Decision #38/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility was not accepted for the worker's current bilateral shoulder difficulties as being a consequence of the October 6, 1993 accident. A teleconference hearing was held on October 15, 2020 to consider the worker's appeal.
Whether or not responsibility for the worker's current bilateral shoulder difficulties should be accepted as being a consequence of the October 6, 1993 accident.
Responsibility should be accepted for the worker's current left shoulder difficulties as being a consequence of the October 6, 1993 accident.
This claim has been the subject of three previous appeals. Please see Appeal Commission Decision Nos. 196/97, dated August 29, 1997, 48/07, dated April 10, 2007 and 88/08, dated July 22, 2008. The background will therefore not be repeated in its entirety.
The worker has an accepted claim for compound bilateral ankle fractures and an L4 compression fracture as the result of a workplace accident that occurred on October 6, 1993. After the workplace accident, L5-S1 disc herniations and a right shoulder rotator cuff tear were also determined to be compensable. The worker underwent surgical repair of the right rotator cuff tear on May 9, 2018.
Due to a failed ankle fusion surgery in 2017, the worker underwent a further fusion surgery with a bone graft on June 10, 2019. On July 5, 2019, the worker contacted the WCB to advise while on his way to a follow-up appointment with the orthopedic surgeon on July 3, 2019, he injured his left shoulder. He described “…I was travelling quickly down the hallways at the clinic in my wheelchair and heard a snap/click in my left shoulder and it stopped me in my tracks. Pain then ensued and I then proceeded very slowly to my appointment.” On July 23, 2019, the worker advised the WCB that he had an appointment with his family physician on July 16, 2019 and noted that both his right and left shoulders were sore as a result of the July 3, 2019 incident. An x-ray of the worker’s left shoulder taken on July 16, 2019 revealed no changes since an x-ray taken in November 2017. The worker was then referred for an MRI study.
The WCB requested information regarding the July 3, 2019 incident from the clinic that the worker attended and on July 26, 2019, the clinic advised the WCB no incident was reported.
On August 1, 2019, the worker attended an appointment with the orthopedic surgeon who performed the right shoulder rotator cuff repair in May 2018. The surgeon noted the worker’s report of injuring his right shoulder on July 3, 2019 and having pain with overactivity on the right side since that time. The orthopedic surgeon found the worker had “…full forward elevation of his shoulder with a somewhat painful arc. He has a positive Hawkins’ test, equivocal Jobe’s test and negative Speed’s test.” The surgeon opined the worker’s rotator cuff was functioning well but with evidence of subacromial bursitis and recommended the worker do range of motion and strengthening exercises. An x-ray of that date revealed minimal osteoarthritic changes at the glenohumeral and acromioclavicular joints, with no acute bone or joint abnormalities identified.
On August 9, 2019, the WCB spoke to another worker at the clinic the worker attended on July 3, 2019. The clinic worker advised the worker did not mention any complaints regarding either shoulder or that an incident occurred and noted the worker was comfortable when he left and able to use the wheelchair on his own. The clinic worker further noted that had an incident occurred, the clinic was required to make a report immediately.
The WCB advised the worker on August 9, 2019 that responsibility would not be accepted for injury to the worker’s right and left shoulders as the medical evidence did not support a secondary injury occurred while in the course of treatment provided by the WCB.
On November 26, 2019, the worker underwent an MRI study on his left shoulder. The MRI indicated a “Large rotator cuff tear with full-thickness, full-width tears of the supraspinatus and tendinous portion of the subscapularis tendons. The tear extends into the infraspinatus tendon as a full-thickness, partial-width tear. Mild to moderate atrophy of the subscapularis and infraspinatus muscles with mild atrophy of the supraspinatus muscle.”
The worker requested reconsideration of the WCB’s August 9, 2019 decision to Review Office on December 16, 2019. In the accompanying submission, the worker provided a chronology of the events of July 3, 2019 and noted experiencing pain in both shoulders as a result. The worker provided additional information to Review Office on December 21, 2019. On February 10, 2020, the employer’s representative provided a submission in support of the WCB’s decision, and the worker provided a response on February 19, 2020 and February 24, 2020, copies of which were provided to all parties.
Review Office determined on February 27, 2020 that the worker’s current bilateral shoulder difficulties were not compensable. Review Office found the evidence did not support the worker sustained a further injury on July 3, 2019 as the worker delayed in reporting the injury to the WCB and was inconsistent in his reporting of the injury, initially reporting a left shoulder injury then reporting bilateral shoulder difficulties. Review Office further found the medical evidence supported that the worker had a history of degenerative conditions in his shoulders unrelated to the July 3, 2019 incident.
The worker filed an appeal with the Appeal Commission on March 23, 2020. A teleconference hearing was arranged for October 15, 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 March 4, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy:
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.
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.
The WCB's Board of Directors has established WCB Policy 126.96.36.199, Pre-existing Conditions (the "Pre-X Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Pre-X 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.
The WCB has also established Policy 188.8.131.52, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) to address how a separate injury that is not a recurrence of the original compensable injury will be dealt with where there may be a causal relationship between the further injury and the original compensable injury. This policy sets out 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.
A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.
The administrative guidelines to the Policy clarify that the WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury.
The worker appeared in the hearing on their own behalf, providing an oral submission and answers to questions posed by members of the appeal panel.
In the hearing, the worker clarified to the panel that they are not pursuing the appeal of the WCB’s determination with respect to right shoulder difficulties arising out of the July 3, 2019 incident and therefore the worker’s submission addressed only the current left shoulder difficulties.
The worker’s position is that they incurred a left shoulder injury in the course of attending for medical treatment arising out of the compensable accident and therefore the WCB should accept responsibility for their left shoulder difficulties as a consequence of the October 6, 1993 accident.
The worker confirmed to the panel the details of the July 3, 2019 incident at the medical clinic, outlining that it occurred in the course of hurrying to get to a follow-up appointment regarding their recent ankle surgery. At the time, the worker was using a manual wheelchair to travel through the clinic when they heard a “pop and a snap” in the left shoulder that caused the worker to stop awhile before proceeding onward to the appointment.
The worker explained to the panel that there was immediate pain in their left shoulder. The worker noted no one was present when this occurred but that they related the incident to clinic staff, and commented that although clinic staff were made aware, the worker had no control over whether or not any note or record is made of what was said. Further, the worker described that clinic staff later provided help in travelling to the x-ray department and back to the waiting room.
The worker confirmed that the injury was reported to the WCB within days after it occurred and mentioned to treating physicians, as noted in the medical records. The worker’s position is that this injury occurred as a direct result of the June 10, 2019 surgical treatment for the compensable ankle injury which necessitated the worker use and rely upon a manually-operated wheelchair during the recovery period, in that the injury resulted from the worker’s operation of the wheelchair while on the way to attend a post-surgical follow up appointment. Therefore, there is a causal relationship between the compensable injury and the further injury.
The worker acknowledged there is evidence of pre-existing left shoulder degeneration but noted that before this incident the left shoulder was not symptomatic whereas afterwards, it was increasingly painful as confirmed by the reporting to the worker’s treating physicians.
In sum the worker’s position is that the WCB should accept responsibility for the left shoulder difficulties as being related to the accident of October 6, 1993 and the appeal should be granted.
The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and addressed questions posed by members of the appeal panel.
The employer’s position is that there is no substantive evidence to support the worker’s claim of injury sustained on July 3, 2019, noting however that there is evidence that the worker had long-standing and significant pre-existing left shoulder difficulties unrelated to the compensable workplace accident of October 6, 1993.
The employer’s advocate noted that there is no corroborating evidence to confirm the worker was injured on July 3, 2019, pointing to the fact that the medical clinic where the incident purportedly occurred has no record of it and the worker did not seek any medical attention related to the purported acute injury until some two weeks later.
The employer’s position is that the worker’s left shoulder complaints do not amount to a “further injury subsequent to a compensable injury” but rather are related to the worker’s pre-existing and longstanding shoulder difficulties. The further medical information provided by the treating family physician supports this position in that the physician does not follow up with the WCB to relate the left shoulder complaints in July 2019 to the compensable workplace accident.
The employer relied upon the November 28, 2018 opinion of the WCB medical advisor that the worker’s left shoulder difficulties are not accounted for in relation to the compensable injury. This is supported by an August 9, 2018 medical report noting a “bothersome” left shoulder for several years previous as well as an x-ray of August 9, 2018 indicating mild osteoarthritic changes and underlying rotator cuff tendon pathology in the worker’s left shoulder.
The employer also relied upon the January 22, 2020 opinion by a second WCB medical advisor that the worker’s left shoulder difficulties are unrelated to the worker’s compensable workplace injuries, noting the prior MRI showing a full width rotator cuff tear, a history of left shoulder symptoms, and the November 2019 MRI identifying progression in tearing from the previous study. The employer’s advocate noted that such progression is anticipated where there is significant degeneration, as demonstrated by the 2018 MRI.
Further, the employer’s advocate argued that the degree of left shoulder degeneration and tearing as evidenced by the MRI of November 26, 2019 could not have arisen out of the mechanism of injury described by the worker. The further medical information provided by the treating orthopedic surgeon indicates that it would be “unusual” for the mechanism of injury described by the worker “to cause such an extensive tear of the rotator cuff.” This further supports the employer’s position that this was clearly a pre-existing condition that is not compensable or related to the workplace injury of October 6, 1993.
For these reasons, the employer states that the worker’s appeal should not be granted, and the appeal panel should uphold the decision of the Review Office that the worker’s current shoulder difficulties are not related to the accident of October 6, 1993.
The issue on appeal is whether or not the WCB should accept responsibility for the worker’s current bilateral shoulder difficulties as a consequence of the October 6, 1993 accident; however, the panel noted the worker’s confirmation in the course of the hearing that they are not pursuing the appeal in respect of right shoulder difficulties. The panel’s decision and these reasons are therefore focused only on the question of whether or not the WCB should accept responsibility for the worker’s current left shoulder difficulties as a consequence of the October 6, 1993 accident.
For the worker’s appeal to be granted, the panel would have to determine that the worker’s current left shoulder difficulties are causally connected to the compensable workplace injuries sustained on October 6, 1993, and more specifically, are a compensable further injury occurring subsequent to the compensable injury. As set out in the reasons that follow, the panel was able to make such a determination.
The Further Injuries Policy provides that a further injury occurring subsequent to a compensable injury is compensable in circumstances that include when the further injury arises out of a situation over which the WCB exercises direct specific control, or the further injury arises out of the delivery of treatment for the original compensable injury. Applying the Further Injuries Policy, it follows that if the panel finds that the worker injured their left shoulder arising out of attending for delivery of treatment of the original compensable injury, then the left shoulder injury is compensable.
It is clear from the evidence before the panel that the worker was using a wheelchair as a direct result of the treatment of a compensable ankle injury related to the accident of October 6, 1993. It is also uncontroverted that the worker was attending the medical clinic on July 3, 2019 for an appointment related to treatment of the compensable ankle injury.
The worker claims injury to their left shoulder arose out of an incident they reported to the WCB on July 5, 2019, that occurred on July 3, 2019 as the worker was on the way to a medical appointment. The worker stated in their report to the WCB that while travelling in a wheelchair “quickly down the hallways at the clinic” there was a “snap/click” in the left shoulder that caused the worker to stop and immediately caused pain in the left shoulder.
Although there is no record of the worker reporting this incident in the medical clinic notes or files, the panel noted the file record does indicate the worker reported the incident to the WCB occupational therapist the next day. The occupational therapist’s July 4, 2019 notes of that conversation indicate:
“Of note, worker reports that when mobilizing down the hallway at [the medical clinic] (in [their] manual w/c [wheelchair], for [their] follow up appt. on July 3 [they] felt/heard a snap in [their] left shoulder. [They] stated [they] stopped for a moment and rested and then continued to [their] appt. [They] stated [they plan] to follow up with [their] family physician for further assessment.”
The next day, on July 5, 2019, the worker also reported the incident to the WCB case manager by email, describing that it “stopped me in my tracks” and that “pain then ensued.... In very much pain yesterday and today.” The worker subsequently also reported the incident to their treating medical professionals as noted in their reports.
Notably, the worker’s recounting the mechanism of injury and resulting symptoms is consistently reported and aligns with the worker’s evidence before the appeal panel as well.
The employer suggests that the fact that the medical clinic has no record of any such incident despite the worker’s statement that clinic staff were told about it means it did not occur, as medical staff are trained to make note of such information. While the panel agrees that medical staff are trained to take note of relevant information, the fact that it was not recorded in this instance is only confirmation of the fact no record was made and is not evidence that the incident did not occur. In the course of a busy clinic practice, the panel accepts that it is possible a patient’s comment about such an incident might not be specifically noted in the patient’s chart.
Based upon the worker’s consistent reporting of the mechanism of injury and the prompt reporting of the incident to the WCB, both on July 4, 2019 to the WCB occupational therapist and on July 5, 2019 to the case manager, the panel is satisfied, on a balance of probabilities, that the incident the worker described took place and that the circumstances of this incident are that it took place arising out of the delivery of treatment for the original compensable injury.
The panel must then consider and determine whether as a result of the incident on July 3, 2019, there was a further injury. If there was, it is compensable as a further injury arising out of the delivery of treatment for the original compensable injury.
The panel noted that the medical reporting suggest there was a subsequent worsening of the worker’s left shoulder symptoms after the date of the reported incident. While the July 16, 2019 x-ray of the worker’s left shoulder indicated no significant changes since a previous x-ray in November 2017, the treating family physician’s chart notes confirm findings of pain and reduced range of motion in the worker’s left shoulder at a July 18, 2019 visit. Notably, in the notes of the previous appointment on May 22, 2019, there were no left shoulder complaints noted. Chart notes from December 11, 2019 also indicate the MRI findings that the left shoulder had worsened, and that the worker is “Not able to do much” and complaining of pain. A further referral made to an orthopedic specialist is noted at that time.
The panel also noted the worker continued to raise issues regarding pain in his left shoulder arising out of this incident with other treatment providers, including on August 1, 2019 with the orthopedic surgeon who repaired the right shoulder and on September 11, 2019 with the orthopedic surgeon who repaired the worker’s ankle earlier in 2019.
The employer’s position is that the findings and symptoms are consistent with the evidence of the worker’s degenerative left shoulder condition, already identified in the March 23, 2018 MRI study report of the worker’s left shoulder, which noted a clinical history of “painful shoulder, decreased range of motion” and found a full-thickness full-width supraspinatus tear (3.0 cm) with mild muscle atrophy, intact and unremarkable infraspinatus, subscapularis and teres minor tendons and mild AC joint osteoarthritis. At that time, a degenerative posterior tear of the labrum was suspected and there was also a slight superior migration of the humeral head.
By comparison, the November 26, 2019 left shoulder MRI study found a large rotator cuff tear with full-thickness, full width tears of the supraspinatus and tendinous portion of the subscapularis tendons. The report indicated the rotator cuff tear (now approximately 5.1 cm) “extends into the infraspinatus tendon as a full-thickness, partial-width tear” and that there is also “mild to moderate atrophy of the subscapularis and infraspinatus muscles with mild atrophy of the supraspinatus muscle.” Additionally, the MRI study noted mild to moderate glenohumeral joint and moderate AC joint osteoarthritis as well as degenerative tearing of the labrum and a “high-riding” humerus.
The panel compared the MRI reports, noting that not only was there an increase in the tearing of the supraspinatus over the intervening year and a half, but there was also evidence of new tearing of the infraspinatus tendon and upward movement of the humerus. The panel accepts that the medical reporting confirms the worker had a pre-existing degenerative left shoulder condition but also notes the evidence supports a finding that this condition was not debilitating to the worker in the year prior to July 2019:
• A physiotherapy assessment of May 17, 2018 indicates the worker’s “unaffected left shoulder has documented rotator cuff tear but has reasonable active” range of motion.
• An August 9, 2018 report from the orthopedic specialist confirms the worker’s left shoulder to be “bothersome for several years worse with overhead activity” but that the worker was “still able to do [their] job despite [their] shoulder pain.” Clinical findings at that time included full range of motion in the left shoulder with a painful arc as well as positive Jobe’s, Hawkins and Speed’s tests.
• The February 19, 2019 report of the internal medicine physician to the worker’s treating family physician, indicating completion of a physical capacity analysis for the worker. The physician described that as of that date, the worker could “reach and raise both arms above [their] shoulders, as well as drive.” The report also noted the worker’s ability to lift.
• In an update report provided to the WCB on May 5, 2019, the treating family physician noted the worker was awaiting surgery to the right shoulder as well as further ankle surgery, and that the worker was using pain medication as needed. No left shoulder complaints are noted.
The employer’s representative noted that the orthopedic surgeon’s opinion of January 25, 2021 supports the employer’s view that it would be unexpected or “unusual” that this mechanism of injury would cause such an extensive rotator cuff tear, pointing to the 2018 MRI as providing evidence of pre-existing rotator cuff and long head of biceps pathology. The employer’s position is that the degree of left shoulder degeneration and tearing as evidenced by the MRI of November 26, 2019 could not have arisen out of the mechanism of injury described by the worker.
But the orthopedic surgeon goes on to note that the rotator cuff tear was “significantly smaller” in the 2018 MRI than in the 2019 MRI and that the 2019 MRI also demonstrates an upper border full thickness tear of subscapularis which was intact in 2018. Further, the orthopedic surgeon allows that it is possible that the rotator cuff tear evident in 2018:
“...propagated to involve the posterior aspect of infraspinatus and the upper aspect of subscapularis as a result of [the worker’s] aggressive mobilization in the wheelchair. That said, it is difficult for me to say with certainty whether the injury in the wheelchair caused the propagation of [the worker’s] tear, but there has obviously been enlargement of the tear between the time of these two MRI scans.”
Taking into account the January 25, 2021 opinion of the treating orthopedic surgeon and considering the worker’s evidence of the mechanism of injury, as well as the reported exacerbation of left shoulder symptoms after July 3, 2019, the panel accepts, on a balance of probabilities, that the worker’s pre-existing degenerative left shoulder condition was enhanced as a result of the incident of that date.
The panel therefore finds, on a balance of probabilities, that the worker’s July 3, 2019 left shoulder injury arising out of the use of the wheelchair is a further injury arising out of the delivery of treatment for the original compensable injury and as such is compensable under the provisions of the Further Injuries Policy.
Responsibility should be accepted for the worker's current left shoulder difficulties as being a consequence of the October 6, 1993 accident. The worker’s appeal is allowed.
K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of March, 2021