The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility was not accepted for their right biceps injury. A hearing was held on December 7, 2022 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's right biceps condition as being related to the February 11, 2020 accident.

Decision

Responsibility should not be accepted for the worker's right biceps condition as being related to the February 11, 2020 accident.

Background

On February 18, 2020, the worker filed a Worker Incident Report with the WCB reporting an injury to their right shoulder as the result of an incident that occurred at work on February 11, 2020, when the vehicle door they were holding was blown open by the wind and it wrenched their shoulder. The worker noted they finished their shift that day and reported the incident to the employer the following day.

The worker sought medical attention on February 12, 2020, reporting the injury to the physician, who found the worker was unable to abduct past 90 degrees, had flexion to 150 degrees and pain over the deltoid muscle area, and diagnosed a possible right partial rotator cuff tear. An MRI was requested and a work restriction of no overhead work was recommended.

The worker attended an initial physiotherapy assessment on February 18, 2020, where they reported constant pain in their right shoulder with all movement, especially when lifting their right arm above 90 degrees, and that the pain would wake them up at night. The physiotherapist noted positive rotator cuff testing and queried a rotator cuff strain/labral injury. Restrictions of no lifting greater than 10 pounds overhead with the right arm and no lifting greater than 20 pounds bilaterally were outlined.

On March 3, 2020, the worker underwent an MRI of their right shoulder, which showed:

1. Rotator cuff tendinosis with a small partial-thickness subscapularis tear. 

2. Acromioclavicular joint osteoarthritis. 

3. Tearing of the inferior labrum with an associated paralabral cyst. 

4. Long biceps tendinosis.

At a follow-up appointment with the physiotherapist on March 17, 2020, the worker's restrictions were updated to no lifting greater than 10 pounds overhead repetitively and lifting from floor to waist limited to less than 35 pounds. An employer assessment completed by the worker's WCB case manager on April 17, 2020 noted the worker continued to work but was modifying their regular job duties. A worker assessment on the same date noted the worker indicated they were being referred to an orthopedic surgeon.

On May 22, 2020, the worker was seen by an orthopedic surgeon, who indicated the worker had a new injury to the right shoulder caused by the worker's "arm wrenched out holding door by wind" and "Right labral repair." On June 9, 2020, the worker notified the WCB that the orthopedic surgeon was arranging a surgery date and they would advise when the date was set.

On October 20, 2020, the worker advised the WCB that their surgery was to take place the following day. On October 22, 2020, the worker advised that the surgery went well, the swelling had gone away and it was now painful. The worker noted the surgeon's office had advised them that the WCB had not yet approved the surgery. The WCB advised the worker that the orthopedic surgeon had not requested approval, but they would follow-up with the surgeon's office. After speaking with the treating orthopedic surgeon's office that same day, the WCB received a further report from the surgeon dated May 22, 2020, requesting approval for a right shoulder arthroscopy with labral repair.

On November 10, 2020, the WCB received an initial post-operative physiotherapy report, where the worker's complaints of pain into their right biceps and elbow, soreness in their shoulder, and increased pain with reaching and quick movements were noted. The physiotherapist reported the worker was able to lift their right arm, but it was still too acute from surgery for further strength testing, and the physiotherapist recommended the worker stay off work for a further six weeks.

On November 25, 2020, a WCB orthopedic specialist reviewed the October 21, 2020 Operative Report and the worker's file. The orthopedic specialist noted that the surgery consisted of repair of the tear of the right glenoid labrum, and tenotomy of a partial tear and tendinosis of the long head of the biceps, but did not include treatment for the grade two chondromalacia of the glenohumeral joint or the partial thickness tear and tendinosis of the subscapular portion of the rotator cuff. The specialist opined that the February 11, 2020 workplace accident likely caused the labral tear, but the "…other pathology of the right shoulder is degenerative in etiology," and the WCB would only be responsible for the labral repair surgery. The specialist further noted that a recovery time of four to six months would be anticipated, with resisted motion not to start until two to three months after surgery and no work tasks with the right upper limb being possible for two months after surgery. On the same date, the WCB orthopedic specialist advised the treating orthopedic surgeon that the WCB accepted financial responsibility for the labral repair surgery, but was not responsible for the treatment of the biceps partial tear and tendinosis.

The worker returned to work on modified duties on January 11, 2021. On February 5, 2021, the worker contacted the WCB to express their concerns with how their arm/shoulder looked and how their recovery was progressing, and the WCB suggested the worker discuss their concerns with the treating physician and orthopedic surgeon.

On March 16, 2021, the worker attended a follow-up appointment with their treating orthopedic surgeon. The surgeon noted the worker had described "…occasional and intermittent biceps muscle spasms, as well as some lateral shoulder pain consistent with the distribution of the rotator cuff." The surgeon opined that "Typically they (sic) biceps muscle pain will resolve as time goes. This can improve with further rehabilitation." A pain injection was provided and the worker was advised to monitor their ongoing symptoms. The treating surgeon further noted they did not support a request from the worker for further surgical intervention to reattach their biceps tendon. At a follow-up appointment on November 9, 2021, the treating orthopedic surgeon again recommended against surgery to reattach the worker's right biceps tendon and noted the worker had full shoulder range of motion and a Popeye deformity at the biceps.

On January 7, 2022, the worker sent an email to their WCB case manager, noting they were left with "…almost no use of my right arm and major physical deformity of my bicep and upper shoulder area" after the October 21, 2020 surgery, and requested the WCB review their file. On January 11, 2022, the WCB advised the worker that their file was to be reviewed for the purpose of assessing a permanent partial impairment ("PPI") rating, but due to the COVID-19 pandemic, WCB call-in examinations had been placed on hold, and they would contact the worker when examinations were available again. At a further follow-up appointment with the treating orthopedic surgeon on March 15, 2022, the worker was given a pain injection in the anterior biceps tendon area.

On April 27, 2022, the worker attended a call-in examination with a WCB physiotherapy advisor for assessment for a PPI award. The physiotherapy advisor noted the worker's concern that their right biceps tendon was released during the October 21, 2020 surgery, and that this procedure was not discussed with them prior to the surgery. The worker reported cramping in the right biceps had resulted in them not being able to return to their full regular duties. The physiotherapy advisor noted that the WCB had not accepted the biceps partial tear and tendinosis and biceps tenotomy, and the alteration related to the biceps was therefore not ratable. The advisor determined there was no ratable cosmetic impairment related to the compensable injury and the impairment calculation due to loss of range of motion in the right shoulder was 0.5%. The advisor further determined that the worker had a major pre-existing condition in their right shoulder, which resulted in a prorating of the calculated PPI by 50%, and a total recommended PPI of 0.25%. By letter dated May 20, 2022, the WCB advised the worker that they were not entitled to a PPI award as their PPI rating was calculated at less than 1%.

On June 12, 2022, the worker requested that Review Office reconsider the WCB's decision with respect to their PPI rating. On June 14, 2022, Review Office clarified the issue with the worker, and it was agreed that the worker was seeking reconsideration of the decision that their biceps injury was not related to the workplace accident.

On July 26, 2022, Review Office determined that responsibility was not accepted for the worker's right biceps injury. Review Office accepted the medical evidence on file which supported the worker's right biceps injury was pre-existing and unrelated to the workplace accident. Review Office relied on the comments of the worker's treating orthopedic surgeon that the decision to proceed with the long head biceps tenotomy was made during the surgical procedure itself. Review Office further found that as the biceps tenotomy was not directed at an area that could be causally related to the workplace accident, the worker was not entitled to compensation in regard to the right biceps.

On August 5, 2022, the worker appealed the Review Office decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On August 2, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

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 established by 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 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 27(10) states, in part, that "Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board..."

The WCB's Board of Directors has established Policy 44.10.20.10, Pre-existing Conditions, which 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.

The WCB has also established Policy 42.10.10, Elective Surgical Procedures, to clarify the circumstances when the WCB will accept responsibility for the costs associated with elective surgery and the worker's recovery. The Policy provides that:

1. The WCB will accept responsibility for the costs associated with elective surgery and the worker's subsequent recovery if 

a) the surgery is required as a result of a compensable injury; and 

b) prior approval has been received from the WCB. 

2. If elective surgery is undertaken without prior approval, the WCB may accept responsibility if prior approval would have been granted had it been requested. 

3. If the elective surgery has not been authorized, the WCB will be responsible for only those benefits that the worker would have been entitled to receive if he or she had not received the surgery…

Worker's Position

The worker was self-represented on the appeal. The worker made an oral submission at the hearing, and responded to questions from members of the panel.

The worker's position was that the WCB should accept responsibility for their right biceps condition as it is related to their February 11, 2020 workplace accident.

The worker noted that they never had a biceps problem with either arm prior to the workplace accident and were physically in very good shape. The worker submitted that their upper arm and biceps are now badly disfigured and they are limited in what they can do as a direct result of the workplace injury. The worker noted they are no longer capable of doing physical aspects of their work, and simply reaching behind their back or turning a screwdriver causes painful spasms and problems.

The worker submitted that they did not consent to the surgery which was performed on their right biceps. The worker noted that the Operative Report showed the biceps was 50% attached before the surgery, and the surgeon purposely took it upon themselves in the course of the surgery to detach the biceps completely and left it that way. The worker submitted that they knew the risks of having shoulder surgery when they signed the medical waiver, but not the risks of a biceps tenotomy, and there was no mention of the biceps being touched. The worker said they went into the surgery with a fully functioning biceps with no history of pain, and came out with problems they have continued to experience every day since then.

The worker submitted that they were injured at work and their biceps condition is directly related to their workplace injury. The worker submitted that if it had not been for the workplace accident, they would not have had the surgery and their biceps would still be 50% attached and not left hanging by their elbow. The WCB authorized the surgery during which the biceps was detached, resulting in their biceps condition, and the WCB should be responsible for that condition.

Finally, the worker submitted that the treating orthopedic surgeon had stated in a November 25, 2022 letter that in their opinion, the worker's biceps tear and long head biceps tenotomy were related to the initial workplace injury, and their opinion should be accepted and the worker's appeal allowed.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker's right biceps condition as being related to the February 11, 2020 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right biceps condition is causally related to their February 11, 2020 workplace accident or injury. For the reasons that follow, the panel is unable to make that finding.

Based on our review of all of the information which is before us, the panel is satisfied that there is a lack of compelling evidence to indicate that the biceps tear occurred because of the February 11, 2020 workplace accident.

In this regard, the panel notes that the March 3, 2020 MRI of the right shoulder identified tearing of the inferior labrum and long head biceps tendinosis but did not identify a biceps tear. The panel further notes that prior to the October 21, 2020 surgery, there was a lack of any indication that the worker's symptomatology was anything more than what was identified in the MRI.

In their October 21, 2020 Operative Report, the surgeon commented that "There was noted to be a 50% tear of the long head of biceps tendon near its attachment to the superior labrum. There was also fraying of the tendon as it extended into the intubercular groove. I made the decision that we would proceed with a long head biceps tenotomy."

The panel has carefully reviewed all of the reports from the treating orthopedic surgeon. In the November 25, 2022 letter provided in support of the worker's appeal, the orthopedic surgeon confirmed that they did not expect to find a biceps tear but noted it during the diagnostic portion of the surgery. The treating orthopedic surgeon went on to opine that the biceps tear itself "…would be consistent with the acute workplace injury, and the mechanism of injury" and opined that the biceps tear would be associated with the acute injury that caused the labral tear.

Following the hearing, the panel requested that the treating orthopedic surgeon provide a rationale as to why they considered the biceps tendon tear was related to the 2020 accident and medical evidence to support that relationship. In their response dated March 21, 2023, the surgeon stated that the mechanism of injury of the forceful extension of the right shoulder "can cause a long head biceps tear as well as a labral tear." The surgeon further stated that the worker "does have a mechanism that corresponds to the surgical pathology, and therefore it would be my opinion that the initial injury was in fact related to the biceps tear."

The panel subsequently requested that the WCB's Healthcare Services comment on the orthopedic surgeon's March 21, 2023 letter. In a detailed medical opinion dated June 24, 2023, a WCB orthopedic surgery consultant noted that they reviewed the worker's file, and acknowledged that the treating orthopedic surgeon's statement that the February 11, 2020 mechanism of injury of forceful extension of the right shoulder "could cause right shoulder long head of biceps and labral tears" was accurate.

The WCB orthopedic surgery consultant went on to note that right shoulder long head of biceps tendinosis was identified in the March 3, 2020 MRI, and represented degeneration which takes years to develop, and that such a finding would confirm that there was pre-existing degeneration of the right shoulder long head of biceps tendon. The consultant commented that "the natural history of long head of biceps tendinosis is for partial tearing to occur in the tendon over time."

The WCB consultant further provided a detailed description of the areas where the tears were located, noting that the labrum is a soft tissue rim that surrounds the socket portion of the shoulder and the location of labral tears is typically identified as a clock face with 2 o'clock to 5 o'clock representing the anterior labrum. The consultant stated that the long head of biceps tendon originates at approximately the 1 o'clock position on the labrum, and an injury to the anterior labrum that also resulted in a concomitant injury to the long head of biceps tendon "…would typically present with tearing of the labrum extending into the long head of biceps tendon insertion as he (sic) force vector from the mechanism of injury usually travels through all injured tissue."

The consultant went on to opine as follows:

As such, with the October 21, 2020 Operative Report specifically indicating that the right shoulder anterior labral tear only involved the 3 o'clock to 5:30 positions in the right shoulder, the right shoulder partial long head of biceps tear identified during the October 21, 2020 right shoulder surgery would more likely be medically accounted for in relation the pre-existing degenerative long head of biceps condition than the February 11, 2020 workplace incident as a mechanism of injury causing both an anterior labral tear and long head of biceps tear would usually present with disruption (tearing) of the anterior labrum all the way into the long head of biceps insertion rather than anterior labral issue (sic) higher than the 3 o'clock position being noted as intact as in the October 21, 2020 Operative Report.

The reported findings of a right shoulder anterior labral tear and partial long head of biceps tear in the October 21, 2020 Operative Report are thus likely to represent two separate right shoulder diagnoses that are not related to each other with the same Operative Report confirming that the right shoulder labral tissue between the compensable anterior labral tear and the non-compensable partial long head of biceps tear was not torn.

The panel accepts that the mechanism of injury as reported can or could cause right shoulder labral and long head of biceps tears. The panel notes, however, that the applicable standard of proof is not based on what is possible. Rather, the standard of proof is based on a balance of probabilities, or whether something is more likely than not to have occurred.

The panel is unable to place significant weight on the November 25, 2022 and March 21, 2023 letters from the treating orthopedic surgeon. The panel acknowledges that the surgeon has opined in their recent letters that the biceps tendon tear was likely related to the workplace accident, but is not satisfied that their opinion is supported by the evidence.

The panel accepts and places weight on the WCB orthopedic surgery consultant's detailed explanation and opinion, and is satisfied that the right labral tear and the partial tear of the right biceps tendon are at different locations, as reported on the Operative Report, with the tissue between them remaining intact and not torn, and represent two separate diagnoses. While the panel is satisfied, as indicated above, that the reported mechanism of injury could cause either type of tear, we are not satisfied, on a balance of probabilities, that where the force from the mechanism of injury impacts and causes a tear at one location, it would be sufficient to also cause a second tear at a separate location at the same time, with no disruption or tearing in between. The panel is therefore unable to find, based on the evidence and on a balance of probabilities, that the worker's biceps tendon tear or condition is causally related to, or was somehow aggravated or enhanced by, the February 11, 2020 workplace accident.

While the worker has also argued that the WCB authorized the surgery and is therefore responsible for the condition of their biceps, information on file shows that responsibility was accepted for the labral repair only, with surgery to the biceps being neither approved nor required as being related to the workplace accident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right biceps condition is not causally related to their February 11, 2020 workplace accident or injury. The panel therefore finds that responsibility should not be accepted for the worker's right biceps condition as being related to the February 11, 2020 accident.

The worker's appeal is therefore dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of September, 2023