts the size of a tear, even in the space of a few months. She submitted that it was entirely conceivable that the tear degenerated on its own, and given the unchanged clinical findings before and after the workplace incident, it was more likely the pre-existing degenerative tear progressed with time, as degenerative tears do.

The employer's representative further submitted that the requirement for surgery did not change. The preoperative and postoperative diagnoses were the same, and the worker underwent the same surgery as planned and as would have been done regardless of the May 31, 2019 accident and injury.

In conclusion, it was submitted that the WCB would not be responsible for time loss for surgery which was already planned for a solely pre-existing injury. The decision to end wage loss benefits as at the date of the worker's non-compensable surgery was therefore appropriate. The decision that the worker was not entitled to medical aid benefits after August 7, 2019 was also appropriate, as any medical aid benefits after that date would be solely for the worker's pre-existing condition, and not her compensable injury.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits after July 7, 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 beyond July 7, 2019 as a result of her May 31, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.

There is no dispute that the worker had a pre-existing left shoulder condition/rotator cuff tear. The worker's position was that her pre-existing rotator cuff tear was enhanced as a result of her May 31, 2019 workplace accident and injury. Based on our review of all the evidence which is before us, and on a balance of probabilities, the panel is unable to arrive at that conclusion.

The worker indicated at the hearing that while she had looked at having surgery for her pre-existing rotator cuff condition prior to her May 31, 2019 workplace accident, she had not decided whether she would go ahead with the surgery; no date had been set at that point and no decision had been made "to set it completely in stone." The worker said she knows how the health care system works and the importance of getting on a list to keep your options open.

The panel accepts that a date for surgery may not have been set prior to the workplace incident, but finds that information on file shows that a date was in the process of being scheduled and all indications were that the surgery would be proceeding. The panel notes that in his May 7, 2019 report to the worker's family physician, the treating orthopedic surgeon thus wrote that he had discussed with the worker "…both continued conservative versus surgical intervention. She would like to proceed with a rotator cuff repair with biceps tenodesis…We look for the first available time to proceed."

The panel is unable to find that the evidence supports the worker's pre-existing condition was structurally altered or permanently changed by her May 31, 2019 incident. The panel is satisfied that the medical documentation on file in proximity to the workplace incident shows that with the exception of complaints of increased pain, the worker's symptoms and clinical findings were essentially the same before and after the May 31, 2019 accident.

The panel acknowledges the worker's evidence at the hearing that she experienced increased pain and had more difficulty functioning after the May 31, 2019 workplace accident, but is satisfied that this is consistent with a strain injury.

The worker also indicated at the hearing that to the extent that her symptoms were said to be the same, it should be noted that other factors after the incident were not the same. The worker noted that while she had been working full-time duties before the accident, she was only working part-time after the accident, with modified duties. The worker said she was sent home on or about June 12, 2019 because she was unable to manage her work. Although the worker was unclear as to whether or when she worked after that, information on file indicates she was scheduled for work and working modified duties up until shortly before her July 8, 2019 surgery. In a memo on file dated July 5, 2019, the case manager thus noted that he spoke to the worker and she advised that she "…was working modified duties up to and including July 4; now off completely; expected return to work in 4-6 months."

The worker relied on the December 5, 2019 opinion from the treating orthopedic surgeon where the surgeon commented on a difference in the size between the tear as noted in the December 27, 2018 MRI and as noted by the treating surgeon in his July 8 Operative Report, as quoted above, and opined that it was a "plausible" cause for such an enlargement. The panel is unable to place much weight on that opinion.

The panel understands that in arriving at his opinion, the surgeon is comparing two different types of visualization in his report, one based on imaging and the other on "eyes on" findings, which are not directly comparable.

The panel further understands that tears may progress due to degeneration or as a result of traumatic injury. Given the more than 7 months separating the MRI and the worker's left shoulder surgery, and the similarity in clinical findings before and after the workplace accident, the panel is unable to determine how or when such a change to the worker's rotator cuff may have occurred. The panel accepts and agrees with the opinion of the WCB sports medicine consultant that "If the tear had in fact worsened from the December 2018 MRI to the July 2019 arthroscopy, there is no reliable way to determine when this happened as both degeneration over time and traumatic injury may or may not extend a tear."

The panel is also satisfied that the surgery which the worker underwent on July 8, 2019 did not materially change as a result of her workplace accident. The Operative Report confirms that the worker underwent "a rotator cuff repair with biceps tenodesis" as had been planned before her compensable injury.

In conclusion, the panel finds, on a balance of probabilities, that the worker's pre-existing rotator cuff tear was not enhanced as a result of her May 31, 2019 workplace accident and injury and her July 8, 2019 surgery was not related to her compensable injury.

As indicated previously, the worker's claim has been accepted as a left shoulder strain. The treating orthopedic surgeon and the WCB sports medicine consultant both commented that a sprain type injury would resolve within 2 to 6 weeks. In the circumstances, the panel finds that the worker's compensable left shoulder strain injury would be considered recovered and her loss of earning capacity ended when she underwent surgery.

The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity beyond July 7, 2019 as a result of her May 31, 2019 workplace accident, and the worker is not entitled to wage loss benefits after that date.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to medical aid benefits after August 7, 2019.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker required medical aid beyond August 7, 2019 as a result of her May 31, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.

Based on our finding with respect to Issue 1 above, that the worker's compensable injury would be considered recovered when she underwent surgery on July 8, 2019, the panel finds that the worker did not require medical aid beyond August 7, 2019 as a result of her May 31, 2019 workplace accident. The worker is therefore not entitled to medical aid benefits after that date.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of December, 2020