Decision #145/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a right shoulder injury that she related to her work activities as a cook. Both primary adjudication and Review Office denied the worker’s claim as they were unable to establish that the worker’s work duties caused her right shoulder condition. The worker disagreed and filed an appeal with the Appeal Commission. A hearing was held on October 2, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

This 59 year old worker filed a claim with the WCB on April 25, 2008 for difficulties she was experiencing with her right shoulder. The worker noted that her right shoulder symptoms started during November/December 2007. She first noticed symptoms while lifting at work and felt soreness in her shoulder. Her shoulder would feel better when at home and then it would hurt even when she was not doing anything. With respect to her work duties, the worker indicated that she did lifting which involved a heavy steamer with water in it. She said her arm was so weak that she worried she may drop items to the floor. Other job duties involving the right arm were washing large soup pots and using a meat slicer. Eventually, the worker discontinued working because of the persistent pain. The last day she worked was February 29, 2008.

The employer’s accident report indicated that the worker came to work on the morning of April 25, 2008 with a doctor’s note stating that she had a torn muscle and was relating it to the lifting of industrial cooking pots into the sink. 

Medical reports on file show that the worker attended a walk in clinic on February 27, 2008 with subjective complaints of a sore right shoulder with limited range of motion. The worker described no inciting event but reported that her difficulties started two months prior. The physician recommended further investigations to rule out a rotator cuff tear.

An MRI was taken of the right shoulder on April 11, 2008. The radiological report identified a small full-thickness tear of the supraspinatus insertion.

A Doctor’s First report dated April 24, 2008, indicated that the worker reported a one year history of increasing pain in her right shoulder that increased while doing work as a cook. The diagnosis rendered was a rotator cuff tear. A referral to an orthopaedic surgeon was arranged.

On May 2, 2008, a WCB adjudicator contacted the worker to obtain additional information. With respect to her specific job duties, the worker indicated that she gets to work in the morning and prepares breakfast. She makes pancakes which requires hand mixing with her right arm. She uses a ladle and has to stretch to place pancakes on the far side of the grill. She uses her right arm to scramble eggs and hot cereals. After breakfast she spends about half an hour washing pots. She has to lift the pots into the sink and out of the sink. She holds them with her left hand and scrubs with her right arm. She also makes lunch and may be required to cook pasta in a large steamer. She makes about 16 cups of pasta at a time. She fills up the steamer with a lot of water and then has to lift it to pour into the strainer. She estimated that it weighed 20 to 25 lbs. She stirs soups and sauces with her right arm. She may have to lift two – 2 liter milk cartons when making sauce with her right arm. She estimated that she spends an hour to an hour and a half stirring with her right arm over the course of her shift. On the weekends and maybe once a week, she slices meat with a meat slicer using her right arm. If she decides to make a dessert, she manually stirs the mix with her right arm. If she has to lift something from the freezer it was above head level.

An orthopaedic surgeon reported that he saw the worker on May 8, 2008 regarding work related problems with her right shoulder. He noted that the worker experienced progressive worsening of right shoulder pain around October 2007. There was no one time injury and it just came on over a number of shifts. He noted the MRI findings of April 2008. Following an examination of the worker’s shoulder, the orthopaedic surgeon indicated “There is documented rotator cuff tear with a work-related component but likely some other contributing factors and ongoing pain and restriction for daily living and marginal ability to continue with her job.” Treatment plan consisted of a cortisone injection and surgery was discussed.

On May 30, 2008, a chiropractor reported that the worker presented on October 12, 2007 with right shoulder pain. The pain had been there for over 2 years and was getting worse. The right shoulder pain was worse in the morning and she could not lay on her right side. The pain and lack of motion interfered with regular grooming routines, holding heavier items such as a coffee pot or a jug of juice. There was a previous incident of right tennis elbow that resolved in 2002.

Examination of the shoulder revealed reduced range of motion in abduction, external rotation and grip strength in the right hand was reduced slightly.

A WCB adjudicator spoke with the worker’s supervisor on May 30, 2008. The supervisor advised that the worker has been with the employer since 1971 and that she worked on a full time basis. She noted that there was one big pot to lift if there was a large group to feed. They feed 25 residents in the morning. The worker would be the only cook unless there was a conference and then there would be more than one cook. After breakfast, the worker washed pots but the supervisor thought half an hour washing pots was too much. They did it in about 10 minutes. Regarding the pasta pot, the supervisor did not think it weighed 20 to 25 pounds. She confirmed that cutting/chopping was done for an hour over the course of a shift. They used the meat slicer perhaps once every two weeks. It was noted that they serve between 30 to 35 people at lunch. During lunch, four staff are on. The worker does not serve lunch and stays in the kitchen. The supervisor noted that there were not a lot of heavy items that the worker had to lift in the freezer that were high up.

On June 3, 2008, a WCB adjudicator contacted the worker by phone to advise that her claim for compensation would not be accepted. The adjudicator stated that a rotator cuff tear would be accepted only where a worker performed overhead work duties or had a specific accident involving a fall on an outstretched arm. The worker advised the adjudicator that she did do overhead work and had to lift overhead. The adjudicator said it was not significant enough to have caused a rotator cuff tear.

In a decision dated June 3, 2008, it was confirmed to the worker that her claim for compensation was denied on the grounds that the WCB was unable to establish a relationship between her work duties and her right shoulder injury given that her job duties did not involve significant overhead activities. This decision was appealed by the worker to Review Office on June 11, 2008.

On June 25, 2008, Review Office indicated that after reviewing the file evidence, it was unknown as to how the worker incurred the torn rotator cuff and the theory that the condition arose out of the work environment was speculative. With the worker not incurring an injury in the workplace and having the condition for either one or two years prior to submitting a claim to the WCB, Review Office was in agreement with the position taken by the adjudicator that the worker’s torn rotator cuff did not arise out of and in the course of the worker’s employment. Review Office pointed out that the worker’s condition arises in the middle aged quite often without a known precipitating event and thus the cause was unknown. It also noted that the worker’s job did not include a significant amount of overhead work which would be a task that would place the shoulder at risk for a rotator cuff tear. On June 15, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

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 arose out of and in the course of her employment.

The worker’s position:

The worker appeared at the hearing on October 2, 2008 accompanied by a friend. It was submitted on behalf of the worker that for 37 years, she worked hard in her job as a cook and never took time off to make claims. The amount of food which she prepared on a daily basis was large, and frequently, she would be cooking for over 70 people. Over time, the heavy work caused wear and tear in her joints, and eventually led to her shoulder injury. The worker’s evidence was that the injury started as mild pain in late 2007, which she tried to work through. She took a course of physiotherapy, but instead of improving, her shoulder pain gradually got worse. The worker used her vacation days to take some time off work to allow her shoulder to heal, but it did not get better. Finally, she was unable to work any longer, and on her physician’s suggestion, she applied for WCB benefits. The worker’s physician believes that the injury is work-related, and it was submitted that the claim for benefits should be accepted.

Analysis:

The issue before the panel is whether the worker’s right rotator cuff tear injury arose out of and in the course of her employment as a cook. 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 her job duties. Based on the evidence before us, we are able to make that finding.

At the hearing, the panel questioned the worker extensively as to the nature of her job duties, and in particular, duties which involved her shoulder. The worker described the following duties:

  • Lifting roasts into a roasting pan and into the oven.
  • Putting large trays (approximately 1.5 x 3 feet wide and from 3 to 6 inches deep) filled with potatoes or other food into the steamer, which could require lifting the tray a little higher than shoulder height in order to place it on the top shelf of the steamer.
  • Tipping pails of 45 – 50 potatoes into the sink, which would involve lifting one arm over shoulder height. She would also lift these pots from the floor to the counter, which would bring her hands and arms to at least shoulder height.
  • Tipping trays of steamed potatoes into the mixer bowl, which also involved lifting over shoulder height.
  • Reaching for boxes on overhead shelves in the walk-in freezer unit.
  • Operating a meat slicer, which involved using her right arm to repeatedly push the meat away from her body. The machine was located at approximately waist height.
  • Scrubbing large pots in the sink.
  • Reaching forward for items being cooked on the grill.

It is the panel’s opinion that the evidence supports the finding that the worker’s rotator cuff tear was caused, or at the very least was enhanced, by, the duties performed by the worker in her position as a cook. The worker described numerous tasks which involved lifting heavy objects at or above shoulder height and manipulating heavy objects or using force with an extended reach, both of which are known to be etiological factors to cause injury to the rotator cuff. While there was not high repetition of these movements, they were performed daily and typically involved lifting heavy weights of 20 pounds or more. In the panel’s opinion, the demonstrated movements could cause a rotator cuff tear, and certainly would tend to aggravate and enhance any pre-existing condition in the shoulder. The worker’s evidence was that she did not recall any acute event, but that the pain just started to gradually get worse. She did not participate in any physical or strenuous activities outside of work, to which the injury could be attributed. Her two favorite leisure activities were walking and reading, neither of which would tend to put the shoulder at risk.

The report of the orthopedic surgeon dated May 8, 2008 refers to the rotator cuff tear as having: “a work-related component, but likely some other contributing factors.” He also refers to “natural history”, which the panel interprets as suggesting there may be degenerative issues in her shoulder related to aging as well as the noted workplace component. Nevertheless, even if the workplace duties are only a contributing factor to the worker’s disabling condition, WCB Policy 44.10.20.10 concerning pre-existing conditions dictates that the WCB accept responsibility for the full injurious result.

For the reasons stated above, the panel finds on a balance of probabilities, that the worker’s rotator cuff tear arose out of and in the course of her employment as a cook. The worker’s claim is therefore acceptable and her appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of November, 2008

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