The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the causal relationship of the worker's job duties to his osteoarthritic shoulder.

On May 2, 2005 the worker filed a claim with the Workers Compensation Board (the "WCB") for injury to his right shoulder, knee and back on February 1, 2005. The worker attributed his injury to 30 years of labour intensive work which caused him to develop osteoarthritis. His claim was denied by the WCB. The denial was upheld by Review Office in a decision dated December 20, 2005. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on June 8, 2006. The worker appeared and provided evidence. He was represented by a worker advisor. The employer also appeared and provided evidence.

After the hearing, the appeal panel requested a copy of a medical report from an occupational health physician. The parties were copied and on July 11, 2006 the employer provided its comments. The panel discussed the appeal on several occasions, the last being July 20, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

Reasons

Preliminary issues

Although the worker filed his claim with the WCB for 3 conditions - shoulder, knee and back - only the injury to the shoulder was argued at the hearing. Further, the argument advanced at the hearing with respect to the right shoulder was an aggravation of pre-existing osteoarthritis and not a repetitive strain injury, as initially alleged in the claim. For this reason, this decision deals solely with the right shoulder injury as an aggravation of pre-existing osteoarthritis.

Background

The worker has been a construction worker for over 30 years. Approximately 10 years ago he developed osteoarthritis in his right shoulder. Despite his symptoms, he worked his regular duties.

In 2004 the worker was employed on a project in the city (the "Project"). The worker testified that the work involved with the Project differed from the majority of his construction projects in that there was a great deal of climbing and heavy carrying required. He explained that he would carry 12 - 16 foot long steel rods with another worker. The employer told us that these rods weighed 150 pounds. The worker would place his end of the steel rod on top of his right shoulder and steady it with his right hand. He found this to be heavy work. Although he cannot point to any specific incident where he incurred injury, he did feel that the weight on his shoulder caused him increased pain which did not subside. He also found climbing the scaffolding to further aggravate his right shoulder symptoms. The worker explained that the scaffolding used on the Project was a bricklayer's scaffold, which means that it does not have steps. He would have to hoist himself up each layer of the scaffold with his arms and pull himself up.

The worker testified that the pain he felt in his right shoulder was something he had never felt before and never wants to feel again. He was unable to sleep or find any relief from the pain. He took pain medication to be able to continue through with the Project and begin working on another (the "Second Project").

When the Second Project was finished the worker was laid off. The worked did call in for work. At around this same time, he ceased taking his pain medication.

On May 2, 2005 he filed his claim with the WCB. The employer disputed the claim as it was unable to confirm an accident.

The family physician provided his initial report to the WCB on May 5, 2005. In this report, the family physician indicated that the worker presented with a long history of recurrent pain involving both shoulders and right knee. He provided a diagnosis of right shoulder and knee chronic strain and osteoarthritis. An x-ray of the right shoulder and knee was performed on May 5, 2005. The results were interpreted as showing moderate degenerative changes of the right acromioclavicular (AC) joint and narrowing of the subacromial space suggesting rotator cuff degeneration. Concerning the right knee, the imaging study revealed degenerative changes affecting the patella.

A subsequent narrative report provided by the family physician indicated that he treated the worker on a number of occasions commencing February 18, 2005. In this report, the family physician provided a history of injury indicating that about 6 months prior, the worker with the aid of a co-worker, was carrying 16 feet long heavy steel rods and about one week later, the worker experienced pain affecting the right shoulder. The report further stated that the worker was initially diagnosed with a chronic strain, bursitis and tendonitis of the right shoulder which was treated with a Depo-Medrol injection. As there was no significant improvement in the worker's symptoms, an orthopaedic referral was arranged.

A copy of the orthopaedic surgeon's consultation report was provided to the WCB. The April 15, 2005 report provided a similar history of carrying heavy steel rods and subsequently developing pain in the right shoulder. At the time of the assessment, the worker also reported having pain, to a lesser degree, affecting his left shoulder. The orthopaedic examination revealed the following findings:

"Both shoulders have full movements. There is some crepitus and pain at the right shoulder, especially on internal rotation of the right arm. There is also a painful arc of abduction of the right arm. There is slight posterior muscle atrophy about the right shoulder. There is slight weakness of abduction power to the right arm. The biceps are intact. There is tenderness at the posterior of the shoulder joint. Reflexes and sensations are intact."

The surgeon reviewed x-rays of the right shoulder and noted degenerative changes at the AC joint with spur formation. Irregular spurring over the greater tuberosity of the right humerus at the superior aspect of the glenoid was also noted.

The worker's job duties were canvassed by the case manager in May, 2005. A May 12, 2005 WCB memorandum to file states:

"…The onset of his [right] shoulder difficulties occurred in 2004. He stated he was worker at the [Project] then, for this employer, and would have to climb up 5 levels of scaffolding and put the tarps on. There was a lot of climbing in the [Project] and he recalls this job lasting [approximately] 3 months.
-They were working in the gym…and he was required to carry supplies up and down the scaffolding. As he is [right] handed, he would use his [right] hand/arm to pull himself and would be using his [right] hand/arm to perform his duties. Would notice his [right] shoulder was sore and achy…
- Stated he would be nailing over his had [sic] and there were a lot of things where he was working at shoulder height or higher. This would cause him pain to his [right] shoulder…"

A further May 12, 2005 WCB memorandum to file recording a conversation with a co-worker states:

"…[worker] had worked at the [Project] in 2004. Job duties required climbing the 5 scaffolds and putting tarps (20 lbs each) on and moving 2x4's (weigh approx 10 lbs). These are the hoarding duties. The [worker] would be carrying other materials up as well and could be climbing scaffolding 2 to 20 times a day. It would all depend on who was working with him and who was passing him material
- [Worker] was using a regular hammer, could be hammering over head at times, sometimes away from his body and working at shoulder height. He stated he never watched the way the [worker] did his work so he did not pay close attention to how he performed his duties…"

And a May 18, 2005 WCB memorandum to file recording a conversation with another co-worker states:

"…-Worked directly with this [worker] performing the same duties as the [worker].
-Recalls the [worker] mentioning his [right] shoulder was sore when they were working together carrying heavy steel (12" [sic] long) together, hoarding and climbing scaffolding while working at the [Project].
-No specific injury was mentioned, just that his [right] shoulder was sore due to the work duties.
-Duties involve also hammering at shoulder height and over head, as well as down low.
-[Worker] mentioned he would try to continue working with his shoulder difficulties as it would probably resolve.
-Then worked together at the [Second Project]. [Worker] continued to complain on of ongoing [right] shoulder difficulties which related to his work duties. [Worker] was still hoarding and working with forms. By this time, he could see the [worker] could hardly move his [right] arm and he could see the pain on the [worker's] face when he would use his [right] arm.
-[Worker] mentioned his [right] arm difficulties were affecting his sleep…"

On June 20, 2005 at the request of primary adjudication, the file was reviewed by a WCB medical advisor. The medical advisor opined that the diagnosis in this case was likely pre-existing osteoarthritis involving multiple joints. Although bursitis, tendonitis and strain were mentioned, there were very little findings to support these diagnoses. One of the questions that the medical advisor was asked to respond to was with respect to whether the pre-existing pathology could have been aggravated or enhanced by certain activities. His response was as follows:

"…aggravation of OA [osteoarthritis] is possible but one notes that the description from the file in this regard is inconsistent. In the worker's initial accident report, a 30 year manual work history is cited as the reason for having arthritis. The worker states that symptoms have been present for 10 years. There is no clear description of an aggravating event. Rather, this history is quite typical for slowly worsening OA. I note that at a later time, possible sources of aggravation are cited…

OA may be aggravated by weight bearing, working in positions that apply stresses to joints (e.g. working at shoulder height), repetitive work, applying weight)…

Typically, if an OA-affected joint is aggravated, one might expect improvement over a few weeks (ie. 4 weeks)

This man's age could be playing some role in the persistence of his symptoms. I am not able to identify other contributing factors from the file.

One should keep in mind that OA is a slowly progressive degenerative disease. The most likely reason for more symptoms over the years for this man is progression of his disorder. Also, OA is a condition that is subject to periodic flares in symptoms that may or may not bear any relationship to workplace duties or activity."

On June 23, 2005, primary adjudication advised the worker that his claim for compensation was not acceptable. The adjudicator's letter reviewed the worker's employment duties as well as his history of primarily shoulder complaints dating back to 2004. Reference was also made to the medical information made available to the WCB as well as the opinion provided by a WCB medical advisor. Finally, primary adjudication reviewed the definition of an accident as defined by The Workers Compensation Act (the "Act"). In conclusion, it was determined that a relationship between the worker's right shoulder, knee and back complaints and an "accident" as defined by the Act could not be established. Based on the diagnosis of osteoarthritis and the lack of improvement since stopping work, the WCB concluded that the symptoms experienced by the worker were on a balance of probabilities, more likely related to the effects of the pre-existing pathology.

On December 1, 2005, with the assistance of a worker advisor, a request was made to the WCB Review Office to reconsider primary adjudication's decision to deny responsibility for the worker's claim. In their submission to Review Office, the worker advisor reviewed the worker's employment history and noted that although the worker felt that his arthritic changes were due to his long history working in construction, it was contended that the nature of the workplace duties aggravated the pre-existing condition to the point where the worker was unable to continue working.

By decision dated December 20, 2005, Review Office advised the interested parties that the claim was not acceptable. Review Office cited the following rationale in support of their decision:

"The worker initially filed a claim for arthritis in his right shoulder, right knee, and back as a result of working for 30 years in inclement weather.
The worker continued working until he was laid off due to a work shortage, several months after the onset of his symptoms.
Medical information confirms the worker had previously attended his physician for right shoulder problems in 2003 and that they were considered osteoarthritic changes.
The worker's foreman and co-worker were aware of the worker's ongoing problems however, he never indicated that they were due to an incident involving lifting a steel beam.
The worker has been away from his work activities for several months yet, his symptoms are still present."

On February 9, 2006, the worker advisor submitted an application to the Appeal Commission asking that the issue concerning the acceptance of the worker's claim be considered by an appeal panel. An oral hearing was convened on June 8, 2006 subsequent to which the appeal panel determined that a report should be obtained from an occupational health physician who assessed the worker in or about November 2005. The occupational health physician's report was received by the Appeal Commission on June 27, 2006. The report was then shared with the parties and an opportunity given to provide final comment before the appeal panel decided the issue before them.

The occupational health physician's report of November 16, 2005 states in part:

"…Since his layoff in March 2005, referred pain into the arm resolved slowly over the course of a month…The constant pinching discomfort in the posterior shoulder has subsided with no longer working, but the shoulder continues to be stiff and he has avoided doing vigorous activities with the shoulder. For several months the right shoulder and arm were routinely sore and heavy with sleep particularly laying on the right shoulder…

By my assessment, [the worker] has findings of degenerative shoulder joint changes (restricted joint range, crepitations, radiographic changes) and chronic myofascial findings in right infraspinatus with active range referral. The radiological picture indicates a degree of pre-existing degenerative osteoarthritis, which may have advanced appreciably between 2003 to 2005…The extent of scaffold climbing he describes (active, forceful arm adduction and extension, scapular depression, etc) would repetitively load the shoulder joint and musculature, consistent with his pain complaint and shoulder restrictions he developed. There is a strong cause-effect relationship to his work tasks and their duration without rest, recovery or treatment…"

At the hearing, the worker concurred that his symptoms have improved since March, 2005. He stated that by September, 2005 he was feeling much better and by April, 2006 he was better with some residual symptoms.

Analysis

To accept the worker's appeal we must find that his right shoulder symptoms are causally related to his work duties. We are able to make that finding.

The evidence is that the worker suffers from pre-existing osteoarthritis. Prior to 2004, the worker was symptomatic. However, his symptoms did increase in the later part of 2004 to the point that he needed pain medication and was unable to sleep with the pain.

The mechanism of injury, namely the weight on the shoulder and the repetitive use of the shoulder in climbing the scaffolding, is consistent with an aggravation of the worker's pre-existing osteoarthritis. In this regard, we accept the WCB medical advisor's commentary in his June 20, 2005 memorandum as well as the occupational health physician's report of November 16, 2005.

This aggravation of a pre-existing condition is also supported by the worker's resolving symptoms since March, 2005.

In these circumstances, we find that the worker's claim is acceptable. Accordingly, his appeal is accepted.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of August, 2006