Decision #101/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 17, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 17, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In October 2000, the claimant filed an application for compensation benefits in which she related her right forearm, shoulder and neck difficulties to her occupational duties at a grocery store. Attached with the application was a letter from the claimant dated October 14, 2000. The claimant provided the following information:
  • she had a previous 1994-1995 compensation claim for the same injury. After many months of treatment her doctor and physiotherapist indicated that she should not do cashier work longer than 3-4 hours a day or try to find other duties.

  • her present job entailed checking for 4 hours per day along with other duties such as accounting and some computer work for 4 hours per day. During this time the muscles in between her neck and shoulder were always sore but she managed and never lost one hour of work.

  • in early October 2000 the claimant had to start checking full time again as the accounting was being done by computer in conjunction with receiving. The claimant stated that she gave her employer a letter advising them of the nature of her previous problems but the manager said she had to "check 8 hours 4 days a week anyway." The claimant said she only lasted four days with her muscles getting worse every day until October 5th when her neck was so painful she couldn't go on.
Information which was received from the employer indicated that the claimant submitted a letter in mid August 1994 which indicated that working full time as a cashier was becoming too difficult for her to do. The claimant requested alternate duties that did not involve working full time in a check stand. The employer pointed out that there was no medical evidence to suggest that the claimant had any permanent compensable restrictions to support this accommodation, however, as the company had the ability to accommodate the request, they limited her work in a check stand to approximately 20 hours per week. The claimant worked the balance of her regular hours as a records clerk. As the records position would be phased out completely over the next few weeks, the claimant was expected to work more than 20 hours in a check stand. The employer said that on August 24, 2000, the WCB indicated there were no restrictions in place resulting from any of her prior claims for work related injuries. Given this information there was no medical basis to support that the claimant could not work more than 20 hours per week in a check stand.

In addition to the above, the employer indicated that in the last week of September 2000 the claimant's duties changed from working 20 hours in the check stand to 32 hours. On October 5, 2000, she claimed to experience further problems with the same area. The employer was concerned that the increase in hours after only 1 week had now resulted in her not being able to do even 20 hours in a check stand.

Medical information consisted of an x-ray report of the right shoulder and cervical spine dated October 5, 2000. There was osteoarthritis of moderate severity in the glenohumeral and AC joints. No other bone or joint abnormality was seen. The cervical spine remained unchanged since September 1998. The vertebral height and alignment were normal. No significant bone or joint change was shown. Disc spaces were of normal width.

The Doctor's First Report dated October 5, 2000, noted a worker's history of injury as "repetitive strain injury. Pain in muscles between right shoulder and neck." The diagnosis was a right trapezius muscle strain.

A Workers Compensation Board (WCB) medical advisor reviewed the claim on June 15, 2000. He did not think that the work duties were the cause of the claimant's shoulder girdle pain. He stated that the claimant's shoulder and shoulder girdle pain was a result of her osteoarthritis in the AC and glenohumeral joints. "She was working in a very short span of time which I believe was not the cause of her difficulty."

On November 20, 2000, primary adjudication made the determination that there was no relationship between the claimant's condition and an accident as defined in Section 1(1) of the Workers Compensation Act (the Act). Primary adjudication accepted the opinion expressed by the WCB medical advisor in his review of the file on June 15, 2000. Primary adjudication noted that the claimant had a previous 1994 compensable claim and that file information indicated that she would be fit to return to full time regular cashier duties following that injury. Information on file also showed that the claimant would be back to her full time regular duties effective September 27, 1994 and that her work related forearm, shoulder and neck problems had resolved. "Any arrangements made between you and your employer to keep on part-time cashier duties did not involve the WCB or your workers compensation claim."

On January 22, 2001 a union representative, acting on behalf of the claimant, appealed the above decision to Review Office. The union representative believed that the claimant's work duties was the cause of her shoulder girdle pain and that it was not a result of her pre-existing osteoarthritis. Attached with the submission were reports from the claimant's attending physician, an orthopaedic specialist and a physiotherapist.

Prior to considering the appeal, Review Office sought the opinion of a WCB orthopaedic consultant in February 2001. When asked whether the claimant suffered a muscular-type strain as a result of her increased cashier activities over a one week period, the orthopaedic consultant answered, "No. The claimant has significant gleno-humeral arthritis as well as A-C arthritis on x-ray." When asked whether the claimant's pre-existing osteoarthritis contributed in anyway to the worker's injury, the consultant answered, "There was no injury. The pre-existing OA contributed to the pain. There was no injury. The shoulder could be painful with or without work."

On March 2, 2001, Review Office determined that the claimant did not sustain personal injury by accident arising out of and in the course of the employment. It was believed that the claimant's increase in pain was attributable to the osteoarthritis in the right shoulder girdle and not directly related to her work. Review Office indicated that the claimant had minimal clinical findings that would support any evidence of an "injury" having occurred. This decision was based on the opinions expressed by the WCB medical advisor and orthopaedic consultant along with x-ray evidence. On April 10, 2001, the union representative appealed the decision and an oral hearing was convened.

Reasons

This is the case of a grocery store worker who reported injuries to her right forearm, shoulder and neck muscles.

She reported this to her employer and filed a claim for compensation, which was not accepted. The board ruled, based on advice from a board medical advisor, that her shoulder problems were related to "extensive osteoarthritis" in her right shoulder and not to any work-related causes. She appealed that decision to the Review Office, which upheld the decision. It is from the latter decision that she appeals to this commission.

The issue before The Appeal Commission is whether or not her claim is acceptable.

For her appeal to succeed, the panel must determine that her injuries were work-related, ie, that they arose out of and in the course of her employment, as required by section 4(1) of The Workers Compensation Act (the Act).

We have concluded that, on a balance of probabilities, her injuries did meet that test and, thus, the claim is acceptable.

We note that the claimant has had previous compensable injuries to the same area. In particular, we note that she had a work-related injury to her right forearm, shoulder and neck in 1994, for which she received wage loss benefits. This injury was caused, in large part, by the repetitive stresses involved in working at a checkstand in a large grocery store. This work involves moving and lifting packages of groceries from the belt into bags, which are then lifted into the customer's cart. As well, the checkstand operator has her or his arm constantly elevated to operate the cash register.

Upon her return to work, in 1994, the claimant asked the employer to give her some different work that wouldn't be so stressful to her arm. Even though no restrictions had been applied by the WCB, the employer did agree to accommodate her request. For the ensuing number of years, she worked in the store office for more than half her shift and the rest (3 - 3 1/2 hours) at a checkstand; and that was usually at the "express" till, which apparently is less stressful.

However, in the summer of 2000, the employer made changes to its operation, which eliminated the type of work the claimant had been doing in the office. After confirming with the Board that there were no workplace restrictions affecting the claimant, she was transferred to a checkstand for her full shift. There was no phase-in period, so she went from 3 hours of checking a day to 8. Within days, she was complaining of problems with her shoulder, neck and arm.

The initial diagnosis made by her family physician was of right trapezius muscle strain due to repetitive strain. In contrast, a board medical advisor felt that work was not the cause of her injuries, but that it was due to osteoarthritis in her AC and glenohumeral joints. In response to this, her own doctor agreed that she had chronic right shoulder osteoarthritis, but that this particular pain was caused by muscular strain from her work.

While there is other conflicting medical evidence on the file, we did not feel this was an appropriate case to refer for a Medical Review Panel examination.

We noted that the claimant had managed for about five years, from the time of her previous accident, with no disabling pain in her right shoulder and arm. Just prior to the injury date, she experienced a clear and significant change in her work duties. It was within only a few days of returning to full day shifts on the checkstand that she suffered this pain. We are of the view that it would be too much of a coincidence for her osteoarthritis, under control for at least five years, to be the sole cause of the injuries she experienced in October 2000.

Therefore, we have concluded, on a balance of probabilities, that the claimant did suffer an injury which arose out of and in the course of her employment and that the claim is acceptable.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of August, 2001

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