The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 16, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 16, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 14, 1996 the claimant filed a claim with the Workers Compensation Board (WCB) for right shoulder difficulties which he attributed to his work activities in December 1992. The claimant provided the following information in this regard:

"This injury dates back to December 1992. I was lifting turkey boxes over my head and stacking them in the freezer. I injured my shoulder but didn't think anything of it at the time. My shoulder got progressively worse and had to see Dr. [name] in the early part of 1993. Dr. [name] said that I should have reported the injury when it first occurred because he didn't think that I would be eligible to claim at this time. He referred me to the [name] Physiotherapy Clinic who diagnosed it as a slight tear in the rotator cuff due to repetative (sic) motion (right shoulder). I was placed on physio.".

The Employer's Report of Injury form dated February 6, 1996 indicated that the claimant went to see his doctor on November 22, 1995 regarding an injury that apparently occurred in 1992. The claimant was prescribed anti-inflammatory medication at the time.

Initial medical information included a Doctor's First Report that showed the claimant was seen for recurrent bouts of shoulder pain on November 22, 1995. The diagnosis rendered was "recurrent strain right shoulder".

On February 14, 1996, a sworn statement was taken from the claimant indicating that he did not have any problems with his right shoulder prior to 1992. In December 1992, he lifted approximately 35 boxes containing turkeys and his shoulder was bothering him by the end of his shift. He did not recall one specific box causing his problem but believed it was the accumulation of putting all of the boxes away. The claimant said he did not mention his shoulder problems to anyone that day because he didn't think it was serious at the time and he continued working.

In the early part of 1993, the claimant saw his physician as the pain in his shoulder kept getting worse. The claimant received 10 physiotherapy treatments as this was the amount that his coverage would allow and he could not afford any more. His shoulder was improving and he continued to work. Ever since then, his shoulder would occasionally flare up with over exertion. The claimant indicated he did not seek medical treatment between 1993 and November 1995 because the pain would always subside with exercises and Tylenol. The claimant indicated he was claiming for periodic physiotherapy treatments and for anti-inflammatory medication. He said he had not lost any time from work due to his shoulder condition.

A statement was taken from the claimant's co-worker (a front end supervisor) on February 15, 1996. The co-worker was aware that the claimant was having periodic problems with his shoulder but would not fill out a claim form because he thought it would get better. Another co-worker (deli manager) noted in her statement dated February 22, 1996 that the claimant made several complaints to her about his shoulder bothering him between 1993 and 1995.

No further action was taken on the claim until the claimant contacted the WCB in May 2000 indicating that he was having further problems with his right shoulder and was going to have surgery performed on May 8, 2000. The claimant advised a WCB adjudicator that he sustained no new injury to his shoulder and that his condition gradually became worse.

Updated medical information was received from the attending physician dated August 16, 2000. The report showed that the claimant was treated for right shoulder difficulties commencing on August 25, 1993 and was seen in January and March 1994, November and December 1995, November 1996, March, April, May, October, November and December 1999. The claimant was also referred to an orthopaedic surgeon and on May 8, 2000 underwent a right shoulder scope, acromioplasty, resection distal clavicle and debridement undersurface rotator cuff tear.

On August 30, 2000 a WCB adjudicator authorized payment of 16 weeks of full wage loss benefits to claimant between May 8 to August 27, 2000 as a recurrence. On January 16, 2001 the employer wrote the WCB indicating that it was appealing the decision to accept the claim for right rotator cuff problem of 1992 reported in 1995.

On August 3, 2001 Review Office determined that the claim for compensation was not acceptable taking into consideration the following facts:

• there had not been any formal accident involved in this situation as the claimant indicated in his statement that he felt his right shoulder pain commenced on a day in December 1992 when lifting approximately 35 turkeys and stacking them into a freezer. Review Office pointed out that the claimant's manager and supervisor were not aware of any accident occurring in December 1992.
  
  
• at the time of surgery, osteoarthritis was found in the claimant's shoulder joint and an under surface tear. This could be brought on by either trauma, aging or gradual degeneration of the cuff.
  
  
• the opinion expressed by a WCB orthopaedic consultant to Review Office which stated that a partial thickness tear of the rotator cuff can be sustained by lifting activity and may or may not be symptomatic. The claimant had associated osteoarthritis of the AC joint which could also play a role in his symptoms. It was not work related.

Taking into account the lack of reporting of a work related scenario, the inability to confirm a work related condition and the logical aging and degenerative scenario taking place in the right shoulder joint, Review Office was unable to establish that the May 8, 2000 surgery had any relationship to the claimant's duties on any certain day in December 1992.

On September 11, 2001, the claimant's union representative appealed the above decision and an oral hearing was convened.

Reasons

This case involves a worker who is claiming that his right shoulder difficulties are related to his job duties as meat cutter/meat manager in a retail store, and in particular, to a work incident in December 1992, when he lifted 35 boxes of turkeys overhead. His claim was originally accepted by a WCB adjudicator, but was later reversed by the WCB Review Office. The worker is appealing that reversal, and is asking this panel to reinstate his claim for benefits for his right shoulder problems.

Sections 1(1) and 4(1) of the Workers Compensation Act set out the circumstances under which claims can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

In order for this worker's claim to be acceptable, we would have to find that his right shoulder difficulties are indeed causally related to his employment. We were able to make this determination in this case, and as such, we find that the worker's claim is acceptable.

In reviewing the evidence, we note that this case has been complicated by the delay in formal reporting of the accident until early 1996. For reasons unknown, the claim was not fully adjudicated at that time, and the claim was re-established in April 2000, when the worker anticipated a work absence for his surgery in May 2000. This has made it more difficult to establish a cause and effect relationship between the December 1992 incident and his current difficulties.

However, we have noted the following evidence that helps us conclude, on a balance of probabilities, that the worker's right shoulder difficulties are indeed related to the December 1992 incident:

• A co-manager in the worker's retail store was aware of the claimant's ongoing right shoulder difficulties from 1993 to 1995, and the store manager was also aware of his shoulder complaints during that period of time.
  
  
• The shoulder problems did not require any absences from work, and the claimant was able to manage at work, even when the shoulder became symptomatic.
  
  
• The worker's attending physician notes that he complained of pain in his right shoulder at a routine examination on August 25, 1993. We note that there was continuity of right shoulder symptoms noted in subsequent visits in 1994, 1995, 1996, and over a series of visits in 1999 which led to a referral to an orthopaedic surgeon. During this period, the claimant was provided with various treatments including physiotherapy, ice, medications, and cortisone injections. Finally, an arthroscopy was undertaken on May 8, 2000, with a resulting post-operative diagnosis of a "partial undersurface rotator cuff tear right shoulder."
  
  
• A WCB orthopaedic consultant comments on the diagnosis, and notes that "one can sustain a partial thickness tear of the rotator cuff with lifting activity." He also indicates that a partial thickness tear may or may not be symptomatic. We note that these comments are completely consistent with both the cause of the shoulder injury as reported by the claimant, and by his sporadic symptoms over a number years which he was able to manage without requiring absences from work.

Dealing with the delay in reporting, we note that we found the claimant to be very credible and forthright in his evidence, and we accept his evidence regarding a conversation with his attending physician. He indicates that he and his doctor did discuss that his shoulder problems were work-related but that he relied on his doctor's advice "that I would not be able to claim this through W.C.B. because I hadn't acted at the time of the injury and filled in an Injury Report." We also note that this case was in fact a "no time loss" claim through those early years that would have had no financial impact on the claimant, and in these circumstances, do not find that the delay should bar access to benefits.

For these reasons, we find that the worker's claim is acceptable, and that his appeal is therefore accepted.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of February, 2002