Decision #49/22 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their current right shoulder difficulties are not related to the January 22, 2008 accident. A videoconference hearing was held on April 7, 2022 to consider the worker's appeal.

Issue

Whether or not the worker’s current right shoulder difficulties are related to the January 22, 2008 accident.

Decision

The worker’s current right shoulder difficulties are related to the January 22, 2008 accident.

Background

The WCB accepted the worker’s claim for injuries to their chest and shoulder sustained on January 22, 2008 when they fell approximately 24 feet off a roof into a garbage bin. The worker was taken by ambulance to a local emergency room, complaining of pain in their right rib and flank area. The following day, the worker sought care from another physician who recorded complaints of shoulder, chest, and flank pain, diagnosed multiple contusions post-fall and recommended the worker remain off work. A Doctor’s First Report from the treating family physician indicated that on February 4, 2008, the worker reported difficulties with shortness of breath, chest pain, right shoulder and right leg pain. The physician noted decreased abduction in the worker’s right shoulder and recommended physiotherapy and provided a diagnosis of contusions of the right ribcage and right shoulder. On February 8, 2008, the worker attended for an initial physiotherapy assessment, reporting stiffness in their neck, sharp, burning pain to their right interscapular area and right anterior rib area, with occasional difficulty breathing and increased pain when coughing or sneezing. Upon examination, the physiotherapist provided a diagnosis of whiplash, costal sprain/strain and contused ribs, and recommended restrictions of no right arm use, not lifting, and no pushing/pulling. At follow-up on February 20, 2008, the treating family physician recommended sedentary duties.

On April 4, 2008, the physiotherapist noted the worker had returned to 75% of their pre-injury status, with right shoulder stiffness continuing in the right interscapular area. The physiotherapist recommended restrictions of no heavy lifting, no overhead work and no heavy pushing/pulling and provided that the worker could return to their regular duties on April 14, 2008.

On December 4, 2019, the worker contacted the WCB to report ongoing difficulties with their right shoulder. The worker reported they had injured their left shoulder, which caused them to use their right arm more. The worker advised they had surgery on their right shoulder in 2012 or 2013 and since that time, their right scapula had been in pain, noting “The scapula is out of line and not sitting properly it is grinding against my ribs.” The WCB contacted the worker on December 5, 2019 to gather more information and advised the worker that medical information from 2008 to 2013 would be needed.

In a report from the worker’s treating sports medicine physician received by the WCB on July 27, 2020, the physician indicated the worker’s report of ongoing posterior shoulder/scapula pain, which they attributed to their 2008 workplace injury. The physician noted the worker underwent a right shoulder scope for a labral tear in 2013 and that the worker had “right residual post injury, scapulothoracic dysfunction/fibrosis”. The physician referred the worker to a neurologist for assessment of possible post-traumatic neuropathy.

A WCB medical advisor reviewed the worker’s file on August 19, 2020, including the worker’s other WCB claims and provided an opinion that the worker’s current right shoulder difficulties could not be medically accounted for in relation to the January 22, 2008 workplace accident.

The worker saw the neurologist on August 27, 2020 for nerve conduction studies on their right shoulder. On examination of the worker, the neurologist stated the nerve conduction study indicated the worker had a “…long thoracic neuropathy…” with respect to their shoulder.

The WCB medical advisor again reviewed the worker’s file on September 30, 2020, including the nerve conduction study report, and offered an opinion that it was probable the January 22, 2008 workplace accident “…caused the partial neuropathy of the right long thoracic nerve.” The WCB medical advisor recommended a course of physiotherapy, involving a shoulder exercise program in relation to the workplace injury.

A Physiotherapy Progress Report for the worker’s appointment on October 26, 2020 indicated the worker was still experiencing pain between their right scapula and thoracic spine, with sharp pain in their right lower ribs with deep breaths. The worker also reported their strength and scapular control was improving. On November 9, 2020, the WCB wrote to the worker’s treating orthopedic surgeon to request a referral to a pain management physician for the worker due to the ongoing pain in their right shoulder.

The worker’s treating orthopedic surgeon provided a report to the WCB on November 9, 2020. The surgeon performed a clinical examination of the worker and recommended an MRI study to determine further treatment. On December 16, 2020, the orthopedic surgeon provided a referral to a pain management physician for the worker’s chronic right shoulder pain. When the worker attended for assessment with the pain management physician on December 21, 2020, the physician noted they had treated the worker previously for another non-related injury and that the worker reported their right scapula and upper arm pain as most severe, describing it as burning but the pain did not radiate into their right hand. Further, the physician noted the worker’s reported constant pain aggravated by almost all activities involving their shoulders and arms. On examination, the pain management physician noted the worker had full range of movement during flexion and extension at their shoulder joints, with abduction limited to approximately 100 degrees on the right side. The physician recommended injections for pain while awaiting the results of the pending MRI study and that the worker speak to their treating family physician regarding their pain medication.

On January 7, 2021, the worker contacted the WCB to discuss their entitlement to further physiotherapy. The worker disagreed with the WCB’s decision they were not entitled to further treatment and on January 8, 2021, spoke to their WCB case manager’s supervisor. The WCB supervisor reviewed the worker’s claim as well as the worker’s other WCB claims made after the January 22, 2008 accident with the worker and noted there had not been consistent reporting of right shoulder difficulties since the worker returned to their regular duties in 2008. The supervisor further noted the worker’s file had been twice reviewed by WCB medical advisors, at first opining the worker’s current right shoulder difficulties were not related to the workplace accident and later, noting the diagnosis of a partial neuropathy of the right long thoracic nerve was probable based on the mechanism of injury of a contusion in the right shoulder region. The WCB supervisor advised the worker their file would be reviewed in consultation with a WCB medical advisor to determine if there was any ongoing entitlement to benefits.

The worker’s file was again reviewed by the WCB medical advisor on January 13, 2021. The medical advisor stated the nerve conduction study provided a diagnosis of a “…partial paralysis of the right serratus anterior muscle, innervated by the right long thoracic nerve” and noted “Such a lesion may be caused by a shoulder contusion or violent lifting force with the shoulder in flexion.” Further, the medical advisor outlined that “Generalized shoulder discomfort and difficulty lifting above shoulder level are typical symptoms related to the nerve injury.” The medical advisor noted that it would be unusual for a person with this diagnosis to experience full function in their shoulder with a partial or complete injury of their long thoracic nerve, and that normally, symptoms of shoulder pain and dysfunction would occur within a week of injury, with very little change over time. The WCB medical advisor also noted they had examined the worker during a call-in examination related to another of the worker’s WCB claims and stated “I carried out the usual tests for winging of the scapula and recorded them negative. That clinical observation negates a diagnosis of a complete lesion of the long thoracic nerve, but could be consistent with a partial lesion of the nerve.”

On January 13, 2021, the WCB advised the worker that it would not accept responsibility for their current right shoulder difficulties.

On February 25, 2021, the WCB received a copy of the February 9, 2021 MRI study of the worker’s right scapula indicating a normal examination, along with another copy of the December 21, 2020 report of the pain management physician recommending pain injections. On March 1, 2021, the WCB advised the worker the new information was reviewed and there would be no change to the earlier decision that there was no further entitlement.

The worker submitted a detailed chronology of their injury and treatment, along with supporting documentation, to Review Office on March 2, 2021 and requested reconsideration of the WCB’s decision. The worker submitted that they sustained the nerve injury as a result of the January 22, 2008 workplace accident and had not recovered from that injury. On April 1, 2021, the worker’s treating neurologist provided a letter in support of the worker’s request for further benefits, noting the worker’s nerve injury may not have been immediately apparent at the time of the worker’s fall, “…as it is reasonable to presume that muscle pain, rib pain after [their] fall would have contributed to pain in the same region as [their] shoulder blade and long thoracic nerve.”

On April 23, 2021, Review Office upheld the WCB’s decision and determined the worker’s recurrent right shoulder difficulties were not acceptable. Review Office accepted and agreed with the opinion of the WCB medical advisor who noted recovery from a long thoracic nerve injury would not be likely to occur, but found the evidence on the worker’s file indicated that while the worker had sustained injuries to their right shoulder both at work and in their personal time, functional recovery of those injuries had occurred and they had returned to their full regular duties until they injured their left shoulder in a work related injury in 2016. Further, symptoms or nerve issues related to a long thoracic nerve injury were not noted at the time of the workplace injury of January 22, 2008 nor in any of the worker’s other WCB claims.

On May 17, 2021, the worker submitted additional medical information and on May 18, 2021, Review Office advised the worker there would be no reconsideration of the earlier decision.

The worker filed an appeal with the Appeal Commission on October 18, 2021 and a hearing by videoconference was arranged.

Reasons

Applicable Legislation and Policy

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

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. 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. Medical aid is provided for under s 27 of the Act which 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.

Board Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (the “Recurrence Policy”) states, in part, the following:

Accidents On or After January 1, 1992

1. Prior to determining the type and amount of compensation benefits payable, the WCB must first determine whether the worker’s current loss of earning capacity is the result of a new and separate accident or a recurrence. The distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current loss of earning capacity is a consequence of the original compensable injury or illness or an intervening incident event, or exposure that contributed to the injury.

2. New Accident The WCB will consider that the current loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to a previous injury or illness. The current loss of earning capacity has no relationship to a previous injury or illness if the same body part or anatomical site as the original injury or illness is not injured or the worker's condition is not consistent with the details of the accident and the diagnosis as established in the original claim. If there was an intervening incident, event, or exposure deemed capable of either causing the injury, or aggravating a previous susceptibility to injury, the WCB will also consider the current loss of earning capacity the result of a new and separate accident.

3. Recurrence If the WCB determines that the current loss of earning capacity is not the result of a new and separate accident, then the current loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness. A recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.

Worker’s Position

The worker appeared in the hearing and made oral submissions to the appeal panel on their own behalf. The worker’s spouse also appeared in the hearing and made submissions on behalf of the worker. The worker and their spouse also answered questions posed by the appeal panel.

The worker’s position is that the evidence supports a finding that their current right shoulder difficulties, specifically the diagnosis of partial neuropathy of the right long thoracic nerve, are caused by and the result of the workplace accident of January 22, 2008 and therefore the WCB should accept responsibility for those difficulties. The worker noted that although this condition was not diagnosed until August 27, 2020 there has been a continuity of symptoms and functional limitation in respect of their right shoulder since returning to work after the initial injury, in April 2008.

The worker provided, in advance of the hearing, a chronology of their right shoulder condition since the accident of January 22, 2008 as well as documents confirming that in late 2008, while temporarily unable to work for non-compensable reasons, the worker was having difficulty sleeping on a thin mattress due to pain and further that in early 2009, the worker sought medical attention related to right shoulder pain that they related to the 2008 accident and was prescribed pain relief medication for that condition.

The worker described to the panel their approach to the physical work in their job, indicating they use their brain to determine the least physically challenging means of doing a task and further, that from the time of the injury in 2008 until they injured their left shoulder in 2016, they learned to use and rely more upon their non-dominant left arm in doing various tasks as well as making efforts to work only within their body envelope as much as possible so as to minimize stress upon their right shoulder. The worker noted that their industry of commercial roofing is much like any construction site, but above ground, and explained that roofing work mostly does not involve overhead work, with some exceptions. The worker confirmed that they worked most of the intervening years since the injury as a foreman, providing supervision and support but less involved in the most physical aspects of the trade.

The worker explained that the June 2010 bicycle accident referenced within the medical record was not serious. Although the worker obtained a medical note suggesting that they remain off work for two weeks, in fact the worker sought to return to work sooner than that and it was during this period that the worker transitioned to another employer in the same industry, working in a foreman role. The worker further explained to the panel that they fish as a hobby, using a long rod and minimal shoulder exertion is required.

The worker’s spouse outlined to the panel their experience on the date of the accident and the resulting change in the worker since that date. The spouse indicated that the worker has lived in pain since that time, while continuing to work and learning to do so relying more upon their left hand than their dominant right hand. The spouse noted that the worker’s presentation has changed with a loss of confidence since the injury. Although the worker now has a formal diagnosis as a result of the nerve testing in 2020, this hasn’t helped with the worker’s pain, which the worker continues to work at managing.

The worker testified, in response to questions posed by members of the appeal panel, that they believe they sustained injury to their left shoulder because of its increased use to compensate for the deficits in the right shoulder. The worker noted that most of their job duties did not directly affect the long thoracic nerve, as their work was not overhead and further that they modified their work to use their left hand more and to focus on close or detail work. The worker further confirmed that they are unable to lift weight outside of their body envelope.

The worker described their current right arm condition as a “lazy, tired arm”. Although strong, it fatigues easily. The worker indicated they can lift their right arm above the shoulder, but will experience clicking on bringing it back down, and noted it is exhausting to have the arm up in the air. The worker explained that their symptoms worsen with serious aggravation but are not extreme most of the time. The worker described experiencing tingling and numbness in their right little finger and nerve pain down their right arm. They noted that the treating neurologist believes that this is a partial nerve injury as there is still evidence of some signal response.

In sum, the worker’s position is that as a result of and at the time of the compensable workplace accident of January 22, 2008, in addition to the compensable contusion injuries to their right shoulder, ribs and hips, the worker also sustained traumatic injury to their long thoracic nerve resulting in partial neuropathy of that nerve which remains symptomatic and continues to limit the worker’s function. Therefore, the WCB should accept responsibility for the worker’s current right shoulder difficulties as related to the accident of January 22, 2008.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and answered questions posed by members of the appeal panel. The employer was also represented by a health and safety manager who participated in the hearing as an observer.

In advance of the hearing, the employer’s advocate submitted documents to the panel for consideration. These included a series of photographs of the worker holding fish of different sizes, dated from 2010 to 2018, obtained from a website. The submission also included job descriptions for positions the worker held with the employer.

The employer’s position is that the evidence does not support a finding that the worker’s current right shoulder condition is the result of the workplace accident of January 22, 2008 and therefore the WCB correctly determined that it should not accept responsibility for that condition.

The employer’s advocate acknowledged the worker’s 2008 injury to their right shoulder, hips, and ribs, noting these were accepted as contusion injuries but noted the worker was able to resume their regular duties in three months following that accident and had a normal recovery. The advocate referenced the WCB’s Recurrence Policy, noting that it provides that the WCB must determine whether the worker’s current loss of earning capacity is the result of a new and separate accident or a recurrence; in other words, is the current loss of earning capacity a consequence of the original compensable injury or illness or an intervening incident event, or exposure that contributed to the injury. The employer’s advocate argued that there is no evidence of a recurrence of the worker’s compensable injuries that has resulted in a current loss of earning capacity. Further, there is evidence that the worker’s current loss of earning capacity is the result of a subsequent new and separate accident, and not a recurrence of the worker’s 2008 injury.

The advocate confirmed that the worker’s employment was interrupted from late 2008 until spring 2009 for non-compensable reasons, and that the worker returned to their employment with the employer in spring 2009 continuing until June 25, 2010. In this period there are no documented concerns regarding the worker’s shoulder condition. The advocate noted the evidence that the worker was involved in a bicycle accident on June 28, 2010. The worker also has another WCB claim relating to a right shoulder injury sustained in 2013 as a result of a workplace accident with another employer and a further claim from 2015 relating to injury to both shoulders. Nonetheless, the worker was able to continue working in the same industry until 2016 when the worker sustained a significant injury to their left shoulder.

The employer’s advocate submitted that since 2008, the worker has continued doing hands-on work in their industry and not only in a supervisory role as the worker has suggested, pointing to the circumstances of the worker’s subsequent injuries as confirmation. Further, the advocate noted that the job descriptions provided by the employer support the position that the worker remained active and able to continue working in a physically demanding job after their recovery from the 2008 injury. The file evidence confirms that the worker returned to their pre-accident employment on April 14, 2008 and reported to the WCB on August 13, 2008 that they were doing fine and working full duties. The worker’s functional abilities after 2008 are further evidenced by the provided photographs of the worker’s fishing successes.

The employer’s advocate submitted that the medical reporting confirms that the worker’s current shoulder difficulties cannot be related to the 2008 accident, noting there were no symptoms or findings related to the long thoracic nerve injury in proximity to that accident. The advocate pointed out that findings of scapular winging which can indicate injury of the long thoracic nerve, were not recorded until after the worker’s 2013 injury and further noted that such findings may relate not only to long thoracic nerve injuries but also to other conditions. Further, the employer’s advocate noted that there were no signs of scapular winging and normal right shoulder range motion recorded at the time of the worker’s 2021 assessment for permanent partial impairment.

The advocate reviewed the medical findings relating to the worker’s 2008 injury and noted that by April 4, 2008, the treating physiotherapist reported the worker to be 75% recovered and submitted that the worker’s degree of recovery to that point supports a conclusion that the worker’s injury was a sprain/strain type of injury. Subsequent medical reporting further confirms that the worker was fully recovered from that injury and suggests that the worker’s further right shoulder concerns are related to their subsequent shoulder injuries including the 2013 labral tear which required multiple surgical interventions.

The employer’s advocate noted that the July 27, 2020 progress report from the treating sport medicine physician outlines an inaccurate medical history in that it references that the worker sustained rib fractures in the 2008 accident and was off work for 10 months. As well, the August 27, 2020 report of the physical medical specialist also contains an inaccurate medical history, referring to rib fractures sustained in 2008. In contrast, the WCB medical advisor was fully apprised of the worker’s prior injuries and accident histories and stated in August 2020 that the evidence supports that the worker recovered from the 2008 injury and their current pathology cannot be related to either the 2008 or 2013 injuries.

In sum, the employer’s position is that the WCB correctly determined that there was no causal relationship between the worker’s current right shoulder condition and the compensable injury sustained in 2008 having regard to the fact that the worker recovered from that injury to return to work after 12 weeks and subsequently continued in their heavy labour job for some 8 years without evidence of seeking further medical treatment relating to their shoulder until the injury sustained in 2013. The evidence does not support a finding that the worker’s current right shoulder difficulties are a recurrence of the injury sustained in the January 22, 2008 accident, nor causally related to that injury; therefore, the worker’s appeal should be denied.

Analysis

The question on appeal is whether the worker’s current right shoulder difficulties are related to the workplace accident of January 22, 2008. For the worker’s appeal to succeed the panel would have to determine that the worker’s current right shoulder diagnosis of partial neuropathy of the right long thoracic nerve was caused by the workplace accident of January 22, 2008 or is the result of that accident. For the reasons outlined below the panel was able to make such a determination and therefore, the worker’s appeal is granted.

The panel first considered the mechanism of injury on January 22, 2008. In the Worker Incident Report submitted on February 1, 2008, the accident is described as occurring when the worker was caught by a strap and lost their balance as they threw a pallet off a commercial building roof, falling 24 feet into the back of a dumpster. The Employer’s Incident Report of January 28, 2008 indicates that the worker fell approximately 20 feet. The initial medical reporting noted the worker fell from a second story roof into an empty waste bin and lost consciousness for approximately 15-20 minutes. On attending hospital, the worker indicated pain in their right chest, shoulder and flank. No neurological deficits were noted, and the attending physician recorded objective findings of right sided chest, back and flank tenderness. The worker offered the panel a description of the accident consistent with the early reporting, noting they have little memory of what occurred immediately following the fall as they “blacked out.”

The panel also considered the evidence as to how injury to the long thoracic nerve can occur. The WCB orthopedic advisor outlined in their opinion of September 30, 2020 that “A mechanism for such a nerve injury would be a contusion of the right shoulder region.” In a further opinion provided on January 13, 2021, the same WCB orthopedic advisor noted as follows:

EMG/NCS of 27-Aug-2020 diagnosed a partial paralysis of the right serratus anterior muscle, innervated by the right long thoracic nerve. Such a lesion may be caused by a shoulder contusion or a violent resisted lifting force with the shoulder in flexion. The complex mechanism of striking a vertical pole with the upper trunk would be a possible cause of this nerve injury. Violent downward traction on the upper limb may also cause this nerve injury.”

The treating physical medicine specialist explained, in a report to the treating family physician dated March 4, 2021 that “…nerves are generally traumatically injured in three ways: there is either a cutting of the nerve, a compression on the nerve or stretching of the nerve.” A consulting sport medicine physician provided an opinion dated September 29, 2021 that “In general, long thoracic nerve problems are caused by trauma to the rib area….Long thoracic nerve injury does not occur spontaneously. They are most commonly associated with trauma to the chest cage.” The panel accepts based on this evidence that the long thoracic nerve can sustain injury through a number of different mechanisms including a forceful trauma to the area where the nerve is located in the chest, a cut to the nerve or a stretching of the nerve, such as through violent traction to the shoulder.

In this context, the panel then considered whether the January 22, 2008 workplace accident could have caused the injury to the worker’s long thoracic nerve. The worker’s position is that they sustained injury to their long thoracic nerve as a result of this fall from a height of some 20-24 feet into an empty metal bin, landing on their right shoulder and side. The employer’s position is that the injuries sustained by the worker in that fall were nothing more than contusions, as accepted by the WCB, noting that the worker was sufficiently recovered to return to their pre-accident work in three months. The employer further suggested that there could have been other events since the 2008 accident that could have caused the worker’s long thoracic nerve injury such as the worker’s June 2010 bicycle accident in which the worker struck a pole with their upper body or a subsequent event or injury.

The medical opinions provided in respect of this injury by the worker’s treating physicians suggest that the injury could have occurred at the time of the 2008 workplace accident although not diagnosed until 2020. The treating physical medical specialist stated in a report dated August 27, 2020 to the treating sport medicine physician that the electrodiagnostic testing results suggested “mild chronic changes in the serratus anterior. However, it is a large muscle with multiple nerve root branches and it is reasonable that some of those branches were injured as a result, or in relation to the rib fractures. This is the best explanation for the scapular dysmobility on the right over the last number of years.” In a further opinion of March 4, 2021, the physical medicine specialist clarified that the worker did not sustain rib fractures at the time of the workplace accident and explained that the clinical and diagnostic findings “…would suggest that the nerve is still intact and that it may have experienced a compression or stretch phenomenon. This nerve injury may not of [sic] been immediately apparent at the time of [the worker’s] fall, as it is reasonable to presume that muscle pain, rib pain after [the fall] would have contributed to pain in the same region as [the worker’s] shoulder blade and long thoracic nerve.” The consulting sport medicine physician stated in their opinion dated September 29, 2021 that a causal relationship between the worker’s 2008 fall is supported by the medical findings immediately following the injury, the continuing reports of rib and right shoulder difficulties in 2010, and findings of scapular winging in 2014. The physician stated:

“This injury can be described as a high velocity injury, with clear consistent and cogent documentation of injury to the right rib cage, and the right shoulder. Abnormal shoulder and scapular mechanics were noted in close temporal proximity to this event. Within 2 years of the compensable injury, and an interposed compensable injury, the patient had definite evidence of scapular winging by the orthopedic surgeon. There was also evidence of a labral tear. Subsequently, the scapular winging has been linked to definite evidence of electrodiagnostic abnormalities in the long thoracic nerve….There would be a high degree of clinical correlation between the compensable event, the development of long thoracic nerve neuropathy, and scapular winging, with persisting shoulder girdle difficulties. The patient continues to manifest these difficulties. Abnormal scapular mechanics are one of the most recognized problems associated with the genesis of other shoulder difficulties.”

The WCB orthopedic advisor first considered whether the August 2020 diagnosis of partial neuropathy of the right long thoracic nerve was associated with the worker’s 2008 compensable injury in an opinion provided to the WCB case manager on September 30, 2020. In reference to the electrodiagnostic findings, the orthopedic advisor stated: “No evidence was found of cervical radiculopathy nor of brachial plexopathy. A mechanism for such a nerve injury would be a contusion of the right shoulder region. It is probable that the workplace injury caused the partial neuropathy of the right long thoracic nerve.” The orthopedic advisor also noted recovery of nerve function was not expected and recommended physiotherapy to optimize the worker’s shoulder function. The panel noted the orthopedic advisor did not express any concern about the extended period of time between the accident and the diagnosis. In a subsequent opinion provided by the WCB orthopedic advisor in answer to specific questions posed by the WCB as to other possible causes of the worker’s long thoracic nerve injury, the advisor agreed that the injury could have been caused by the worker “striking a vertical pole with the upper trunk” but noted that:

“The issue of when the nerve injury may have occurred is a matter for WCB adjudication….When examined at call-in at WCB offices on 22-Jan-2020, I carried out the usual tests for winging of the scapula and recorded them negative. That clinical observation negates a diagnosis of a complete lesion of the long thoracic nerve, but could be consistent with a partial lesion of the nerve.”

The panel also considered the available evidence as to continuity of the symptoms associated with the 2008 injury and the subsequent diagnosis of long thoracic nerve injury. At the time of the worker’s last attendance at physiotherapy in April 2008, in relation to this compensable injury, the worker was noted to be at 75% recovery with ongoing shoulder to scapula issues noted. Despite being away from work for non-compensable reasons from fall 2008 to spring 2009, there is evidence that the worker sought medical attention in February 2009 in relation to shoulder pain related to the prior injury, and was provided with pain relief medication. The consulting sport medicine physician who reviewed the worker’s medical and claim history noted evidence of right shoulder to scapula difficulties in the physiotherapy reports from spring 2008 and again in the physiotherapy discharge report from October 2008. The consulting physician noted the worker reported rib difficulties in early 2010 at the time when they injured their mid-back at work. Further, both scapular winging and poor scapular control are noted in a physiotherapy report from July 2013 and subsequently, included in the chart note from a sport medicine physician dated January 6, 2014 prior to the labral repair surgery of January 13, 2014. Following the 2013 labral tear in the worker’s right shoulder there are numerous references to findings of right scapular winging prior to the surgical procedure. In the months following that surgery, the treating surgeon reported concern that there was something else going on beyond the labral tear that was successfully repaired, with “some residual biceps type pain” that appeared to be different from the worker’s pre-operative symptoms.

The panel also noted that the WCB orthopedic advisor’s opinion of August 19, 2020 confirmed that the worker’s continuing posterior right shoulder pain and crepitus could not be explained in relation to the 2013 injury and subsequent surgical repair. The same WCB orthopedic advisor also provided an opinion dated October 3, 2019 that the worker’s 2016 compensable accident could not have caused their ongoing right shoulder difficulties, noting there was no injury of the right upper limb at the time of that accident and no medical information on file that demonstrated any “relationship of right shoulder difficulties” with that workplace injury. On the basis of these findings, the panel accepts that neither the 2013 nor 2016 injuries are the cause of the worker’s continuing right shoulder symptoms.

The employer suggested that the worker’s long thoracic nerve injury could have been caused by the worker’s bicycle accident in June 2010 and the panel noted the WCB also considered this possibility. The WCB orthopedic advisor confirmed that forcefully striking a vertical pole with the upper trunk could cause such a nerve injury; however, the worker’s evidence was that this was not a serious injury and that, although they had a medical note to be off work for two weeks as a result, they sought to go back to work earlier and ultimately, took and began another job with a different employer in the same line of work during that period. Further, in the worker’s submission to Review Office they described this accident as causing injury primarily to their middle finger with a minor shoulder sprain, noting that the doctor’s note was provided in relation to the finger injury only. The panel finds that the evidence does not support the employer’s position that this non-compensable event resulted in any significant injury to the worker, nor that the worker sought further medical treatment beyond their initial attendance on June 30, 2010. Therefore, it is not probable that this event was a cause of the worker’s long thoracic nerve injury. 

The panel acknowledges the employer’s concern that there are gaps in the worker’s medical history between 2008 and 2013, but notes there is some evidence within the medical information provided to the WCB in relation to the worker’s other claims from 2010 to 2016 that indicates the worker’s continuing, although sporadic reporting of right shoulder and rib complaints, and that as early as 2010, the worker stated their belief that these complaints were related to the 2008 injury.

The employer also argued that is unlikely the worker could have continued to work in their physically demanding profession with such an injury from 2008 to 2016. In this regard, the panel noted the evidence that the worker was out of the workforce for non-compensable reasons for a period of time from 2008 – 2009 and again for a period of time in 2010 when they were completing an apprenticeship education program. During the period from 2010 to 2016, there were also periods of time when the worker was unable to work due to other injuries. The panel also considered that the nature of the worker’s injury is such that the worker was able to continue to do their work with some limitations. We accept the worker’s evidence that they would self-modify how they did their work so as to avoid using their right arm or to use it in such a way as to minimize any resulting discomfort. For example, the worker chose to focus on close work and to work within their body envelope as much as possible. The panel also accepts the worker’s testimony that as they were working in a supervisory role, they had the ability to make such choices in relation to the tasks they took on. In this regard, the panel also noted the testimony of the worker’s spouse that the worker has lived in pain since that time, while continuing to work and learning to do so relying more upon their left hand than their dominant right hand. On this basis, we are satisfied that the fact the worker continued to work in their profession after 2008 does not mean the worker was no longer experiencing any symptoms or effects of the compensable injury.

The panel accepts and relies upon the evidence that the long thoracic nerve can be injured as a result of significant trauma to the chest cage. We are satisfied that the only evidence of such an incident is the worker’s 2008 fall of some 20-24 feet from a rooftop into an empty garbage bin. Although long thoracic nerves also can be injured by other means, there is a lack of evidence before us of any such injury. The panel is satisfied, on the basis of the totality of evidence before us, that it is more likely than not that the workplace accident of January 22, 2008 caused the partial neuropathy of the worker’s right long thoracic nerve diagnosed in August 2020. We are further satisfied that the evidence before us supports a finding that the worker’s current right shoulder difficulties directly relate to the injury resulting from the compensable workplace accident of January 22, 2008.

Therefore, the panel determines that the worker’s current right shoulder difficulties are related to the January 22, 2008 accident and the worker’s appeal is allowed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of May, 2022

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