Decision #14/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for pain in her right shoulder which began in October 2006 and which she related to her work duties as a hospital technician. The claim for compensation was denied by the WCB on the basis that it could not relate her right shoulder diagnosis to her job activities. Review Office also denied the claim on the basis that it could not establish that the worker suffered personal injury by accident arising out of and in the course of her employment. The worker disagreed and appealed to the Appeal Commission and a hearing was held on October 30, 2007. Subsequent to the hearing, the appeal panel requested and received additional medical information from the worker’s treating surgeon. This information was forwarded to the interested parties for comment. On December 11, 2007 the panel met further to discuss the case and rendered its final decision.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In January 2007, the worker filed a claim with the WCB for non-specific right shoulder pain that started at work in early October 2006. The worker described her work activities to the WCB’s call centre:

“From using my hands (…right hand is used more) above a 90 degree angle when doing tests. I put electrodes to patients heads and also using a mouse on the computer to record the patient. I use my right hand to use the mouse. I use my hands at a 90 degree angle and the mouse for about 50 percent of the day. The other 50 percent is receiving patient records, using the phone, writing out sheets for office equipment.”

The worker indicated that the pain in her shoulder started as an ache every other day and that it went on for a few weeks. By January 5, 2006, the spasms in her arm were constant. The worker noted that she had a prior claim with the WCB for a right shoulder injury and was off work for about one week. She stated that her program manager and a co-worker were aware of her present right shoulder difficulties.

Medical information revealed that the worker sought medical treatment at a sports medicine clinic on January 6, 2007 and was diagnosed with a possible rotator cuff tear and adhesive capsulitis (AC).

The worker was seen by a general practitioner on January 29, 2007. He noted that the worker sustained a partial tear in her right shoulder about two years ago from lifting heavy boxes at work. He stated the worker’s present right shoulder episode started in the fall but became worse over the Christmas period and that she was awaiting an MRI. The physician’s office called the WCB on January 18, 2007 to indicate that this was not a WCB claim and that their notes indicate the worker was injured while camping.

On February 15, 2007, Rehabilitation and Compensation Services denied the worker’s claim on the basis that it could not relate the given diagnosis with the described mechanism of injury.

On February 23, 2007, the worker called the WCB and indicated that there had been a misunderstanding regarding the incident which occurred while she was camping some time ago. She said both physicians asked her about prior injuries and she told them about an incident which occurred while camping when she fell and injured her finger. She did not injure her shoulder at that time. The worker indicated that she was currently in too much pain to work or participate in physiotherapy and was concerned about her condition.

A report of an MRI examination of the right shoulder dated February 2, 2007 noted a lateral down sloping of the acromion which may relate to impingement but the rotator cuff was unremarkable.

On March 15, 2007, the employer confirmed that the worker had been complaining of her shoulder since the fall of 2006. An ergonomic assessment was done in September 2006 and there were some changes done in terms of how the mouse was set up. On March 16, 2007, the employer provided the WCB with additional information concerning the worker’s job duties. They stated that the worker did repetitive tasks at times. She raised her arm to take items off a shelf with each patient, up to 4 or 5 patients a day. The worker viewed monitors and worked on the computer during tests. She had to read tests at different stations. She tested about one patient per hour. She would be on the computer for 5 hours out of her 8 hour shift. She applied electrodes for an hour and a half of her shift. The testing of patients was at bed level. She reached across the patient to apply the electrodes. She would raise her shoulder to reach across. The employer noted there was another employee that was having the same difficulties. The employer stated they had no concerns with the claim.

In a medical report dated March 30, 2007, an orthopaedic consultant’s impression of the worker’s shoulder condition was right frozen shoulder with capsulitis, taut bands and trigger points of the right cervicoscapular group of muscles.

Primary adjudication referred the file to a WCB medical advisor for an opinion regarding the worker’s medical condition and its possible relationship to the work duties she performed. In a response dated April 19, 2007, a WCB medical advisor stated the diagnosis was adhesive capsulitis (AC) and possibly impingement syndrome based on a review of the medical reports. He stated that all of the findings reported to date could be attributed to the AC without the presence of an impingement syndrome. He felt the job activities described on file were not consistent with the mechanisms that are typically assocated with AC or impingement syndrome such as below shoulder levels, the maneuvers involved with internal and external rotations are not of a forceful nature and there was only infrequent repetition involving a very low load. He noted that the primary diagnosis of AC was a condition that was seen in the general population, was of unknown etiology and was typically not associated with antecedent trauma. On a balance of probabilities, the cause and effect relationship between the diagnosis and the workplace activities was not supported. The medical advisor noted a prior problem with the right shoulder which was diagnosed as a possible rotator cuff tear; however, the MRI negated the diagnosis and therefore a likely pre-existing condition was not presently substantiated.

In a second decision dated May 1, 2007, the WCB confirmed to the worker that her claim for compensation was not acceptable as her diagnosis was not consistent with her job duties. On May 14, 2007, the worker appealed the decision to Review Office.

In a submission to Review Office dated July 10, 2007, the employer agreed with the opinion of Rehabilitation and Compensation Services that the worker’s condition was not consistent with her work activities and did not believe that the WCB established that the worker sustained personal injury by an accident arising out of and in the course of her employment.

On July 12, 2007, Review Office determined that the file evidence did not establish that the worker suffered personal injury by accident arising out of and in the course of her employment. It based its decision on the following factors:

  • There was no evidence of an accident as the worker was unable to identify the cause or trigger factor for her shoulder problems in October 2006

  • The worker’s delay in seeking medical attention and reporting a shoulder problem to her employer until January 2007

  • The worker’s extra curricular activities of curling and golfing

  • The worker’s physician relating that the worker injured her shoulder while camping

  • Being unable to establish a cause and effect relationship between the diagnoses of AC and possible impingement syndrome to her job duties

  • The opinion expressed by the WCB medical advisor on April 19, 2007

On August 2, 2007, the worker appealed Review Office’s decision to the Appeal Commission and a hearing took place on October 30, 2007. Following the hearing, the appeal panel requested information from the worker’s treating surgeon. On November 16, 2007, all interested parties were provided with the information that was received from the treating surgeon and were asked to provide comment. On December 11, 2007, the panel met to render its final decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors. As this appeal deals with claim acceptance, subsections 1(1) and 4(1) are applicable.

Subsection 1(1) of the Act defines accident as:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,
(b) any

(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,
and as a result of which a worker is injured

Subsection 4(1) of the Act provides that where a worker suffers personal injury in a workplace accident, compensation is payable:

Compensation payable out of accident fund

4(1) 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.

Worker’s Position

The worker made a submission in support of her claim and answered questions posed by the panel.

The worker advised that she has a frozen shoulder and that there are two types of frozen shoulder. She indicated that she feels that she has a secondary frozen shoulder which can come from different causes, including repetitive strain injuries at work. She stated that she believes that her injury is either related to her previous shoulder injury or is an ongoing process. She stated that idiopathic frozen shoulder usually involves a gradual loss in range of movement and involves the non-dominant shoulder. In contrast, the decrease in range of movement in the worker’s shoulder came quickly and involved her dominant shoulder.

In answer to questions, the worker described her job duties as a technician and demonstrated some of the postures involved in performing her duties. She provided information on the volume of patients she deals with per day. She also described her work area and the location of her computer and mouse.

The worker described the treatments she received including arthroscopic surgery which was performed in August 2007. She advised that she is currently completing a three-week back to work program and is returning to work the next week.

When asked whether the treating physiatrist has provided a written opinion indicating that the injury is caused by repetitive strain, the worker replied that “I don’t think anyone has really put down a definite cause.” She advised that the physiatrist has told her it is work related.

Employer’s Position

The employer was represented by an advocate who made a submission on the employer’s behalf. The employer’s representative advised that the employer agrees with the Review Office decision. She noted that while the worker stated that her injury may be due to a previous injury, this is not the issue before the panel.

The employer’s representative noted that the worker’s injury was diagnosed as AC and that an MRI ruled out a suspected rotator cuff tear. She also noted that the findings also showed no evidence of tendinosis or atrophy. The representative referred to the March 30, 2007 report from the treating physiatrist which diagnosed a frozen shoulder but did not relate the condition to work activities. Regarding the diagnosis of AC, the representative noted that this condition is seen in the general population, is of unknown etiology, and is not typically associated with antecedent trauma. She also noted that risk factors include being female and over 40 years of age, both which are applicable to the worker.

The representative submitted that while there may be issues related to the worker’s workstation, computer use does not cause AC. She also noted that the worker has been working in her position for 20 years and there has been no change in the job duties.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. For the appeal to be successful, the panel must find that the worker suffered personal injury by accident arising out of and in the course of her employment. In other words, the panel must find that the worker’s right shoulder condition was caused by her employment. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker’s condition was not caused by her employment and that her claim is not acceptable. The panel finds that the preponderance of evidence supports a diagnosis of AC and that the condition is not work related.

In making this decision the panel relies upon the following:

  • a progress report dated January 29, 2007, from a sports medicine specialist reports a diagnosis of AC and rotator cuff tear.

  • an MRI performed on February 2, 2007 found the rotator cuff intact with no evidence of tendinosis, tear or atrophy.

  • a WCB medical advisor reviewed the worker’s file on April 19, 2007 and indicated that the likely diagnosis was AC and possibly impingement syndrome. The medical advisor advised that the job activities described on the file were not consistent with the mechanisms typically associated with AC or impingement syndrome. He also noted that AC is a condition seen in the general population, of unknown etiology and not associated with antecedent trauma. The medical advisor also opined that the negative MRI negates the prior diagnosis of a rotator cuff tear. The panel has reviewed the job duties and postures used by the worker, and concurs with the facts and findings of the WCB medical advisor in this regard.the worker underwent arthroscopic surgery on August 23, 2007. The operative report from the orthopedic surgeon indicates that the preoperative diagnosis and postoperative diagnosis are the same, being a right frozen shoulder (adhesive capsulitis). The report also notes that the biceps tendon was normal, the anterior, posterior, and inferior labrum were normal, and the undersurface cuff looked normal.

Although the worker submitted that her condition was a repetitive strain injury, the evidence on file and obtained subsequent to the hearing did not support that the AC was causally connected to her employment.

The appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of January, 2008

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