Decision #148/99 - Type: Workers Compensation
Preamble
An Appeal Panel review was held on March 4, 1999, at the request of the claimant.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Background
In February 1998, the claimant filed a claim for workers compensation benefits due to a "frozen shoulder" which she related to her work activities as a cashier. The claimant indicated that she was not aware her condition was compensation related. Apparently the last two years of cortisone injections had been unsuccessful. The employer's report of injury stated it first became aware of the claimant's shoulder problems in January 1998.
On May 7, 1998, a Workers Compensation Board (WCB) adjudicator obtained a sworn statement from the claimant with respect to her work activities, medical treatment, etc. The claimant advised that she is right hand dominant and that she had no previous problems with either shoulder. She worked as a cashier for 20 years and her job consisted of scanning, bagging, and boxing groceries. The claimant was not sure when she first noticed her left shoulder symptoms, but the symptoms seemed to be getting worse over the years. She never reported or mentioned shoulder problems to her employer, but her co-workers knew that she was having left shoulder difficulties when she began to receive cortisone shots.
Regarding medical treatment, the claimant stated that she first attended a physician for left shoulder difficulties about two years prior to the filing of her claim. She also consulted four other doctors and in February 1998, surgery was recommended.
Reports received from an orthopaedic specialist indicated that the claimant was first seen on September 19, 1996, regarding her left shoulder difficulties. At that time there was evidence of a left shoulder tendonitis and the shoulder was injected. X-rays taken on July 29, 1996, revealed calcific tendonitis. In November 1997, a different orthopaedic specialist ordered an arthrogram to rule out a rotator cuff tear. This procedure later proved to be negative. On February 10, 1998, the treating specialist recommended a left shoulder acromioplasty since non-surgical treatment had failed.
On May 19, 1998, a WCB medical advisor reviewed the case at the request of primary adjudication. The medical advisor offered the opinion that the claimant's left shoulder tendonitis had largely resolved and that the tendonitis condition was not consistent with the mechanics of a right handed cashier. On May 21, 1998, primary adjudication denied the claim on the basis that it could not substantiate the worker suffered any personal injury due to an accident arising out of and in the course of her employment.
On October 19, 1998, the claimant underwent a left shoulder open acromioplasty and rotator cuff repair. On January 7, 1999, a union representative submitted argument suggesting that the claimant suffered from a repetitive strain injury as a result of her work related activities and requested medical services and wage loss benefits on behalf of his client.
In a decision, dated January 22, 1999, Review Office confirmed that the worker did not suffer a personal injury arising out of and in the course of her employment.
Prior to rendering the above decision, Review Office obtained an opinion from a WCB orthopaedic consultant on January 25, 1999. The consultant was of the view that there was no causal relationship whatsoever between the clinical diagnosis and the worker's employment as a cashier. In his view, the shoulder would be painful whether the claimant was working or not. The consultant was of the further opinion that the calcific tendonitis was a degenerative process of the rotator cuff and that the October 19th surgery was done for the degenerative rotator cuff calcific tendonitis.
Review Office concluded that it was unable to accept responsibility for the claimant's calcific tendonitis or its surgery as the calcific tendonitis was not considered causally related to the worker's employment activities and the requirements of Sections 1(1) and 4(1) had not been met.
On May 29, 1999, the union representative appealed Review Office's decision and an oral hearing was convened.
Reasons
Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the 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 accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes
- A wilful and intentional act that is not the act of the worker,
- any
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises out of, and in the course of, employment, and
- an occupational disease
and as a result of which a worker is injured."
Review Office in its decision did not accept responsibility for the claimant's calcific tendonitis or its surgery as the calcific tendonitis was not considered to be causally related to the claimant's employment activities. During 1997 the claimant underwent a series of cortisone shots to her left shoulder. According to an X-ray taken on September 23rd, 1997 of the claimant's left shoulder her condition relating to calcific tendonitis had been greatly reduced. The radiologist reported the following results:
"Comparison is made with a previous exam dated 97/07/29. There has been a marked reduction in the size of the calcific density projected over the rotator cuff. Impression: Marked improvement in the calcific tendonitis has occurred over the last year. Only a tiny amount of residual calcium is left."
In October 1997, the claimant was referred by her treating physician to an Orthopaedic specialist who diagnosed the claimant's condition as being both left rotator cuff tendonitis and calcific tendonitis. The specialist expressed the opinion: "On the balance of probability, I would think that Ms. [the claimant's] condition is the result of her work-related activities as a cashier at [name of employer]. Her repetitive use of the left arm, reaching forward with the arm forward flexed and abducted, would irritate the rotator cuff and cause tendonitis." He recommended that the claimant undergo a left shoulder acromioplasty for her rotator cuff tendonitis.
The operative report records both the preoperative and postoperative diagnosis as being left rotator cuff tendonitis. It should also be noted that the acromioplasty operation was carried out for the rotator cuff tendonitis and not for the calcific tendonitis which largely had resolved after being treated with cortisone shots.
We find, based on a preponderance of evidence, that the claimant's left rotator cuff tendonitis was, on a balance of probabilities, causally related to her employment activities. Therefore the claim is acceptable and the appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of October, 1999