The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 4, 2004, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on November 4, 2004 and again on January 24, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In December 2003, the worker filed a claim with the Workers Compensation Board (WCB) for right shoulder difficulties that she attributed to the repetitive nature of her work duties as a cashier. The worker advised the WCB's call centre that her shoulder difficulties have been ongoing for about 12 years and that it got to the point where she couldn't lift or move anything. Note was made that the worker has a 1995 previous WCB claim for her right shoulder.

On December 10, 2003, an x ray of the worker's right shoulder was undertaken. The results revealed osteoporosis and a collection of calcium in the rotator cuff. There was also degenerative change in the AC (acromioclavicular) joint.

On December 10, 2003, the treating physician diagnosed the worker with cuff impingement and he also noted "1995 pain problems". A referral was made to an orthopaedic specialist.

After obtaining additional information from both the worker and the employer, a WCB adjudicator denied the claim in a letter dated January 2, 2004, based on the fact that the worker did not have a new injury or accident and because medical information referred to longstanding shoulder difficulties. As the worker was claiming that her ongoing shoulder problems were related to her 1995 claim, the medical information would be reviewed in relationship to her 1995 claim.

In a report dated December 29, 2003, a sports medicine specialist reported that he first saw the worker in June 2001 for left shoulder pain of several months without any history of a specific injury. The diagnosis was calcific rotator cuff tendonitis as well as regional myofascial pain. By July 2001, the worker's left shoulder was much better following treatment which consisted of physiotherapy and a left shoulder injection.

On January 20, 2004, another physician reported that the worker was treated for right shoulder tendinitis and bursitis in 1995 and that she finished treatment in August 1995.

On February 2, 2004, following review of all the file information, a WCB medical advisor concluded that the current diagnosis was right calcific tendinitis and myofascial pain. She stated that it was difficult to relate the worker's ongoing symptoms to an injury in 1995 given that there was no medical information between 1995 and 2003. The medical advisor commented that calcific tendonitis can cause recurrent episodes of pain unrelated to activity or injury. With respect to a rotator cuff tear, the medical advisor said the attending physician did not mention that in his report and there was no mechanism of injury that would have caused one.

In a decision dated February 9, 2004, the WCB stated it was unable to establish a cause and effect relationship between the worker's right shoulder difficulties and her 1995 compensable injury. In reaching this decision, the adjudicator noted that the worker's 1995 claim was accepted on the basis of a non specific right shoulder injury. It was also determined that the worker had aggravated a pre existing condition and that the WCB accepted responsibility for the period of aggravation. However, when considering a claim for recurrent disability where there has been no further injury or accident at work, entitlement to benefits depended on medical evidence and other information proving that the recent disability was related to a previous injury which 'arose out of and in the course' of a worker's employment. In the adjudicator's opinion, such a relationship had not been shown to exist and therefore the WCB was unable to accept responsibility for time loss or medical treatment relative to the worker's right shoulder.

On February 13, 2004, the treating orthopaedic specialist stated the worker "sustained no injury" and outlined his examination findings to the WCB. The worker was assessed with "right shoulder calcific tendinitis with a frozen shoulder". The plan was to proceed with an impingement test and an MRI arthrogram to rule out rotator cuff tear and frozen shoulder.

On June 1, 2004, the worker's union representative prepared a submission to Review Office wherein she agreed with the WCB's decision made on the 1995 file. She did not, however, agree with the WCB's position made on the 2003 claim that there was no new injury or accident. The union representative argued that there need not be one specific incident or injury giving rise to a compensable injury and that the doing of the work over a period of time can and does lead to many compensable injuries. On a balance of probabilities, the union representative felt that the worker's job duties caused the calcific tendonitis and the associated diagnosis of cuff impingement in the worker's shoulder and that the claim was therefore compensable. It was also felt that the calcific tendonitis and cuff impingement was the cause of the worker's ongoing and intermittent shoulder symptoms subsequent to her return to work following the 1995 compensable injury.

On July 19, 2004, Review Office determined that the worker's symptoms between July and December 2003 were not compensable as a recurrence of the 1995 claim nor were they compensable as a new accident. Following consultation with a WCB orthopaedic consultant on July 16, 2004, Review Office stated that the worker's calcific tendonitis diagnosis was a condition that was not generally due to trauma and could come on spontaneously without any physical activity/exertion being involved. It was noted that the worker has over the years had a bilateral shoulder issue which lent credence to the philosophy that the condition was not trauma related. Review Office was of the opinion that the worker's right shoulder symptoms can come and go regardless of any work influence. Review Office conceded that, if there was a cause and effect relationship between the diagnosis of calcific tendonitis of the right shoulder and the claimant's general duties, the claim would be compensable. The Review Officer found no such relationship. In August 2004, the union representative appealed Review Office's decision and an oral hearing was arranged.

Following the oral hearing held on November 4, 2004, the Appeal Panel requested additional medical information from the worker's treating orthopaedic specialist. In a report dated December 14, 2004, the orthopaedic specialist noted that the worker's MRI scan was normal. He further stated "The cause of calcific tendinitis is repetitive trauma which is the same as the cause of rotator cuff tendinitis. This would be consistent with her history of working at [employer's name] lifting groceries over a time of 10 years. Not every patient with rotator cuff tendinitis will calcify their rotator cuff. The calcium deposits is simply a marker of trauma in this case repetitive (sic) that occurs in some patients with rotator cuff tendinitis."

The treating orthopaedic specialist's report was forwarded to the parties with a direct interest for comment. On January 24, 2005, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

This case involves a December, 2003 claim for compensation for right shoulder injury by a worker who has worked since 1978 as a clerk, checking and bagging groceries. Benefits were denied by primary adjudication in January, 2004, as the adjudicator found that no "new injury at work" had taken place.

The worker challenged this decision to Review Office, arguing that no particular accident need take place for the injury to be compensable. She argued, through her Union Representative, that, rather than requiring a specific injury to be compensable, a cause and effect relationship need only exist between the diagnosis of calcific tendonitis and the worker's general duties. Review Office found that no such relationship existed.

The worker then appealed the Review Office decision to this panel. The issue before the panel was claim acceptability. This panel did find a cause and effect relationship between the diagnosed condition and the worker's general duties.

Subsection 4 (1) of The Workers Compensation Act states that:

"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."

In coming to our decision, we conducted a thorough review of the file and held an oral hearing, where we heard testimony from the worker as well as oral submissions from her Union Representative. Although the employer had indicated an intention to participate in the hearing, no representative attended.

We placed considerable weight on the additional evidence of the worker's own orthopaedic specialist in his letter of December 14, 2004, which was contrary to the opinion of the board orthopaedic consultant. The worker's doctor noted that calcific tendonitis is caused by "repetitive trauma consistent with [the worker's] history of working at [employer's name] lifting groceries over a time of 10 years."

The panel found, in light of the long term repetitive nature of the worker's general duties and her orthopaedic specialist's opinion about likely causation, that, on a balance of probabilities, her right shoulder injury arose "out of and in the course of her employment."

Accordingly, the claim is acceptable and the appeal is allowed.

Panel Members

C. Harapiak, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

C. Harapiak - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of February, 2005