The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held at the Appeal Commission on May 30, 2007. The worker appeared and provided evidence. No one appeared on the employer’s behalf. Following the hearing, the panel met and rendered its final decision.

Issue

Whether or not the worker’s bilateral rotator cuff tears are related to the compensable injuries of May 13, 2003, October 27, 1994 and/or January 31, 1989.

Decision

That the worker’s bilateral rotator cuff tears are due to a non-specific injury which culminated in the claim filed on November 10, 2003.

Decision: Unanimous

Background

On November 10, 2003, the worker filed a claim with the Workers Compensation Board (WCB) for injuries to both rotator cuffs. He indicated on his application form that he was working at a bench and was assembling a valve assembly with a lot of twisting motion to both shoulders. He felt it was a repetitive strain injury and commented that his body was wearing out. He indicated as well that he had been receiving cortisone shots to both shoulders over the years. The worker noted that he has other shoulder claims with the WCB from 1989 and 1994.

In August 2003, the worker had met with his case manager on another claim. In the memorandum dated October 16, 2003, the case manager described the worker’s job duties as follows:

• Maintenance and repair of industrial equipment such as shears, punch presses, drill presses and a variety of pneumatic tools such as drills and impact guns;
• Lots of lifting, twisting and pulling motion of tools and parts with his arms at or higher than chest levels;
• Tools such as pneumatic, pipe wrenches and drive socket sets weighing between 2 to 20 pounds and parts weighing 2 to 50 pounds.

The worker also advised the case manager that his shoulder symptoms appeared when working at or above shoulder level. He denied any shoulder difficulties prior to the 1994 incident.

A brief review of the worker’s prior WCB shoulder claims show that he injured his left shoulder while working as a millwright on January 31, 1989. He was diagnosed with a shoulder strain and missed three days from work. On October 27, 1994, the worker reported that he injured his right shoulder from lifting a steel table. The worker did not submit a claim form and no medical information was found on the file.

Documentation from the employer does note a May 30, 1995 entry indicating the worker had a sore arm and that he was seeing a doctor the following day for a cortisone shot. A November 31, 2001 e-mail from an occupational health nurse at the place of employment also notes a reference to a sore left shoulder along with reference to previous troubles with the shoulder and a cortisone shot about a year previously.

Medical reports show that the worker had an MRI on both shoulders done on June 16, 2004. The right shoulder revealed tendinosis of the supraspinatus with a full thickness tear at the insertion and an intratendinous longitudinal tear more proximately. There was an AC joint arthrosis. The left shoulder revealed a full thickness tear of the supraspinatus with mild retraction and atrophy. AC joint arthrosis was also noted.

On December 10, 2004, a WCB medical advisor was asked to review the file and to comment on the etiologies of the worker’s shoulder conditions. He replied on January 2, 2005, that the injuries to each shoulder documented in 1989 and 1994 may have contributed to the rotator cuff tears. He said repetitive use above shoulder height with heavy objects/torsion will contribute to tendinosis as documented on the June 2004 MRI. On a balance of probabilities, the medical advisor found that the worker’s work duties as an industrial mechanic or the specific injuries to the right and left shoulders in 1989 were traction/loaded flexion which might result in his current rotator cuff tendinopathy and tears. In addition, repetitive twist/lift /torsion movements of his job description have undoubtedly contributed.

In a letter dated March 17, 2005, the worker was advised by the WCB case manager that the WCB was accepting responsibility for his bilateral shoulder condition and temporary workplace restrictions were outlined with a further review to take place in February 2006.

On January 5, 2006, a WCB Medical Advisor opined that the worker had likely suffered a permanent impairment as a result of his compensable injury. In his view, “the workplace tasks, repetitive over years ha[ve], in my opinion contributed to the shoulder pathology.”

On January 12, 2006, a unit manager summarized the worker’s three shoulder claim files and then made the comment that it was unclear as to exactly what the WCB was accepting with respect to the worker’s shoulder conditions. She then referred the file to the WCB’s healthcare branch for clarification as to the exact diagnoses, whether an aggravation occurred, etc.

In a memorandum dated February 9, 2006, a senior WCB medical advisor reviewed the worker’s claims from 1989, 1994 and 2003. His impression was that the tears of the rotator cuffs “are likely end-stage consequences of the long-standing degenerative processes involving [the worker’s] shoulders that pre-dated the May 13, 2003 workplace event.” However he went on to state that if the worker’s job duties involved repetitive and firmly resisted use of both arms at or above shoulder level the job duties may have materially contributed to the degenerative changes.

On April 3, 2006, the WCB case manager asked the senior medical advisor to review new information. The WCB case manager suggested this information showed that the worker was not exposed to a significant amount of repetitive and firmly resisted use of both arms at or above shoulder level. The case manager further noted that the worker was totally off work resulting from a WCB knee claim from March 1997 through March of 1998 and then returned to work at modified duties as a production worker. The senior medical advisor was asked to comment on whether there was a cause and effect relationship between the worker’s employment activities and his current condition. In a response dated April 5, 2006, the senior medical advisor stated that there was no information to clarify whether the worker’s job duties contributed to the degenerative processes in the shoulders. He repeated his observation that if the job duties involved repetitive and/or heavier work at or above shoulder level, they may have contributed to the degenerative processes.

In a decision dated April 20, 2006, the WCB case manager determined that there was no evidence to support a relationship between the worker’s bilateral rotator cuff tears and the workplace injuries of January 31, 1989, October 27, 1994 or May 13, 2003. The worker disagreed and submitted an appeal to Review Office.

On June 16, 2006, Review Office confirmed that the worker’s bilateral rotator cuff tears were not compensable. Review Office noted that the worker’s injuries in 1989 and 1994 were minor in nature and would have resolved quickly. The fact that the worker received shoulder treatment in the years subsequent to the accidents was not relevant. Review Office’s opinion was that the worker’s bilateral rotator cuff tears were unrelated to the 2003 accident. By then, it was felt the worker had degenerative tears in both shoulders and the incident in question would have done no more than temporarily aggravate them and that any aggravation would be short lived. In March 2007, the worker appealed Review Office’s decision and a hearing was arranged.

On May 30, 2007, an oral hearing took place. In terms of the worker’s left shoulder injury in 1989, he indicated that he had received cortisone treatment from 1989 up “until the time that [his family doctor] refused to give me any more, on a very regular basis. It was my best friend.” He also suggested that he had fairly regular cortisone treatment on his right shoulder which appeared to date back to May 30, 1995 up until the time his family doctor refused to provide him with any more.

The worker went on to describe his job duties in the period immediately prior to his 2003 claim. He indicated that much of his work was related to a high paced job preparing 15 inch cubed aluminium boxes for buses. He noted that “it was drilling and pop rivetting, and your arms were up all the time.” The worker went on to explain that he was drilling through two layer aluminum using a one kilo air drill with his arms “more or less at about chest or shoulder height.” His right arm held the drill while his left hand was required to secure the box.

The worker went on to confirm that it was the aluminium box drilling task that led to his 2003 claim. “When I complained to the supervisor that I was having a hard time with that, with my shoulders that was specifically doing the box.”

Reasons

After considering the record as a whole including the oral proceeding and the written material, the panel finds on a balance of probabilities that the worker's bilateral rotator cuff tears are a non-specific injury, due to the worker’s job duties. This culminated in the claim filed by the worker on November 10, 2003.

In making its finding, the panel finds, based upon a balance of probabilities, that the worker's job duties often involved the maintenance and repair of industrial equipment such as shears, punch presses, drill presses and a variety of pneumatic tools including drills and impact guns. Among the tools used by the worker were pneumatic tools, pipe wrenches and drive socket sets weighing between 2-20 pounds. He also often used parts weighing from 2 to 50 pounds. The panel also accepts, based on a balance of probabilities, that during the course of his job duties, the worker was exposed to a “lot of lifting, twisting and pulling motion of tools and parts with his arms and that a good portion of the work would be at or higher than chest levels”, which amounted to a non-specific work injury culminating in the claim filed on November 10, 2003.

In terms of his description of his specific work duties in the period immediately preceding his 2003 claim, the panel found the worker to be credible and persuasive. The panel holds, based on a balance of probabilities, that the worker was involved in a high paced job drilling and pop riveting aluminum boxes. In the panel's view, the work involved the repetitive and firmly resisted use of both arms at or above shoulder level.

In summary, based upon a balance of probabilities, the panel finds that the worker's job duties both over the course of his employment and in the period immediately preceding his 2003 claim often involved highly repetitive, firmly resisted activities with his arms at or above shoulder level.

The medical evidence on the record strongly supports the conclusion, based upon a balance of probabilities, that the worker's bilateral rotator cuff tears are related to his job duties. The January 2, 2005 report of one WCB medical advisor confirms that “repetitive use above shoulder height with heavy objects/torsion will contribute to tendinosis as documented on the June 04 (sic) MRI.” To similar effect, he concluded that “repetitive twist/lift /torsion movements of his job description have undoubtedly contributed” to the worker's bilateral shoulder difficulties.

Similarly, the January 5, 2006 report from another WCB Medical Advisor expressed the view that “the workplace tasks, repetitive over years has, in my opinion contributed to the shoulder pathology.”

These views are supported by the February and April, 2006 opinions of the senior WCB Medical Advisor:

• Rather, the more that [the worker’s] workplace duties as an industrial mechanic involved repetitive and/or heavier work at and above shoulder level and/or in a position of risk for impingement, the greater the likelihood that those duties would have contributed to the degenerative process determined at the June 2004 MRI. (April, 2006)

Based on a balance of probabilities, the panel finds the worker was involved in a pattern of repetitive and heavier work at and above shoulder level during the course of his employment and in the period immediately preceding his 2003 claim. In the panel's view, there was a direct causal relationship between the degenerative process involving the worker’s rotator cuff tears and his workplace duties as an industrial mechanic. The panel further finds that the record as a whole does not support that the bilateral shoulder condition is causally related to either the 1989 or 1994 compensable injuries.

The worker's appeal is allowed.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 25th day of July, 2007