The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the proposed right shoulder surgery as being a consequence of the August 15, 2019 accident. A teleconference hearing was held on November 18, 2020 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the proposed right shoulder surgery as being a consequence of the August 15, 2019 accident.

Decision

Responsibility should be accepted for the proposed right shoulder surgery as being a consequence of the August 15, 2019 accident.

Background

The worker advised the WCB on August 19, 2019 that he injured his right arm in an incident at work on August 15, 2019, which he described as:

I was trying to remove fence posts with a coworker. I put a board under the post and I stepped on the board to free the post from the ground. The board sprung back, I had one foot on the ground and one on the board. I fell onto the gravel ground and onto my right arm.

I felt a snap in my arm. I felt sharp pains from my wrist to my shoulder. I cannot move my wrist, its swollen. My shoulder is about a 9/10 pain.

The worker sought medical attention from a physician as well as a chiropractor on August 15, 2019. A Chiropractor First Report indicated a diagnosis of a suspected fracture in the worker’s right wrist, right rotator cuff sprain/strain or tear or a right labral tear. The chiropractor noted the worker had very limited range of motion in his right wrist and shoulder in all directions causing extreme pain. The chiropractor recommended an x-ray of the worker’s right wrist and shoulder as well as an MRI for his right shoulder. Further, the chiropractor recommended the worker should attend for physio or athletic therapy. An x-ray of the worker’s right wrist, elbow and shoulder was taken on August 15, 2019 with “A few tiny calcific densities are seen interposed between the undersurface of the acromion and the upper aspect of the humeral head which could represent foci of calcific tendinosis” in the worker’s shoulder otherwise, no “…bone, joint or soft tissue abnormality…” observed. The worker was seen by his treating family physician on August 20, 2019 and was referred for physiotherapy. Restrictions of no activities with his right arm were recommended. The WCB spoke with the worker on August 22, 2019 and advised his claim was accepted for an elbow contusion, right shoulder strain and wrist sprain.

The worker attended for an initial physiotherapy assessment on August 26, 2019 and was diagnosed with a right wrist sprain, right shoulder rotator cuff strain/tear and/or labral tear. The physiotherapist noted swelling in the worker’s right hand and wrist, with a positive empty can test and right shoulder muscle guarding. No right arm/hand use was recommended for restrictions. The employer was provided with the worker’s restrictions on August 29, 2019.

The worker returned to work on modified duties the week of September 9, 2019. At a follow-up appointment with his family physician on September 13, 2019, the worker was referred for an MRI. The MRI study of the worker’s right shoulder was undertaken on October 2, 2019. The MRI indicated: Full-thickness, full width tears of the supraspinatus and infraspinatus tendons; full-thickness tearing of the cranial subscapularis tendon; medial subluxation/dislocation of the long biceps tendon from the bicipital groove at the site of the subscapularis tendon tearing; tendinosis of the intra-articular long biceps tendon; and moderately severe osteoarthritis of the acromioclavicular joint. The MRI results and the worker’s file were reviewed by a WCB medical advisor on October 12, 2019. The advisor opined the worker’s initial diagnosis was of “…a right wrist strain with a rotator cuff tendinopathy in the environment of a pre-existing rotator cuff tear and long biceps tendon dislocation.” Further, it was provided the normal recovery period for this type of shoulder injury was 6 to 10 weeks, with the worker’s pre-existing condition affecting recovery by an additional 2 to 4 weeks.

On October 15, 2019, the worker’s treating family physician referred the worker to an orthopedic surgeon. The appointment took place on October 29, 2019. The surgeon reported active range of motion in the worker’s right shoulder from 0 to 90 degrees of forward elevation, with passive range of motion to 104 degrees. Further, “strongly positive empty can sign” for both pain and weakness and positive O’Brien’s and Speed’s tests. The treating orthopedic surgeon discussed options for the worker’s “massive/large rotator cuff tear” with the worker and a primary rotator cuff tear repair, either full or partial, with a biceps tenotomy and acromioplasty was recommended. A WCB medical advisor reviewed the worker’s file and the surgery request on November 8, 2019 who confirmed the earlier opinion the worker’s rotator cuff tear was not related to the workplace accident and was likely the result of a previous trauma. As such, the orthopedic surgeon and the worker were advised on November 12, 2019 that the WCB would not provide funding for the proposed surgery.

The worker contacted the WCB on November 13, 2019 to discuss his claim further. The worker confirmed to the WCB that he had not had any previous injuries to his right shoulder and that prior to the August 15, 2019 workplace accident, he had no issues with his shoulder and could lift, reach, pull and push up to 200 pounds as he participated in weightlifting. As the worker advised that his family physician had been treating him for over 20 years, on November 15, 2019, the WCB requested additional medical information from the treating physician related to his right arm, shoulder and wrist. On November 25, 2019, the worker’s treating family physician provided the WCB with a copy of medical information indicating the worker had a fall on his right shoulder in April 2000 which resulted in a soft tissue injury, with a follow-up report on May 7, 2000 indicating bilateral rotator cuff injuries from the fall. A copy of an April 27, 2000 report from an orthopedic specialist to the worker’s treating family physician was also received and noted the specialist suspected a “…subluxation or partial dislocation of the shoulder” with the rotator cuff appearing intact.

On December 3, 2019, the employer requested reconsideration of the WCB’s denial of funding for the proposed shoulder surgery to Review Office on behalf of the worker. The employer indicated their support for the worker’s surgery and that the worker was not aware he had a pre-existing injury to his shoulder when he was hurt at work. Included with the submission was a sick note from the worker’s physician and witness statements from two of the worker’s coworkers.

At the request of the Review Office, the worker’s file was reviewed by a WCB orthopedic consultant on December 11, 2019. The consultant advised that the calcification indicated on the August 15, 2019 x-ray study required “…many months or years to develop…” and noted a typical mechanism of injury for a traumatic rotator cuff tear is a “high energy resisted abduction of the shoulder joint” but the orthopedic consultant could not confirm that occurred during the workplace accident. A copy of the December 19, 2019 surgery report was also requested and received.

The Review Office determined on January 24, 2020 responsibility for the worker’s right shoulder surgery was not acceptable. Review Office placed weight and relied on the opinions of the WCB medical advisors that the worker’s right shoulder surgery related to the worker’s pre-existing condition which was not aggravated or materially affected by the August 15, 2019 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on April 16, 2020. A teleconference hearing was arranged for November 18, 2020.

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. The Panel considered the following sections of the Act:

Section 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 s. 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.

Section 27(1) of the Act provides that the board 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-X Policy”) outlines that the WCB will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as such a condition does not fall within the definition of personal injury by accident arising out of and in the course of employment.

Worker’s Position

The worker participated in the hearing with the assistance of a worker advisor who provided the panel with a written submission in advance of the hearing. The worker answered questions posed to him by the worker advisor as well as by the panel.

The worker described to the panel how he fell backwards onto his right outstretched arm while attempting to dislodge a fence post with his left foot. The worker stated that when he put his weight on the post it sprung back causing him to fall.

The worker stated,

…as I fell I stretched out my arm and it, my wrist came up first, and then I felt the snap. I just, I just knew that this was not going to be good.

When asked by the worker advisor as to where the worker felt the snap, the worker replied,

In my wrist, that’s when I felt it first, and then as I fell further yet, like, and it was into my shoulder, that was another, that was another one and I felt extremely lightheaded. It just, oh, it wasn’t a good feeling at all.

The worker also described to the panel the medical assistance he received after the injury.

The worker advisor submitted to the panel that the worker’s description of his accident supported that the fall was a forceful one, and that, in his opinion, the type of injury mechanism described is capable of causing an acute rotator cuff tearing.

In concluding his submission, the worker advisor stated,

So as I see it, either [the worker] suffered some acute rotator cuff tearing that required surgical repair, or if the panel were to find that he had some pre-existing but de-symptomatic rotator cuff tearing, I think the evidence points to enhancement then.

If not for his accident he would not have needed surgery within roughly four months of his accident date. So in my mind, the evidence supports, on a balance of probabilities, that the accident and resulting injury is what made his shoulder surgery necessary.

Employer’s Position

The Employer did not participate in the hearing.

Analysis

The worker has an accepted claim for a workplace injury that took place on August 15, 2019. The question before the panel is whether or not responsibility should be accepted for the proposed right shoulder surgery as being a consequence of that injury. For the reasons that follow, the panel is able to find that responsibility should be accepted for the worker’s right shoulder surgery as a consequence of the worker’s August 15, 2019 workplace injury.

In making this determination, the panel places significant weight on the WCB orthopedic consultant’s opinion dated December 11, 2019 which stated,

Medical Opinion:

1. Imaging confirms pathology which was undoubtedly pre-existing in the right shoulder. Calcification requires many months or years to develop, as does fatty infiltration and atrophy of the muscles of the rotator cuff. Many individuals would be able to function at home and in the workplace with chronic rotator cuff pathology. 

2. The reported mechanism of the workplace injury was a fall on to the ground upon the outstretched right upper limb. A painful snap occurred. A typical mechanism of traumatic rotator cuff tear would be a high energy resisted abduction of the shoulder joint. Whether or not resisted abduction occurred at the moment of the fall would be speculative, as the mechanism of a fall is often complex and may consist of more than simple axial loading of the limb. 

3. At issue is whether or not the pathology at the right shoulder was increased by the mechanism of the workplace injury. It is conceivable that the degree of tearing of a pre-existing rotator cuff tear was increased by the workplace injury. No proof of this possible change is evident on objective medical evaluation. 

4. As suggested, an increase in the degree of rotator cuff tear would be medically speculative. Careful analysis of the worker’s function before and after the workplace injury raises the possibility, but this would be a matter for WCB adjudication rather than objective medical proof.

Given the medical evidence available, the panel agrees that a careful analysis of the worker’s function before and after the workplace injury is required to determine whether the worker’s injury materially affected his pre-existing shoulder issues.

As a result, the panel considered the following when determining the worker’s pre-accident function:

• The worker advised the WCB case manager on September 16, 2019 as well as November 13, 2019 that he had no prior right arm injuries. The worker also stated on November 13, 2019 that “…his arm was fine prior to DOA.”

• The worker was employed as a Machinery/Truck Operator, which the panel understands to involve strapping and unloading material on a regular basis. The panel is of the view that such activities would have been difficult to perform for someone with a symptomatic shoulder. This is confirmed by the fact that during the period of time the worker had returned to work on modified duties after the August 15, 2019 injury, he was unable to perform those tasks.

• The employer confirmed to the WCB that they were not aware of any problems with the worker’s arm prior to the injury. In particular, there is a WCB file note dated November 13, 2019 which states, in part;

I spoke briefly with [the worker’s supervisor] who readily confirmed [the worker] demonstrated absolutely no difficulties with R arm prior to injury. Ever since the accident however, [the worker’s supervisor] verified [the worker] has been unable to do his normal physical work and it appears he has improved only minimally to date.

The panel considered the following information in determining the worker’s post-accident functioning of his right shoulder:

• The worker was treated by a chiropractor on the date of the injury who noted in a report prepared the same day that the worker’s objective findings were, “Very limited ROM in R wrist + R shoulder in all directions causing extreme px (pain).”

• The worker also attended a hospital on the date of the injury that also noted that the worker was unable to move his right shoulder.

• A Doctor First Report dated August 15, 2019 noted the following examination findings, “On exam, guarding right arm. MSK positive drop arm. Swelling dorsal wrist. Decreased A/P ROM wrist and shoulder secondary to pain.”

Based on a comparison of the functioning of the worker’s shoulder pre-accident and post-accident, the panel is satisfied that the workplace injury significantly altered the functioning of the worker’s right shoulder. As a result, the panel is satisfied that the August 15, 2019 injury enhanced the worker’s pre-existing rotator cuff tear.

The panel further notes that the WCB accepted that the worker developed a Scapholunate Interosseous Ligament tear in his right wrist as a result of the August 15, 2019 workplace injury as the worker fell on his outstretched right hand. The panel accepts this as further evidence that the impact of the fall on August 15, 2019 was significant, as it resulted in multiple injuries to the worker’s right upper limb.

The panel accepts the October 29, 2019 recommendation from the worker’s orthopedic surgeon that the worker undergo surgery to his right shoulder which occurred on December 19, 2019.

The worker’s appeal is accepted.

Panel Members

M.L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of January, 2021