The Appeal CommissionThe Workers Compensation Act of Manitoba

At the hearing of this appeal, the Panel heard evidence from both the worker and the employer.

The worker testified that he began work with this employer in April 2006. He stated that after working for several weeks he noticed a problem with his shoulders feeling sore. He went to see a doctor, who advised that it was probably just sore muscles and prescribed a pain killer. The worker said he went back to work but the pain continued to get worse. The worker then saw a second physician who also advised that in his opinion the worker was probably suffering from sore muscles. That physician gave the worker another prescription for painkillers.

The worker testified that this did not help. He continued to seek medical attention until he saw a physician who, after taking a history and conducting an examination, advised the worker that he thought the worker had rotator cuff damage. That physician sent the worker for an MRI which confirmed the existence of a rotator cuff tear.

The worker testified that when he finally found out that his problem was not simply sore muscles he telephoned his employer to let them know. That was on July 13, 2006. He also testified that he advised the employer, during that same call, that he had been seeing doctors through May and June.

As set out above, the worker began employment on April 4, 2006. His duties involved a repetitive activity of loading hams in cans and then transferring and stacking the cans on a rack. Once loaded, each can weighed between 20-25 lbs. The worker testified that he would carry two cans at once – one in each hand, stacking them on top of each other on the rack until, by the last stack he was lifting the cans to approximately his eye level. This procedure would be carried out and repeated throughout the day.

The worker described stacking the cans row upon row until they were 9 rows high. He testified that by the time he came to the sixth row up his arm would really begin to hurt. The cans were lifted and carried by virtue of a handle on top of the lid.

Eventually, the worker testified, his left arm was too sore and weak to be able to lift the cans. He said he could not even hold his arm in the air to put the ham into the can. He testified that he changed jobs with a co-worker from time to time to give himself a break.

The worker provided the appeal panel with a letter from a co-worker. In the letter the co-worker confirmed that he worked with the worker in April-May 2006. He stated that the worker said that his shoulders were killing him from loading the cans on the trays and that where possible they would change tasks so that the worker could continue with his employment. The co-worker also indicated that the worker told him his doctor said it was simply sore muscles from overworking and that it should clear up in a while.

The worker testified that by about the beginning of May he quit using his left arm altogether. He stated that he worked for 13 actual days or three work weeks, in April, performing these duties and then worked another week in May.

It was the employer’s submission that because the worker stated in his incident report that his left shoulder started to get sore by the third week in April, he had only been working for 9 days by the time he started having problems.

At the hearing, however, the worker testified that the problem in his shoulders really started in May. The reason he noted this time frame was because both his and his granddaughter’s birthday were on April 30 and he recalled that he did not have significant problems with pain until after that date and into May.

Indeed, the worker testified that it would have had to have been the first week of May when he suffered the most damage in his arm. He testified that the soreness may have begun towards the end of April but that it got worse at the beginning of May.

He said that he tried to see his physician almost immediately. Although he obtained an appointment to see his doctor on May 16, he was unable to keep the appointment because he was called in to work. Therefore, he first saw his physician for the shoulder problem on May 24, 2006.

The worker was asked at the hearing about his previous employment history. He testified that he had operated his own radiator business for 20 years. He eventually sold his business and there was a period of 15-16 months between when he sold his business and when he began working with this particular employer. During that time he said he did not carry out any employment.

The worker was specifically asked questions about the physical requirements of his radiator business. He stated that the work did not involve lifting things up in the air. He also stated that he never had any symptoms with respect to his shoulder at any time, while in the radiator business.

When questioned as to which repetitive motion the worker felt caused his problem at the current employment, he stated he thought it was probably lifting the cans in the air when he was loading them onto the sixth row and above.

The worker said when he first saw his physician on May 24 the physician told him that his arms were probably sore because he was doing work that he had never done before. He stated that the physician knew that he had operated a radiator business before and that he was doing different work. Specifically, the worker testified that lifting cans in the air was not part of his job description for the 20 years in the radiator business.

The worker specifically testified that he first noticed the pain in his shoulders when he was at work. With respect to why he did not report the pain or injury earlier the worker testified that he didn’t report it earlier because he did not know how much damage he had. He testified “Just because I got told by a doctor I got sore shoulders, I’m not going to go crying to my boss ‘I’ve got sore shoulders’.”

He testified that it was not until the fifth or sixth time he saw a physician that he was advised that he likely had a more significant injury which was ultimately confirmed by an MRI which was performed in August 2006.

In support of the worker’s claim, the Panel was provided with a report from the orthopedic specialist who ultimately performed surgery to repair the worker’s rotator cuff tear on February 14, 2007. The report was written, prior to the surgery, on January 12, 2007.

In the report, the specialist confirmed knowledge of the worker’s history of running his own radiator shop for many years. He also confirmed being advised that after multiple days or weeks in the current employment of loading hams onto trays, the worker developed shoulder pain. The physician confirmed knowledge of the worker’s history that he had had no previous problems or difficulties with the shoulder. The physician also confirmed that the MRI showed a cuff tear. He stated that by history there was, in his opinion, grounds for the injury being work related.

At the end of the hearing, the Panel determined that it would be helpful to have a copy of the operative report from the surgery. It requested and received a copy of this report. The report confirmed there was a small full thickness tear of the cuff which was repaired. It also indicated that the worker’s biceps was intact and normal in appearance.

The employer was provided with a copy of this report and was given an opportunity to make a further written submission to the Panel. In its reply, the employer repeated its position that 9 days of work could not, on a balance of probabilities, be the cause of the full thickness tear reported on the operative report and that there was a greater probability that the tear had occurred while the worker was employed in his radiator shop. It was the employer’s position that the physical demands of the radiator shop exceeded the physical demands required at the worker’s duties with his current employer.

The employer also commented that x-ray reports from July of 2006 indicated the presence of pre-existing degenerative changes which, in the opinion of the employer, confirmed overuse prior to this employment. Finally, the employer raised the issue of the worker’s failure to report any injury or physical difficulties despite multiple opportunities and his awareness of the obligation to do so.

After reviewing the operative report, the Panel determined that there were still further questions which should be answered by the physician who performed the surgery. Accordingly, the Panel sent a letter to the specialist asking for his comments with respect to the following queries:

1. After surgery and seeing the pathology related to [the worker’s] left shoulder, what is the likely cause of his rotator cuff tear, i.e. is it related to his work duties or to other causes?

2. In your letter … dated January 12, 2007 you state “… by history, there is grounds for this being a work-related injury”. Now that surgery has been carried out are you still of this view? If so, in your opinion which of the worker’s work duties caused the rotator cuff tear?

3. Please provide your general comments regarding the etiology of full thickness rotator cuff tears.

The physician responded on December 3, 2007 as follows:

With regard to your note of November 28, 2007 the following applies:

It should be noted that the determination of a cuff tear is mainly historical and there is no way to anatomically assess cuff tear configuration or size, and determine whether they have occurred with a specific injury or inciting event.

This gentleman did have a small rotator cuff tear, which would go along with the story he provided me with on January 12, that he felt fine until he went to work loading hams on trays. He developed pain in this shoulder. These types of cuff tears do occur with overuse, which would be the situation here.

On visualizing his shoulder at arthroscopy, there is absolutely no way to change this assessment of etiology of his cuff tear.

I still believe that his story goes along with the type of cuff tear I found and unfortunately there is no solid indicator which will provide you with proof that the cuff tear did or did not occur in this fashion.

With regards to full thickness cuff tears, in general rotator cuff tears happen in all people if we live long enough and work hard enough. The general incidence of rotator cuff tears at the age of 80 is 100% and at the age of 65 is 50%.

Before the age of 50, it is much more likely that rotator cuff tears occurred because of overuse and trauma than the degenerative changes which mainly account for the majority of cuff tears in the later decades of life. Under the age of 40, it is always traumatic and this gentleman certainly fits into the 40-50 age group.

I think the bottom line is that you would have a very hard time making a solid case that this did not happen with relation to his work, and a much easier case with the proposition that it did.

A copy of this letter was provided to the employer along with an invitation to respond. In its response the employer stated that it was still of the view that 9 days of work at this employment could not, on a balance of probabilities, be the cause of the full thickness tear. Again the employer’s position was that there was a greater probability that the tear occurred while the worker was employed in his radiator shop where, the employer submitted, the physical demands greatly exceeded the physical demands required at this employment.

With respect to the matters set out in the specialist’s latest report the employer stated it had the following concerns:

1. Whether the physician knew that the worker only worked 9 days starting April 4, 2006.

2. That the worker reported no problems with his shoulder until July 13, 2006.

3. That the worker previously worked in an auto repair shop lifting radiators from cars.

4. That the weight of the product was only 20 – 25 lbs at most; and

5. The employer queried whether 9 days of varied tasks can constitute an ‘overuse’ in a well muscled, fit appearing 48 year old acknowledging that the physician used the phrase ‘after multiple days or weeks of loading hams onto trays’.

The employer was also of the view that the physician did not have an opportunity to review the job tasks that the worker was performing during his employment. It also pointed to a suggestion on the MRI that there were biceps changes suggesting previous overuse of the right upper extremity. Finally, the employer stated it remained of the position that on a balance of probabilities including the surrounding events of non-reporting, the cuff tear did not arise out of work tasks with this employer.

Analysis

The issue in this appeal is whether the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (the “Act”) provides:

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. Accident is defined in the Act in subsection 1(1) as follows:

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

(a) a willful 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.

Based on all of the evidence, the Panel finds that on a balance of probabilities, the worker did sustain personal injury by accident arising out of and in the course of employment within the meaning of subsection 4(1) of the Act.

The worker testified that he had never experienced any difficulty with his shoulders while working in his radiator shop or otherwise. He had stopped working in the radiator shop and had sold the business 15-16 months prior to beginning his duties with this employer.

There is no evidence that the worker suffered any shoulder pain or injury during the course of his operating a radiator shop. There is no evidence of his ever having sought treatment for shoulder pain prior to working at this employment. There is no evidence that the radiator shop work caused or contributed to the worker’s injury nor is there any evidence, as the employer suggested, that the work at the radiator shop involved heavy lifting. Indeed the evidence was to the contrary. Based on the evidence, we find that at the time of commencing his duties with this employer the worker was functioning with full capacity.

The worker’s evidence was clear that he began to experience pain after working for at least three weeks in April and certainly one week into May 2006 with this employer. His evidence was that although he experienced some soreness in April it was not until May that he really had difficulties. At that point he contacted his physician and was given an appointment of May 16 to discuss his shoulder problems. The evidence in the medical reports indicates that the worker was seeing physicians through May and June. Repeatedly, several different physicians advised him that he was merely experiencing muscle pain. Ultimately, however, the worker was diagnosed with a rotator cuff tear.

A letter on file from a co-worker confirmed that the worker was complaining his shoulders were “killing him” from loading cans on trays. The co-worker also confirmed that on several occasions they switched tasks so that the co-worker could assist the worker. The co-worker indicated as well that the worker told him it was just sore muscles from overworking and that it should clear up in a while.

The worker testified in great detail as to the duties he was performing at the time he experienced symptoms. Those duties involved repetitive lifting, carrying and stacking of cans weighing 20-25 lbs. each. The worker testified that he carried the cans two at a time. He gave extensive evidence as to the awkward nature of lifting and holding the cans to stack them on the upper rows in order to ensure the cans were placed properly such that they would not topple when moved by a forklift.

We find that on a balance of probabilities, after performing these tasks for 3-4 weeks, the worker sustained a rotator cuff injury as the result of activities carried out in the course of his employment.

Our finding is assisted by the opinion of the orthopedic surgeon who is a specialist in shoulder injuries. He noted that the determination of a cuff tear is mainly historical and that in his opinion, based on the history provided, the worker’s injury was work-related.

We have noted the concerns raised by the employer regarding the specialist’s opinion. We are satisfied, however, that the specialist was aware of the relevant facts, consistent with the findings of this Panel. For example, in his report of January 12, 2007, the specialist specifically referenced his knowledge that the worker had run a radiator shop for many years. He also acknowledged his understanding that the worker loaded hams on trays in his current employment. Finally, with respect to the amount and duration of work performed prior to the worker developing pain, the specialist specifically indicated “after multiple days or weeks of this”.

The specialist also noted that the worker had not experienced previous problems or difficulties with the shoulder. We find, therefore, that in reaching his opinion the specialist was aware of the evidence which was before this Panel and his opinion was made with the benefit of evidence which was consistent with the Panel’s findings.

It was the employer’s position that the worker was employed for only 9 days in these job duties before he experienced symptoms and that 9 days was not enough time for this injury to occur. The employer came up with the figure of 9 days based on the worker’s filed incident report where he said he experienced pain after the third week in April. At the hearing of this matter, however, the worker testified that upon reflection he experienced significant symptoms in May, after the end of April. Based on this evidence the worker would have been employed for 13 days, prior to experiencing pain.

The worker was confirmed in his recollection as to experiencing pain in May rather than April by virtue of two matters. One, he realized that he did not experience pain until after April 30 which was a significant day for him because it was his birthday and the birth date of his first grandchild. Two, he contacted his physician in May to address the symptoms he was experiencing and obtained an appointment to see the physician on May 16.

Whether the worker carried out the repetitive motion duties for 9 or 13 days is not in any event determinative of the issue in this case. We note that the specialist in his report of January 12, 2007 in which the physician provided his opinion that the worker’s injury was work-related, indicated that the worker developed left shoulder pain after multiple days or weeks. (emphasis added)

With respect to the employer’s position that the worker’s delay in reporting is a factor which should operate against claim acceptability, the Panel disagrees. We do not find that the worker’s failure to report the injury until the middle of July is evidence which detracts from our finding, on a balance of probabilities, that there is a causal connection between his employment duties and his injury.