The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 9, 2005, at the request of a worker advisor, acting on the worker's behalf. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On November 2, 2001, the worker submitted a claim to the Workers Compensation Board (WCB) for injuries to both shoulders and right elbow which he attributed to the repetitive nature of handling a pallet jack. The date of accident was recorded by the worker as being May 15, 2000 and the worker indicated he reported the accident to the employer on the same day.

In a letter to the WCB dated November 19, 2001, the employer's safety & health manager took exception to the claim being filed as a workplace injury. The manager commented that the May 15, 2000 accident was not officially reported by the worker until October 15, 2001; that the worker was aware of its "green-card" system but failed to fill one out on the day of injury; and that it took the worker almost 18 months after the claimed day of injury for him to report this as a workplace injury. Prior to this official notification, the manager noted that the injury was being treated as a non-work related injury with the medical coverage being paid through the company's benefit carrier.

Initial medical reports on file revealed that the worker was treated by a general practitioner on May 18, 2000. The worker complained of a one year history of pain in the right elbow and both shoulders which the worker maintained was related to driving a pallet at work. Treatment included Xylocaine to the epicondyle and right elbow joint. The worker was advised to "…work in warmer environment since he's in the cooler often times and has cold hands. Also less demanding work on arms for a few mths." When seen at a follow-up visit on May 29, 2000, the general practitioner reported that x-rays of both AC joints revealed minor degenerative changes and that the right elbow appeared okay. The diagnosis rendered was "osteoarthritis".

The next medical report on file is dated November 14, 2001. It shows that the area of injury was both shoulders, trapezius muscles and distal triceps. The diagnoses rendered by the general practitioner were degenerative changes in both AC joints and myofascial pain.

In December 2001 and January 2002, primary adjudication contacted the worker, the company nurse and the worker's foreman to gather additional information surrounding the claim, i.e. the worker's job history, onset of symptoms, reporting aspects, etc.

During a telephone conversation on January 14, 2002, the attending physician advised primary adjudication that the diagnosis of osteoarthritis of both shoulders was not related to the worker' job activities as a pallet jack operator.

On January 15, 2002, a WCB medical advisor reviewed the file information and stated that the worker's bilateral AC joint arthrosis was not work related.

In a decision dated January 17, 2002, primary adjudication stated that it could not establish that the worker's job activities were the direct cause of his bilateral shoulder and right elbow difficulties. The claim was denied based on subsections 4(1) and 1(1) of The Workers Compensation Act (the Act).

Subsequent to the above decision, an orthopedic specialist reported on February 2, 2004 that the worker was seen for ongoing left shoulder difficulties. The differential diagnoses included chronic impingement, labral tear, rotator cuff disease and biceps disease. X-rays showed small subacromial spur on the vertical AC joint with minimal OA (osteoarthritis).

Following consideration of all file information which included the February 2, 2004 orthopaedic report, primary adjudication wrote to the worker on May 20, 2004, to state that no change would be made to its earlier decision of January 17, 2002. It was still the opinion of primary adjudication that the job activities were not the cause of the worker's ongoing difficulties.

On October 14, 2004, a worker advisor requested reconsideration of the May 20, 2004 decision. Included with the submission was a report by the orthopaedic specialist dated October 1, 2004, which was in response to questions posed by the worker advisor dated September 2, 2004. The worker advisor felt that the report "supported there was a presumption that the onset of his bilateral shoulder and right elbow symptoms occurred in the course of his employment."

On October 21, 2004, primary adjudication notified the worker advisor that after reviewing the current information on file which included the October 1, 2004 orthopaedic report, no change would be made to the earlier decisions of January 17, 2002 and May 20, 2004. On October 25, 2004, the worker advisor appealed this decision to Review Office.

In a decision dated November 18, 2004, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted that the worker's own physician stated that the osteoarthritis was not work related. After considering the reports by the treating orthopaedic specialist and the worker's own physician, Review Office agreed with the position outlined by the adjudicator in the decision letters. On November 25, 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged. The worker advisor subsequently submitted additional information for the Panel to consider which included a further report by the treating orthopaedic specialist dated December 17, 2004 and a supplementary statement dated January 22, 2005.

Reasons

The issue before us was whether the worker's claim is acceptable. For the appeal of this issue to be successful, we must find that the worker's bilateral shoulder condition is caused, aggravated or enhanced by the worker's workplace duties. We were not able to make this determination.

Evidence and Argument at the Hearing

The worker attended the hearing with a worker advisor who made a presentation on the worker's behalf. The worker also answered questions posed by the Panel. The employer was represented at the hearing by an advocate.

The worker testified that he started to notice problems with his shoulders in 1999. He advised that at this time he was operating an electric, motorized machine called a pallet jack. He described the machine and the position of the operator. He noted that he drove the machine with his left hand. He described working on the machine as "pretty strenuous".

The worker acknowledged that in approximately May 2000 he was provided with modified duties when he notified the employer of problems with his shoulders. He was initially assigned to the laundry room and later both the laundry room and box department. By August 2001 he was working full-time in the box department. He found the duties in the box department were repetitive and that his shoulder pain increased. He worked in the box department until August 2004 when he had surgery on his left shoulder. He has not returned to work.

The worker's representative submitted that the worker's duties as a pallet jack operator precipitated his shoulder problems. He noted that even when he was removed from the pallet jack, the modified duties provided by his employer continued to aggravate his bilateral shoulder problems. He noted and relied upon the opinion of an orthopedic surgeon who treated the worker.

With respect to the issue before the Panel, the worker's representative agreed that the issue is whether there is an aggravation or enhancement, not whether the job duties actually created the osteoarthritis in itself.

The employer's advocate noted that the worker has a pre-existing condition, osteoarthritis. She also noted that the worker's family doctor said the worker's duties did not cause the condition. With respect to an aggravation or enhancement of the pre-existing condition, she noted there was no evidence that the job duties enhanced the pre-existing condition. The advocate disputed the suggestion that the worker's duties involved significant overhead lifting.

Analysis

Having considered all the evidence, we have found, on a balance of probabilities, that the worker's claim is not acceptable.

The worker has a pre-existing condition, osteoarthritis. The condition affects both shoulders with the left shoulder being more painful.

The evidence does not establish that the worker's duties as a pallet jack operator precipitated or caused the worker's condition. Nor, do we find that the evidence establishes that these duties or any other duties provided by the employer aggravated or enhanced the worker's condition.

In arriving at this conclusion we note the x-ray report dated May 23, 2000 which states:
" Both Shoulders:- There are minor degenerative changes in both A-C joints. No other bone, joint or soft tissue abnormality is seen."

We also note that the worker's family doctor advised a WCB representative in a telephone conversation on January 14, 2002 that the worker has osteoarthritis of both shoulders which is not work related. As well, a WCB medical advisor reviewed the claim and provided an opinion dated January 15, 2002 that the worker has bilateral AC joint arthrosis which is not work related.

The worker provided a detailed description of the pallet jack duties and the subsequent modified duties in the box department. We are satisfied that these duties did not involve significant overhead work or repetitive movements that would cause or worsen the worker's condition.

In arriving at our conclusion we note but do not accept the opinion of the treating surgeon that the worker's pre-existing conditions, including both AC joint arthritis and glenohumeral arthritis, were enhanced by the worker's duties, based on the evidence and opinions noted above. From the worker's description of his pallet operator duties we find this work would not enhance a bilateral arthritic condition.

The worker's appeal is denied.

Panel Members

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

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of April, 2005