The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 24, 2000, at the request of legal counsel, acting on behalf of the claimant. The hearing was adjourned sine die as certain file documents were inadvertently not provided to the employer's advocate prior to the October 24th hearing. Copies of the relevant file material was later forwarded to the employer's advocate for review and arrangements were then made to reconvene the hearing on January 23, 2001. On January 23, 2001, the Panel met to discuss the case and render its final decision on the issue noted below.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The claimant filed a claim for compensation benefits on September 17, 1999, indicating that he was forced to use his left arm because of a previous compensable operation to his right arm and shoulder.

The claimant has a prior compensation claim for a right shoulder injury which occurred on February 12, 1998, and which required an acromioplasty, AC joint resection and a repair of the rotator cuff tendon on November 23, 1998. On April 5, 1999, the claimant was able to return to modified duties on a graduated basis, which involved plugging small holes in bus frames with rubber stoppers. This work was performed below shoulder level.

In a telephone conversation on October 15, 1999, the claimant advised a Workers Compensation Board (WCB) adjudicator that he first noticed soreness in his left arm and shoulder on August 25, 1999 and that he now had soreness in his elbow as well. The job duties that he was performing involved kneeling and pushing little plastic plugs with a little piece of steel or his fingers into pre-drilled holes on a bus frame. On November 8, 1999, a videotape was taken of the job duties which the claimant had been performing.

Medical information revealed that the attending physician examined the claimant on September 9, 1999. The objective findings consisted of decreased range of motion in the left shoulder, painful movement in all directions including elevation. The diagnosis was repetitive use syndrome left arm.

In the progress report dated September 23, 1999, the attending physician noted that the claimant's condition did seem to be significantly improving after one week of physiotherapy. A referral was made for the claimant to see an orthopaedic specialist. In a further progress report of October 7, 1999, the physician stated that the claimant would not be able to get an appointment with the specialist until December 14, 1999, and therefore he requested that the claimant be assessed by a WCB physician.

Medical reports were also received from the orthopaedic specialist who had previously operated on the claimant's right shoulder. In a report dated October 20, 1999, the specialist noted that the claimant was performing a job where he was plugging holes but this was causing problems with his left arm because he was overusing his left arm. Clinical examination revealed signs and symptoms of left rotator cuff tendonitis. On the right side, the examination was unchanged. The specialist concluded that the claimant was unable to do his present job of plugging holes unless it was just for a few hours every day. The claimant was also developing worsening of his left rotator cuff tendonitis, which was related to the work situation.

On November 9, 1999, a WCB medical advisor assessed the claimant and had also reviewed the video tape detailing the claimant's job duties. In a memorandum dated November 30, 1999, the WCB medical advisor stated the following:

"I do not see that the disability portrayed would result from the work task. I do not believe that a shoulder strain would occur as a result of the work tasks described or shown on the video. The diagnosis is abnormal illness behaviour in my view. I believe this should be explored."

On December 7, 1999, the claimant was informed by Rehabilitation & Claim Services that his claim for compensation was not accepted under Sections 4(1) and 1(1) of the Workers Compensation Act (the Act). On January 6, 2000, a solicitor appealed this decision on behalf of the claimant and submitted medical reports dated December 29, 1999, and January 10, 2000, from the treating orthopaedic specialists, who stated, in part, the following:

December 29, 1999 - "I have seen [the claimant] in follow-up today for bilateral shoulder problems. His right shoulder, which has previously been operated on, is much improved. He continues to have left arm pain, which sounds like biceps tendonitis, rotator cuff tendonitis and anterior elbow tendonitis in the lacertis fibrosus area."

January 10, 2000 - "His left shoulder has 90 degrees of flexion with 100 degrees of abduction. Medial and lateral rotation of this joint are slightly better than opposite. However, examination of his elbow and wrist showed no significant restriction. Mr. [the claimant] appeared to have very sensitive digits making routine examination of his left hand and fist rather difficult."

Prior to considering the solicitor's appeal, Review Office sought further medical opinion from a WCB orthopaedic consultant. On February 22, 2000, the orthopaedic consultant indicated that he was not convinced that a diagnosis of the claimant's condition had been established and suggested that x-rays be taken. On March 3, 2000, the claimant underwent x-rays of the left shoulder, cervical spine and left elbow.

On March 20, 2000, the WCB's orthopaedic consultant commented that the x-ray report of the left shoulder was essentially normal. There was degenerative spondylosis on the cervical spine which may or can be a contributing factor in shoulder symptomatology. There were also degenerative spurs at the left elbow. The consultant indicated that all of these conditions were treatable with conservative measures and did not preclude work activity.

In a March 31, 2000, decision, Review Office confirmed that the claim for compensation was not acceptable. Review Office took into consideration the medical opinion noted by the WCB's orthopaedic consultant and the work duties performed by the claimant commencing on April 5, 1999. Review Office concluded that the claimant's left arm and shoulder complaints could not be reasonably associated with the work he performed between April 1999 and September 1999 of plugging holes in bus frames. Review Office was also of the opinion that the claimant had not sustained an accident as defined by the Act.

On June 30, 2000, the claimant's solicitor appealed Review Office's decision and requested an oral hearing. In addition, the solicitor provided new medical evidence dated April 27, 2000, for the Panel's consideration.

On October 24, 2000, an oral hearing was held at the Appeal Commission and was adjourned sine die as certain file documents were inadvertently not provided to the employer's advocate prior to the October 24th hearing. Copies of the relevant file material was later forwarded to the employer's advocate for review and arrangements were then made to reconvene the hearing on January 23, 2001.

Reasons

After viewing the video evidence, we came to the conclusion that the job was only repetitive because the task in itself was singular in nature and not because of any frequency with which it had to be performed. We prefer to accept the evidence of the WCB’s orthopaedic consultant to that of the claimant’s treating orthopaedic specialist. It is also significant to note that there is commentary on the file alluding to the claimant’s amplified pain behaviour. Specifically, when the claimant was examined on November 9^th, 1999, the following comments were recorded by the WCB’s medical advisor: “Mr.[the claimant] is extremely pain focused and I find it hard to accept that he is limited based on the tasks as described. Even though he was doing them unilaterally there are inconsistencies on his examination and extreme responses to pain at the lightest touch over his left shoulder.”

Further on this point, we note as well that for some unexplained reason the claimant’ symptoms continued to worsen several months after he ceased working and further symptoms developed in his hands and wrists.

We have considered the evidence carefully and find that there is, on a balance of probabilities, no causal relationship between the claimant’s left shoulder condition and the modified job duties to which he was assigned. Accordingly, we do not find the claim acceptable and the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of February, 2001

Commissioner's Dissent

Commissioner Leake’s Dissent:

The minority is of the opinion that the claim for compensation is acceptable.

This commissioner puts more weight on testimony of his treating orthopaedic surgeon that the repetitious nature of the claimant’s “return to work program” has caused the injury to his shoulder.

For the foregoing reason the minority feels that the weight of evidence, on a balance of probability, supports a finding that the claim for compensation is acceptable.

B. Leake, Commissioner