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 recurrent left shoulder difficulties. A hearing was held on July 30, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits for recurrent left shoulder difficulties.

Decision

The worker is entitled to benefits for recurrent left shoulder difficulties.

Background

In a Worker Incident Report provided to the WCB on December 21, 2011, the worker reported they injured their left shoulder in an incident at work on December 14, 2011, when a pipe slipped from their hands and as they tried to grab it, they felt a pop in their shoulder. The worker sought medical attention on December 20, 2011, reporting pain and inability to lift their left arm and the treating physician diagnosed rotator cuff tendinitis and queried a rotator cuff tear, referring the worker for an MRI study and removing them from work for 4 weeks. In a conversation with the WCB on December 28, 2011, the worker confirmed the mechanism of injury and advised that following the injury, they took over-the-counter pain medication and limited themself to light duties until seeking treatment on December 20, 2011. The worker further advised that the employer laid them off on the same date.

On January 3, 2012, the employer provided an Employer Injury Report to the WCB. The employer noted their concerns about the claim in an email dated December 23, 2011, submitted with the Report. The employer noted the worker completed an Incident Report Form on December 15, 2011, reporting they injured their shoulder after attempting to pull a pipe out of the floor and that a coworker witnessed the incident. The employer confirmed the worker continued with their regular job duties after the incident, missing no time from work, and that after a meeting with the worker on December 21, 2011, the employer terminated the worker’s employment for cause.

On January 10, 2012, the worker provided a statement from a witness to the WCB. The witness statement outlined that when the worker attempted to pull a pipe out of the floor, they injured their left shoulder. The WCB accepted the claim and advised the worker on February 10, 2012.

The employer advised the WCB on February 17, 2012 that the worker was employed for approximately one month before the incident and confirmed the worker continued with regular duties until they were terminated for performance issues on December 20, 2011. On the same date, the worker confirmed to the WCB how the injury occurred and that afterwards, they self-treated their symptoms with pain medication and limited themselves to light duties as able, while at work. The worker advised that they were not terminated but laid off due to a lack of work. The worker noted they first sought medical treatment on December 20, 2011, when they were prescribed pain medication and advised to make a claim to the WCB.

A left shoulder MRI study dated February 27, 2012 indicated no rotator cuff tear but found “Mild degenerative changes” at the acromioclavicular (“AC”) joint. On assessment by an orthopedic surgeon on March 21, 2012, the surgeon noted the worker had pain around the AC joint, some pain on palpitation and stress and positive impingement testing. The surgeon noted the worker’s right shoulder surgery in October 2010 and recommended an arthroscopy, decompression, and distal clavicle excision for the worker’s left shoulder. On review by a WCB medical advisor on March 27, 2012, the medical advisor concluded the diagnosis arising from the workplace accident was rotator cuff tendinitis, with clinical features of impingement syndrome, which were ongoing. The medical advisor agreed the recommended surgery was appropriate for the worker’s injury and the WCB approved the surgery on March 28, 2012.

After the surgery on April 24, 2012 and follow-up care from the orthopedic surgeon and physiotherapy, the worker was cleared to return to work on July 10, 2012. The worker advised the WCB on July 6, 2012 that they would start their own business as they did not have a job to return to. The worker noted their left shoulder still bothered them occasionally but in general, their shoulder felt good.

On January 8, 2014, the worker advised the WCB that the treating sports medicine physician recommended a further surgery on their left shoulder and that they had an MRI study on December 17, 2013. In a follow-up conversation on January 20, 2014, the worker confirmed they returned to self-employment in July 2012, performing the same duties as they had with the employer and that they continued to experience difficulties with their shoulder since that time when lifting 40-50 pounds. The worker confirmed they had no new accidents and had not missed any time from work. The worker also reported a pending appointment with an orthopedic surgeon scheduled for March 6, 2014. In the report from that appointment, the orthopedic surgeon noted the worker’s history including 2010 right shoulder surgery and the 2012 left shoulder surgery, setting out that the worker improved sufficiently to return to work, but had ongoing issues with overhead activities, pushing and pulling. The surgeon noted that the December 2013 MRI findings were consistent with the worker’s presentation and reported clinical findings including a loss of “…about six levels of internal rotation to about the LS level” and some positive testing for labral tearing. Based on the examination findings and MRI study, the orthopedic surgeon recommended a further arthroscopy to confirm the labral tear and determine if labral debridement, repair, or a biceps tenotomy were required.

A WCB medical advisor reviewed the worker’s file on March 19, 2014, noting the accepted diagnosis of left shoulder impingement syndrome was treated with subacromial decompression on April 26, 2012 and that no glenoid labrum tear was reported as evident in that surgery. The medical advisor concluded the worker’s current left shoulder difficulties were likely the result of the labral tear indicated on the December 17, 2013 MRI study, and opined it was not clear when the tear occurred but that it was likely degenerative rather than from a traumatic incident. The medical advisor found there was no medical evidence to support a relationship between the labral tear and the December 14, 2011 workplace accident. On March 20, 2014, the WCB denied coverage for the proposed surgery as it determined their current left shoulder difficulties were not related to the workplace accident.

The WCB received a December 13, 2021 report from the treating family physician referring the worker to an orthopedic surgeon for assessment of their right and left shoulder pain. In a report dated December 30, 2021, the treating orthopedic surgeon noted the worker's reporting of bilateral shoulder pain "for years", which the worker attributed to their job duties and noted the worker had undergone surgeries on both shoulders. The worker advised the surgeon that the pain in their left shoulder had been getting significantly worse over the past few months without a specific incident, with the symptoms worse with overhead activity and heavy lifting. Clinical findings included normal range of motion testing, glenohumeral joint tenderness and a positive O'Brien's test. The orthopedic surgeon noted a November 2021 MRI study indicated "…degenerative labral tearing in both shoulders along with rotator cuff tendinosis and biceps tendinosis" and opined the worker's left shoulder symptoms were likely due to the labral tearing noted in the MRI study. They recommended an injection as treatment for the worker's left shoulder symptoms.

On April 19, 2023, the worker's representative requested Review Office reconsider the WCB's 2014 decision that responsibility for the worker's ongoing left shoulder difficulties should not be accepted, relying upon a March 8, 2023 opinion from the treating orthopedic surgeon. In that opinion, the surgeon indicated they suspected the worker had a left shoulder labral tear on December 14, 2011, based on the reported symptoms and the mechanism of injury, noted they did not note a labral tear in the April 26, 2012 surgical report, but stated they did note labral debridement which indicated "…there was at least a degree of tearing of the labrum at the time of the procedure…" The surgeon opined the labral tearing may have been undertreated at the time of the surgery. On the same date, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.

A WCB medical advisor reviewed the worker’s file on July 5, 2023, providing a detailed summary of the medical reporting on file and noting a pending review by a WCB radiological consultant. The WCB radiological consultant, in a memorandum to file dated October 17, 2023, concluded upon review of the MRI studies of February 27, 2012, December 17, 2013 and November 18, 2021, that all the studies indicated “…irregularity/fraying of the superior labrum. There is no distinct tear and no evidence for extension into the anterior/posterior labrum or biceps anchor on any of the studies.” The radiological consultant also concluded the 2013 and 2021 MRI studies also demonstrated post-surgical changes related to the excision of the distal clavicle, and the 2021 MRI demonstrated insertional tendinosis involving the supraspinatus and infraspinatus tendons without a distinct rotator cuff tear, and tendinosis in the intra-articular long head of biceps tendon. The WCB medical advisor provided a further opinion on October 19, 2023 that the diagnosis arising from the December 14, 2011 workplace accident remains rotator cuff tendinitis with clinical features of impingement syndrome left shoulder, and that the impingement syndrome was repaired during the surgery on April 28, 2012. The medical advisor concluded the diagnostic imaging showed no evidence that the left shoulder labral tear was related to the workplace accident.

On October 26, 2023, the WCB advised the worker that it determined there was no relationship between the worker’s current left shoulder difficulties and the December 14, 2011 workplace accident. On January 15, 2024, the worker’s representative again requested Review Office reconsider the WCB’s decision. Review Office determined on March 5, 2024 that the worker was not entitled to benefits for recurrent left shoulder difficulties.

The worker’s representative filed an appeal with the Appeal Commission on March 12, 2024 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 that 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 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided under s 27 of the Act which 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.

The WCB has established Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. In these cases, the WCB must determine whether the worker has experienced a recurrence of a previous workplace injury, or whether their current condition is caused by a new and separate intervening event. In making this determination, the Recurrence Policy requires that the WCB consider the following questions:

1. Was there an intervening incident, event or exposure (“intervening event”) between the previous workplace accident and the renewal of symptoms or increase in permanent impairment (the “current condition”)? 

2. If there was an intervening event, was it significant enough to be the cause of the worker’s current condition? 

3. Are there indicators that the worker’s current medical condition is consistent with the injury caused by the previous workplace accident? 

4. Are there indicators of consistency between the worker’s previous workplace accident and their current condition?

The Recurrence Policy sets out that “The fact that a long time has elapsed between a worker’s previous workplace accident and their current condition does not necessarily mean that there is no causal link between them…If a long period of time has passed, it is more likely that other incidents, events or exposures could have occurred in the intervening period and caused the worker’s current condition.”

Worker’s Position

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

The worker’s position is that the worker’s recurrent left shoulder difficulties are causally related to the workplace injury sustained on December 14, 2011 and as such, the worker is entitled to benefits in relation to those difficulties.

The worker advisor submitted that the evidence supports a finding that the worker sustained a traumatic labral tear at the time of the workplace accident, which is consistent with the mechanism of injury and the onset of symptoms at that time. This is supported by the May 8, 2023 opinion of the treating orthopedic surgeon and is not disputed by the WCB medical advisors who reviewed the worker’s claim file.

The worker advisor noted the opinion of the WCB medical advisor of October 18, 2023 that there is no diagnostic imaging evidence to support the worker’s position that the left shoulder labral tear occurred in relation to the workplace accident and submitted that the WCB radiology consultant’s opinion did not rule this out, but stated rather that the labral fraying was more consistent with degeneration.

The worker advisor submitted there is no evidence of any intervening event that would cause the worker’s symptoms and difficulties, and noted the worker did not ever fully regain their left shoulder range of motion following the accident and April 2012 surgery. The worker advisor relied on the opinion of the treating orthopedic surgeon that “…given the overall situation with the mechanism of injury, the surgical findings and the MRI of December 17, 2013, which does show superior labrum with involvement of the biceps anchor…I think it is a continuum from [their] compensable injury, perhaps a little more evident now.” As such, the worker advisor stated the workplace accident is the dominant cause of the worker’s ongoing symptoms.

Further, the worker advisor submitted that the evidence confirms that the same anatomical site is currently affected, as was impacted by the workplace accident, and noted that the WCB in 2012 accepted responsibility for the surgical procedure including labral debridement. The worker advisor noted that in the June 30, 2023 opinion, the WCB medical advisor outlines that the November 18, 2021 MRI findings “…could also relate to the debridement carried out by” the treating orthopedic surgeon.

The worker advisor further submitted, in the alternative, that if the worker had a pre-existing labral tear, then the workplace accident caused enhancement of that injury and as such, the worker is entitled to further benefits.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the WCB’s decision that they are not entitled to benefits for their recurrent left shoulder difficulties. For the worker’s appeal to succeed, the panel would have to determine that the worker’s current left shoulder medical condition is a recurrence of the compensable injury sustained in December 2011. The panel was able to make such a finding as outlined in the reasons that follow and therefore the worker’s appeal is granted.

In reviewing the evidence before the panel, we considered and applied the provisions of the WCB’s Recurrence Policy. As required by that policy, the panel considered firstly whether there is evidence of any intervening incident, event, or exposure from the time of the workplace accident to the time of the increase in the worker’s symptoms and impairment. The worker’s testimony is that they did not experience any intervening accident, event or injury that caused an increase in their symptoms but that they had ongoing symptoms from the time of the accident and continuing after the April 26, 2012 surgery. The panel noted the worker’s testimony is supported by the post-surgical medical reports, including the July 4, 2012 report from the treating sports medicine physician, and notes from the WCB’s examination of the worker on June 12, 2013, when the worker reported “ongoing concerns that [their] left shoulder does not feel normal. [The worker] reported left shoulder pain with heavy work or weather changes” and pain felt deep inside their shoulder. The panel further noted that when the worker sought treatment from another sports medicine physician in September 2013, they reported pain since their arthroscopic surgery, with “No specific reinjury, difficulty with overhead work, pain posterior lateral shoulder.” The worker also reported to the WCB on January 20, 2014 that they had not been involved in any new accidents at home or at work. The evidence confirms that through this period, the worker consistently reported left shoulder symptoms that would increase with lifting heavy items at work and consistently denied that any new incident or event occurred that caused those symptoms. The panel therefore finds that there is no evidence before it of any intervening incident, event, or exposure from the time of the workplace accident to the time of the increase in the worker’s symptoms and impairment.

The panel then considered whether there are indicators that the worker’s current medical condition is consistent with the injury caused by the previous workplace accident. The panel noted that on June 12, 2013, the WCB physiotherapy advisor recorded the worker’s report of ongoing concerns that their left shoulder did not feel normal, with pain occurring when doing heavy work or with weather changes and found the worker’s left shoulder mobility was 8.4% reduced from their right shoulder mobility, with diminished mobility in forward flexion, abduction, internal rotation, and external rotation. When the worker sought further treatment from a sports medicine physician in September 2013, clinical findings included reduced strength, pinching pain with abduction and external rotation, mild impingement with Neer testing and pain in the posterior left shoulder. The resulting referral for an MRI study included a clinical history of “Pain and external rotation weakness since the arthroscopic surgery.” That MRI study in December 2013 indicated “Tearing of the superior labrum is present and appears to involve the biceps anchor. The remainder of the labrum is intact. …There is evidence of an interval acromioplasty. Minimal degenerative changes are present at the acromioclavicular joint.” Based on the worker’s clinical presentation and the MRI findings, the sports medicine physician then referred the worker back to the treating orthopedic surgeon for surgical reassessment, noting the worker “…has been having increased pain with any activity since surgery….”

The panel also considered the March 2014 consultation report from the treating orthopedic surgeon, who noted:

“In looking back over [the worker’s] previous history the injury of relevance to [their] current presentation, was the injury in December 2011 leading up to [the] left shoulder scope involved with WCB at that time. Neither the MRI or the surgical findings indicated a significant labral tear, however [the worker’s] injury was somewhat suspicious for that mechanism of injury in that [the worker] was doing some heavy pipe lifting and the pipe slipped and there was some degree of traction injury onto [the worker’s] left shoulder. … [The worker] presents with a problematic shoulder and a finding on MRI which is reasonably consistent with [their] clinical presentation.”

The panel noted that a WCB orthopedic specialist who reviewed the worker’s file in March 2014 concluded “It is not clear when the labral tear may have occurred, although it must have occurred in the interval since the arthroscopy. It is probably degenerative in etiology rather than traumatic. There is no objective medical evidence that the labral tear is related to the workplace injury.” We find this opinion to be speculative in relation to the timing of the tear and in relation to the probable cause of the tear and note that the opinion does not consider the initial mechanism of injury nor the opinion of the treating surgeon that the current condition is consistent with that mechanism of injury. As such, the panel gives little weight to this opinion.

The panel also considered the treating orthopedic surgeon’s report of March 8, 2023 in which they outlined the following:

I was already suspicious in December 14, 2011 that [they] had a labral tear. That suspicion was related to [the] mechanism of injury and [the] symptoms. I did not confirm an unstable torn labrum at the arthroscopy of April 26, 2012. However, my operative note indicates that I debrided the labrum. I did not say more than that, but that confirms that there was at least a degree of tearing of the labrum at the time of the procedure, likely attributable to [the worker’s] accident. I also showed my suspicion of this, because in my preoperative note of March 21, 2012, I said I would be assessing the labrum at the time of the surgery. A torn labrum is not particularly easy to diagnose during physical exam, and they are not rarely missed on MRI as well.

…Unfortunately I did not document the nature of the tearing precisely. I infer from my records that I did not need to undertake a labral repair. …Mechanical symptoms at the AC joint can mimic a torn labrum, and I was probably hoping that the distal clavicle excision would be enough. Looking back now, I perhaps underestimated the extent of what was going on with the labrum, or under treated it.

The natural history of this workers’ pathology is for gradual deterioration over time. [The worker] does have a physically demanding job. Tearing of the glenoid labrum is often a degenerative process, and at other times, the result of a traumatic injury such as [the worker’s]. As years go by, there is frequently a combination of traumatic contribution and degenerative change.

…I understand there could be a difference of opinion on this case.... However, given the overall situation with the mechanism of injury, the surgical findings, and the MRI of December 17, 2013, which does show superior labrum [tearing] with involvement of the biceps anchor, I would not simply conclude that this occurred at some later time. I think it is a continuum from [the worker’s] compensable injury, perhaps a little more evident now. On the MRI, the labral tear involves the biceps anchor, which makes it more likely to be a cause of ongoing symptoms.”

In considering this opinion, the panel also noted the June 30, 2023 opinion of the WCB orthopedic consultant that “Considering the current MRI study has not identified a significant [superior labrum anterior and posterior] tear and more likely a degenerative change (which could also relate to the debridement…[the treating orthopedic surgeon’s] current opinion is somewhat speculative.” The panel agrees that the opinion of the treating orthopedic surgeon is “somewhat speculative” but as noted above, this can also be said of the opinions of the WCB consultant.

The panel accepts that there may be both degenerative and traumatic causes for the worker’s current condition. We noted the comparison of the MRI studies over the intervening period did not indicate significant degenerative changes despite the passage of nearly ten years. We further noted the WCB orthopedic consultant also speculated that some degenerative processes may relate to the surgical treatment of the worker’s left labrum, which took place because of the workplace injury. If that is the case, which cannot be definitively determined based on the evidence before us, then those changes potentially would also be compensable as arising from the treatment of a compensable injury.

In reviewing the sum of the medical evidence and opinions, the panel is satisfied that the anatomical sites currently affected are the same as those affected or suspected of being affected by the worker’s initial injury, the worker’s physical functions affected are the same as those affected by the initial injury, the degree of the worker’s functional impairment is similar over time, although the evidence indicates a degree of deterioration in function, and the worker’s current symptomatic experience is similar to that after the accident. As such, we are satisfied that there are indicators that the worker’s current medical condition is consistent with the injury caused by the previous workplace accident.

The panel also considered whether there are indicators of consistency between the worker’s previous workplace accident and their current condition, the panel accepts the worker’s testimony that they continued to have shoulder pain symptoms after the surgery but were able to manage those by use of pain relief medication as prescribed by their family physician, rest and self-modification of their work duties, noting that they have never returned doing to the kind of work they did prior to the accident. The worker described taking on different kinds of jobs in the same occupation, and that they worked on their own and were able to choose work that did not, for the most part, cause them significant difficulty. There is also evidence that the worker received medical attention in 2013 and 2014 in relation to their ongoing left shoulder symptoms, but that they did not proceed with the surgery repair recommended in 2014 and then sought further care in respect of the same kind of symptoms in 2021.

The panel noted the Recurrence Policy contemplates that there may be a long period of time between the date of accident and the current complaints or condition, but that “…does not necessarily mean that there is no causal link between them” although “If a long period of time has passed, it is more likely that other incidents, events or exposures could have occurred in the intervening period and caused the worker’s current condition.” We are satisfied, based on the medical reporting from the two years immediately following the compensable surgery in 2012 that there is a consistency in the worker’s and the later reporting and that there is evidence of consistency between the worker’s previous workplace accident and their current condition.

Based on the evidence before us and on the standard of a balance of probabilities, the panel finds that the worker’s recurrent left shoulder difficulties more likely than not arose out of and were the result of the workplace accident of December 14, 2011. We therefore find that the worker is entitled to benefits for recurrent left shoulder difficulties. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of August, 2024