The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further benefits in relation to the December 30, 2017 accident. A videoconference hearing was held on January 20, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the December 30, 2017 accident.

Decision

The worker is entitled to further benefits in relation to the December 30, 2017 accident.

Background

The worker reported an injury to the WCB on January 2, 2018 that occurred at work on December 30, 2017. While replacing a roll of paper toweling, the roll fell from the dispenser, landing on the worker’s right shoulder and causing “a sharp pain.” The worker immediately applied ice to the injured area and attended with the supervisor for emergency treatment. The worker did not complete their shift that day.

The emergency department physician noted the worker’s complaint of pain with movement in their right shoulder, and on examination, found tenderness in the right acromioclavicular (“AC”) joint and proximal humerus and queried whether the worker sustained a rotator cuff injury. An x-ray taken the same day revealed no fracture or dislocation. The worker was diagnosed with a right shoulder sprain and recommended to remain off work until January 4, 2018.

At follow-up with the family physician on January 8, 2018, the physician noted the worker still had “severe pain”, referred the worker to a sports medicine physician and recommended the worker remain off work until January 15, 2018. On January 15, 2018, at a further follow-up appointment, the family physician noted improvement, with increased range of motion and recommended a return to modified duties. The worker returned to modified duties with restriction on use of their right arm on January 24, 2018 and returned to full regular duties on January 29, 2018.

On January 30, 2018, the worker attended for an initial assessment with a physiotherapist reporting pain, stiffness and weakness in their right shoulder. The physiotherapist provided a diagnosis of a right shoulder contusion/strain. The worker saw a sports medicine physician on February 12, 2018. The sports medicine physician examined the worker, reviewed the x-ray of December 30, 2017, and reported:

“The right shoulder shows a healing abrasion on the deltoid muscle area. There is tenderness on the greater tuberosity. There is no atrophy or deformity on the shoulder. Active range of motion shows abduction and flexion to 160º with internal rotation to the belt level only. Passive range of motion is similar to active range of motion. There is weakness and pain with Jobe’s test. Resisted testing of the infraspinatus and subscapularis is normal. Hawkin’s impingement test is mildly positive. Neer’s impingement test is positive.”

The physician diagnosed a right rotator cuff impingement or possible tear and recommended a pain medication injection, performed on February 14, 2018.

A WCB medical advisor reviewed the worker’s file on March 26, 2018 and agreed with the diagnosis of the sports medicine physician and noted rotator cuff tendinopathy was medically accounted for in relation to the workplace accident.

On June 25, 2018, the worker completed physiotherapy and the physiotherapist noted the worker continued to have stiffness in their right shoulder, but that recovery was satisfactory.

On August 3, 2018, the worker advised the WCB of ongoing symptoms with their right shoulder which made them unable to sleep due to pain. The worker advised they continued to work and that their duties had increased. The worker further advised the treating family physician recommended an MRI study on their shoulder. The MRI study conducted September 11, 2018 indicated a “Very small partial-thickness partial width supraspinatus tendon tear” and “Mild long biceps tendinosis”. A follow-up report from the treating sports medicine physician provided a new diagnosis of a small rotator cuff tear and reported the worker’s shoulder was much better with no pain.

On October 8, 2018, a WCB medical advisor provided a further opinion by way of a note to file. The advisor reviewed the September 11, 2018 MRI, and concluded the worker had a “…cuff tear in the background of tendonosis. The cuff tear would likely be on the basis of degeneration, since tendonosis is a degenerative condition of the cuff and as it progresses it can cause tears.” The WCB medical advisor went on to provide that the mechanism of injury would not be expected to cause a rotator cuff tear and therefore represented an aggravation of a pre-existing condition. Noting the most recent report from the treating sports medicine physician that the worker had “…no further pain, essentially normal ROM (range of motion), good strength, and negative cuff tests”, the medical advisor was of the view the worker had materially recovered from the aggravation and suggested that any future symptoms the worker may have in their shoulder would relate to the non-compensable rotator cuff tear and not the aggravation of the tear as there was no evidence of any permanent negative effect to the pre-existing condition.

On December 4, 2018, the worker advised the WCB of further difficulties with their right shoulder. The worker noted they did not have a further accident but started having pain in their shoulder again. At a follow-up appointment on December 17, 2018, the treating sports medicine physician noted the worker’s complaint of pain for the previous three weeks, with no new injury, as well as pain on lifting their arm and pain at night. Noting the return of the worker’s symptoms, a further pain medication injection was provided.

A WCB medical advisor reviewed the worker’s file on January 2, 2019. The advisor stated the accepted diagnosis was an aggravation of a degenerative rotator cuff tear, which was considered a temporary condition expected to resolve, and that the September 24, 2018 report of the sport medicine physician supported that the injury had resolved. The medical advisor further noted that the worker’s report of a further episode of pain in their shoulder with no new injury was consistent with the natural history of the worker’s pre-existing condition. There was no evidence the increase of the worker’s symptoms was related to the aggravation that was deemed to have resolved weeks earlier.

On February 5, 2019, the WCB advised the worker it had determined the worker was recovered from the workplace accident and was not entitled to further benefits.

On May 8, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. The worker noted they had not recovered from their injury, disagreed there was a pre-existing condition and stated they were entitled to further benefits. The employer provided a submission to Review Office on June 17, 2019 and the worker provided a response on June 25, 2019.

Review Office found on July 3, 2019 that the worker was not entitled to further benefits, relying upon the opinions of the WCB medical advisor that the worker’s diagnosis from the workplace accident was an aggravation of their pre-existing condition which had resolved. Further, Review Office agreed with the WCB medical advisor that the symptoms reported in December 2018 were consistent with the natural of history of the worker’s pre-existing condition. As such, Review Office found the worker had recovered from the December 30, 2017 workplace accident and their current shoulder difficulties were not related to the accident. Therefore, the worker was not entitled to further benefits.

The worker submitted additional medical evidence to the WCB on July 3, 2019 in support of a request for reconsideration, including an opinion from the worker’s treating sports medicine physician dated June 21, 2019 in support of the appeal and disagreeing with the WCB medical advisor’s opinion. Review Office requested a WCB medical advisor review the medical information and on July 19, 2019, the WCB medical advisor provided an opinion that the file evidence indicated a “…significant superficial soft tissue contusion, but not involving any of the deeper structures of the rotator cuff”. The medical advisor concluded the mechanism of injury reported by the worker would not have caused the supraspinatus tear and that it was more likely the worker had a pre-existing rotator tendinopathy and a small partial thickness supraspinatus tear. Further, the WCB medical advisor responded to the treating sport medicine physician’s query as to why the worker did not have any right shoulder symptoms prior to the workplace accident if they had a pre-existing condition by noting the absence of prior reported right shoulder difficulties did not change their opinion the worker had a major pre-existing condition.

On July 25, 2019, the worker provided Review Office with photographs of the right shoulder bruising sustained in the workplace accident. Review Office requested the WCB orthopedic consultant review the photos. On August 6, 2019 the WCB orthopedic consultant provided there was no change to the earlier opinions.

On September 4, 2019, Review Office found the worker was not entitled to further benefits. Review Office agreed with the opinion of the WCB orthopedic consultant that the photographs indicated a soft tissue contusion as a result of the December 30, 2017 workplace accident and agreed the contusion noted in the photographs did not relate to the supraspinatus tear shown on the MRI. Accordingly, Review Office concluded the worker had recovered from the contusion and sprain/strain that occurred as a result of the workplace accident and that their ongoing difficulties were not related to the workplace accident.

The worker again requested Review Office reconsider their decision on December 11, 2019, providing an MRI study conducted on December 2, 2019 as new medical evidence and asking Review Office to review the entire file in conjunction with that evidence. On December 17, 2019, the worker advised Review Office of an upcoming appointment with an orthopedic specialist on January 17, 2020. Review Office received a copy of the report from the worker’s appointment with the orthopedic specialist on January 17, 2020. The specialist noted on examination that the worker had limited range of motion and strength due to pain, and that the December 2, 2019 MRI study indicated progression of the partial thickness tear. The orthopedic specialist recommended subacromial decompression surgery and the worker agreed to proceed with the surgery.

Review Office requested a WCB medical advisor review the worker’s file and the report from the orthopedic specialist. On February 4, 2020, the medical advisor provided an opinion that the new medical information did not support a finding that the workplace accident materially changed the worker’s pre-existing condition and funding for the proposed surgery should not be approved. On February 7, 2020, Review Office determined the worker was not entitled to further benefits, relying on the opinion of the WCB orthopedic consultant, and concluded the worker had recovered from the effects of their December 30, 2017 workplace accident and their current shoulder difficulties were not related to the accident.

The worker filed an appeal with the Appeal Commission on February 13, 2020. A videoconference hearing was arranged for January 20, 2021.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB Board of Directors.

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 the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker provided evidence in response to questions posed by the worker advisor and by members of the appeal panel. The worker advisor made an oral submission to the panel and relied upon a written submission provided to the panel in advance of the hearing.

The worker’s position, as outlined by the worker advisor is that the worker had not recovered from the traumatic rotator cuff tearing caused by the workplace accident at the time that the WCB indicated it would no longer accept responsibility for the right shoulder injury. In support of this position, the worker advisor noted the photographs submitted to the WCB provided evidence that the mechanism of injury involved a forceful blow to the worker’s shoulder area. As well, on the date of injury the emergency room physician noted suspicion of a rotator cuff injury. Further, the fact the worker was referred to a sport medicine specialist one week after the accident, suggests the worker’s treating physician believed the injury to be more significant than a minor soft tissue injury or strain/sprain type of injury.

The worker advisor also noted that when the worker was assessed by a sports medicine physician on February 8, 2018, the physician concluded the worker’s presentation was most consistent with either impingement or a tear of the rotator cuff. The MRI of September 11, 2018 confirmed the diagnosis of rotator cuff tearing and the opinion of the sport medicine physician of June 21, 2019 directly relates this tear to the worker’s compensable accident.

Regarding the WCB medical advisor’s opinion that the worker’s injury was more likely an aggravation of a pre-existing rotator cuff tear, the worker advisor suggested that if the workplace accident was capable of aggravating a pre-existing rotator cuff tear it was likely also capable of causing “acute-on-chronic tearing.” The worker advisor also noted that the WCB medical advisor relied upon the fact that there was no pre-accident MRI to compare against the post-accident MRI findings as the basis for the conclusion that the workplace injury did not structurally alter the worker’s pre-existing rotator cuff tearing. But the worker advisor suggested this lack of pre-accident MRI findings rather indicates the worker had no prior history of right shoulder difficulties that would have necessitated obtaining such a study prior to this accident.

The worker advisor argued that in the absence of clear MRI findings to confirm whether the accident caused acute rotator cuff tearing, the panel should rely upon the medical findings from the treating professionals as outlined above. Further, the worker advisor stated the evidence supports that the worker did not recover from the effects of that injury following the September 2018 pain medication injection, but rather experienced a period of temporary relief of symptoms that ultimately reappeared in or around early December 2018.

Regarding the December 2, 2019 MRI findings of progression in the worker’s rotator cuff tearing, the worker advisor noted the worker’s symptoms did not also progress between the two MRI studies but remained static, as did the worker’s shoulder function. The surgery recommended on January 17, 2020 was offered to the worker due to the decreasing symptomatic benefit obtained from the injections, rather than due to the increase in the tearing as noted in the MRI report.

In sum, the worker’s position as outlined by the worker advisor is that the evidence supports a finding that the December 30, 2017 workplace accident was the cause of the worker’s partial rotator cuff tearing and as such, the worker is entitled to further benefits in relation to the December 30, 2017 accident.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The question on this appeal arises out of the WCB’s determination that the worker was not entitled to further benefits on the basis that they had recovered from the effects of the compensable workplace accident of December 30, 2017 and that the worker’s ongoing right shoulder difficulties were not related to the workplace accident. The worker’s position is that these ongoing right shoulder difficulties are a direct result of the compensable injury sustained on December 30, 2017 and that therefore there is an entitlement to further benefits arising out of that accident.

The panel’s task is to consider and determine whether the worker’s right shoulder difficulties beyond February 5, 2019 arose out of the compensable workplace accident of December 30, 2017 and if so, whether or not the worker is entitled to further compensation under the provisions of the Act.

The worker provided the panel with a vivid description of the accident and how the injury occurred. While the worker noted some difficulty with English and it was evident to the panel that there was sometimes confusion in the worker’s use of words, nonetheless, the worker was able to communicate the relevant facts to the panel effectively. The worker described to the panel that the injury occurred when the towel dispenser did not properly close after installation of a replacement towel roll, which fell out of the dispenser landing on the worker’s right shoulder, as the worker was standing on a small stepstool with arms outstretched to reach the dispenser. The worker noted that the dispenser was installed on a wall above a counter and that because of its height, as compared to the worker’s, use of a step stool was required to replace the paper towel roll.

Photos in the file of the contusion to the worker’s shoulder support the worker’s position that when the paper towel roll fell, there was significant impact to their right shoulder. The worker described the paper towel roll as a large commercial roll weighing several pounds and containing a hard, round plastic core. This shape correlates with the circular imprint noted in the photos of the bruising to the worker’s right shoulder in the days following the accident. The information on file from the employer suggests the roll weighed approximately 5 pounds.

The medical reporting from the treating professionals confirms that the worker’s injury was more than a sprain/strain type of injury that would be expected to fully resolve within months. As noted by the worker advisor, there are no clinical findings to support the WCB medical advisor’s conclusion that the worker’s right shoulder difficulties in late 2018 were the result of a pre-existing degeneration of the worker’s right shoulder.

There is evidence from the worker that they did not experience any right shoulder issues prior to the accident of December 30, 2017 and that there were no functional limitations in completing their work duties before that date. While there may have been pre-existing rotator cuff tearing, the evidence supports that prior to the accident, the worker’s shoulder was asymptomatic and not in any way impacting their functional abilities, whereas, afterwards, the medical reporting confirms a continuous report of right shoulder pain, with the exception of those periods of time following the administration of pain medication to the worker’s right shoulder by injection.

Even if there was a pre-existing tear to or degeneration of the worker’s rotator cuff as posited by the WCB medical advisor, the panel would expect that such a pre-existing condition would increase the likelihood that a traumatic impact injury to the worker’s right shoulder as sustained on December 30, 2017 would result in further damage or tearing. Although the WCB medical advisor did agree that the pre-existing, non-compensable rotator cuff condition was aggravated by the workplace accident, the medical advisor went on to conclude that the aggravation was resolved by late 2018.

With respect to the pain medication injections, the worker confirmed that these were effective in reducing pain, beginning approximately one week after the injection was provided and for a few months afterward but that the effectiveness would begin to wane after that time and ultimately the pain would fully return. The worker confirmed to the panel that beginning in February 2018, these injections were administered to her by the treating sport medicine physician approximately each 3 months. As noted by the orthopedic surgeon in January 2020, the effectiveness of this treatment was diminishing over time.

The panel agrees with the position put forward by the worker advisor that the successful treatment of the worker’s pain symptoms with injection medication is not the same as successful treatment of the worker’s injury and does not equate to recovery from that injury.

The panel finds there is a lack of evidence to support the medical advisor’s conclusion that there was any improvement or recovery from the injury sustained in the workplace accident apart from evidence of temporary improvement related to the effects of the quarterly pain medication injections administered to the worker after the accident, beginning in February 2018. The panel therefore concludes that if the worker’s right rotator cuff condition was pre-existing and asymptomatic prior to the accident, it was enhanced by the workplace accident.

Further, the panel accepts the evidence of the orthopedic surgeon that the surgical repair of the worker’s right rotator cuff was related to and arose out of the compensable accident of December 30, 2017, although we take no position with respect to the other aspects of the surgery undertaken on June 11, 2020. The panel accepts the opinion of the orthopedic surgeon that the conservative treatment options were no longer providing adequate relief to the worker and therefore the surgical repair of the worker’s rotator cuff tear was necessary.

The evidence before the panel supports a finding that as a result of the required surgical repair of the rotator cuff injury, the worker required further medical aid and experienced a loss of income earning capacity.

On the basis of the evidence before us, and on a standard of a balance of probabilities, the panel therefore determines that at the time that the WCB terminated the worker’s benefits, the worker had not recovered from the rotator cuff tear, which was caused by, or enhanced by the workplace accident. The worker is therefore entitled to further benefits in relation to the December 30, 2017 accident.

The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of February, 2021