The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his left shoulder difficulties and that he is not entitled to wage loss benefits after November 14, 2014. A videoconference hearing was held on April 13, 2021 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for the worker's left shoulder difficulties as being a consequence of the May 29, 2009 accident; and

2. Whether or not the worker is entitled to wage loss benefits after November 14, 2014.

Decision

1. That responsibility should not be accepted for the worker's left shoulder difficulties as being a consequence of the May 29, 2009 accident; and

2. That the worker is not entitled to wage loss benefits after November 14, 2014.

Background

The worker has an accepted WCB claim for an injury to his right shoulder that occurred while lifting a motor at work on May 29, 2009. The worker was diagnosed with a right rotator cuff tear involving both the supraspinatus and infraspinatus tendons, and underwent right shoulder arthroscopy with rotator cuff repair on October 19, 2009.

At a follow-up appointment on October 18, 2010 for his right shoulder surgery, the worker reported to the treating orthopedic surgeon that he had increasing pain and weakness in his left shoulder. The surgeon queried whether the worker had a left rotator cuff tear and referred the worker for an MRI. An MRI of the worker's left shoulder was performed March 9, 2011 and indicated a "Moderate-large full thickness rotator cuff tendon tear complicated by retraction and atrophy."

The worker saw his treating orthopedic surgeon for re-assessment on November 2, 2012, at which time the surgeon recommended against further surgery on the worker's right shoulder, but recommended left shoulder arthroscopy with rotator cuff repair, which surgery took place on December 31, 2012.

On January 2, 2014, the worker underwent revision rotator cuff repair surgery on his right shoulder for a recurrent full thickness rotator cuff tear. On November 10, 2014, in response to an inquiry from the WCB with respect to the worker's left shoulder difficulties, the worker's treating orthopedic surgeon noted that the worker had no loss of function for day-to-day activities with his left shoulder, but he recommended permanent restrictions of no heavy or repetitive lifting away from the body overhead and all work to be done below shoulder level within the body envelope for the worker's left shoulder. The surgeon noted that no further medical treatment was planned for the left shoulder and the worker would have reached maximal medical improvement in that shoulder as of December 31, 2013, being 12 months after the surgery.

On November 14, 2014, the WCB advised the worker that the medical information obtained supported his current disability was related to his right shoulder compensable injury and he could be eligible for wage loss benefits. The worker advised the WCB, however, that he wanted to consider his options with respect to continuing to receive disability payments from his employer's disability insurer.

On March 27, 2018, the worker's union representative requested that the WCB compensate the worker for his time loss as a result of the rotator cuff repair surgery on his left shoulder in 2012. Included with that request was a copy of an October 24, 2017 letter from the worker's treating orthopedic surgeon who opined that while a specific mechanism of injury was not noted for the worker's left shoulder injury, his job duties required significant manual tasks which the WCB had acknowledged could cause rotator cuff tears as evidenced on the right side. The surgeon further opined that it was "…within reason that these activities could also cause the same type of pathology on his left shoulder. In fact, with that type of manual work, it is not infrequent to see similar injuries on both sides."

On May 9, 2018, the WCB spoke to the worker with respect to his left shoulder claim. The worker advised that he returned to work on light duties two months after his 2009 right rotator cuff surgery, and started to experience difficulties with his left shoulder a couple of months later, as he was using his left shoulder and arm to compensate for his right shoulder. It was noted that the worker said he made complaints to his employer regarding his left shoulder, but continued working until he resigned from his job just prior to his left shoulder rotator cuff repair surgery on December 31, 2012, after which he was receiving disability benefits from his employer's disability insurer. The WCB advised the worker that they would request more information with respect to his left shoulder. On July 25, 2018, the WCB received a copy of the worker's disability claim file regarding his left shoulder from the employer's disability insurer.

On December 12, 2018, the worker's file was reviewed by a WCB medical advisor. The WCB medical advisor opined that based on the March 9, 2011 left shoulder MRI, the diagnosis was of a left large rotator cuff tear involving the supraspinatus and leading edge of the supraspinatus muscle tendon. It was noted that moderate atrophy and grade II fatty infiltration were documented which would suggest that the tear was older or chronic. The medical advisor noted it appeared from the employer's disability insurer's review, that it was established the worker's left shoulder condition was not work-related and was "…a chronic condition building over many, many years."

The WCB medical advisor further opined that the worker's compensable right shoulder rotator cuff tear treatment would not have materially resulted in a rotator cuff tear in the worker's left shoulder. The medical advisor stated that it was anticipated that recovery from the left shoulder rotator cuff repair surgery would have occurred over a six to nine month period. On December 17, 2018, the WCB advised the worker that after reviewing his file, they had determined his left shoulder difficulties were not medically accounted for in relation to his May 29, 2009 right shoulder compensable injury and he was not entitled to benefits in relation to his current left shoulder condition.

On January 17, 2019, the worker's union representative requested that Review Office reconsider the WCB's decisions. On March 1, 2019, the worker's file was returned to the WCB's Compensation Services for further review. On April 3, 2019, the worker was advised there would be no change to the earlier decision that responsibility for the worker's left shoulder difficulties would not be accepted.

On April 24, 2019, the WCB received a submission from the worker's union representative requesting the WCB cover additional losses the worker had suffered in relation to his right shoulder compensable injury. On June 10, 2019, the WCB advised the worker that his entitlement to further benefits in relation to his right shoulder would be reviewed by a WCB medical advisor. On June 11, 2019, the WCB advised the worker that the recovery from his second right shoulder surgery on January 2, 2014 was expected to be in the range of six to nine months, and that they would have expected him to return to modified duties, which the employer confirmed they could accommodate, approximately six weeks after the surgery. The WCB advised the worker that as information on file indicated he could not go back to work during that time period because of his non-compensable left shoulder condition, he was not eligible for wage loss benefits relating to his second right shoulder surgery.

On August 4, 2019, the worker's union representative requested that Review Office reconsider the WCB's decision. On October 7, 2019, Review Office determined that the worker was entitled to further wage loss benefits as of January 2, 2014 and returned the file to the WCB's Compensation Services to determine the duration of wage loss benefits beyond January 2, 2014. On October 15, 2019, the WCB advised the worker that the decision letter of June 11, 2019 noted the worker would have been expected to return to work on modified duties approximately six weeks post-surgery, and he was therefore entitled to wage loss benefits from January 2, 2014 to February 13, 2014.

On August 4, 2020, the worker's representative requested that Review Office reconsider the WCB's decisions that responsibility for the worker's left shoulder difficulties was not accepted and that the worker was not entitled to benefits after February 13, 2014. With his request for reconsideration, the representative submitted a letter dated March 13, 2020 from a physician with an interest in occupational medicine.

On September 23, 2020, Review Office determined that the worker's left shoulder condition was not compensable and that the worker was entitled to wage loss benefits to November 14, 2014. With respect to the worker's left shoulder difficulties, Review Office agreed with the opinion of the WCB medical advisor that the diagnosis concordant with the March 9, 2011 MRI was a left large rotator cuff tear and that the documented moderate atrophy and fatty infiltration suggested the tear was older or chronic. Review Office also noted the information on file indicated the worker could do pretty well what he wanted to do and was not physically over-exerting himself at the time his left shoulder became more symptomatic. Given the pre-existing degenerative condition of the left shoulder, Review Office found that the worker's left shoulder condition was not predominantly attributable to the compensable injury and was not acceptable.

With respect to wage loss benefits, Review Office found the worker was entitled to such benefits beyond February 13, 2014, as they could not establish the worker would have been accommodated by the employer by that time. Review Office found the file evidence supported that by November 14, 2014, the worker was capable of modified duties but declined to participate in a return to work or to pursue a return to work with the WCB, electing instead to remain on his employer's disability insurance. Review Office determined that the worker removed himself from a loss of earning capacity directly related to the workplace accident at that time, and was therefore not entitled to wage loss benefits beyond that date.

On November 5, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference 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 4(2) provides that 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.

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 44.10.80.40, Further Injuries Subsequent to a Compensable Injury. The Policy applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides, in part, 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… 

Worker's Position

The worker was assisted by a union representative, and submitted a large collection of materials, with handwritten notations thereon, in advance of the hearing. The worker and his representative each made a presentation at the hearing, and responded to questions from the panel.

The worker's position was that the WCB should accept responsibility for his left shoulder difficulties as being a consequence of his May 29, 2009 workplace accident and injury and that he is entitled to wage loss benefits from November 14, 2014 through to his retirement on March 14, 2016.

The worker confirmed that his right shoulder injury occurred while he was lifting a motor. He said his left shoulder injury came on very slowly after that, when he started back to work following his right shoulder injury. The worker submitted that he was pressured to go back to work very soon after his right shoulder surgery by the WCB and the employer, and as a result, he returned to work. The worker said he had been working for the company for a long time. He was one of the top employees in his department, and knew the facility and how to do any job in the plant.

The worker said that when he went for surgery on his left shoulder, he did not choose to go on disability benefits through the disability insurer. He said he did not have any experience in this regard, and the employer encouraged or pressured him to go on disability, even though the injury happened at work.

The worker noted that after the second right shoulder surgery, when the WCB said he was not entitled to wage loss benefits as he was already off work for a non-compensable left shoulder injury, he said no, that his left shoulder was injured at work. He submitted that there was no other work or activity that would have caused the injury, but the WCB did not want to do anything.

The worker said that when he was subsequently asked in November 2014 if he wanted to go back on WCB, he requested further information but it was never provided. He said he tried to get in touch with the WCB, but the case managers were continually changing, and he did not receive responses or information from the WCB.

The worker submitted that he is still handicapped, and is unable to do such basic things as even combing his hair. He said he was scheduled for a third surgery for his right shoulder, which was cancelled due to the pandemic, and was being rescheduled.

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 difficulties as being a consequence of the May 29, 2009 accident.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the cause of the worker's left shoulder difficulties is predominantly attributable to his May 29, 2009 compensable injury. The panel is unable to make that finding, for the reasons that follow.

The worker has argued that his left shoulder injury or condition was caused by overuse of that shoulder following his return to work starting November 24, 2009, less than two months after his first right shoulder surgery. The worker stated that he had to use his left arm more to compensate for his right arm and that the left arm had to do more work that it was accustomed to.

The panel carefully questioned the worker at the hearing with respect to his work duties. The panel is not satisfied that the use of the worker's left arm or shoulder to perform his duties or his movements, as described, on file and at the hearing, would have caused the worker's left shoulder injury. The panel notes that the worker was performing light or sedentary duties, with reduced hours, on his return to work, and the evidence does not indicate that he was overexerting himself between the time of his return to work and the time his left shoulder became symptomatic.

The panel further notes that information on file indicated the worker could work at his own pace and do what he felt he could do. In a memorandum of a conversation with the worker on January 21, 2010, it is noted that the worker stated that "He watches what he does and only does what he can." In a further memorandum to file of a conversation between the worker and the case manager on March 31, 2010, it is documented that the worker stated that "He runs the department so he can do pretty much what he wants to do. If he doesn't want to do any physical work one day, he won't. He does paper work and doesn't push himself if it hurts."

The panel is unable to place weight on the October 24, 2017 opinion from the treating orthopedic surgeon. The panel notes that in providing that opinion, the surgeon stated that he could not confirm the worker's "…stated description as to the mechanism of injury or cause of his left shoulder pain" and that it would therefore "…be impossible to give a definitive answer as to the cause of his rotator cuff tear this many years after the fact." While the surgeon went on to state that the job required "significant manual task" and that it was "certainly well within reason that these activities could also cause the same type of pathology on his left shoulder" as on the right side, the surgeon's opinion in this regard is speculative and not supported by evidence. Moreover, the mechanism of injury for the right and left shoulder injuries is not the same, with the right shoulder injury being advanced as a cumulative or repetitive injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the cause of the worker's left shoulder difficulties is not predominantly attributable to his May 29, 2009 compensable injury. The panel therefore finds that responsibility should not be accepted for the worker's left shoulder difficulties as being a consequence of the May 29, 2009 accident.

The worker's appeal on this issue is accordingly dismissed.

Issue 2: Whether or not the worker is entitled to wage loss benefits after November 14, 2014.

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 further loss of earning capacity after November 14, 2014 as a result of his May 29, 2009 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The information on file supports that the worker continued to struggle with recovery from his January 2, 2014 right shoulder surgery in September 2014, and that further surgery for the worker's right shoulder was being contemplated at that time. A medical report from the worker's treating orthopedic surgeon dated November 4, 2014 indicated that the worker was thinking he wanted to avoid another procedure if possible and would continue current duty modification at work.

The panel is satisfied, based on the evidence, that as at November 14, 2014, the worker was capable of participating in modified duties at work. The panel is further satisfied that the worker had declined to participate in modified duties through the WCB, and had elected to remain on disability benefits.

In this regard, the panel notes that in a memorandum to file of a telephone conversation with the worker on November 14, 2014, the case manager noted that she had discussed with the worker that he was eligible for wage loss benefits which could be extended to him, but that he wanted to think about this and look into it and get back to the case manager. In a letter dated December 5, 2014, the case manager confirmed that she understood from the November 14, 2014 telephone conversation that the worker was not certain he wished to cancel the disability benefits he was receiving through his benefits plan from work in order to receive wage loss benefits, and that he wished to discuss this with others. The case manager went on to state that she understood that "…should you decide to receive WCB benefits that you will contact me."

In a subsequent note to file on December 15, 2014, the case manager indicated that the worker had asked to have his updated benefit rate calculated and given to him, and he would then decide if he was going to go back on WCB. The panel acknowledges that based on the information on file and the worker's evidence at the hearing, it does not appear that such a calculation was provided to the worker. The panel also notes, however, that there is an absence of any indication on file that the worker followed up on his request or further communicated with the WCB until February 10, 2017, when the worker's representative requested a copy of the worker's file. The panel recognizes that the worker commented at the hearing that he attempted to contact the WCB, but notes, as indicated above, that the information on the file does not support that assertion. In the circumstances, the panel is of the view that there is no satisfactory explanation as to why the worker did not pursue that request or contact the WCB for a period of more than two years.

In conclusion, and based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity after November 14, 2014 as a result of his May 29, 2009 workplace accident. The worker is therefore not entitled to wage loss benefits after November 14, 2014.

The worker's appeal on this issue is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of June, 2021