The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 10, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on February 10, 2005 and again on April 8, 2005.

Issue

Whether or not the worker's pre-existing condition was enhanced or accelerated by the compensable injuries of January 18, 2001 and July 23, 2001.

Decision

That the worker's pre-existing condition was not enhanced or accelerated by the compensable injuries of January 18, 2001 and July 23, 2001.

Decision: Unanimous

Background

On January 18, 2001, the worker reported that he developed pain in his right shoulder region while reaching over a table to pull hams toward himself during the course of his employment as a ham trimmer.

On January 20, 2001, the treating chiropractor diagnosed the worker with a cumulative strain of the right scapulothoracic/rotator cuff. He considered the worker to be capable of performing modified duties with no repetitive motion of his right shoulder, no lifting above waist level and no working in the cooler. The claim was accepted by the Workers Compensation Board (WCB) and chiropractic therapy was authorized.

In a chiropractic progress report dated April 3, 2001, the new diagnoses listed were subacromial bursitis, impingement syndrome and degenerative disc disease of the cervical spine. On April 27, 2001, chiropractic x-rays of the cervical spine revealed discopathy of C5 and 6 with osteoarthritic changes and altered lordosis. X-rays of the right shoulder were reported as being negative.

On May 8, 2001, the worker was referred to the Wellness Centre by his treating chiropractor as it was felt that he had attained maximum benefits from chiropractic care.

On May 8, 2001, a sports medicine specialist commented that the worker had pain on the right side of his neck and upper back. Treatment included home exercises along with heat/massage therapy. The worker was considered fit to perform his regular duties.

In August 2001, the worker advised the WCB that he had been using his left arm for his job duties to compensate for his right shoulder. He now had pain in his left shoulder any time he lifted his arm too high and he still had a burning sensation in his right shoulder.

On July 23, 2001, the treating chiropractor diagnosed the worker with left acute bicipital tendonitis and anterior capsular cumulative strain injury, a subacromial bursitis and supraspinatus involvement. On September 4, 2001, the WCB accepted responsibility for the worker's left shoulder difficulties and chiropractic treatment was authorized.

The worker was assessed by a WCB chiropractic advisor on November 1, 2001. With respect to his right shoulder status, the chiropractic advisor diagnosed the worker with a cervicothoracic sprain/strain type injury with involvement of the right trapezius and possibly the right levator scapular musculature. The left shoulder diagnosis was mild bicipital tendonitis with possible involvement of the infraspinatus tendon.

Subsequent file documentation consisted of reports from a second physician who diagnosed the worker with impingement of both shoulders. The worker was treated with injections to both shoulders and continued with modified duties. In early January 2002, the physician outlined permanent restrictions to avoid positions of impingement, no overhead work, no prolonged work at shoulder height and no work away from the body. In February 2002, the worker's condition had plateaued but he still complained of anterior shoulder pain and pain with reaching.

On September 18, 2002, an MRI examination of both shoulders revealed as follows: "Bilateral mild AC arthrosis. No evidence for rotator cuff tearing."

The MRI results were considered by a WCB medical advisor on October 9, 2002. He believed that the worker's condition would continue with time and restrictions were recommended for 9 to 12 months. He questioned the possibility of preventive restrictions in the future.

The worker underwent nerve conduction studies on November 26, 2003. EMG of the right supraspinatus, infraspinatus, bicep, tricep, brachioradialis was normal. There was no evidence of a right suprascapular or C5, 6 or 7 lesion.

On January 6, 2004, a senior WCB medical advisor reviewed the file evidence and stated, in part, that there was no indication for permanent compensable restrictions. He felt the worker should have preventive restrictions because of his underlying pre-existing degenerative disease and the risk of flare-ups of his myofascial pain syndrome if it became aggravated. Permanent preventive restrictions were outlined.

In a letter to the worker dated January 8, 2004, Rehabilitation and Compensation Services stated, in part, "The medical opinion has identified that you have a pre-existing medical condition in your neck, which can be aggravated by certain components of your work to cause pain in your neck and shoulders. Although the pre-existing condition is not caused by your work and is not considered compensable by the WCB, it is recommended that you observe the following PERMANENT PREVENTATIVE restrictions…". [emphasis theirs]

On January 19, 2004, the worker's wife contacted the WCB to indicate that her husband's difficulties were centralized in his shoulder joints and were not stemming from his neck. It was argued that the worker's ongoing complaints were definitely compensable.

On January 20, 2004, primary adjudication wrote to the worker's treating physician for information. In a response dated January 27, 2004, the treating physician stated, in part, the following:

"…It is my view that he likely has had accelerated changes with respect to the glenohumeral and acromioclavicular joint regions on the basis of his heavy work activity… I do not think that the AC arthrosis and degenerative disease of the cervical spine are caused by the usually expected normal wear and tear. Of course this is difficult to prove definitively; however, given his ongoing history of complaint and ongoing shoulder problems and after reviewing this in relation to the workplace activity I think there is a strong correlation. … However, from a mechanical musculoskeletal perspective, I think his workplace has been the main contributor to his degenerative changes seen on x-ray relating to his neck and shoulder and for his chronic neck and shoulder pain."

Following review of the above report, a WCB medical advisor outlined his opinion that the compensable injury was a strain and confirmed permanent preventive restrictions for the worker. On March 9, 2004, Rehabilitation and Compensation Services advised the worker that there was no new medical information that would change the previous WCB decision of January 8, 2004. On June 3, 2004, the worker's union representative appealed this decision to Review Office.

Following consultation with a WCB orthopaedic consultant on July 14, 2004, Review Office determined that the worker's pre-existing condition had not been enhanced or accelerated by the compensable injuries he incurred on January 18 and July 23, 2001 and that restrictions were permanent and preventive.

Review Office considered the worker's AC arthrosis as an ordinary disease of life and felt it was not work related. The other diagnoses on file such as cumulative strain of the right shoulder with associated myofascial pain, acute bicipital tendonitis and anterior capsular cumulative strain injury of the left shoulder were conditions directly related to the injuries reported by the worker in January and July 2001. The underlying diagnosis of AC arthrosis, and DDD (degenerative disc disease) of the cervical spine already existed at that time and were considered pre-existing conditions.

In Review Office's opinion, the compensable strain injuries from January and July 2001 were no longer contributing, to a material degree, to a loss of earning capacity, and that the pre-existing condition had not been enhanced or accelerated as a result of those injuries. There was insufficient evidence to support that the pre-existing condition was a compensable condition and therefore the restrictions were considered preventive in nature.

On September 28, 2004, the union representative filed an application to appeal the Review Office's decision concerning whether or not the worker's pre-existing condition had been enhanced or accelerated by his compensable injuries. An oral hearing was then arranged and took place on February 10, 2005.

Following the hearing and after discussion of the case, the Appeal Panel wrote to the treating physician for additional information. A report from the physician was later received and was forwarded to the interested parties for comment. On April 8, 2005, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The worker underwent an MRI of both shoulders on September 18, 2002. The procedure revealed "bilateral mild AC arthrosis", but no evidence of rotator cuff tearing. The union representative, acting on behalf of the worker, advanced the argument that the type of work performed by the worker would in and of itself lead to and accelerate the worker's bilateral shoulder condition.

A WCB orthopaedic medical advisor was asked whether the compensable incident(s) enhanced and/or accelerated the worker's pre-existing bilateral mild AC arthrosis? In a memorandum dated July 16, 2004, the medical advisor replied as follows:

"No the worker has reported mild bilateral arthrosis of AC joints occurring on an (sic) degenerative basis which may contribute to bilateral impingement symptoms. There were no significant traumas that would enhance or accelerate the condition."

The Workers Compensation Act (the Act) defines occupational disease as "a disease arising out of and in the course of employment and resulting from causes and conditions (a) peculiar to or characteristic of a particular trade or occupation; or (b) peculiar to the particular employment; but does not include (c) an ordinary disease of life; and (d) stress, other than an acute reaction to a traumatic event."

After reviewing the literature and medical reports on file, we find that the worker's shoulder condition does not qualify as an occupational disease as defined by the Act. In this regard, we agree with the reasoning summarized by Review Office in its decision of July 23, 2004.

"In the case of this worker, it is the opinion of the Review Office that his condition of 'AC arthrosis' as reported on the MRI would not be considered 'peculiar to or characteristic of a particular trade or occupation, or to the particular employment'. There is no evidence available to support such a conclusion. In addition, it has not been shown that there is sufficient scientific evidence to support a conclusion that the nature of the work processes or environment have significantly increased the likelihood of causing AC arthrosis, or significantly increased the risk of this disease. Therefore, the AC arthrosis in the case of this worker is considered an 'ordinary disease of life'."

We are satisfied based on the weight of evidence that the worker's pre-existing condition was not, on a balance of probabilities, enhanced or accelerated by the compensable injuries of January 18, 2001 and July 23, 2001. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of May, 2005