The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 18, 2000, at the request of the claimant. The Panel discussed this appeal on May 18, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On June 10, 1999, the claimant submitted an application for compensation benefits indicating that she sustained a repetitive shoulder/arm injury from sorting and counting money and lifting heavy trays. On June 8, 1999, the attending physician noted a 1 week history of a painful right shoulder which increased with lifting. The diagnosis of the claimant's condition was recorded as right shoulder tendonitis/bursitis. On July 30, 1999, an orthopaedic specialist's diagnosis was a right shoulder rotator cuff tendonitis, also known as subacromial bursitis, also known as impingement.

In a letter dated June 28, 1999, the employer opposed the acceptance of the claim on the following basis:

• the injury did not arise out of, and in the course of employment;
• the worker's injury was not consistent with the stated mechanism of injury or the worker's duties at the time of the injury; and
• there was reason to believe that there was another explanation for the worker's injury.

A videotape of the claimant performing cash office duties on June 3, 1999, was accompanied with the letter.

On July 7, 1999, a Workers Compensation Board (WCB) adjudicator contacted the claimant to gather further information with respect to her claim. The following information was obtained:

• the claimant worked with the employer for 11 years. She worked in the cash office and as a customer service clerk. The claimant said she averaged 21 hours per week and about 5 to 6 hours were spent working in customer service.
• the claimant's job was to go from cashier to cashier collecting money (bundles adding up to 200 dollars) into a bag . The claimant then takes the bag to the counting room to sort the money by denominations into slots. The claimant adds up the receipts on a calculator and then puts the money into the counting machine. The claimant's height was 5'2-1/2 and she is right hand dominant. She stands to sort the money. Once the machine counts the money the tally is verified and the money is put into a safe. The claimant also carried cash trays.
• about one month prior to going off work, the claimant advised that she started to experience symptoms in her right shoulder (not left as stated on her claim form). Initially, she did not think it was serious, however the pain got progressively worse and began to radiate into her arm and up into her neck and right side of chest.
• from time to time, the claimant stated she mentioned the pain to her co-workers or supervisors. When she started her shift on June 3, 1999 she was sore and within half an hour she was in severe pain. She also told a co-worker about her pain. As the shift progressed she was losing strength in her right arm and on her way home she had trouble driving with her right hand. The claimant indicated she had a day off on June 4th and that she just rested at home. She called her doctor but could not get an appointment until the 8th. She said she worked on the 5th but was in a lot of pain. By the 7th she knew she wouldn't be able to work and she called to say she wouldn't be in.
• the claimant told the adjudicator that outside of work she does the usual housework and yardwork. She does not play sports but enjoyed going for walks.

The adjudicator also spoke with a co-worker who advised that she was working with the claimant on June 3rd. The co-worker indicated that the claimant was in so much pain that she couldn't count cheques or put away trays. In the 11 years that she worked with the claimant, the claimant never had problems like this before. It was confirmed that there had been no change to the equipment used or the way in which the job was done.

On July 12, 1999, the adjudicator requested a WCB medical advisor to review the video tape and provide a medical opinion as to whether there were any tasks on the tape which could lead to the diagnosed condition. In a response to the memo, the medical advisor stated the following:

"I see no ongoing position of impingement demonstrated. The arms are usually at the side with elbow bent. This is unlikely to cause an impingement syndrome or a bursitis. The problem can occur spontaneously or as related to other conditions. It is not my view that 20 hours/week would be likely to cause this problem when these duties are performed."

In a letter dated July 12, 1999, the adjudicator informed the claimant that her claim for compensation was not acceptable as a relationship could not be established between her diagnosed condition and an accident as defined in the Workers Compensation Act (the Act). On July 26, 1999, a union representative appealed this decision to Review Office.

On August 20, 1999, Review Office wrote to the employer requesting additional information. Specifically, Review Office requested that the employer provide a video tape of the claimant's performing duties on her last shift prior to June 3, 1999 and on a Saturday afternoon or evening shift. Review Office also asked the employer to state the reason why it believed that the worker did not sustain her injury on the job and whether there had been similar complaints of shoulder problems from any other cash office clerks in any other of its stores. A response from the employer was later received dated September 9, 1999.

In a decision dated September 17, 1999, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that after reviewing the nature of the claimant's employment as depicted on the video tapes and taking into account the advice offered by a WCB orthopaedic consultant, it was of the opinion that the claimant's condition was not caused by her employment. Review Office accepted that the claimant's employment along with any other employment or even resting at home may make this type of condition painful. This did not mean, however, that the worker had sustained personal injury by an accident arising out of and in the course of her employment as contemplated in Section 1(1) of the Act. On February 29, 2000, a union representative appealed this decision and an oral hearing was arranged.

Reasons

Chairperson MacNeil:

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured."

The treating orthopaedic surgeon diagnosed the claimant's condition as "right shoulder rotator cuff tendinitis, also known as subacromial bursitis, also known as impingement." A WCB orthopaedic specialist reviewed a video tape of the claimant's job duties and concluded, "the job duties are not causal for the condition." He commented further that "shoulder tendenitis-bursitis is painful whether a claimant is working or not & even at rest."

The claimant testified at the hearing that her shoulder first began to ache approximately six months prior to her filing of the claim with the WCB. Initially, the claimant thought that her shoulder pain perhaps began as a result of her sleeping in an awkward position. Although the pain was not constant, it progressively got worse over time.

I accept the WCB medical advisor's opinion that the claimant's job duties were not causative of her condition. I find based on the weight of evidence that the claimant's condition was, on a balance of probabilities, pre-existing and that it became temporarily aggravated by her work duties. I also note that the claimant was off work for approximately four months during which she collected employment insurance benefits, as the employer had no light duties available.

The majority agrees that the claim is acceptable, however, for different reasons. I have no difficulty in finding this claim to be acceptable on the basis that the claimant's injury was in all probability an aggravation of a pre-existing condition and that the injury arose out of and in the course of her employment. Commissioner Leake finds the claim acceptable for different reasons.

Panel Members

R. W. MacNeil, Presiding Officer 

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of June, 2000

Commissioner's Dissent

Commissioner Leake:

The claimant did suffer a work related injury and is entitled to benefits. The videotape evidence that was presented by the employer only showed a small sample of the claimant's daily duties. The evidence presented at the hearing indicates a lot of heavier lifting was involved in her daily jobs. I find that the claimant's condition developed as a direct result of her employment duties and therefore, the claim is acceptable on this basis.

Commissioner Finkel’s Dissent:

The claimant seeks to establish that her right shoulder injuries are related to her employment in the cash office of a large retailer, and that benefits should be provided for the consequences of that workplace injury.

Briefly, the claimant was employed on a part-time basis (20-21 hours per week) for 11 years with the same employer in the same position, and had a variety of duties all related to the counting, handling, collection and distribution of money between a central cash office and a number of teller stations. The claimant also worked occasionally at a customer service desk. On June 3, 1999, the claimant experienced a sharp increase in pain in her right shoulder, approximately one hour into her shift. She was ultimately diagnosed with subacromial bursitis, tendonitis, and a positive impingement sign at the rotator cuff of her right shoulder, and received treatment for this condition.

The circumstances under which an accident is compensable are set out in Subsections 1(1) and 4(1) of the Workers Compensation Act which state that the injury must “arise out of and in the course of employment.”

After a careful review of all the evidence on the file and of the evidence and submissions made by the claimant, her representative, and the employer, I find that the evidence, on a balance of probabilities, does not support a causal relationship between her injuries and the workplace. In support of this conclusion, I note the following:

• The claimant was diagnosed with subacromial bursitis and tendonitis of the right shoulder, with no complaints to any other areas of the arm or hand.

• Videotapes were provided by the employer of three days of activities in the cash office. These tapes and the evidence on file were reviewed by a WCB medical advisor, who commented by memo dated July 19, 1999, as follows:

“I have reviewed the surveillance tape. I see no ongoing position of impingement demonstrated. The arms are usually at the side with elbows bent. This is unlikely to cause an impingement syndrome or a bursitis. The problem can occur spontaneously or as related to other conditions. It is not my view that 20 hrs/week would be likely to cause this problem when these duties are performed.”

• A WCB memo dated July 7, 1999 documents the claimant as indicating she had begun to experience symptoms in her right shoulder about one month prior to her going off work on June 3, 1999. At the hearing, the claimant indicated that she had experienced symptoms as long as six months prior to that date. There were no specific causes attributed to the onset of the pain on those earlier dates by the claimant.

• The claimant and her representative also provided considerable information at the hearing on the duties performed by the claimant outside the cash office, as well as non-taped duties within the office, in particular, the receiving and handling of large volumes of coins delivered by armoured car to the cash office. The claimant’s representative argues that these duties are repetitive in nature and would account for the claimant’s injuries. With due respect to the position taken, I find that:
  • The claimant works relatively short shifts;
  • All of the tasks that are assigned are each of short duration, with a considerable variation and rotation among the activities that effectively provide for brief rests of muscle groups and joints;
  • Almost all of the work in the cash office is undertaken just above waist height while standing at a counter;
  • The work undertaken at the counter involves sorting paper money, embossing cheques and rolling coins, all of which are undertaken with the elbows stationary at the claimant’s sides, or with minimal movement;
  • Most of the activities involving use of the office safe are at mid-body height and lower;
  • Most of the activities involving the tellers outside the cash office deal with the transfer of paper money, cheques, and small quantities of coin. These items are carried in a small purse which is slung over the claimant’s left shoulder and is not considered to be heavy;
  • The claimant is only occasionally involved in dealing with the three times per week delivery of coins to the store, because of her varying shift schedule. She was not involved with these coins for at least her last three shifts prior to laying off (the Wednesday shift, and the preceding Monday and Saturday shifts);
  • The claimant’s symptoms increased greatly approximately one hour into her shift, and she had only been dealing with service to the tellers during that time, which was her usual first activity at the start of her evening shifts.

After reviewing all the evidence, I find that the claimant’s duties do not establish a mechanism of injury at the workplace that would lead to the claimant’s diagnosed right shoulder problems. In this regard, my findings are consistent with the opinion offered by the WCB medical advisor, and I find that the evidence, on a balance of probabilities, does not establish a causal relationship between the claimant’s shoulder injury and her job duties. While there certainly are short repetitive elements within the claimant’s job, these duties would, at best, be more consistent with injuries to the hands or wrists, and not with the reported shoulder difficulties. There is simply not a physical basis, after a review of all her job duties, to attribute the claimant’s shoulder condition to her duties in the workplace.

Accordingly, I find that the evidence does not support, on a balance of probabilities, that an accident arose out of and in the course of employment, and I would deny the claimant’s appeal.

A. Finkel, Commissioner