Decision #88/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits for recurrent right shoulder difficulties. A hearing was held on June 22, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to benefits for recurrent right shoulder difficulties.
The worker is not entitled to benefits for recurrent right shoulder difficulties.
The worker has an accepted WCB claim for rotator cuff tendinosis with a small tear of the supraspinatus tendon as the result of a workplace accident that occurred at work on June 14, 2013. On the Worker Incident Report filed with the WCB on July 15, 2013, the worker reported:
At first I thought it was arthritis. I was experiencing sharp pains in my right shoulder. Now the pain is from my elbow up to my shoulder and into my neck. No numbness or tingling. Able to move but if I put pressure on my shoulder it hurts. It been walking (sic) me up at night. My fingers on my right hand are a bite sore and stiff.
The worker related their injury to their job duties involving working overhead "…on heavy equipment, lifting parts, shifting while driving tandums (sic), operating skid steer (pulling levers)."
The worker was seen for medical treatment on August 8, 2013 complaining of right shoulder pain after lifting a heavy object. Decreased power in abduction of the right shoulder and tenderness over the acromioclavicular joint was noted and a diagnosis of a rotator cuff tear was provided. The worker was referred for physiotherapy and an MRI study and a restriction of not lifting more than ten pounds was recommended. At an initial physiotherapy assessment on August 28, 2013, the worker reported decreased range of motion due to pain in their right shoulder, neck and forearm; unable to lift arm very high or lift anything with weight; and difficulty finding comfortable positions to sleep in. The physiotherapist noted they were unable to do specific rotator cuff testing "…due to high irritability, and inability of client to get into testing positions." The physiotherapist queried if the worker had a right rotator cuff tear and noted the worker continued to work, despite their level of pain and recommended the worker should not be performing any activities that aggravated their condition. On September 3, 2013, the worker contacted the WCB to advise the employer was accommodating the worker within their restrictions; however, full hours were not available for the accommodated work.
On September 30, 2013, the worker underwent an MRI study on their right shoulder. The MRI indicated "…supraspinatus as well as infraspinatus tendinopathy is noted. There is a small insertional tear involving the supraspinatus tendon as described. No retraction or atrophy is identified." At a follow-up appointment with their family physician on October 10, 2013, the worker was referred to an orthopedic surgeon. The worker's file was reviewed by a WCB medical advisor on October 22, 2013. The advisor opined the worker's diagnosis was rotator cuff tendinosis with a small tear of the supraspinatus tendon and noted the findings on the MRI of advanced acromioclavicular joint arthrosis with osteophyte formation were pre-existing and likely contributed to prolonged recovery. Restrictions were recommended of limiting lifts to 10 to 15 pounds and avoiding repetitive above shoulder use of the right arm. The referral to an orthopedic surgeon would be expedited by the WCB.
The worker attended for an appointment with the orthopedic surgeon on November 13, 2013. The treating surgeon performed a pain injection in the worker's acromioclavicular joint which was reported to have "…completely ablated his impingement signs and allowed him to elevate his arm through a full range of motion without pain." The surgeon noted the worker had "…signs and symptoms consistent with rotator cuff tendinosis, biceps tendinopathy or possibly instability and symptomatic AC (acromioclavicular) joint arthrosis." It was noted the worker had been undergoing conservative treatment and as their symptoms have been ongoing for at least six months with multiple sources of pain, the treating surgeon recommended arthroscopic surgery. The worker was placed on the wait list with the surgeon recommending further physiotherapy and home exercise with a follow-up in six weeks' time. If the worker was continuing to experience difficulties, the surgeon recommended to proceed with the surgery. On January 9, 2014, the worker's treating orthopedic surgeon advised the WCB the worker had not responded to the injection and other conservative treatment and recommended proceeding with a "…right shoulder arthroscopic decompression and distal clavicle excision, possible biceps tenotomy." On February 3, 2014, the WCB provided the treating orthopedic surgeon with approval for the surgery.
The worker underwent a right shoulder arthroscopic rotator cuff repair on March 4, 2014 and began post-surgery physiotherapy on March 31, 2014. The worker's file was reviewed by a WCB medical advisor on April 8, 2014. The advisor opined after reviewing the surgery report, the worker had "…full-thickness tears of supraspinatus and infraspinatus tendons, right A/C (acromioclavicular) osteoarthritis, biceps tendon subluxation and partial tear, and partial tear of the subscapularis tendon". It was noted the worker's recovery could be slow and painful and could last from 6 months to a year, with the delay related to the worker's pre-existing acromioclavicular arthrosis.
At a follow-up appointment on June 19, 2014, the treating orthopedic surgeon noted the worker's reporting of pain with elevation and further physiotherapy was recommended. Sedentary duties only were recommended, with a graduated return to work goal for September noted. At a further follow-up on September 19, 2014, it was noted the worker had pain and weakness when reaching away from the body and a further MRI was requested. The MRI was conducted on October 9, 2014 and indicated:
1. Postsurgical changes related to rotator cuff tendon repair. No definite evidence for failure.
2. Tenotomy or tendonesis long head biceps.
3. Moderate-severe acromioclavicular arthrosis.
A copy of the November 25, 2014 report from the orthopedic surgeon to the worker was provided to the WCB on December 8, 2014. The report noted the findings on the October 9, 2014 MRI indicated the tendons had healed in good position and advised the worker there was nothing further surgically the surgeon could offer for the worker's continued reporting of pain. The worker's file was reviewed by a WCB sports medicine physician on January 8, 2015 who opined the worker continued to report symptoms in their right shoulder of a slight reduction of range of motion and strength in their shoulder and rotator cuff tendons which noted incomplete recovery. A functional capacity evaluation was recommended as the sports medicine physician opined the worker was likely at maximum medical improvement.
On February 18, 2015, the worker attended for the Functional Capacity Evaluation. The physiotherapy consultant noted the results of the evaluation were inconsistent and were not considered valid. On March 4, 2015, the worker's file was again reviewed by a WCB sports medicine physician who opined based on the Functional Capacity Evaluation being considered invalid, basic shoulder restrictions, with rotator cuff focus, were provided and consisted of avoid repetitive right shoulder movements, avoid overhead lifting through the right shoulder and avoid lifting greater than 10 to 15 pounds through the right shoulder, with the restrictions considered permanent.
As the employer could not accommodate the worker within their permanent restrictions, the worker was referred for vocational rehabilitation services on March 24, 2015. On April 30, 2015, an initial vocational rehabilitation assessment was completed and indicated a local earning capacity could not be established for the worker and it was recommended they be paid full wage loss benefits to June 13, 2017, being four years from the date of the workplace accident as the worker was over the age of 65.
The worker was referred back to their treating orthopedic surgeon on June 2, 2016 due to an increase in right shoulder symptoms. The worker reported that after an assessment for a permanent partial impairment rating with the WCB, they began to get severe shoulder pain, experiencing pain at night and with elevated overhead reaching and noted prior to the assessment, their shoulder was functioning reasonably well. The treating surgeon noted the worker had tenderness over the rotator cuff insertion and pain with forward elevation, positive impingement signs and pain with resisted forward elevation. X-rays taken that day were noted to be "…unremarkable other than the anchors, which are evident within the humerus…" from the rotator cuff repair surgery. The treating orthopedic surgeon opined the worker aggravated their shoulder and recommended a pain injection, followed by light range of motion exercises.
The worker again was seen by the treating orthopedic surgeon on February 28, 2019, reporting their shoulder deteriorated over the last number of months, with pain and inability to elevate it. After examining the worker, the surgeon noted the worker's elevation of their right shoulder was limited to about 60 degrees, with external routine to just beyond neutral. The treating surgeon opined they could not tell if that was due to stiffness or motor weakness. The surgeon recommended further x-rays, opining it was possible the worker had re-torn the rotator cuff. The x-ray taken on March 1, 2019 indicated "There is evidence of a prior ligament surgical repair. Moderately severe osteoarthritis is suspected at the acromioclavicular joint. The glenohumeral joint appears to be normal. No rotator cuff tendon calcification is evident." After discussing the medical information with the worker on June 18, 2019, the WCB sent the worker a decision letter indicating it had been determined their ongoing right shoulder difficulties were not related to the June 14, 2013 workplace accident and they were not entitled to further benefits.
On September 25, 2019, the worker was seen for a further follow-up with their treating orthopedic surgeon. The worker reported ongoing mainly lateral pain, with some pain in the biceps area, which bothers them at night and when trying to reach away from the body. The surgeon reviewed the July 8, 2019 MRI study which indicated postsurgical changes related to the rotator cuff tendon repair; a large gap consistent with a re-tear; and noted a previous tenotomy on the long head biceps tendon. The surgeon noted the findings suggested a re-tear of the supraspinatus tendon with retraction of approximately 2 cms. Further, the surgeon opined "The subscapularis appears to be intact visually and mild atrophy of the supraspinatus muscle belly. It does appear that there is fibrous tissue connecting the tendon to the greater tuberosity, so it may be a failure in continuity." The orthopedic surgeon suggested a surgical attempt to repair the rotator cuff but noted there may be a variable result as the previous attempt was not successful. At that time, the worker chose to think about whether or not to proceed with the surgery. After gathering further medical information requested by the WCB medical advisor, the worker's file was reviewed on November 25, 2019. The advisor opined the worker's current diagnosis was a large tear of the supraspinatus muscle. The WCB medical advisor noted there was no medical information on the worker's file between June 22, 2016 and February 28, 2019, with no further injury noted. The advisor went on to opine that rotator cuffs can naturally degenerate over time and "Advanced age groups are at higher risk for tears in the environment of degeneration of the rotator cuff." Accordingly, due to the absence of medical information and a specific injury not indicated, the WCB medical advisor could not medically account for a re-tear of the worker's supraspinatus muscle ligament related to the June 14, 2013 workplace accident.
A further medical report was received from the worker's treating orthopedic surgeon on February 18, 2020 for a February 13, 2020 telehealth visit. The surgeon reviewed the July 8, 2019 MRI and noted "The cuff certainly does look thin, but I do not see a clear gap. It probably represents failure in continuity, which is where the tendon itself retracts, but the gap fills with soft tissue." The treating surgeon went on to provide they did not feel a further surgery was necessary and recommended continued pain management for the symptoms.
On February 4, 2021, the worker attended for an appointment with a second orthopedic surgeon. The surgeon reviewed the worker's treatment history and noted the worker's report of lots of pain in their right shoulder that radiates down their arm and up into their neck. The worker further reported trouble lifting their arm to shoulder level and with any motion above 40 degrees of elevation. After examining the worker, the second orthopedic surgeon opined the worker had adhesive capsulitis and recommended the worker attend for physiotherapy to improve the range of motion and strength in their shoulder. The worker attended for physiotherapy on February 22, 2021 and reported constant pain in their right shoulder, and inability to raise their arm. Further active range of motion exercises were recommended.
The worker's file was reviewed by a WCB medical advisor on May 3, 2021. The advisor noted the worker's current diagnosis was a possible re-tear of the right rotator cuff, as indicated on the July 8, 2019 MRI. However, it was noted the February 13, 2020 report from the initial orthopedic surgeon indicated the MRI only "…showed thinning of the right shoulder rotator cuff without a true defect." The WCB medical advisor opined that regardless of the findings on the MRI, those findings were not medically accounted for in relation to the June 14, 2013 workplace accident as the worker had surgery to repair the right rotator cuff in March 2014 and an October 9, 2014 MRI indicated the rotator cuff was intact. As there had been no reports on file of any new incident or accident occurring since the October 9, 2014 MRI, the findings on the July 8, 2019 MRI would be indicative of age-related degeneration and not related to the workplace accident. The February 4, 2021 report from the worker's second orthopedic surgeon provided a diagnosis of frozen shoulder, which the WCB medical advisor opined would not be medically accounted for in relation to the workplace accident as, if that condition were to develop, it would normally occur within the first few months after a surgery and the worker had the rotator cuff repair surgery in March 2014. On May 12, 2021, the worker was advised the medical information had been reviewed but it was determined their current difficulties were not related to the June 14, 2013 workplace accident and there was no entitlement to further benefits.
On February 7, 2022, the worker requested reconsideration of the WCB's decision to Review Office. The worker submitted they had a permanent injury to their right shoulder which had never recovered and they required continuing pain injections for and as such, should be entitled to further benefits. Review Office found on February 22, 2022, the worker was not entitled to further benefits for their recurrent right shoulder difficulties. Review Office found the worker's current right shoulder difficulties are related to their pre-existing degenerative conditions and not to the June 14, 2013 workplace accident or the rotator cuff repair surgery authorized by the WCB. As such, the worker was not entitled to further benefits.
The worker filed an appeal with the Appeal Commission on March 24, 2022 and a hearing was arranged for June 22, 2022.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies of the WCB's Board of Directors. The Act and regulations in effect on the date of the June 14, 2013 incident are applicable.
A worker is entitled to benefits under sec 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under sec 4(2), a worker 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 because of an accident, compensation is payable under sec 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.
WCB Policy 188.8.131.52, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, 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.
"Pre-existing condition" is defined in the Policy as "…a medical condition that existed prior to the compensable injury."
The worker presented their claim to the panel with the support of their spouse, and responded to questions by the panel members.
The worker expressed that their recurring pain was the result of the initial injury, and that the original surgery did not repair the issues surrounding a tear of the rotator cuff. In addition, the worker suggests that “arthritis” is not an underlying cause of their pain. The worker noted that several physicians reported that there was no arthritis.
The worker described that they are unable to perform any of the activities that were part of their life due to the restriction of shoulder movement and high levels of pain and discomfort.
The worker also commented that the permanent partial impairment award for their shoulder was insufficient.
The employer did not participate in the hearing.
The question before the panel is whether or not the worker is entitled to benefits for recurrent right shoulder difficulties. For the worker’s appeal to be successful the panel must find on a balance of probabilities, there is a relationship between the reported current difficulties and the compensable injury of June 13, 2013. The panel was unable to make this finding.
The panel relied upon a number of medical reports and opinions including:
• November 25, 2014 report of the orthopedic surgeon who stated the October 9, 2014 MRI "suggests that the tendons that were repaired have healed in good position."
• June 2, 2016 report from the orthopedic surgeon that the tendon had healed.
• February 13, 2020 orthopedic report noted that the MRI of July 8, 2019 “only showed a thinning of the right rotator cuff without a true defect.”
• May 3, 2021 opinion of the WCB orthopedic consultant that the frozen shoulder diagnosis was not medically accounted for by the June 14, 2013 workplace incident.
The worker referenced that a healthcare provider suggested “physiotherapy” was a possible cause of the recurring pain. The panel was unable to place weight to this statement as the opinion was speculative and did not provide an analysis to support this conclusion.
The question of whether there are degenerative changes (arthritis) was argued by the worker. In the worker's view their treating healthcare providers confirm there is no arthritis. The appeal panel prefers and accepts the medical opinions that attribute the current right shoulder difficulties to age related degeneration and not the original compensable injury of June 14, 2013. The panel noted that the worker’s family doctor informed them that there was both arthritis and a small tear prior to them reporting the injury to WCB on October 13, 2013.
The panel also noted there were no new injuries or incidents reported by the worker between the accident date and the hearing date. The worker reported that they had not received a medical assessment or treatment for the right shoulder between June 2, 2016 and February 28, 2019.
The panel considered all the evidence before it, and on a balance of probabilities, was unable to find a relationship of the worker’s current condition to the original compensable injury. Therefore, the worker’s recurrent right shoulder difficulties are not compensable and there is no entitlement to benefits.
The panel acknowledges that the PPI award was raised by the worker, however, this specific issue was not before the panel for consideration, and therefore, was not decided by the panel.
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of July, 2022