Decision #32/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after January 20, 2021 in relation to the July 31, 2017 accident. A videoconference hearing was held on February 1, 2023 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after January 20, 2021 in relation to the July 31, 2017 accident.
The worker is entitled to benefits after January 20, 2021 in relation to the July 31, 2017 accident.
The worker filed a Worker Incident Report with the WCB on August 11, 2017, reporting an injury to his left shoulder as the result of an accident at work on July 31, 2017. The worker reported that he hit a cross brace while repositioning a ladder, and grabbed the ladder to prevent it from hitting a glass window. The worker described feeling a "…jerking, popping in the shoulder." He noted his shoulder was swollen and he sought immediate medical attention.
The worker was seen at a local urgent care centre on July 31, 2017, complaining of shoulder pain after a sudden pull and was referred to a sports medicine clinic to rule out a rotator cuff tear. An x-ray taken at the urgent care centre did not identify a fracture or dislocation.
The employer filed an Employer Injury Report on August 2, 2017, noting the worker injured his shoulder "resetting up a 12' ladder." The employer indicated they were not able to accommodate the worker in modified duties.
The worker attended the sports medicine clinic on August 10, 2017, reporting a jerk/push injury to his left shoulder while at work on July 31, 2017. The triage nurse noted the worker was using a sling and reported pain to the anterior and posterior left shoulder. On examination, the treating sports medicine physician noted a weak shoulder and diagnosed a left "cuff labral tear." The physician referred the worker for an MRI and physiotherapy. The physician recommended the worker not use his left arm for any functional use, and that he remain off work if he could not be accommodated.
On August 16, 2017, the worker attended an initial physiotherapy assessment. The worker reported he was experiencing a constant ache in his shoulder and sharp pain with movement. The treating physiotherapist queried a labrum tear vs a rotator cuff strain, noting an MRI was pending. The physiotherapist recommended the worker remain off work for three weeks.
On August 18, 2017, the WCB contacted the worker to discuss his claim. The worker confirmed the mechanism of injury as noted on his report and advised he spoke with his supervisor and immediately reported the incident, then attended for medical treatment. The worker advised he had not returned to work since July 31, 2017. His current symptoms included constant steady pain throughout the day, with worse pain in the mornings and difficulty sleeping. The worker also underwent an MRI on his left shoulder on August 18, 2017, which was read as being normal. On August 21, 2017, the WCB advised the worker that his claim had been accepted.
In a progress report dated September 1, 2017, the treating physiotherapist noted the worker reported the pain was becoming intermittent, but there was soreness with any use of his left arm. The physiotherapist recommended restrictions of no reaching above shoulder height and no lifting greater than 15 lbs, which restrictions were provided to the employer on September 5, 2017. The employer advised the WCB that same day that they could not accommodate the worker with modified duties.
The worker continued to receive treatment from his treating sports medicine physician and physiotherapist. Due to continued symptoms, the sports medicine physician referred the worker to an orthopedic surgeon on October 24, 2017. The worker was seen by the orthopedic surgeon on November 10, 2017. After examining the worker and reviewing the history of his present complaints and imaging, the surgeon opined that the worker had one of two problems with his shoulder, being "…an element of rotator cuff tendinopathy and bursitis, which would explain some of the clicking sensation and the crepitus that he is getting in the shoulder" and "a posterior labral tear, given his positive posterior labral grind test and the mechanism of his injury." The surgeon noted a conventional MRI study was "…not ideal for assessing labral pathology" and ordered an MRI arthrogram to rule out a posterior labral tear. The surgeon diagnosed the worker with "Left shoulder pain which is secondary to either rotator cuff tendinopathy and bursitis or a posterior labral tear," and recommended he be reassessed after the MRI arthrogram and continue with shoulder range of motion and strengthening exercises in the meantime.
On February 15, 2018, the worker underwent an MRI shoulder arthrogram, which was interpreted as being normal. On February 26, 2018, the worker attended a follow-up appointment with the treating orthopedic surgeon. The surgeon noted the arthrogram indicated the worker did not have a posterior labral tear and recommended a possible steroid injection due to the worker's continued persistent pain in his shoulder, which the worker declined. The surgeon further recommended the worker attempt a gradual return to work, minimizing overhead work initially, then progressing to full duties as tolerated.
On March 2, 2018, the WCB contacted the employer, who advised that the worker would have been laid off from his employment due to a shortage of work. On the same date, the WCB provided a letter to the worker noting he was considered fit to return to his regular duties on a gradual return to work basis and setting out a return to work schedule of 4 hours per day for the week of March 5 to 9; 6 weeks per day from March 12 to 16; and a return to full hours on regular duties on March 19, 2018. The WCB advised the worker that they would pay full wage loss benefits to March 18, 2018, after which his wage loss benefits would end.
On April 19, 2018, a WCB orthopedic consultant reviewed the worker's file and recommended the worker be encouraged to return to the treating orthopedic surgeon because of ongoing symptoms. The WCB reversed their previous decision and advised the worker that full wage loss benefits had been reinstated.
On May 8, 2018, the worker attended a further appointment with the orthopedic surgeon, who again recommended a steroid injection, which the worker declined, and the surgeon referred the worker to another orthopedic surgeon for a second opinion. On June 1, 2018, the worker was seen by the second orthopedic surgeon, who recorded the worker's history of an immediate tearing sensation and a grinding sound in his left shoulder after the July 31, 2017 workplace accident, with ongoing deep pain since then. The second orthopedic surgeon reviewed the diagnostic imaging, noting it was normal. The surgeon opined that if the worker had a structural problem within his shoulder, it would likely be a labral tear, and recommended a diagnostic injection, which the worker agreed to. The surgeon re-examined the worker approximately five minutes after the injection, and noted he had an "…intermediate response to the injection, but definitely there was some change in his symptoms." The surgeon recommended the worker rest for a couple of days then resume range of motion exercises, and once he could do those exercises without symptoms, he could progress to strengthening exercises.
On July 18, 2018, the WCB orthopedic consultant reviewed the worker's file and opined that it was not possible to state with certainty what was causing the worker's ongoing symptoms so the presumptive diagnosis remained a left rotator cuff strain. The consultant noted a normal recovery from a rotator cuff strain would be eight weeks, so there remained some suspicion that other pathology was present which had not been identified with imaging, such as a tear of the glenoid labrum. The consultant noted that symptoms were initiated by the workplace injury and had continued since then, and there was no clinical evidence one way or the other as to whether the ongoing symptoms were related to the workplace injury. The consultant went on to opine that the worker had probably not recovered from the workplace injury, and recommended restrictions of no repetitive overhead tasks with the left upper limb; no repetitive resisted tasks with the left upper limb away from the side of the body; no lifting and carrying more than 20 lbs with the left upper limb; and no pushing and pulling with force greater than 20 lbs with the left upper limb.
On September 6, 2018, the worker was seen in follow-up by the first treating orthopedic surgeon, who recommended left shoulder arthroscopy with subacromial decompression and possible posterior labral repair surgery. On September 20, 2018, the WCB approved diagnostic arthroscopy of the left shoulder and surgery was performed on December 4, 2018. The surgical report noted the worker underwent a left shoulder arthroscopy; debridement of a low-grade partial thickness tearing of the posterior labrum; and an arthroscopic wide subacromial decompression. On January 31, 2019, the WCB accepted financial responsibility for the debridement of the posterior labral tear and subacromial decompression.
On December 20, 2018, the WCB contacted the worker for a status update, at which time the worker advised he was struggling with mental health issues, and the WCB arranged for the worker to see a psychologist.
On January 2, 2019, the worker was seen for a post-surgical appointment with the treating orthopedic surgeon, who provided him with a prescription for physiotherapy.
On April 1, 2019, the WCB received a progress report from the worker's treating psychologist dated March 26, 2019. Based on an intake interview and testing, the psychologist opined that the worker met the criteria for a diagnosis of Major Depressive Disorder and recommended further treatment.
On May 29, 2019, the worker was discharged from physiotherapy treatment, given a home exercise program and provided with restrictions of avoiding overhead working/lifting for four weeks.
In a further progress report from the treating psychologist dated June 14, 2019, the psychologist noted the worker's inconsistent attendance for sessions, and opined that at his last attendance on May 7, 2019, the worker still met the criteria for a diagnosis of Major Depressive Disorder. The psychologist recommended further treatment, but noted it was unclear whether the worker would like to continue treatment.
On July 31, 2019, the worker underwent a functional capacity evaluation ("FCE") to clarify his functional status and physical restrictions. On October 3, 2019, the WCB orthopedic consultant reviewed the worker's file, including the report of the FCE. The consultant noted that 3/5 validity checks were considered valid at the FCE. The consultant indicated that although the range of motion results would generally be considered to allow moderate function of the left shoulder, it was noted that the worker avoided using his left arm because of pain and clicking symptoms. The consultant noted that recommended restrictions were therefore based on the worker's tolerances "…rather than risk and capacity measurements," and were: no tasks above shoulder level with the left upper limb; no lifting floor to waist level more than 55 lbs; no lifting thigh to chest level more than 30 lbs; no carrying with the left upper limb more than 15 lbs; and no pushing/pulling with force greater than 30/25 lbs, to be reviewed in three months.
On October 7, 2019, the employer advised that they could not accommodate the worker's restrictions. On October 10, 2019, a WCB physiotherapy consultant recommended a four-week reconditioning program, at a frequency of three days per week, with a focus on left upper extremity strengthening. An extension of an additional four weeks was subsequently authorized, and the worker attended the program from October 30 to December 27, 2019. In a discharge report dated January 6, 2020, the treating physiotherapist recommended that the worker had no physical restrictions and was "Functionally capable of return to work, with persistent symptoms."
On May 27, 2020, the WCB contacted the worker to discuss his file. The WCB advised the worker that he should have been able to return to his occupation with no restrictions following completion of the reconditioning program. The worker advised that he was not comfortable returning to work with the employer, but wanted to return to work in the same occupation. The worker noted he had stopped attending the gym due to the COVID-19 pandemic, but had been doing home exercises. The worker also advised that he continued to have psychological difficulties, and the WCB authorized further psychological treatment with a second psychologist.
On June 16, 2020, the WCB requested a reassessment of the worker's current level of functioning. On July 7, 2020, the worker attended an initial physiotherapy assessment, reporting left shoulder morning stiffness and paresthesia, alleviated with a shower and heat, and intermittent painful clicking in the left shoulder when reaching, accompanied by shooting pain down the arm into the fingers. The physiotherapist noted slightly decreased range of motion, with discomfort at end of range in the left shoulder, and that the worker was mostly recovered with persistent sensitivity following the left shoulder arthroscopic surgery. The physiotherapist noted the worker's return to work plan was dependent on the worker's psychological health improving.
On August 13, 2020, the WCB orthopedic consultant reviewed the worker's file again, and opined that recovery from the July 31, 2017 workplace accident had occurred. It was noted the worker still reported non-specific shoulder and upper limb symptoms, but the clinical evidence did not support the accepted compensable labral tear or subacromial impingement were current valid diagnoses. The consultant opined that further restrictions would not be related to the workplace injury, but that he could not comment or provide an opinion on the worker's psychological condition.
On August 24, 2020, the WCB received a progress report from the worker's treating psychologist. The psychologist confirmed the worker currently met the criteria for Major Depressive Disorder, with symptoms including depressed mood every day, markedly diminished interest/pleasure in activities, significant weight loss, poor sleep, fatigue, poor energy and decreased concentration. The psychologist recommended the worker not return to work as his symptoms were severe and the psychologist felt further treatment was required.
On January 12, 2021, the worker's file, including the psychologist's report, was reviewed by a WCB psychological consultant, who opined that "…there was no clear medical evidence of a need for work restrictions in relation to a compensable psychological condition" and the worker was not totally disabled in relation to a compensable psychological condition.
On January 13, 2021, the WCB advised the worker that they had determined he had recovered from the effects of the July 31, 2017 left shoulder injury and the compensable psychological condition, and that he was not entitled to benefits beyond January 20, 2021.
On April 28, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker noted he reported to his treating healthcare providers that he had ongoing pain and difficulties with his left shoulder, which were not improving. The worker further noted that he had tried to seek employment since the WCB ended his entitlement to benefits, but potential employers would not hire him due to the risk of his injury still being present.
On June 3, 2021, Review Office determined that there was no entitlement to further benefits. Review Office found that although the worker reported non-specific shoulder and upper limb symptoms, these residual complaints were not medically supported. Review Office agreed with the WCB orthopedic consultant's August 13, 2020 opinion that there were no objective clinical features present to support the worker had not functionally recovered from his compensable diagnoses. Review Office concluded there were no restrictions related to the left shoulder injury and no further treatment was warranted. Review Office further found that, based on the evidence, the worker had recovered from the psychological effects of the workplace accident and no restrictions or further treatment was required.
On September 1, 2022, the worker's representative filed an appeal with the Appeal Commission and an oral hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies of the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.
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 27(1) of the Act 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."
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 worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.
The worker's position was that the evidence supports he had not recovered from his compensable injury when his benefits were terminated, and is entitled to further benefits beyond January 20, 2021.
The worker's representative noted that the claim was originally accepted as a left rotator cuff strain. Surgery was subsequently performed, the findings of which included a partial thickness tear of the posterior glenoid labrum and impingement syndrome. A debridement of the labrum and subacromial decompression were carried out, and these new diagnoses were accepted as compensable in relation to the workplace accident.
The worker's representative submitted that the evidence shows the worker had continued symptoms following the December 4, 2018 arthroscopic surgery, with a level of function that interfered with the worker's activities of daily living and sleep.
The worker's representative noted that there is evidence in the FCE report that the worker continuing to suffer activity limiting pain at that time. The representative noted that the report indicated that the worker broke down in tears several times during the testing due to the level of pain he was experiencing, and that he could not continue some of the exercises because of the intense pain. The representative submitted that the FCE report detailed continued symptoms and pain which were associated mostly with tasks at or above shoulder level, as well as weakness or fatigue with some of the exercises. The representative also noted that the FCE did not compare working full-time hours at the strenuous physical activity level of the worker's employment, and submitted that the worker's symptoms would have made full-time work in his occupation impossible.
The worker's representative submitted that in terminating the worker's benefits, the WCB did not indicate the worker had fully recovered, only that he had functionally recovered. The representative further submitted that the worker was continuing to seek medical treatment for his ongoing symptoms at the time his benefits were terminated, and the WCB was aware he was doing so.
The worker's representative noted that the worker was seen again by the second orthopedic surgeon on November 22, 2021. The representative noted that in his report of that visit, which was filed in advance of the hearing, that the surgeon confirmed that the worker had the same symptoms as prior to the December 4, 2018 arthroscopic surgery, and indicated the worker did not get any significant relief from the shoulder arthroscopy. The surgeon confirmed the worker had activity limiting pain, and opined, after examining the worker, that the tear could still be responsible for the worker's pain and symptoms.
The worker's representative noted that a second surgery was performed on April 21, 2022. The representative noted that the report of that surgery, which was also provided in advance of the hearing, indicated the preoperative diagnosis was possible labral tear, possible SLAP lesion and possible biceps tendinopathy; the postoperative diagnosis was type 2 SLAP lesion with posterior extension and labral tear; and the procedure performed was left shoulder labral repair and biceps tenodesis, with scar tissue from the previous surgery also being removed. The representative submitted that the second surgery revealed the first surgery did not successfully repair the labral tear, and found additional damage to the shoulder joint.
The worker's representative also referred to a letter of support from the second treating orthopedic surgeon dated August 3, 2022, noting the surgeon confirmed in that letter that the worker did not have a good response to his first surgery, and that his symptoms after the first surgery were localized to the same area and were essentially of the same magnitude as prior to that surgery. The surgeon noted the worker was deemed to be not capable of performing his job at the time of the first surgery, and stated that in his opinion, the worker was still unable to do his job when the surgeon saw him and booked him for his second surgery.
The worker's representative submitted that the April 21, 2022 surgical report demonstrates that the labral tear was not repaired in the first surgery, and combined with the worker's continuing symptoms, shows that he had not recovered from his compensable injury. The representative further noted that while the WCB's position appeared to be that the worker's ongoing symptoms and pain were due to anxiety as opposed to a physical cause, this was disproven by the findings at the second surgery that the labral tear was still present.
The worker's representative submitted that the worker was able to return to work following recovery from his second surgery. The worker testified that two weeks after the second surgery, when he was able to take his arm out of the sling and start moving it:
I could instantly tell that I wasn't getting the lightning shot. So, just – just removing my arm like up or down or sideways, it would be a pop before. I didn't have that and there was no lightning bolt. I'd say it was stiff, but I was like, "Okay, well that's from surgery" And then it slowly…as I got further and further away from the surgery date, I could feel, "Okay, it's not stiff." My mornings weren't…45 minutes icing it down or heating it up. It was 20 and then it went down to 10 minutes and then it was like, "Oh, I'm not even really that bad." Five minutes later after I get up, I'm good. And there was no…pain of the grinding. I still have a little bit of the noise and there's like a little click every now and then in certain positions, but…the pain has gone. And that – that is just, it's relieved so much.
The worker further testified he went back to work on July 28, 2022, a little over three months after the April 21, 2022 surgery, and that things have "been great…I know that I cannot do everything that I would like to do, but I would say I'm 85 percent back to what I was."
In conclusion, it was submitted that the evidence, including the consistent reporting of the worker's ongoing symptoms, the findings of the second treating orthopedic surgeon, the second surgical report, and the worker's subsequent return to work, show that the worker had not recovered from his compensable injury when his benefits were terminated, and that he is entitled to benefits beyond January 20, 2021 as a result of his workplace accident.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to benefits after January 20, 2021 in relation to the July 31, 2017 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity and/or required medical aid beyond January 20, 2021 as a result of his July 31, 2017 workplace accident. The panel is able to make that finding, for the reasons that follow.
The panel notes at the outset that the worker confirmed at the hearing that psychological concerns were not an issue, and he was not pursuing anything in that regard. The worker said he had worked through and dealt with such concerns, and he was "good with that in myself…with that situation." The issue on appeal was therefore limited to the worker's left shoulder injury.
The panel is satisfied that the evidence supports that the worker had not recovered from his compensable injury in January 2021 when his benefits were terminated. Based on our review of the evidence which is before us, the panel finds that the worker's symptoms were consistent both before and after the December 4, 2018 surgery, and through to the further surgery on April 21, 2022.
While the WCB orthopedic consultant referred to non-specific shoulder and upper limb symptoms being reported and indicated there was a lack of objective clinical features to support labral tear or subacromial impingement were valid current diagnoses, the panel notes that prior to the first surgery, in December 2018, the imaging had failed to identify a tear, and the treating orthopedic surgeon had indicated that imaging was not ideal for assessing labral pathology. The WCB orthopedic consultant had similarly indicated that the MRI was not diagnostic, and arthroscopic surgery was authorized.
The panel acknowledges that pain is largely subjective, but notes that ongoing reports of the worker's pain were consistent over time, and is satisfied that they should be accorded significant weight in the circumstances.
The panel is unable to find that the tests or results from the FCE establish that the worker had recovered or functionally recovered from his compensable injury, or that he was functionally capable of returning to his work. The panel notes that the report indicated the worker was unable to perform or had to discontinue certain tests due to pain. The results indicated in particular that the worker had difficulty with tasks and movements at or above chest level.
The discharge report from the reconditioning program indicated that the worker's functional capacity had improved in the course of that program, but noted that it was still limited. The report went on to indicate that the worker was functionally capable of return to work, "with persistent symptoms."
While the WCB appeared to indicate that the worker's tolerances were related to anxiety, the panel is of the view that this is not consistent with the subsequent findings during the April 21, 2022 surgery or the worker's evidence with respect to his progress following that surgery. The panel accepts the worker's evidence that was able to return to work on July 28, 2022, approximately three months after the April 21, 2022 surgery, and is now 85% better.
The evidence on file shows that the worker continued to seek and require medical interventions and investigations to address his ongoing symptoms, and that this ultimately led to the April 21, 2022 surgery. While the evidence indicates that the WCB was aware that there were ongoing investigations into the worker's ongoing symptoms, the WCB proceeded to terminate the worker's benefits.
In conclusion, based on the foregoing and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of his workplace injury, and suffered a loss of earning capacity and required medical aid beyond January 20, 2021 as a result of his July 31, 2017 workplace accident. The panel therefore finds that the worker is entitled to benefits after January 20, 2021 and returns the file to the WCB for further adjudication.
The worker's appeal is allowed.
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 31st day of March, 2023