The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 18, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The claimant was employed as a meat wrapper for over 25 years. While at work on September 28, 2000, the claimant advised her employer that she could not continue working due to pain in her right shoulder and arm. The claimant saw a physician that day and was advised not to return to work. Except for a brief period in May 2001, the claimant has not returned to work since September 28, 2000.

The claimant did not file an application for compensation benefits with the Workers Compensation Board ("WCB") until June 20, 2002. Instead, the claimant pursued a disability claim with her employer's group insurance company. She received short-term disability payments and was subsequently denied long-term benefits. After consulting with a lawyer the claimant filed a claim with the WCB for compensation benefits indicating that her right shoulder and arm difficulties were due to a repetitive strain injury related to her job duties as a meat wrapper.

The claimant was treated and assessed for complaints of shoulder pain, as well as many other symptoms and conditions in other areas of her body, covering a period from approximately 1998 to 2002.

According to an Attending Physician's Statement dated October 12, 2000, the claimant was under treatment by her family physician for bursitis in her right shoulder and possible rotator cuff problems since July 17, 2000.

On August 30, 2000, the physician's medical notes describe the claimant's right shoulder complaints as "bursitis" and "overload". The claimant was receiving anti-inflammatory medication and physiotherapy treatments. When examined on September 28, 2000, the family physician notes increased shoulder pain and the claimant is advised to stay off work. When examined on October 12, 2000, the physician indicates that the claimant's right shoulder is still sore with decreased range of motion. A cortisone injection is administered and when next examined on November 1, 2000, the physician notes improved range of motion. When examined on November 15, 2000, the family physician notes that physiotherapy treatments ended and range of motion is described as "OK".

A physiotherapist's report dated September 26, 2000 states that the claimant received 12 treatments beginning on July 31, 2000. The report indicates a diagnosis of "right shoulder repetitive strain injury" and that the claimant's condition "is aggravated at work with heavy repetitive lifting" and there "appears to be a combination of rotator cuff and myofascial irritation".

In the Attending Physician's Supplementary Statement dated December 5, 2000, the claimant's family physician records a diagnosis of rotator cuff and myofascial irritation as well as considerable polymyalgia and polyarthralgia, which the physician describes as multiple new symptoms of weakness in limbs and joint pains.

On January 9th and May 22nd, 2001, the claimant was assessed by a rheumatologist. In his report dated April 18, 2002, the rheumatologist notes that the claimant continues to complain of widespread arthralgias and myalgias as well as fatigue and that she is most bothered by her shoulders as well as her hands and hips. The rheumatologist is of the opinion that the claimant has fibromyalgia based on several tender points as well as adhesive capsulitis in her right shoulder (frozen shoulder) with an element of osteoarthritis.

The claimant was examined on February 14, 2001 by a physician at a sports medicine and rehabilitation clinic. According to the physician's report dated February 26, 2001, the claimant complained of fatigue, weakness, diffuse pain in her shoulders, upper back and legs, numbness and tingling in her hands and feet and headaches. The physician was of the view that the claimant did not have sufficient trigger points to satisfy the criteria for fibromyalgia. He diagnosed mild chronic pain syndrome, mild chronic fatigue and headaches. The report states that the physician could not identify any physical findings that would support an impairment of physical function. The physician recommended that the claimant return to work in reduced hours and gradually increase her tolerance.

The claimant participated in a gradual return to work program in May 2001 working up to three hours per day. On May 16, 2001, the same physician who had examined the claimant on February 14, 2001 reassessed her. According to the report on file dated May 23, 2001, the claimant outlined continuing problems of pain, fatigue and dizziness. She indicated increased pain in her neck, shoulders and upper back as well as generalized pain throughout her body. She felt disoriented and experienced the sensation of blacking out. She indicated that she had difficulty sleeping and a poor appetite. The physician noted tenderness in the cervical spine and a slight decrease in range of motion in her right shoulder. The physician was of the opinion that the claimant continued to suffer from chronic pain syndrome and chronic fatigue. He could not identify a condition that would prevent her from performing her full time occupational duties. After four to five weeks in the return to work program, the claimant was unable to resume her regular duties.

The claimant was treated by her new family physician on July 20, 2001 and September 24, 2001. In the Attending Physician's Statement dated July 29, 2001, this physician notes that the claimant cannot use her right shoulder to lift anything and indicates a diagnosis of severe impingement syndrome. The physician indicates that he is unsure if the right shoulder problems are work-related. He also notes symptoms of insomnia, dizziness, headaches and blurred vision. The physician refers the claimant to a specialist at another sports medicine and rehabilitation clinic.

The specialist initially assessed the claimant on August 22, 2001. The specialist noted complaints of right shoulder pain as well as left arm and elbow pain. In his medical report dated December 18, 2001, the specialist concluded that the claimant displayed symptoms of rotator cuff tendonitis in her right shoulder with associated acromioclavicular arthrosis of a chronic nature. In a note on file dated December 27, 2001, the specialist also referred to evidence of early osteoarthritic changes. The physician did not anticipate full resolution of the claimant's symptoms either with steroid injections or physiotherapy.

With respect to her ability to work, the specialist was of the view that the claimant's duties involved out reaching motions at or above chest level of either a repetitive or heavy nature and recommended that she not perform any duties requiring lifting greater than 15 lbs. or any repetitive motion for more than 15 minutes to 1 hour. The specialist reviewed the duties of a meat wrapper and concluded that the demands of that job did not fall within her restrictions.

In a subsequent report dated July 18, 2002, the specialist confirmed his initial diagnosis of rotator cuff tendonitis related to acromioclavicular arthritis. When last seen on April 12, 2002, the specialist noted continued symptoms of right shoulder pain and steroid injections were given. He referred the claimant back to her family physician, noting that he had no other recommendations to make.

On April 24, 2002 a physician at an occupational health clinic who reviewed all of the medical assessment up to that time assessed the claimant. In a report dated April 24, 2002, this physician noted that until 1996 the claimant had no work-related pain complaints. In 1996 the claimant was off work for a few weeks with a right shoulder ache or sprain that completely resolved after a few months with no residual symptoms of pain or weakness. In approximately 1998 the claimant gradually developed the onset of diffuse pain described as aching, stabbing discomfort in her neck, shoulder and both arms, as well as in her lower body, legs and buttocks. She described deep fatigue, dizziness and visual troubles. While her symptoms symmetrically involve both the upper and lower extremities, the bulk of her symptoms are in her neck, shoulders and arms. The physician concluded that:

"In summary, the claimant has a three year history of soft tissue pain and decreased endurance to activities with associated fatigue. Symptoms are predominately in her upper torso and upper extremities, more so on the right side, where there is contributing degenerative rotator cuff involvement and postural changes that likely contribute. It was interesting to observe that referred pain from hypertonic scalene muscles affect her hands and arms. I would expect that this is significant to her pain pattern, particularly in her repetitive work in a refrigerated environment, with forward reaching and bending."

On August 13, 2002, WCB Rehabilitation and Compensation Services denied the claim for compensation on the basis that the evidence did not establish a relationship between the claimant's shoulder problems and her work activities. The adjudicator noted that the employer did not have any record of the claimant reporting that her shoulder problems were caused by her work; that there was no specific incident or increase in the claimant's work activities prior to September 2000; and none of the medical reports indicated that her shoulder problems were caused by her work activities.

In a letter dated October 1, 2002, the claimant wrote to the adjudicator advising that her manager was aware of her work-related shoulder problems and that her workload had increased when the store moved to a larger facility in November 1999. She also provided the medical notes from her family physician referring to an "overload" in her shoulder on August 30, 2000, the Attending Physician's statement dated October 12, 2000 referring to bursitis and the physiotherapist's report dated September 26, 2000 referring to right shoulder repetitive strain injury. By letter dated November 1, 2002, the adjudicator advised the claimant that no change would be made to the decision of August 13, 2002.

A union representative, acting on behalf of the claimant, appealed the decision of August 13, 2002 to the Review Office. The Review Office referred the case to the adjudicator to gather information regarding changes in the claimant's workload and whether the manager was aware of her shoulder problems. According to the file, the employer confirmed that the move to a larger facility increased the amount of work in the meat department, but the number of staff available to assist the claimant also increased; that the claimant's hours remained the same; that the claimant was required to work in a refrigerated environment; and that there was an automatic wrapper in the new facility that eliminated 50 to 60% of the hand wrapping. The employer advised that the claimant's manager was aware of her shoulder problems.

The adjudicator determined that there was no significant change in the claimant's work duties following the move to the new store in November 1999 and advised the claimant in a letter dated January 31, 2003 that the decision had not changed and the matter would be referred to the Review Office.

According to notes on file dated February 13, the Review Office contacted the claimant's manager directly. The manager confirmed that he had been aware of the claimant's shoulder related problems. With respect to changes after the move to a new facility, the following information is recorded:

"He confirmed that this worker is very conscientious and that following the move to the new store there was an increase in product and therefore an increase in work volume. There was no increase in meat wrapping staff and in his opinion the new machine did not decrease the volume of work for this worker. There was an increase in part time staffing and hours for P/T staff but he did not feel that made a difference to the volume of work for this particular worker. She still had to put on display. Job duties were heavy repetitive lifting above & below waist levels."

In its decision dated August 29, 2003, the Review Office determined that the claim was not acceptable.

In reaching its conclusion, the Review Office referred to the widespread nature of the claimant's medical complaints over a long period of time with multiple symptoms in many areas. The Review Office noted that the claimant had been diagnosed with fibromyalgia, a condition that is not associated with trauma. The Review Office also pointed out that the evidence of rotator cuff tendonitis related to acromioclavicular joint arthritis would be considered a pre-existing condition that was not work-related. The Review Office did not refer to the information received from the claimant's manager relating to the increase in workload.

The Review Office concluded that:

"The evidence before us has not led the Review Office to the conclusion that this worker's problems, either with the right shoulder or with the other multiple areas of her anatomy, were work-related in that there is no established cause and effect relationship between these many complaints and her employment as a meat wrapper, either in the old store or in the new store."

On October 22, 2003, an appeal of the Review Office's decision was filed and an oral hearing was requested.

Evidence at Hearing

A hearing took place before the Appeal Commission on February 18, 2004. Present at the hearing was the claimant and her union representative as well as a representative on behalf of the employer and the claimant's store manager.

It was the claimant's position that there was an increase in the demands of her job following the move to the new store in November 1999 that caused a repetitive strain injury to the claimant's right shoulder.

The claimant's evidence at the hearing was that the meat department in the new store was much larger, with an additional meat cutter resulting in substantially more product that had to be lifted from heavy trays and wrapped. She explained that although the new store had an automatic wrapper, she still had to lift the trays of meat and feed the meat packages by hand into the automatic wrapper. She also explained that the automatic machine only accepted certain sizes of trays and a large amount of heavier product still had to be wrapped by hand. The trays of meat weighed anywhere from 5 to 30 pounds and the claimant was required to lift approximately 160 trays each shift. The claimant also advised that for the majority of the time during her shift, the claimant was the only meat wrapper on duty.

The claimant also testified at hearing that she had spoken to her manager on a number of occasions about the difficulties she was having with her shoulder doing the lifting and other job duties.

The claimant explained the reason for her delay in filing a WCB claim. According to the claimant, after her physician took her off work on September 28, 2000, she went to see the store manager about her shoulder problems and asked how she should proceed. The store manager advised her to submit an insurance disability claim and did not mention a WCB claim. The claimant testified that it was not until she sought legal advice in June 2002, after her long term disability claim was denied, that she was advised by her lawyer that she should have filed a WCB claim. She explained that she thought there had to be a specific identifiable incident to qualify for WCB benefits, as that had been the case in 1996 when she lifted a heavy tray of meat and immediately felt pain in her shoulder.

The claimant testified that for approximately 10 months beginning in February 2003, she received active release treatment from a chiropractor for adhesive capsulitis in her right shoulder. She states her shoulder is much better now although she continues to have pain if she does strenuous activity. She indicated that she continues to suffer from fatigue and diffuse pain in her arms, legs and other parts of her body for which she is not receiving any treatment. She is currently in school studying applied counseling and is no longer employed by the accident employer.

It is the employer's position that there is no relationship between the claimant's problems and her work as a meat wrapper.

At the hearing the employer's representative agreed that the employer was aware of the claimant's shoulder problems prior to September 2000, but focused on the failure of the claimant to have specified to the store manager that her problems were work-related. The employer also points to a lack of evidence from the physicians who examined the claimant that her problem was work-related and to the fact that when the claimant filled out her group insurance claim form in October 2000 she failed to indicate that her claim was work-related.

The employer's representative noted that the medical evidence indicated a wide range of non-work related problems beginning in 1998 that continued to deteriorate and which have not improved since the claimant stopped working. The employer's position was that the claimant's inability to work was not due to any work-related shoulder problem, but rather, was a result of generalized pain in many areas of her body, symptoms of fatigue and weakness associated with fibromyalgia, chronic pain syndrome or a pre-existing degenerative shoulder condition, none of which were work-related.

At the hearing the claimant's store manager gave evidence indicating that the claimant had discussed her sore shoulder with him and that during these conversations the claimant's work environment was also discussed, although the claimant never specifically stated her shoulder pain was work-related. The store manager confirmed that the volume of product in the meat department substantially increased in the new store. The store manager was unable to say how this change would have impacted on the claimant's job in terms of the pace and increase in heavy lifting or wrapping. The store manager confirmed that the claimant's manager at the relevant time continues to be employed with this accident employer. The claimant's manager did not attend the hearing.

Reasons

The first issue that must be addressed in this appeal is the failure of the claimant to have filed an application for compensation with the WCB within the time period specified in Subsection 19(2) of The Workers Compensation Act (the "Act").

Section 19(2) of the Act states:

19(2) Subject to section 109, unless application for the compensation is filed

(a) within one year after the day upon which the injury occurred; …no compensation in respect of any injury is payable under this Part.

Section 109 of the Act states:

109 Where, in the opinion of the board, an injustice would result unless an enlargement of the time prescribed by any section of this Act or by any regulation for the making of any application, the taking of any proceedings, or the doing of any other act, is granted, the board may enlarge the time so prescribed; and the enlargement may be granted either before or after the expiration of the time prescribed in this Act or any regulation.

In this case there is a delay of 21 months from the time that the claimant stopped working on September 28, 2000 to the date the application was filed on June 20, 2002. The claimant's explanation that she was advised by her employer to file a group insurance claim and that she was not aware that she was entitled to benefits from the WCB where an injury is not related to a specific incident but arises from longer-term injurious activities, is, in the panel's opinion, reasonable in the circumstances. The evidence indicates that the forms provided in support of the group insurance claim were ambiguous with regard to questions relating to the cause of injury and did not specifically ask the claimant whether the injury was work-related.

The panel also notes that the family physician who initially treated the claimant, appears not to have adequately turned his attention to the issue of whether the claimant's shoulder injury was work-related. There was evidence that this physician was gravely ill during the relevant period and subsequently passed away. The claimant was referred to different physicians and, given the fact that by then no WCB claim had been filed, it is not surprising that these physicians did not further address the issue of whether the initial injury was work-related.

The panel also notes that there is evidence that the claimant's manager was aware of the claimant's shoulder problems at work. Whether or not the claimant's shoulder problems are in fact work-related is a matter to be determined by this panel and the claimant's failure to have specifically notified her employer that her problems were work-related does not automatically disentitle her to benefits under the Act. The panel is of the view that in this case an injustice would result unless the time period for filing the claim is enlarged and we will therefore proceed to consider this claim for compensation on its merits.

With respect to entitlement to compensation, the panel must determine whether the claimant's problems are a result of a work-related accident, pursuant to Subsection 4(1) of the Act.

Subsection 4(1) of the Act states:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of 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.

Section 1(1) of the Act defines "accident" as a chance event occasioned by a physical or natural cause, and includes:

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of employment, …

and as a result of which a worker is injured.

This branch of the definition of accident covers injuries often dealing with longer-term injurious activities or processes that are work-related such as repetitive strain injuries. The worker is not required to identify a specific incident causing the injury or disablement to qualify under this section.

The panel has reviewed all of the evidence before it, including all of the medical evidence on file, and has determined, on a balance of probabilities, that the claimant suffered an injury to her right shoulder that was related to her work duties.

In reaching this conclusion the panel notes that the claimant's job duties as a meat wrapper over the past 25 years were of a highly repetitive nature, involving heavy lifting, bending, turning, twisting and reaching. The physician who assessed the claimant's job as a meat wrapper was of the opinion that the duties were of a repetitive nature involving heavy lifting of over 15 lbs. The claimant's manager also described her duties as involving heavy repetitive lifting above and below waist levels.

The panel is further satisfied after hearing the evidence of the claimant and the store manager, that the demands of the claimant's job increased when she was moved to the new store in November 1999. The panel notes that the store manager confirmed that the meat department doubled in size with a substantial increase in the volume of product. The panel accepts the evidence of the claimant, corroborated by notes on file from her supervising manager, that for the majority of the time there was no increase in staff to effectively assist the claimant with the dramatic increase in product and heavy trays she was required to lift in order to either wrap manually or feed product into the automatic machine. The evidence of the claimant and her supervising manager indicates that the automatic wrapper did not significantly decrease the volume of work. Although the job functions and hours of work remained the same, the panel concludes that there was a substantial increase in the claimant's workload following the move to the new facility.

The panel also notes that in the few months preceding and following September 28, 2000, there is medical evidence indicating that the claimant suffered a repetitive strain injury to her right shoulder that was work-related. The claimant's family physician indicated that he was treating the claimant for worsening right shoulder pain during the period from July to November of 2000. On August 30, 2000, the physician described the problem as "bursitis" and "overload". The physiotherapist's report during this period refers to a diagnosis of repetitive strain injury and that the claimant's condition was aggravated at work with heavy repetitive lifting.

In the Attending Physician's Statement completed on October 12, 2000, the family physician indicates a primary diagnosis of bursitis with a secondary diagnosis of possible rotator cuff problems. The notes of the family physician in October and November of 2000, indicate that the claimant received cortisone treatments and physiotherapy for her shoulder and when examined on November 15, 2000, the claimant's range of motion in her shoulder had significantly improved.

While there was medical evidence indicating that subsequent to November 2000 the claimant sought treatment for multiple complaints other than the right shoulder problem, there was a diagnosis in August 22, 2001 relating to a pre-existing degenerative condition described as rotator cuff tendonitis with associated acromioclavicular arthrosis of a chronic nature and mild osteoarthritic changes. The panel is of the view that the medical evidence related to the claimant's right shoulder supports the conclusion that the claimant suffered a temporary aggravation of her pre-existing degenerative rotator cuff condition. The panel is satisfied that the increased workload following the move to a new store in November 1999 likely resulted in a repetitive strain injury to the claimant's right shoulder that temporarily aggravated her pre-existing degenerative shoulder problems.

As the panel has determined that the claimant's injury to her right shoulder resulted from a temporary aggravation arising out of or in the course of her employment, the definition of "accident" has been met and claim is accepted on that limited basis. Issues relating to the entitlement of benefits will be matters that the WCB will consider as part of their further adjudication of this claim.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of April, 2004