The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing decisions made by the Workers Compensation Board ("WCB") that the worker's claims for accidents on April 10, 2013 and October 15, 2016, respectively, are acceptable, and the employer is not entitled to cost relief with respect to either claim. A videoconference hearing was held on June 22, 2023 to consider the employer's appeal.

Issue

Date of Accident - April 10, 2013:

1. Whether or not the claim is acceptable; and 

2. Whether or not the employer is entitled to cost relief.

Date of Accident - October 15, 2016:

3. Whether or not the claim is acceptable; and 

4. Whether or not the employer is entitled to cost relief.

Decision

Date of Accident - April 10, 2013:

1. The claim is not acceptable; and 

2. Given the decision on Issue #1, this issue is moot.

Date of Accident - October 15, 2016:

3. The claim is not acceptable; and 

4. Given the decision on Issue #3, this issue is moot.

Background

Date of Accident - April 10, 2013

The worker has an accepted WCB claim for a right shoulder injury that occurred at work on April 10, 2013, which they attributed to lifting heavy objects, reaching, pulling, and using hand tools and impact tools while performing their job duties. The worker described reduced movement in their shoulder, pain when reaching up or back, night-time pain, and losing strength in their grip.

On April 10, 2013, the worker saw their family physician, describing the incident or injury as repetitive motion of right shoulder at work. The worker reported right shoulder pain for two weeks, shooting pain down the side of their upper right arm, and difficulty elevating their arm. The physician found the worker had tenderness over the superior aspect of their right shoulder at the acromioclavicular joint and suprascapular space, decreased range of motion, and difficulty with abduction, elevation and backwards movements. The physician diagnosed the worker with a right shoulder strain, and recommended physiotherapy and an MRI.

On April 12, 2013, the worker attended an initial physiotherapy assessment, where it was noted the worker reported insidious onset of right shoulder pain, and complained of right shoulder pain with overhead activity, disturbed sleep, and decreased active range of motion/stiffness. The physiotherapist provided a diagnosis of right rotator cuff tendinopathy, with capsular pattern restriction.

On April 16, 2013, the WCB contacted the worker to gather further information. The worker advised the WCB they did not recall a specific incident that caused the injury, but noted they had been working in the same occupation for the past 32 years, the last three of which were with the employer, and their job duties involved lifting heavy objects, reaching, pulling, and using hand tools and impact tools. They noted they started having right shoulder problems around the beginning of March 2013 but had not made any ongoing complaints. The worker said their shoulder was currently sore and achy, and they had been off work since April 15, 2013, with no light duties available being available. The WCB advised the worker that their claim was accepted. On April 17, 2013, the employer confirmed they did not have light duties available for the worker.

At a follow-up appointment on April 25, 2013, the worker's family physician noted ongoing symptoms with little improvement from physiotherapy, and recommended remaining off work. On May 3, 2013, the worker underwent an MRI on their right shoulder, which showed mild acromioclavicular arthrosis, with no abnormality of the rotator cuff being detected. At a May 16, 2013 appointment, the treating physiotherapist noted decreased passive range of motion and increased pain in the worker's right shoulder, recommended restrictions of no overhead work and no lifting greater than 10 pounds, and requested an extension for further treatment.

On June 11, 2013, the worker attended a call-in examination with a WCB medical advisor. The medical advisor noted the worker reported they felt right shoulder pain starting in January 2013, and were not aware at the time of any restriction in range of motion, but when their symptoms persisted they saw their doctor in early April. On examination, the medical advisor noted the worker had "…a relatively well established adhesive capsulitis of the right shoulder based on the repetitive straining in the workplace with the occupation as described by the worker." The medical advisor recommended consultation with a physiotherapist and a surgeon. Restrictions of no work above shoulder level; no work outside the body envelope; no repetitive attempts at lifting of weights floor to bench greater than 5 lbs on an occasional basis; no repetitive pronation or supination; no repetitive pushing and pulling; and no repetitive use of hand tools were recommended and were provided to the employer on June 14, 2013.

On July 2, 2013, the worker was seen by an orthopedic surgeon. The surgeon noted the worker reported increasing pain and stiffness in their right shoulder which began over the winter and progressed to the point the worker was no longer able to perform any overhead activities. In assessing the worker, the surgeon noted they had decreased forward flexion and external rotation and the MRI indicated "…very mild AC (acromioclavicular) joint arthritis which I do not think is a significant finding. Other interarticular structures of the shoulder are normal." The orthopedic surgeon opined that the worker's clinical history and examination were "…consistent with adhesive capsulitis or frozen shoulder." The surgeon advised they did not recommend surgery and the worker should continue with their range of motion exercises, noting that resolution could take up to two years from the initial diagnosis.

The worker continued to participate in physiotherapy and attend regular appointments with their family physician. On May 7, 2014, the worker attended a Functional Capacity Evaluation ("FCE"). On May 14, 2014, based on the results of the FCE and a review of the worker's file, the WCB medical advisor recommended the worker's restrictions be continued for a further six months and agreed that a work hardening program would be appropriate.

On June 6, 2014, the worker returned to modified duties on reduced hours and to their full regular duties as of June 23, 2014. On July 4, 2014, the worker advised the WCB that things were "OK" since returning to work; that they were working within their restrictions and requesting help with heavy objects, and their range of motion was not too bad. On October 21, 2014, the worker advised they were performing their regular duties and had to adjust some of the ways they worked, but were not restricted in the tasks they performed.

On December 7, 2021, the employer's representative contacted the WCB to request cost relief for the worker's claim. The representative noted "Considering the minor mechanism of injury and the prolonged recovery time well beyond recovery norms, it is likely that a pre-existing condition was the primary cause of, or significantly prolonged the claim and the employer is entitled to 50% - 100% cost relief as per policy 31.05.10." On the same date, the WCB advised the employer that they were not eligible for cost relief.

Date of Accident - October 15, 2016

The worker filed a Worker Incident Report on November 24, 2016 reporting an injury to their left shoulder that occurred at work on October 15, 2016. The worker described an increase in their workload involving a lot of lifting and moving heavy objects as the cause of their injury, which they reported to the employer on November 24, 2016. The worker noted their symptoms started slowly with pain, then progressed to less mobility.

On November 24, 2016, the worker sought treatment from their family physician, describing the incident or injury as left shoulder pain due to shoulder strain. The worker complained of soreness over the anterior aspect and inside of their left shoulder joint, and difficulty carrying out their daily work. The family physician noted decreased range of motion, an inability to elevate the left shoulder, and difficulty with internal rotation. The physician diagnosed a left shoulder strain, and recommended physiotherapy and rest and that the worker be off work for three weeks.

On November 25, 2016, the worker attended an initial physiotherapy assessment, complaining of pain and decreased range of motion and function in their left shoulder. The physiotherapist diagnosed the worker with left shoulder capsulitis/capsular strain and noted the treating physician had already placed the worker off work for three weeks. The physiotherapist indicated the worker was capable of sedentary duties, but queried whether any such duties were available.

On December 5, 2016, the WCB contacted the worker to discuss their claim. The worker advised the WCB they first noticed difficulties with their left shoulder around mid-October 2016, with their shoulder feeling sore and achy by the end of their work day. In the beginning of November 2016, the pain was lasting longer and not improving with rest. As they had a medical appointment with their family physician scheduled for later that month, they brought this up with their physician at that time. The worker described how there was a seasonal increase in their job duties starting in the beginning of October, involving working overhead and a lot of twisting, turning, pulling and pushing with tools. They indicated their current symptoms included pain, limited range of motion, increased pain with movement, and an inability to sleep on their left side.

In a discussion with the WCB on December 14, 2016, the employer confirmed there was a seasonal increase in the job duties which added a lot of extra work and strain on the body, and they believed the work likely caused the worker's shoulder injury.

On January 18, 2017, the worker's file was reviewed by a WCB medical advisor, who opined that the diagnosis of a left shoulder strain was consistent with the described mechanism of injury and that the symptoms reported and documented in close temporal relationship to the accident date of October 15, 2016 supported that diagnosis was likely related to the workplace accident. The medical advisor also noted that ongoing reported difficulties, including left shoulder pain and difficulty with overhead activities using the left shoulder might suggest another pathology. The advisor noted that recovery from an uncomplicated shoulder strain would typically occur over a period of 6 to 8 weeks.

On April 11, 2017, the worker underwent a left shoulder MRI, which showed an "8 x 2 mm partial-thickness partial width intratendinous tear anterior fibers infraspinatus tendon" and "Minimal acromioclavicular joint osteoarthritis." On April 14, 2017, the WCB medical advisor reviewed the worker's file, together with the MRI report, and opined that the worker's current diagnosis was a left partial width, partial thickness intratendinous tear of the infraspinatus muscle tendon, as supported by the April 11, 2017 MRI. It was noted that the treating physician and physiotherapist both documented the worker's shoulder was frozen, and the medical advisor opined that if the rotator cuff tear indicated on the MRI was in fact complicated by a frozen shoulder, recovery might be prolonged over a period of months to years. The medical advisor indicated the worker's recovery appeared to be prolonged, but the degenerative changes to the worker's acromioclavicular joint were not significant enough to prolong recovery from a rotator cuff tear, and suggested an opinion be obtained from an orthopedic specialist.

On April 21, 2017, the employer advised the WCB that the worker had returned to work doing light duties two days per week for half days. On April 28, 2017, the worker was seen by an orthopedic specialist, who opined that the worker had a frozen left shoulder. The specialist noted the worker was aware that the natural history of frozen shoulder was it would likely resolve on its own and wanted to continue with conservative treatment. The specialist advised the worker could continue to work within the limit of their abilities.

On May 5, 2017, the worker's file was again reviewed by the WCB medical advisor, who opined that the current diagnosis was a left frozen shoulder based on the orthopedic specialist's opinion, and the events related to the compensable injury appeared to account for that diagnosis. The medical advisor noted that the normal expected recovery from a frozen shoulder ranged from 6 to 24 months, and the worker's recovery was prolonged beyond the norm due to their compensable injury and not a pre-existing condition. The advisor recommended treatment consisting of physiotherapy, supported with a home-based exercise program, and pain medication.

By June 22, 2017, the worker advised the WCB they continued to work two days per week for half days, and while they were sore after working, they could maintain that schedule. On September 6, 2017, the worker underwent an FCE. Updated restrictions were outlined, consisting of limiting repetitive weighted use of the left arm away from the body envelope or above shoulder height, with the worker being able to lift most objects at work if done so within their body envelope, and were provided to the employer on September 14, 2017.

On October 24, 2017, the worker advised the WCB that they were starting to work two full days per week. On November 10, 2017, the worker advised they were continuing to work two full days per week, avoiding heavier work, and doing as much as they could. The worker reported being sore by the end of the day, but not feeling too bad the following day.

On March 26, 2018, the worker underwent a further FCE, the results of which were reviewed by the WCB medical advisor, who outlined updated restrictions. On April 4, 2018, the WCB advised the employer that the worker's current restrictions were limiting repetitive weighted use of the arm above shoulder height or away from the body envelope; maximum bilateral lift waist to chest 25 lbs; maximum bilateral lift knee to waist 30 lbs; maximum bilateral lift floor to knee 30 lbs; maximum bilateral carry 40 lbs (left arm into their side); maximum single arm lift 20 lbs; and maximum push/pull 20 lbs/25 lbs.

On June 6, 2018, the WCB contacted the employer to discuss their ability to permanently accommodate the worker. The WCB advised the employer it was likely the worker's current or similar restrictions would become permanent and indicated that if the employer could not accommodate them, the worker would be referred for vocational rehabilitation services.

On July 24, 2018, the WCB medical advisor reviewed the worker's file, and the WCB advised the employer that the previously noted restrictions were now permanent. The WCB also met with the employer, who advised they were looking to find permanent accommodation for the worker, and confirmed that advice at a further meeting on December 14, 2018. The worker continued to work reduced hours of work, which fluctuated based on the employer's business needs, and on July 23, 2020, the worker advised the WCB they were retiring at the beginning of September 2020.

On December 7, 2021, the employer's representative requested cost relief on the worker's claim. On the same date, the WCB advised the representative that the employer was not entitled to cost relief.

Both Claims

On March 21, 2022, the employer's representative requested that Review Office reconsider the WCB's December 7, 2021 decisions denying cost relief on both the 2013 and 2016 claims. The representative argued that there was a striking similarity between the two claims in that there was insidious onset of shoulder symptoms (one right shoulder, the other left shoulder) and a diagnosis of frozen shoulder in each claim without a specific mechanism of injury. It was noted that the worker had a past history of a medical condition which was described as being "…a significant factor in development of frozen shoulder…" by the WCB medical advisor in their May 5, 2017 opinion on the 2016 claim and was supported by medical literature. The representative requested that a WCB medical advisor review the claims and provide a further medical opinion as to whether the worker's underlying medical condition was likely causative of the worker's frozen shoulder on each claim or likely a pre-existing condition that significantly affected the severity and duration of the worker's claims.

In decisions dated April 5, 2022, Review Office determined that the employer was not entitled to cost relief on either claim. Review Office noted that the type of physical work the worker performed and increase in the worker's duties, as described, could cause shoulder discomfort and lead to a shoulder injury. Review Office found that the increase in the duties performed by the worker led to their shoulder injury. Review Office accepted that there was a relationship between the worker's shoulder injury, which led to the development of adhesive capsulitis, and the work duties they performed. Review Office found that degenerative or pre-existing conditions were neither the primary cause of the worker's difficulties, nor would they have significantly prolonged their recovery from the compensable injury, and noted that recovery from the diagnosis of adhesive capsulitis can be lengthy.

On April 20, 2022, the employer's representative requested that Review Office reconsider their April 5, 2022 decisions, noting Review Office had not sought a further WCB medical opinion as they had requested. On May 2, 2022, Review Office advised the employer that they had determined an opinion from a WCB medical advisor was not required and there would be no change to their earlier decisions denying cost relief due to the presence of a pre-existing condition on both claims.

On October 3, 2022, the employer's representative submitted a September 27, 2022 medical opinion from a third party sports medicine physician to Review Office and requested that Review Office reconsider the WCB's decisions to accept the worker's claims. The representative noted the sports medicine physician's opinion was that the worker's injuries did not arise out of their employment.

In decisions dated November 24, 2022, Review Office found that the worker's claims were acceptable. Review Office determined the evidence on the worker's files in each claim supported that an accident occurred, as defined by the WCB's policies and regulations. Review Office found that a relatively consistent date of injury was provided in each claim and the worker reported their difficulties to the employer and sought medical treatment within a short period of time after that. Review Office further noted that while a specific mechanism of injury was not reported, the nature of the worker's job duties as outlined was in keeping with repetitive work, including overhead work, and the diagnoses and reported material findings were consistent with the mechanism of injury involving repetitive overhead work and the difficulties experienced by the worker.

On December 7, 2022, the employer's representative filed an appeal with the Appeal Commission from Review Office's November 24, 2022 decisions on both claims. On December 13, 2022, at the request of the employer's representative, an appeal from the May 2, 2022 decisions with respect to cost relief, was added to the issue on appeal on each claim, and an oral hearing was arranged for June 22, 2023.

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 employer for comment. On September 5, 2023, the appeal panel met further to discuss the case and render their final decision on the issues 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 respective accidents are applicable.

Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.

What constitutes an accident is defined in subsection 1(1) of the Act, as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), notes that workers who experience workplace injuries may also have a pre-existing condition, but the workers compensation system is designed to compensate workers for workplace injuries only. The Policy explains that a pre-existing condition is any medical condition the worker had prior to the workplace injury, and sets out principles governing payment of compensation for workplace injuries where the pre-existing condition impacts the severity of the workplace injury, increases the worker's recovery time, or worsens the worker's pre-existing condition.

WCB Policy 31.05.10, Cost Relief/Cost Transfer – Class E Employers (the "Cost Relief Policy"), outlines circumstances in which claim costs may be removed from the claim costs experience of a Class E accident employer and assigned to a collective cost pool. Schedule A to the Policy further details circumstances in which cost relief may be available to eligible employers where a claim is primarily caused by a pre-existing condition or significantly prolonged by the pre-existing condition.

Employer's Position

The employer was represented by an advocate, who made an oral submission at the hearing. The employer's position, as outlined by their representative, was that the worker's claims and injuries were not work-related and therefore not acceptable, and the employer should not be responsible for the costs associated with these claims.

The employer's representative confirmed that the focus of their appeal was on claim acceptability, and was based on the September 27, 2022 expert opinion of the third party sports medicine physician which they had provided previously and was on file. The representative noted that the issue with respect to claim acceptability was of a medical nature and was the same on both claims. In summary, it was submitted that as outlined in the September 27, 2022 report and opinion, the worker did not suffer a personal injury by accident, and the adhesive capsulitis which was diagnosed in both the 2013 and the 2016 claims did not arise out of the worker's employment. It was further submitted that the sports medicine physician's opinion was based on their extensive professional experience with shoulder injuries and their review of the medical information on file, and should carry significant weight, particularly as it had not been disputed medically.

The third party sports medicine physician was also called as a witness at the hearing. The physician summarized their experience with shoulder injuries and adhesive capsulitis in particular. The sports medicine physician confirmed that they disagreed with Review Office's decision that the worker's diagnosis of adhesive capsulitis was "a post-injury consequence/ development from the compensible [sic] shoulder injuries caused at the time of the accidents," and referred to the final two pages of their September 27, 2022 opinion, where the physician explained, in part, that:

1. Very often rotator cuff-based pathology such as impingement and rotator cuff share similar findings and complaints for the very early stages. Over time, they do diverge, where adhesive capsulitis will show marked loss of passive range of motion, where with rotator cuff-based pathology, passive range of motion is preserved throughout. In both cases for [the worker], there was relatively early presentation of decreased passive range of motion which suggests the initial presentation was likely early adhesive capsulitis as opposed to rotator cuff-based pathology.

2. Most often, rotator cuff pathology that would lead to adhesive capsulitis would be more so an acute event leading to a tear, typically full thickness, followed by a period of immobilization secondary to pain. There was no evidence of this for [the worker's] right shoulder for [the 2013 claim], with MR imaging not showing any evidence of rotator cuff structural pathology.

Similar presentation is found for [the worker's] left shoulder through [the 2016 claim] with early noted passive range of motion loss. There was no reported acute event that would be consistent with a rotator cuff tear, and the finding of an intra-tendinous/intra-substance tear of the rotator cuff, partial thickness, would not be supported by a recent workplace accident or injury with no evidence of swelling, or edema accompanying the tear upon MRI…

In conclusion, when asked what the "most likely cause of the [worker's] initial symptoms, and diagnosis of adhesive capsulitis for both claims would be," the physician stated "this would be listed as…idiopathic, or without know cause, which is typical. The most likely scenario for the initiation of…adhesive capsulitis we'll see in clinical practice."

Worker's Position

The worker did not participate in the appeal.

Analysis

Date of Accident - April 10, 2023:

Issue 1: Whether or not the claim is acceptable.

For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of their employment. The panel is able to make that finding for the reasons that follow.

Based on our review of all of the information which is before us, including the information on file and as provided at the hearing, as well as information provided following the hearing at the panel's request, the panel is unable to find, on a balance of probabilities, that the worker suffered a workplace injury as a result of their workplace activities and duties.

In arriving at our decision, the panel places significant weight on the detailed report and opinion of the third party sports medicine physician dated September 27, 2022 and the physician's evidence at the hearing. In their report, the physician noted they had been provided with and reviewed the claim files. The physician referred to a number of pertinent documents and provided commentary relating to same.

The panel notes that the evidence shows the worker did not report a specific incident or injury occurring at work. In their Worker Incident Report filed April 10, 2013, the worker reported noticing reduced movement in their right shoulder and experiencing pain when reaching up or back, indicating they first noticed their symptoms two weeks earlier.

The worker saw their family physician on April 10, 2013, who diagnosed them with "shoulder strain," and a physiotherapist on April 12, 2013, who diagnosed them with "rotator cuff tendinopathy with a capsular pattern of restriction."

The panel is not satisfied that the evidence supports the worker suffered a strain injury or tendinopathy. In their September 27, 2022 report, the sports medicine physician noted that the first symptom reported by the worker was reduced movement in the shoulder which occurs often in the setting of adhesive capsulitis, less so for rotator cuff-based pathology such as strain or tendinopathy.

The sports medicine physician also noted that documentation of early loss of range of motion as occurred in this case, commonly referred to as capsular pattern of restricted motion, and in particular loss of external rotation, was very classic for adhesive capsulitis, with external rotation typically being preserved during rotator cuff tendinopathy.

The panel is also unable to find that there is sufficient time between the reported injury and the development of adhesive capsulitis for that condition to be related to such an injury. In this regard, the panel refers to the comment by the sports medicine physician that "Typically the lag time between rotator cuff-based pathology leading to adhesive capsulitis would be more in terms of numerous weeks with the rotator cuff injury usually a higher energy pathology such as tear secondary to a fall, or a rotator cuff injury leading to a definitive period of immobilization."

The sports medicine physician went on to state that it appeared from subsequent medical reports that there was progressive loss of passive range of motion, noting that "this is a normal course for adhesive capsulitis and overall, more likely than not, this is too tight a time frame for a minor rotator cuff-based strain/impingement to develop into adhesive capsulitis, given no reports of [the worker] having to immobilize the shoulder, no major trauma; this would characterize the month as being only a few days only (sic) rotator cuff-base pathology leading to adhesive capsulitis, which is a very unlikely scenario."

Following the hearing, the panel requested a medical opinion from WCB with respect to the September 27, 2022 opinion of the sports medicine physician. In their response dated July 18, 2023, a WCB orthopedic consultant commented that the majority of the September 27, 2022 doctor opinion and Appeal Commission transcript was accurate and that they agreed with the majority of the opinion. The consultant noted that they were providing comments with respect to "concepts in the opinion that were either paramount to the issue at stake, not complete or that I do not agree with." The panel notes that the consultant's comments were addressed in particular to 2016 claim, with no specific reference being made to the 2013 claim.

Based on the foregoing, the panel is satisfied that the worker's symptoms, viewed in hindsight and as they progressed, were not consistent with either a strain injury/tendinopathy or with adhesive capsulitis relating to a 2013 workplace injury.

As a result, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of their employment. The claim is therefore not acceptable.

The employer's appeal on this issue is allowed.

Issue 2: Whether or not the employer is entitled to cost relief.

The employer's position on this issue is predicated on there being an accepted compensable claim or injury, which was then impacted by a pre-existing condition as outlined in Schedule A to the Cost Relief Policy. Given the decision on Issue #1 above, that the worker's claim was not acceptable, this issue is moot.

Date of Accident – October 15, 2016:

Issue 3: Whether or not the claim is acceptable.

For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of their employment. The panel is able to make that finding for the reasons that follow.

Based on our review of all of the information which is before us, the panel is unable to find, on a balance of probabilities, that the worker suffered an injury as a result of their workplace activities and duties.

The panel notes that there is again no report of a specific incident or injury occurring at work in respect of this claim.

The sports medicine physician noted that a similar presentation to what occurred on the 2013 claim was found for the worker's left shoulder through the 2016 claim "with early noted passive range of motion loss."

The sports medicine physician noted in their September 27, 2022 report, that in the November 24, 2016 Worker Incident Report and the November 25, 2016 Doctor First Report from the treating family physician, decreased range of motion was seen at a time frame of approximately 5 - 6 weeks from October 15, 2016 date of incident, and there was no acute injury, with range of motion loss occurring relatively early, which suggested a developing adhesive capsulitis. It was further noted that the decreased range of motion which was reported at the initial physiotherapy appointment on November 25, 2016 would be "a hallmark finding of adhesive capsulitis within 6 weeks of date of symptoms/incident" and "it was unlikely that a rotator cuff-based pathology without acute injury would be present for 2 - 3 weeks before developing into frozen shoulder/adhesive capsulitis with decreased passive range of motion levels all within a 6-week period."

While a WCB medical advisor had opined on January 11, 2017 that the probable diagnosis related to the reported mechanism of injury that he felt to be concordant with the described mechanism of injury was a strain of the left shoulder, the sports medicine physician noted that "a strain is typically an acute event that notes an injury to the muscle/tendon unit in which there is disruption of the fibres as a consequence of the force from the injury." Noting there was no reported acute injury and the passive range of motion was decreased, the sports medicine physician opined that shoulder strain was "an unlikely diagnosis."

The panel recognizes that the WCB orthopedic consultant commented in their July 18, 2023 report that shoulder strain can occur with respect to a single specific injury or due to repetitive strain from prolonged activities that differ from typical activities, including repetitive overhead work or heavy lifting that exceeds typical activities, and opined that the diagnosis of adhesive capsulitis 6 weeks after the October 15, 2016 onset of pain did not preclude the possibility of a prior left shoulder strain if it was felt that an injury occurred with respect to the duties described in November 24, 2016 Worker Incident Report. The panel also notes, however, that the orthopedic consultant went on to state that it would be speculative to specifically attribute findings of left shoulder adhesive capsulitis on November 25, 2016 to the October 15, 2016 incident with no specific single left shoulder event having occurred and medical attention not sought until 6 weeks later.

The panel notes that the sports medicine physician further opined that the finding of an intra-tendinous/ intra-substance tear of the rotator cuff, partial thickness, which was noted on the April 11, 2017 MRI "would not be supported by a recent workplace accident or injury, with no evidence of swelling, or edema accompanying the tear upon MRI."

In their report dated July 18, 2023, the WCB orthopedic consultant agreed, noting that intratendinous rotator cuff tears are overwhelmingly degenerative in nature, and that the medical evidence did not support a left shoulder partial thickness rotator cuff tear was medically accounted for with respect to the October 15, 2016 incident.

The WCB orthopedic consultant further stated that the "lack of evidence supporting a specific structural injury to the eft shoulder having occurred in relation to the workplace incident also makes it less likely that the subsequent development of left shoulder adhesive capsulitis (as indicated by the reported findings in the November 25, 2022 medical reports) can be medically accounted for in relation to the October 15, 2016 workplace incident (especially with the medial evidence on file supporting the presence of a pre-existing condition that can cause adhesive capsulitis)."

The panel notes that the WCB orthopedic consultant went on to indicate they disagreed with sports medicine physician's September 27, 2022 opinion and evidence at the hearing that the left shoulder adhesive capsulitis condition was idiopathic. The consultant opined that the presence of the pre-existing condition likely played a significant role in the development of left shoulder adhesive capsulitis in the absence of an acute structural left shoulder injury or prolonged immobilization having occurred, and that at a minimum, the pre-existing condition would be considered to have significantly prolonged recovery from the compensable injury if was determined that the left shoulder injury occurred in relation to the October 15, 2016 workplace incident. The panel finds that the information with respect to the pre-existing condition is not compelling one way or other, and makes no comment with respect to that condition in the circumstances.

In conclusion, and based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of their employment. The claim is therefore not acceptable.

The employer's appeal on this issue is allowed.

Issue 4: Whether or not the employer is entitled to cost relief.

Given the decision on Issue #3 above, that the worker's claim was not acceptable, this issue is moot.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 23rd day of October, 2023