The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits for their left rotator cuff tear and subsequent surgery. A hearing was held on October 4, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits for their left rotator cuff tear and subsequent surgery.

Decision

The worker is entitled to benefits for their left rotator cuff tear and subsequent surgery.

Background

The WCB received an Employer's Accident Report on September 18, 2020, reporting that the worker injured their left shoulder and upper arm in an incident at work on September 13, 2020. The employer described that the worker "tripped over water hose at back of truck". On September 21, 2020, the worker filed a Worker Incident report with the WCB, reporting that they:

"…tripped over some hoses and to save me from the fall I grabbed on another set of hoses hooked up on the trailer but I couldn't hang on.

I didn't quite fall as I was able to catch myself on the hoses from completely ending up on the ground.

However, I immediately felt pain in my left arm, all the way from the top of the arm in the shoulder region all the way down to my hand. More specifically the pain is intense on top of the shoulder all the way down to my biceps area.

I continued to work despite my injury and was still able to finish my shift despite the pain.

The worker sought treatment at a local emergency department on September 15, 2020, complaining of left arm pain after tripping over hoses, grabbing hold of something with their left hand and hyperextending their elbow and posterior shoulder, with immediate pain. The report from the emergency department indicates bruising noted on the worker's left arm, with pain at the insertion of the biceps and brachialis tendon and reduced range of motion in the shoulder, with a diagnosis of tendon rupture.

The worker attended an initial chiropractic assessment on September 16, 2020 reporting severe pain in their left biceps after tripping over a hose. The treating chiropractor noted a large bruise on the worker's left biceps and forearm with tenderness. The chiropractor diagnosed left biceps strain and queried a biceps tendon tear. The worker was also treated by their family physician on September 16, 2020, reporting bruising to their left arm/shoulder, weakness, and pain with abduction of their left arm, decreased range of motion and decreased strength with flexion of their left elbow secondary to pain after catching themselves tripping over a hose at work. The physician recorded decreased range of motion and strength with abduction of the left shoulder and recommended the worker limit lifting with left arm. The physician offered a diagnosis of sprain of the left biceps tendons and referred the worker to physiotherapy.

On September 21, 2020, the WCB spoke with both the employer and the worker to gather further information. The employer confirmed they were aware of the September 13, 2020 workplace accident and had no concerns with the worker's claim. The WCB noted the employer did not have modified duties available for the worker at that time but may have in the future. The worker confirmed the mechanism of injury and advised that a coworker witnessed the incident. The worker stated that after the incident they felt something pull but continued to work and finished their shift and worked the next day too. On the third day after the incident, the worker’s supervisor noticed the bruising from the worker’s left shoulder down to their hand and that the worker was in pain, and suggested they seek medical treatment. The worker described their symptoms of pain in their shoulder with movement and inability to lift their arm past shoulder height. The WCB advised the worker their claim was accepted, and the payment of benefits followed.

At follow-up with the family physician on October 1, 2020, the physician referred the worker for a left shoulder x-ray and indicated restrictions of carrying up to 10 pounds with left hand, but no lifting and no reaching with the left arm. The x-ray of October 2, 2020 indicated "…severe acromioclavicular osteoarthritis. The glenohumeral articulation is congruent. No acute bone or joint abnormalities are demonstrated." At further follow-up appointment on October 20, 2020, the physician referred the worker for an MRI study, which took place on November 12, 2020 and indicated "Tear of the long head of the biceps. Cuff tendinosis and AC (acromioclavicular) osteoarthritis".

On physiotherapy assessment on November 16, 2020, the worker reported pain in their left shoulder that traveled down their lateral arm with movement, inability to sleep on their left side or abduct their left arm. The physiotherapist noted decreased range of motion, positive Hawkin's and Kennedy testing on the left side and tenderness at the supraspinatus and subscapularis insertions and diagnosed a long head of biceps tear and supraspinatus strain. Due to the worker’s persistent pain and weakness, on November 13, 2020, the treating family physician referred the worker to an orthopedic surgeon.

The orthopedic surgeon assessed the worker on December 8, 2020 and noted the worker could get their left arm to 180 degrees of forward elevation with help, had positive impingement testing which was painful through abduction and some mild biceps pain. The surgeon noted the MRI indicated a tear of the long head of the biceps, with rotator cuff tendinitis but no significant tears and acromioclavicular joint arthritis, and recommended non-surgical treatment, including physiotherapy and home exercises. The surgeon outlined that if there was no improvement over the following 2 to 3 months, the worker would be reassessed for a shoulder arthroscopy with acromioplasty. On January 19, 2021, the worker advised the WCB they wanted to proceed with the proposed surgery as there had been no improvement with physiotherapy treatment or home exercises.

A WCB medical advisor reviewed the worker’s file on February 3, 2021 and concluded that the workplace accident caused a left shoulder long head of biceps rupture in the setting of a pre-existing left shoulder condition. The medical advisor outlined workplace restrictions avoiding resisted overhead activity with the left shoulder, but that overhead unresisted range of motion was permitted; avoiding resisted work outside the body envelope with the left arm, with unresisted range of motion outside the body envelope permitted; lift/pull/push/carry within the body envelope of 10 pounds or less with the left arm; and take rest breaks as needed.

On March 16, 2021, the worker again saw the orthopedic surgeon, who noted the worker reported no improvement from the previous appointment and diagnosed rotator cuff syndrome and recommended proceeding with the left shoulder acromioplasty.

When a WCB medical advisor reviewed the worker's file on March 24, 2021 in respect of the proposed surgery, they concluded that the proposed acromioplasty procedure was generally performed related to findings of "…an acromial hook, spur or downslope" none of which were noted on the diagnostic imaging on file. The medical advisor requested a WCB radiologist review the diagnostic imaging, which took place on March 27, 2021. On April 7, 2021, the WCB medical advisor outlined their opinion that the WCB should not support the proposed surgery “…as the evidence on file does not support the presence of any left shoulder acromial pathology that would be causing a material effect to the left shoulder."

On April 9, 2021, the WCB advised the treating orthopedic surgeon and the worker that the WCB would not accept responsibility for the proposed left shoulder acromioplasty. The worker contacted the WCB on April 12, 2021 and advised that they planned to cancel the proposed surgery as their arm was improving and they were able to lift it better, although their pain continued. On May 27, 2021, the worker was discharged from physiotherapy. On June 15, 2021, the WCB advised the worker that it would close their claim file.

The WCB received a report from the treating orthopedic surgeon dated January 7, 2022. The surgeon noted the worker chose not to proceed with the surgery previously recommended but that the worker reported similar symptoms affecting their functioning. On examining the worker, the treating surgeon recorded good forward elevation, pain through abduction, a positive impingement test and significant pain with supraspinatus testing. The surgeon noted that diagnostic imagining had identified supraspinatus and subscapularis tendinosis, a torn biceps and acromioclavicular joint arthritis and again recommended a left shoulder arthroscopy with acromioplasty, with a possible rotator cuff repair. An x-ray taken that day indicated “Moderate AC (acromioclavicular) arthrosis is identified. The humeral head is high-riding and may relate to chronic rotator cuff tear. No acute bony abnormality identified.”

On February 16, 2022, a WCB medical advisor again reviewed the worker’s file, and noted that since their April 9, 2021 opinion, no new medical information had been provided that would medically account for the need for the surgery in relation to the workplace accident. Further, the WCB medical advisor noted a rotator cuff tear was not indicated on the diagnostic imaging. As such, approval for this proposed surgery would not be provided by the WCB. The WCB provided the treating orthopedic surgeon and the worker with a surgery denial letter on February 25, 2022.

The worker’s surgery took place on July 7, 2022. The surgical report provided to the WCB outlines that the surgeon undertook labrum debridement and subacromial decompression and reported a 0.5 cm rotator cuff tear. The surgical report and the worker’s file were reviewed by a WCB medical advisor on August 4, 2022, who opined that the “…left shoulder rotator cuff tear identified in the July 7, 2022 Operative Report would…more likely be related to progression of the pre-existing left shoulder rotator cuff tendinosis condition rather than to the September 13, 2020 workplace accident with no left shoulder rotator cuff tear identified on the November 12, 2020 left shoulder MRI.” On August 5, 2022, the WCB again advised the worker that it would not accept responsibility for the July 7, 2022 surgery nor for benefits related to that surgery.

On September 8, 2022, the treating orthopedic surgeon provided a letter to the WCB outlining that before the September 13, 2020 workplace accident, the worker did not have any issues with their left shoulder. Further, the surgeon advised that diagnostic imaging indicated “…significant supraspinatus and subscapularis tendinosis and a tear of the long head of the biceps”, and as the worker did not improve with physiotherapy, they underwent surgery on July 7, 2022, which revealed “…a high-grade articular-sided tear of the supraspinatus”. The surgeon concluded the worker’s accident on September 13, 2020 likely caused the rotator cuff tear.

On September 21, 2022, the worker requested Review Office reconsider the WCB’s decision, relying upon the treating orthopedic surgeon’s letter in support of their appeal. On September 22, 2022, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. A WCB medical advisor reviewed the September 8, 2022 letter from the worker’s treating orthopedic surgeon, along with the worker’s file and on September 26, 2022, provided their opinion that while a left shoulder rotator cuff was found during the July 7, 2022 surgery, the surgery took place almost 2 years after the workplace accident, and with no rotator cuff tear indicated on the diagnostic imaging, it was speculative to relate the tear to that accident. The WCB medical advisor further noted that rotator cuff tears are easily identified on MRI studies and the November 12, 2020 MRI did not show a tear. On the same date, the WCB advised the worker the information from the treating surgeon was reviewed but there would be no change to the earlier decision.

On October 26, 2022, the worker’s representative again requested Review Office reconsider the WCB’s decision on the basis that the medical information on file indicated continuity of symptoms of a rotator cuff tear throughout the claim and supported a finding that the worker sustained a left rotator cuff tear as a result of the September 13, 2020 workplace accident. On November 28, 2022, the employer’s representative provided a submission in support of the WCB’s decision, a copy of which was provided to the worker on November 29, 2022 and a response was submitted by the worker’s representative on December 5, 2022.

Review Office determined on December 21, 2022 that the worker was not entitled to benefits associated with the left rotator cuff tear and subsequent surgery. Review Office concluded that based on the reported mechanism of injury and the medical information in closest proximity to the workplace accident, the worker’s compensable injury was a tear of the long head of the biceps with distal retraction in the environment of a pre-existing degenerative left shoulder condition. Review Office could not establish that there was a relationship between the worker’s compensable injury and the left shoulder rotator cuff tear and surgery.

The worker’s representative filed an appeal with the Appeal Commission on April 24, 2023 and a hearing 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 the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

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 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 s 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 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. This policy sets out that the WCB will not provide benefits for disability 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" but when a worker’s loss of earning capacity is caused in part by a compensable condition and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission in the hearing and relied upon their written submission provided to the Appeal Commission in advance of the hearing. The worker provided testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that the evidence supports a finding that the tear to their left rotator cuff occurred as a result of the workplace accident of September 13, 2020 and as such, they should be entitled to benefits for their left rotator cuff tear and subsequent surgery.

In the hearing, the worker advisor highlighted that there is no dispute as to the circumstances of the worker’s accident or the mechanism by which the worker sustained their injuries; rather, the only dispute is as to the disparate opinions of the WCB medical advisor and the treating orthopedic surgeon. The worker advisor noted that although the WCB medical advisor both sought out the opinion of a radiology advisor and consulted with the treating orthopedic surgeon in respect of the proposed sub-acromial decompression surgery, they did not do so in respect of the present issue. The worker advisor submitted that the panel should give greater weight to the opinions offered by the treating orthopedic surgeon who had the benefit not only of reviewing the worker’s medical history in relation to their injury but also of undertaking the surgical procedure to repair and address those injuries.

The worker advisor noted that the worker’s mechanism of injury was forceful, such that their left biceps were fully torn. Prior to the accident, the worker did not have any left shoulder symptoms or functional limitations, but afterward, until the surgical procedure of July 7, 2022, the worker was unable to abduct their left arm above shoulder height without significant symptoms. In the hearing, the worker described that when they tried to raise their arm above that level, it would just drop.

The worker advisor submitted the medical reporting by the treating providers supports the worker’s position that they sustained the left rotator cuff tearing at the same time as the biceps tear, on September 13, 2020, noting that as early as October 20, 2020, the treating family physician was suspicious of a possible rotator cuff tear based on the worker’s reported symptoms and the clinical findings. The worker advisor noted that although MRI imaging is a valuable diagnostic tool, it is not infallible and, in this case, it did not reveal the rotator cuff that was identified during surgery. It is for this reason that clinical correlation of the imaging findings is typically required. Here, the clinical findings did not correspond to the imaging results but continued to point to a left rotator cuff tear. The worker advisor noted the explanation offered by the treating orthopedic surgeon that small tears may not be visible, particularly in the environment of tendinosis.

With respect to the WCB’s conclusion that the worker’s rotator cuff tearing was the result of their pre-existing degenerative tendinosis, the worker advisor noted the absence of symptoms prior to the workplace accident and the continuity of symptoms of rotator cuff tearing from the time of the accident until the surgery.

The worker advisor submitted that the evidence confirms that but for the workplace accident, the worker would not have required the rotator cuff surgery, and the worker should therefore be entitled to benefits in relation to the left rotator cuff tear and subsequent surgery.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer.

The employer’s position is that the evidence does not support a finding that the worker’s left rotator cuff tear is a result of the workplace accident of September 21, 2020 but rather indicates that this tearing is the result of the worker’s non-compensable and pre-existing degenerative rotator cuff tendinosis. As such, the worker should not be entitled to benefits for their left rotator cuff tear and subsequent surgery, and the appeal should be denied.

The employer’s representative submitted that the panel should rely upon the opinions provided by the WCB orthopedic advisor that a natural outcome of rotator cuff tendinosis is degenerative tearing, which is the most likely cause of the worker’s rotator cuff tear, given the absence of any evidence of such a tear in the diagnostic imaging of the worker’s left shoulder from November 2020. As such, the employer’s position is that the medical evidence does not support the worker’s position.

Further, the employer’s representative submitted that the tendinosis in the worker’s left rotator cuff is a pre-existing condition that more likely than not would have resulted in degeneration to the point of tearing, and a need for surgical repair, even had the workplace accident not occurred. The employer’s representative further noted that there is no evidence that this condition was aggravated or enhanced by the accident.

Analysis

The question on appeal is whether the worker is entitled to benefits for a left shoulder rotator cuff tear and subsequent surgery. For the worker’s appeal to be granted, the panel would have to determine that the left shoulder rotator cuff tear arose out of the compensable workplace accident of September 21, 2020 and therefore the worker is entitled to benefits relating to that tear including the surgery of July 7, 2022. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The worker’s position in this appeal is that the rotator cuff tear identified in the July 7, 2022 surgery was caused by and occurred at the time of the workplace accident. This position is supported by the evidence from the treating orthopedic surgeon, particularly their narrative report of April 17, 2023 in which the surgeon stated “On review of the documents, I still support that [the worker’s] workplace injury in September 2020 resulted in the left shoulder rotator cuff tear and tear of the long head of the biceps seen intraoperatively in July 2022. [The worker] did not have any symptoms of shoulder pain or reduced motion prior to this injury.” The surgeon further noted that the early medical reporting supported this conclusion, and that the identified “…0.5 cm tear is a fairly small tear and would therefore be more likely to not be seen on MRI compared to a larger tear, especially in the setting of significant tendinosis. The tear was also high-grade partial thickness, which is more likely to not be seen on MRI compared to a full thickness tear, again especially in the setting of significant tendinosis.”

The employer’s position is that this tear was the natural result of the worker’s left rotator cuff tendinosis, as identified in the November 12, 2020 MRI study, and that it likely developed at some point after the MRI study was undertaken and as such is entirely unrelated to the injuries sustained in the workplace accident. In support of this position, the employer relied upon the opinions provided by the WCB medical advisor, including the September 26, 2022 opinion that:

“There is no disputing that a left shoulder rotator cuff tear was found during the July 7, 2022 left shoulder surgery but attributing a left shoulder rotator cuff tear found during a surgery performed almost 2 years after the September 13, 2020 workplace incident would be speculative in the setting of a degenerative left shoulder condition that is known to progress on to rotator cuff tearing and no evidence of rotator cuff tearing identified on imaging shortly after the workplace incident.

Rotator cuff tears significant enough to require repair are typically easily identified on shoulder MRIs. The absence of such a finding in the report from the November 12, 2020 left shoulder MRI thus makes it much more likely that the left shoulder rotator cuff tear…occurred or developed after the November 12, 2020 left shoulder MRI in relation to the degenerative rotator cuff tendinosis condition….”

However, the panel noted that although the WCB medical advisor indicated the rotator cuff tearing was not found until the surgery in July 2022, nearly two years following the workplace accident, the medical reporting does indicate the diagnosis of left rotator cuff tearing was first suspected by the treating physician as early as October 20, 2020, as outlined in their chart notes and the MRI request of the same date. Indeed, the physician requested the MRI explicitly to rule out such tearing, which was the finding from that imaging; however, the subsequent medical reporting indicates that worker’s symptoms continued to cause their treating medical practitioners to query a rotator cuff tear despite the negative MRI findings. The panel also noted that the reporting from both the treating chiropractor and physiotherapist demonstrate the worker’s consistent report of symptoms, as well as clinical findings in respect of the worker’s left shoulder that support the operative findings in relation to the worker’s rotator cuff. The panel also considered that there is no evidence that the worker had any prior left shoulder difficulties, until the date of accident, and the worker’s testimony that their left shoulder symptoms first noted after the workplace accident were successfully addressed by the surgery. As noted by the treating orthopedic surgeon, the clinical findings recorded soon after that accident, and before the MRI study, support a causal relationship between the workplace injury and the surgical findings in respect of the worker’s left rotator cuff.

The panel accepts the opinions of both the treating orthopedic surgeon and the WCB medical advisor that the worker’s left rotator cuff tendinosis was a pre-existing condition and was not caused by the workplace accident. We also noted their agreement that this pre-existing condition created an environment in which the worker could develop rotator cuff tearing. Their disagreement lies in when that tearing occurred. The WCB medical advisor suggests that it must have occurred after the MRI study as it was not evident on that imaging; however, the treating orthopedic surgeon allows for the possibility that the tear was not visible on the MRI imaging but was still there, pointing to the pre-MRI clinical findings and the worker’s development of left shoulder symptoms, including specifically, difficulty with active abduction of their shoulder, soon after the accident. The panel accepts and prefers the opinion of the treating orthopedic surgeon in this regard, given that the clinical findings and the worker’s evidence also support this view.

The panel also noted that the mechanism of injury in the workplace accident was of sufficient force to cause complete tearing of the long head of the biceps and we accept the opinion of the treating orthopedic surgeon that such a mechanism of injury could also have caused the tearing of the worker’s left rotator cuff, in an environment of pre-existing tendinosis that would have made the worker’s rotator cuff more vulnerable to injury.

Based on the evidence before the panel, the panel is satisfied that the worker more likely than not sustained tearing to their left rotator cuff in the workplace accident of September 13, 2020. The panel noted that the treating orthopedic surgeon recommended “left shoulder arthroscopy with acromioplasty and possible rotator cuff repair depending on intraoperative findings” in reporting to the treating physician in follow up to their January 7, 2022 consult. The WCB found that the proposed acromioplasty was not related to the workplace injury and the treating orthopedic surgeon agreed with this assessment, but the WCB also found that the proposed rotator cuff repair surgery was not related to the workplace injury. The panel considered that the WCB’s decision not to fund the surgery was based on the WCB medical advisor’s conclusion that because there was no evidence of a left rotator cuff tear on the MRI study, it was not the result of the workplace accident. The panel also noted that although there is evidence of some improvement over time, the worker’s recovery eventually stalled leading them to accept the treating orthopedic surgeon’s recommendation for surgery, rather than continuing with conservative treatment.

Based on the panel's finding that the left rotator cuff tearing was caused by the workplace accident and the evidence that the worker’s left shoulder symptoms did not resolve with conservative treatment, but did resolve after the surgical repair, the panel accepts the opinion of the treating orthopedic surgeon that the left rotator cuff repair was medically necessary and related to the injury the worker sustained in the compensable workplace accident.

Therefore, based on the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the worker is entitled to benefits for the left rotator cuff tear and subsequent surgery. The worker’s appeal is granted.

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 13th day of October, 2023