The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on January 31, 2006, 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

During the course of her employment as a registered nurse on December 1, 2002, the worker ran out of an office to respond to a code bell when she tripped over a blood pressure machine that was in the hallway and fell to the floor. By January 7, 2003, the treating physician reported that the worker had almost full range of motion in her right shoulder and there was no tenderness or crepitus. There was mild impingement at the end of abduction and flexion. By January 10, 2003, the worker was considered fit to return to her regular duties as a registered nurse. The Workers Compensation Board (WCB) accepted the claim for compensation and wage loss benefits were paid to January 9, 2003 inclusive.

On March 23, 2004, the worker contacted the WCB to report that her shoulder had been aching periodically since her return to work. She stated that the aching pain was not something that necessitated medical treatment and she was able to continue working. About one month prior, her problems became worse and there was no new accident or injury to account for her increased shoulder symptoms. The worker stated that she saw her doctor and that she may require additional physiotherapy treatments.

Medical information dated March 19, 2004, indicated that the worker may be suffering from either bursitis or a rotator cuff lesion. Treatment included a local Depomedrol and Xylocaine injection.

On June 10, 2004, an orthopaedic specialist commented on the results of a May 21, 2004 MRI examination of the worker's shoulder. He noted the MRI of the shoulder confirmed severe osteoarthrosis of the ACL joint with impingement as well as a Type II acromion and impingement. The specialist's recommendations for treatment included a cortisone infiltration of both the subacromial spaces and the AC joint. If unsuccessful, an excision of the distal clavicle as well as an anterolateral acromioplasty was recommended.

On August 20, 2004, a WCB medical advisor reviewed the file documentation and diagnosed the worker's shoulder condition as "supraspinatus (rotator cuff component) impingement secondary to AC joint degenerative changes." The medical advisor indicated that the compensable injury was an aggravation of impingement syndrome which had resolved. He noted there was no documentation of any symptoms from February 24, 2003 to March 19, 2004. The medical advisor went on to state that if the worker was back at work and not doing any other activities to aggravate her shoulder, then her current impingement symptoms may be work related but not to the specific fall at work in December 2002.

In a decision dated August 18, 2004, a WCB case manager confirmed to the worker that the WCB was unable to link her recurrent right shoulder symptoms to the 2002 work injury. The case manager stated, "There is no documented symptoms or active treatment between February 24, 2003 and March 19, 2004 that would establish ongoing and continued problems with your right shoulder."

On November 17, 2004, the worker then filed a WCB claim for right shoulder difficulties that she attributed to her job duties as a registered nurse which consisted of repetitive lifting and shoulder activity when assisting patients.

In a report dated March 25, 2004, the treating physician noted that the worker's shoulder symptoms were very much controlled with the injections that she received in August and that the injections were being repeated.

In a report to the WCB dated December 13, 2004, the treating physician outlined his view that the diagnosis was impingement syndrome which was probably related to the worker's December 1, 2002 fall at work.

In January 2005, a WCB adjudicator gathered additional information from the worker with respect to work history and job activities.

On February 3, 2005, a WCB medical advisor outlined his opinion that the worker's symptoms were related to right supraspinatus impingement, secondary to degenerative changes in the AC joint. He stated that overhead use of the arm and repetitive lifting can cause this type of diagnosis.

On March 3, 2005, the worker advised her adjudicator that she was not aware of overhead activities but was constantly doing heavy lifting at work.

On April 6, 2005, the employer advised the WCB that the worker assisted patients with sitting up/mobilization approximately twice per shift. This increased to six times a shift during the night shift. The worker also assisted with patient transfers approximately four times per shift. The employer was not aware of any overhead work activities.

On April 7, 2005, the adjudicator advised the worker that the WCB was unable to support a relationship between her shoulder injury and her work activities which entailed repetitive lifting and transferring of patients. On September 20, 2005, a worker advisor, acting on the worker's behalf, appealed the decision to Review Office. It was the worker's contention that her job activities aggravated her pre-existing right shoulder condition.

In a decision dated October 7, 2005, Review Office determined that the worker's claim was not acceptable. Review Office could not establish a relationship between the worker's duties and the onset of further right shoulder symptomatology in March 2004. In October 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

This is a worker's appeal of a decision that her claim is not acceptable. To be acceptable, the worker's claim must meet the requirements of The Workers Compensation Act (the Act). The worker must have sustained an injury by accident arising out of and in the course of her employment. In this case the panel must find on a balance of probabilities, that there is a causal relationship between the worker's condition and her employment. The panel did not find a causal relationship and concluded that the claim is not acceptable.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the panel. The employer was represented by an advocate who made a presentation on the employer's behalf.

The worker advised that she has worked as "…a registered nurse in a hospital setting on the wards for the last 30 years." She described the December 1, 2002 workplace injury. Although she was away from work for six weeks as a result of the accident and received physiotherapy treatments, the worker advised that she never fully recovered from this injury. She did not see a physician for approximately 14 months after she returned to work because she expected to get better and was told that it could take a year before she would be back to normal. Approximately six months prior to April 2004, the worker noticed an increase in her symptoms. She attributed the increase in symptoms to work activities which include lifting patients, assisting patients get out of bed, dealing with I.V.'s which are above her head, pulling curtains around patients and supply carts that are above her head. She sought medical attention in March 2004.

The worker is currently being treated by an orthopaedic specialist. Current treatments consist of periodic steroid injections. She advised that the benefits of an injection lasts from three to four months. The worker has not missed any work as a result of her current condition.

The worker's representative stated that the issue in this case is what caused the worker's shoulder to be at risk. She also stated that the worker believes it was her work duties, not degenerative changes. The representative stated that "…based on the facts presented today, on a balance of probability (sic), there is a cause/effect relationship between [the worker's] April 12, 2004 right shoulder condition and the December 1, 2002 compensable injury."

The employer representative noted that the worker returned to her regular job duties and did not seek medical attention for 14 months until March 2004. He noted there is a diagnosis of degenerative changes and that it did not appear these changes were caused by the workplace injury. He also noted there is no medical backup to support the worker's position that the cause of her current condition is the December 2002 workplace injury.

Analysis

Although the issue before the panel related to acceptance of a new claim, much of the discussion at the hearing focused on the relationship between the worker's condition in 2004 and her 2002 compensable injury. In fact, the worker's representative argued there is a cause/effect relationship between the worker's 2002 injury and her April 2004 right shoulder condition. As well the worker advised the panel that she never fully recovered from the 2002 injury.

There was also discussion on whether the April 2004 condition is an aggravation of the worker's pre-existing degenerative shoulder condition or whether the worker's general job duties caused her right shoulder difficulties in an already weakened shoulder.

In dealing with the issue of claim acceptance Review Office determined the claim was not acceptable. It found the worker's duties did not involve overhead work or repetitive lifting. Review Office also found there was a lack of clinical evidence to support ongoing complaints related to the December 2002 injury.

The panel finds on a balance of probabilities that the claim arising from the worker's right shoulder condition in April 2004 is not acceptable. The panel finds on a balance of probabilities that the evidence does not establish a relationship between the worker's right shoulder condition and her work duties.

The panel is also unable to find that the worker's general work duties caused or aggravated the worker's right shoulder condition. The worker's job duties involve minimal overhead use of her arms and minimal repetitive lifting. Regarding a relationship to the 2002 injury, the panel considers this to be unlikely given that the worker returned to her regular duties and did not seek medical attention for approximately 14 months after the 2002 injury. As well, the worker's treating physiotherapist reports negative impingement tests in February 2003.

The panel notes the worker suffers from pre-existing degenerative changes which are confirmed by the June 10, 2004 comments of the treating orthopaedic specialist: "The MRI scan of the shoulder did confirm severe osteoarthrosis of the ACL joint with impingement as well as Type II acromion and impingement as well." The panel also notes the August 20, 2004 opinion of the WCB medical advisor that the worker has "supraspinatus (rotator cuff component) impingement secondary to AC joint degenerative changes." Finally, the panel notes the worker's evidence that lying on her shoulder can make her shoulder worse. This suggests the worker's shoulder is symptomatic and can be bothered by both work and non-work activity.

The panel finds that the worker's right shoulder condition is more likely the result of these degenerative changes than a new accident or aggravation.

The appeal is declined.

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 24th day of March, 2006