Decision #25/09 - 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 lifting activities at work. The claim for compensation was denied by primary adjudication on the grounds that it could not relate the worker’s right rotator cuff tendonitis condition to an accident at work. This decision was overturned by Review Office on August 26, 2008 who found that the weekly requirements regarding the handling of boxes can produce strain to the worker’s right shoulder. The employer disagreed with Review Office’s decision and an application to appeal was filed with the Appeal Commission. A hearing was held on January 6, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On April 11, 2008, the worker filed a claim with the WCB for a right shoulder injury that she related to the following work activities:

“Repetitive lifting of boxes ranging in weight of 30 to 40 pounds. I also have to open the boxes and remove the equipment and then also repack the equipment. The items in the boxes are of different weight from small to big. Examples of items in the boxes are wires, controls and other electronic parts.”

The worker stated that the onset of her right shoulder symptoms began in January 2008 while performing her regular job duties. She continued working, would have good and bad days, but the pain continued. On April 2, 2008, she felt a stabbing pain in her shoulder while lifting boxes. She tried typing but found that she could not use the hand/arm/shoulder at all because of the pain. The worker advised that her workload had increased and that this aggravated her symptoms.

The employer’s accident report indicated that the worker reported to a service manager on April 3, 2008 that she had a burning feeling in her shoulder and that she could not raise her arm upward or rotate. The worker said there was no accident involved. The worker’s job activities involved booking appointments for installers and opening/moving boxes for the past six months. Prior to this the worker worked as customer service representative. She started with the company in March 2003. The employer indicated that the worker played a lot of basketball.

Medical information showed that worker sought medical treatment for her right shoulder on April 2, 2008. Her description of injury was “lifting a series of boxes at work. Diagnosis – rotator cuff tendonitis. Rule out tear.”

In April and May 2008, primary adjudication staff contacted the worker and the employer to gather additional information concerning the reporting of the injury and particulars regarding the worker’s job duties, i.e. the amount of lifting that was involved, the weight of the boxes that were lifted, the amount of time spent lifting and moving boxes during the day/week.

On April 25, 2008, a WCB adjudicator spoke with a co-worker who reported that the worker called in on April 3, 2008 to advise that she hurt her arm moving boxes from the back. There was no indication from the worker as to when she injured her arm. The worker advised that her current injury sprung from an old sports injury but did not mention which sport. The co-worker assumed that the sport was basketball as she was aware that the worker played basketball when younger. The co-worker indicated that she was not aware of any outside activities or sports that the worker was currently involved in. She noted that the worker rode her bike to work.

On April 25, 2008, the worker told her WCB adjudicator that she had no previous shoulder injuries. She did have a previous injury from basketball but it was to her lower body.

Following review of all the file information, the worker was advised by phone on April 28, 2008 that her claim for compensation was being accepted. Later in the day, the employer advised the adjudicator that they were appealing the acceptance of the claim as the worker told her manager that it was an old shoulder injury from basketball and that she was claiming with WCB so that the WCB would cover her time loss from surgery. Based on this information, the adjudicator indicated that she would not move forward with the claim as she was not aware that the worker advised her manager that she had an old shoulder injury and would need the manager’s name to confirm this.

On May 8, 2008, a WCB orthopaedic consultant opined that the worker’s reported symptoms were probably caused by rotator cuff tenonitis. He further indicated “Repetitive shoulder movements against resistance are known to lead to this condition. Repetitive lifting above shoulder height for more than one hour daily for a week might be expected to cause the condition. Repetitive pushing or pulling or lifting more than 20 lbs constantly for more than 2 hours per day for several months might be expected to cause the condition.”

On May 15, 2008, the worker was advised by primary adjudication that the WCB was unable to establish a relationship between her right shoulder difficulties diagnosed as rotator cuff tendonitis to her job duties or to an accident arising “out of and in the course of” her employment.

In a report dated May 12, 2008, a sports medicine physician stated that the worker experienced pain in her upper arm and right shoulder for the past 5 to 6 months after a change of work demands which increased her lifting and reaching expectations. His diagnosis was rotator cuff tendonitis.

On May 30, 2008, the worker appealed the WCB’s decision to deny her claim. The worker contended that the employer’s description of her work duties was inaccurate and misleading and that “…a tear/tendonitis/bursitis can be caused by a single lift and/or repetitive lifting of boxes, and not necessarily the duration of the activity of lifting boxes.”

On August 26, 2008, Review Office overturned primary adjudication’s decision and accepted the claim. Review Office based its decision on the following factors:

  • Review Office noted there was conflict on file regarding the weight of boxes involved in the worker’s day to day activities. Regardless of the exact weight of the boxes lifted by the worker, Review Office felt that the physical expectations placed on the worker’s right shoulder could lead to inflammation of the rotator cuff tendons.

  • the employer admitted that the worker advised them that she had injured her arm while lifting boxes. The co-worker who was contacted by the adjudicator indicated that she received a call from the worker that she injured her arm moving boxes on April 3, 2008.

  • the worker’s description of accident (lifting of boxes) was provided to her family physician and sports medicine specialist and was consistent with her reporting of the injury to the employer and to the WCB.

On September 24, 2008, the employer appealed Review Office’s decision to the Appeal Commission and an oral 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 right shoulder injury arose out of and in the course of her employment as an installation coordinator.

The employer’s position:

Two representatives of the employer participated in the hearing, one via teleconference. The employer’s position was that the job duties which were performed by the worker did not amount to the degree of repetitive shoulder movements which were identified by the WCB medical advisor as being expected to cause a rotator cuff tendonitis condition. It was noted that the worker had only been in the position which required lifting since October, 2007 and that lifting duties were at most only performed for 1 to 2 hours per day. She did not perform continuous lifting for an extended period of time. The majority of her duties involved coordinating jobs and scheduling. It was submitted that the worker’s job did not involve the type of activity which would tend to lead to the symptoms complained of by her. The employer asked that the WCB adjudicator’s decision be restored and that the claim not be accepted.

The worker’s position:

The worker appeared at the hearing, accompanied by a worker advisor. The worker’s evidence was that she had been employed by the employer for five years and had been their installation coordinator since October 2007. She outlined the duties she performed in this position, which involved at least one hour of lifting boxes and placing them on shelves. On average, the boxes weighed between 20-30 pounds and measured 18”x15”x15.5”. Her job was to inspect the boxes to make sure that they contained the proper components, then place them on a shelf to await installation. While there were two shelves which were below waist height, there was a top shelf which was above her head and on which she was required to stack boxes. It was submitted on behalf of the worker that the duties she performed were within the parameters set out by the WCB medical advisor and were of the type which could cause rotator cuff tendonitis. The worker stated that in about December 2007 to January 2008, she began to experience an aching pain in her right shoulder. She thought the pain would go away, but it did not. By April 3, 2008, she had stabbing pain in her shoulder and found that she could not lift a box. It was at that point that she sought medical attention. She had never previously had an injury to her right shoulder, nor had she ever sought prior treatment. It was submitted that the worker’s right shoulder condition was attributable to the work duties she performed.

Analysis:

The issue before the panel is whether the worker’s right shoulder injury arose out of and in the course of her employment as an installation coordinator. In order for the employer’s appeal to be successful, the panel must find the worker’s job duties did not cause or contribute to her right-sided rotator cuff tendonitis which was diagnosed in April, 2008. We are not able to make that finding.

On a balance of probabilities, the panel is satisfied that the job duties being performed by the worker were of the nature which could cause the rotator cuff tendonitis being complained of by her. In coming to this conclusion, the panel relies on the following:

  • As noted by Review Office, the worker has been consistent in the reporting of her injury description, and it is reasonable that the initial onset of the condition occurred within three months of the change in the worker’s job duties.
  • The worker’s evidence was that at the relevant time, she was not involved in any other activity which might cause injury to the shoulder. She had been involved in competitive basketball, shotput and discus in the past, but had ceased participating in those sports several years ago.
  • There is no evidence of any prior diagnosis, complaint or treatment of a shoulder injury.

Overall, the panel finds that the worker’s right shoulder tendonitis is more likely related to her workplace duties than any other activity in which she may have engaged in the past. Further, the panel agrees with Review Office that even if there was a pre-existing shoulder injury, WCB Policy 44.10.20.10 would apply and the worker’s claim would still be acceptable, given her evidence that the onset of the pain was experienced while performing work duties. It is therefore our decision that the claim is acceptable. The employer’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 13th day of February, 2009

Back