Decision #44/08 - Type: Workers Compensation
Preamble
In this appeal, we must determine whether or not there is a relationship between the worker’s right rotator cuff tear and his work duties of December 5, 2000.
On December 5, 2000, the worker was shoveling sand when he experienced soreness in his right shoulder. The Workers Compensation Board (“WCB”) accepted the claim based on a diagnosis of a right shoulder strain and the worker was paid three days of wage loss benefits. Subsequently, in July 2001, the worker advised the WCB that he discontinued his employment in January 2001 due to right shoulder difficulties. He was diagnosed with a right rotator cuff tear on June 20, 2001. Both primary adjudication and Review Office were unable to relate the worker’s rotator cuff tear to his work duties of December 5, 2000. The worker disagreed and filed an appeal with the Appeal Commission. A hearing then took place on February 26, 2008.
Issue
Whether or not the worker’s right rotator cuff tear is related to the compensable injury of December 5, 2000.Decision
That the worker’s right rotator cuff tear is related to the compensable injury of December 5, 2000.Decision: Unanimous
Background
On December 11, 2000, the worker filed a report with the WCB claiming that he overstretched his right shoulder at work on December 5, 2000 while shoveling sand into a pit and pulling the sand belt. The claim for compensation was accepted based on a diagnosis of a right shoulder strain and full wage loss benefits were paid to the worker from December 6, 2000 to December 11, 2000 inclusive.
On May 9, 2001, the worker filed another report with the WCB which claimed injury to his shoulder and neck that started in June 2000 while pushing and pulling 500 lb. molds at work. The worker claimed that his shoulder pain progressively got worse and that his doctor told him to quit his job. His last day of work was January 17, 2001. Although the worker’s May 9, 2001 report appears on file, it is not clear whether any action was taken on the report.
The next contact from the worker is in July 2001 when the worker telephoned the WCB to inquire about his claim.
A WCB case manager spoke with the worker on August 2, 2001. The worker indicated that he quit his job on January 17, 2001 due to difficult working relationships. He indicated that he did not see a doctor for his right shoulder between December 7, 2000 and January 17, 2001 as he thought he would just work until he “dropped”. Between December 11, 2000 and January 17, 2001 he was pushing and pulling molds which he felt aggravated his previous right shoulder condition. The worker acknowledged that he had a hoist at home and did engine repairs. He stated that he did not injure his shoulder while performing these tasks. The worker said he collected EI benefits for 15 weeks ending on May 26, 2001. He said his doctor told him to claim EI as it would be easier to get money from EI than from the WCB. The worker denied doing any farming work and was not sure why a June 20, 2001 arthrogram report mentioned farming work. He said his left arm and elbow are almost perfect now.
A review of medical information revealed the following:
· The worker attended his treating physician on December 7, 2000 for right shoulder complaints. The treating physician noted that the worker was working in the pit performing heavy work and had pain in his right shoulder and neck. The right trapezius was slightly tender but there was full range of motion in the shoulder. Ice, Tylenol and physiotherapy was prescribed. The diagnosis rendered was a right shoulder strain.
· In a March 1, 2001 report, an orthopaedic surgeon who had been treating the worker for a left elbow condition reported that the worker’s right shoulder also ached. It was difficult to raise the arm overhead and was painful to put the arm up behind the back. Impingement sign was positive. AC joint loading was negative. There was tenderness over the anterolateral humeral head. X-rays showed subacromial spurring especially adjacent to the AC joint. There was sclerosis of the greater tuberosity. The diagnosis rendered was at least rotator cuff tendinitis and an arthrogram was ordered to rule out a rotator cuff tear.
· An arthrogram dated June 20, 2001 revealed findings consistent with a right rotator cuff tear. The clinical history indicated “Farming Work”.
· On July 3, 2001, the family physician reported that the worker had right rotator cuff tendinitis and an impingement syndrome for the past several months. A partial acromionectomy was proposed.
· On July 13, 2001, a WCB representative contacted the treating surgeon’s office. The surgeon’s office was unaware that the shoulder injury was work-related. The worker had been seeing the surgeon since October 19, 2000 for left tennis elbow and epicondylitis. The worker stated that his right shoulder bothered him at his March 1 appointment.
· On July 30, 2001, the family physician reported that the worker presented on February 9, 2000 with right shoulder pain which began in December of 1999 while drywalling and that this was not a work related injury. The worker had normal range of motion but a painful arc, worse against resistance. He was diagnosed with rotator cuff tendinitis and was referred for physiotherapy. When next seen on March 7, 2000 and April 10, 2000, the shoulder condition was showing improvement each time. Range of motion was normal. The worker’s next visit to the clinic was December 7, 2000 when he complained of an injury at work while pulling on a machine. The worker felt something pull in his right shoulder and neck, and he complained of night arm numbness and some numbness in the right hand. Shoulder range of motion was normal.
· In a memorandum dated August 10, 2001, a WCB case management representative recorded that she spoke with the first treating physician who advised that when he saw the worker on December 7, 2000, he diagnosed a strain to the right shoulder. When the worker was next seen on August 9, 2001 he noted that the worker did have an injury to his shoulder but could not comment on its relationship to the December 7, 2000 visit. He said he would not have suspected a rotator cuff tear at the examination on December 7, 2000 but yet he could not rule that out.
In a memorandum dated August 21, 2001, the WCB case manager indicated that an e-mail was received from the employer which indicated “His shoulder injury stemmed from pulling heavier molds (120 lbs.) from his right side to his left side on a roller line. There is not a lot of force needed to do this. But, when done repeatedly, I can accept that this type of injury could occur. I can not confirm that He (sic) had ongoing complaints about his shoulder during Dec. 11 and Jan. 17. For his light duties, we had work on the same type of task. Only the molds where (sic) smaller (60 lbs.) and he was rolling them from his left side to his right side. There was absolutely no requirement for him to use his right arm at all. This was the whole intention, to eliminate the use of his right arm/shoulder.”
Another employer representative advised the WCB case manager on August 22, 2001 that he did not recall the worker complaining about his right shoulder between December 11, 2000 and January 17, 2001. Any difficulties that the worker had on the line during that time were related to personality issues and not to the job tasks he was performing.
On August 22, 2001, the WCB case manager advised the worker that he was unable to find that his work duties were the cause of his right shoulder rotator cuff tear based on the following factors:
· The employer could not confirm that the worker made any ongoing complaints about his shoulder between December 11, 2000 and January 17, 2001;
· The worker did not seek medical attention for his shoulder between December 7, 2000 and January 22, 2001;
· The clinical history on the arthrogram mentioned farming work as the source of his injury;
· The treating surgeon’s office, on July 13, 2001, said they were unaware of a work related shoulder injury;
· When the worker sought medical treatment in February 2000, he told the treating physician that his right shoulder difficulties started in December 1999 while he was drywalling.
On October 15, 2002, a lawyer acting on the worker’s behalf, provided the WCB with three medical reports for consideration. The lawyer stated that all three medical reports confirm that the worker suffered a rotator cuff injury in his shoulder due to his work related accident and that the worker was not in a position to return to work until he recovered from surgery to his right shoulder. It indicated that the WCB should take responsibility for the worker’s loss of income for the period December 8, 2000 to May 2, 2002.
On October 23, 2002, the WCB case manager advised the lawyer that he reviewed the new medical information and that there would be no change to his previous decision of August 22, 2001.
In a submission to Review Office dated July 12, 2004, a worker advisor submitted that despite conflicting information between the accident employer and the worker, the weight of evidence supported that the worker’s rotator cuff tear was in all probability caused by the heavy nature of his work and as such he was entitled to reinstatement of wage loss benefits retroactively. In support of her position, the worker advisor submitted information from a previous claim filed by the worker which described his work duties in more detail as well as opinions expressed by two physicians.
On October 6, 2004, Review Office determined that the worker’s rotator cuff tear in his right shoulder was not related to the December 5, 2000 claim for shoveling sand. Review Office based its decision mainly on the points outlined by the case manager in his decision of August 22, 2001. It also referred to the opinion expressed by the original orthopaedic specialist to the worker’s lawyer that the worker’s ongoing right shoulder problems were work related. Review Office indicated that this opinion was based on what appeared to be a belief that the worker was actually pushing 200 lb molds 600 times a day. The specialist provided no evidence that he had an understanding that the molds were on rollers and thus Review Office did not feel that this was a valid medical opinion based on factual evidence.
On July 12, 2007, the worker asked Review Office to reconsider its decision of October 6, 2004 based on new medical information (a January 2001 EI sick certificate) and a letter from a co-worker dated April 13, 2007. The co-worker’s letter confirmed that when the worker returned to work December 11, 2000 to January 17, 2001, he consistently complained about pain he was experiencing in his right shoulder and that he made his supervisors aware that his condition was bothering him. The worker acknowledged that there were a number of discrepancies on his file but these were not of his doing and in no way negated the fact that he was injured at work on December 5, 2000 or that as a result of his injury, he required surgery for his rotator cuff tear.
The worker’s submission was provided to the employer for comment. On August 28, 2007, the employer’s advocate advised Review Office that it agreed with its decision of October 7, 2004. The advocate indicated there was overwhelming evidence noted in the decision which did not support a cause and effect relationship between his condition and the compensable incident. She also indicated that the worker did not provide any new information to corroborate his position.
On September 5, 2007, Review Office determined that the worker’s right shoulder rotator cuff tear which led to surgery on March 7, 2002 did not, on a balance of probabilities, have a relationship to the worker’s injury of December 5, 2000. Review Office indicated that the January 2001 medical certificate did not address the issue as to whether or not a cause and effect relationship existed between the torn right rotator cuff tear and the worker’s work related shoulder injury of December 5, 2000 which occurred while he was shoveling sand. Review Office further stated that the letter from the co-worker had nothing to do with this claim as this claim was for shoveling sand on December 5, 2000. Review Office stated that the worker’s submission did not alter the fact that on the original claim, the worker’s physician advised that his right shoulder problems commenced in 1999 from drywalling which did not occur in the workplace. It stated it was unclear from the evidence as to when and how the worker incurred the right shoulder rotator cuff tear and therefore it could not reach a decision that the tear had a relationship to the worker’s December 5, 2000 right shoulder injury which occurred while shoveling sand.
On November 14, 2007, the worker appealed Review Office’s decision to the Appeal Commission and on February 26, 2008, an oral hearing was held.
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. Subsection 4(1) of the Act provides:
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. (emphasis added)
The key issue to be determined by the panel deals with causation and whether the worker’s rotator cuff tear which was diagnosed in June 2001, and ultimately repaired by surgery in 2002, arose out of and in the course of his employment on December 5, 2000.
The worker’s position:
The worker was self-represented at the hearing on February 26, 2008. In the worker’s written submission dated November 14, 2007, he makes six major points, as follows:
1. The indication on the June 20, 2001 arthrogram report that the worker was engaged in farming work was a typographical error as the worker had never been employed as a farmer;
2. Although the worker did injure his shoulder drywalling in 1999, that injury improved gradually;
3. The worker admits that he left his employment under adverse circumstances, but says that this was a product of being injured and he was frustrated because despite his injury, he was subjected to very demanding work conditions;
4. The worker’s Employment Insurance claim was for sick benefits and the documentation establishes that he left work on January 19, 2001 because of left lateral epicondylitis and right rotator cuff syndrome. He did not apply for WCB benefits at the time because he was misinformed as to his rights;
5. The letter from his co-worker confirms that the worker continued to experience ongoing problems with his shoulder from December 11, 2000 to January 17, 2001; and
6. Overall, the worker claims to have been hurt on three separate occasions while at work. First, in June 2000, he felt pain in his right shoulder while pushing molds. Then on July 18, 2000, he injured his left arm at work, which was diagnosed as repetitive strain injury from pulling molds. The worker continued to work despite these injuries and due to constant pain and numbness, his ability to perform his job became strained. On December 5, 2000, while shoveling sand, he injured his right shoulder. He took a few days off, then returned to work, and continued to work until the pain became unbearable on January 17, 2001.
Analysis:
The issue before the panel is whether the worker’s right rotator cuff tear arose out of and in the course of his employment on December 5, 2000. To accept the worker’s appeal, the panel must find on a balance of probabilities that the worker’s rotator cuff tear was related to the compensable injury he suffered on December 5, 2000. Based on the medical evidence before us, we are able to make that finding.
An oral hearing was held at which the worker was self-represented. The employer did not participate in the appeal. At the hearing, the worker responded to questions posed by the panel. Overall, the panel found the worker to be a poor historian. While the worker was relatively consistent in his description of ongoing right shoulder pain, parts of his testimony, particularly testimony regarding dates and time frames, did not accord with information contained in the medical reports and other documentation in the WCB file. As a result, the panel has difficulty placing much weight on the evidence given by the worker at the hearing. In making its decision, the panel therefore relies primarily on the documentary evidence before it.
There does not appear to be much dispute that the work which was being performed by the worker was heavy in nature and could potentially have caused the rotator cuff tear. At the hearing, the worker advised that his work duties on December 5, 2000 included both shoveling and pulling molds. The employer, in an email referenced in the memo of August 21, 2001, acknowledged that when done repeatedly, pulling molds could cause an injury of this nature.
On review of the medical evidence, it would appear that in early 2000, the worker was already suffering from shoulder pain. According to the family physician’s report of July 30, 2001, in the early part of 2000, the worker was being treated for right shoulder pain which began in December 1999 and which was unrelated to work. Rotator cuff tendinitis was diagnosed and he was referred to physiotherapy. He was assessed in February, 2000, with follow-up attendances in March and April. He continued to attend physiotherapy and his condition improved. As at April 10, 2000, the right shoulder pain was still improving and the worker was to continue to do exercises at home.
There was no further complaint of right shoulder pain to the family physician until December, 2000. It is notable that during this time period, there was also no complaint of right shoulder pain to the orthopaedic surgeon who saw the worker in November and December in connection with the worker’s left lateral epicondylitis.
The family physician’s notes indicate that on December 7, 2000, the worker attended and complained of injury at work. He described feeling “something pull in his right shoulder and neck.” From that point onwards, there appears to be a significant change in the worker’s right shoulder symptoms and he consistently reports pain in his shoulder. The worker was referred back to physiotherapy in January 2001, but the right shoulder did not improve after physiotherapy. The medical reports now report that the worker had a painful arc, which was not reported during the early months of 2000. The rotator cuff tear injury was formally diagnosed during a right shoulder arthrogram performed on June 20, 2001.
The panel finds that the worker suffered a non-compensable injury to his right shoulder in late 1999 but had functionally recovered from that incident and was able to perform his job duties. Given the significant change in December 2000 in the worker’s right shoulder symptoms, it is our opinion that, on a balance of probabilities, the medical evidence supports the finding that the worker’s rotator cuff tear was enhanced by the work duties performed by the worker on December 5, 2000. The worker’s appeal is therefore allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 28th day of March, 2008