The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal considered three issues arising from the worker’s 1996 and 2000 right shoulder claims. The worker is of the opinion that her right shoulder difficulties should be accepted as a compensable condition in relation to her 1996 compensable injury and/or to the general nature of her work duties as a meat wrapper. The worker also asked that she be provided with wage loss benefits beyond February 14, 2001, and that consideration should be given to reimbursement for costs associated with retraining. As the Workers Compensation Board (WCB) and Review Office declined each of these requests, the worker appealed to the Appeal Commission and a hearing was held on January 6, 2009, to consider the matter.

Issue

Whether or not the worker’s right shoulder difficulties should be accepted as a compensable condition in relation to the 1996 compensable injury and/or to the general nature of the worker’s duties subsequent to 1996;

Whether or not the worker is entitled to wage loss benefits beyond February 14, 2001; and

Whether or not the worker should be reimbursed for costs associated with retraining.

Decision

That the worker’s right shoulder difficulties should not be accepted as a compensable condition in relation to the 1996 compensable injury and/or to the general nature of the worker’s duties subsequent to 1996;

That the worker is not entitled to wage loss benefits beyond February 14, 2001; and

That the worker should not be reimbursed for costs associated with retraining.

Decision: Unanimous

Background

The 1996 and 2000 WCB Claims

The worker filed a claim with the WCB related to a grinding and pulling pain that she felt in her right shoulder after lifting a tray of meat on March 12, 1996. The worker indicated that she continued working after the incident. However, on the following Monday, she felt the same thing happen again with the pain being much more severe.

On March 19, 1996, the worker sought medical treatment for her right shoulder complaints. The diagnosis rendered was an acute strain of the right shoulder. At her next doctor’s visit on March 26, 1996, the physician indicated that the worker had full range of motion and slight tenderness with crepitus. He advised that the worker could return to work on April 1, 1996.

The claim for compensation was accepted and benefits were paid to the worker for nine days of time loss.

On June 20, 2002, the worker filed another claim with the WCB for a repetitive strain injury to her right shoulder and arm. The date of accident was recorded as being September 28, 2000.

The employer's injury report stated that the worker had been off work since September 28, 2000 and had filed a group insurance claim for her time loss from work. The worker was now suggesting her problems were the result of repetitive strain problems flowing from the cumulative effects of her work as a meat wrapper.

On July 18, 2002, the worker told a WCB adjudicator that she had advised her employer that her shoulder was sore because of her work. She indicated that her employer suggested that she claim benefits through Blue Cross so she did. The worker told the adjudicator that she went off work because of her right shoulder in September 2000 and was diagnosed with fibromyalgia in January 2001. The worker said she had a rotator cuff injury and was treated with three cortisone shots which lasted for four to six months before her shoulder “goes again”.

On August 12, 2002, the employer’s representative advised the WCB that they had no record of the worker reporting a work injury to her store manager in 2000 and that the store manager had no control on whether or not the worker claimed group insurance or WCB.

A Review of Certain Medical Reports

There is a significant body of medical documentation on the file. While all medical information was reviewed, a summary of some of the key documents follows.

On February 14, 2001, a sports medicine specialist performed a third party medical examination of the worker. He was specifically asked to consider:

What medical condition(s) are identified that adversely affect [the worker's] overall health?

Do the medical condition(s) result in an impairment of physical function, and if so, to what extent?

The sports medicine specialist considered reports from a physiotherapist who was treating the worker for pain involving her right shoulder in October and November 2000. In these reports, the therapist noted that the worker's right shoulder condition had improved. By November 2000, it was the physiotherapist's view, that the worker was fit to return to work in some capacity.

The sports medicine specialist also referred to an “Attending Physician’s Supplementary Statement” provided on December 5, 2000. The diagnosis of the worker’s condition was rotator cuff irritation and myofascial irritation along with polymyalgia and polyarthralgia. At that time, it was the attending physician's view that the worker was unable to perform any gainful employment.

The sports medicine physician also summarized subsequent reports by a rheumatologist dated January 9, 2001, and by the attending physician dated January 26, 2001. Both these reports suggested the worker was suffering from fibromyalgia. In his January 26, 2001 report, the attending physician went on to suggest that the worker was capable of performing modified duties if significant changes were made.

In his February 14, 2001 examination, the sports medicine physician conducted a physical examination which included, among other activities, an examination of the worker's range of motion as well as soft tissue palpation. In terms of the tissue palpation, the physician noted:

No active trigger points were identified. No taut bands were palpated. Local twitch responses were not noted.

The sports medicine physician concluded that “I did not identify any physical findings that would indicate [the worker] has an impairment of physical function that in turn would disable her from her occupational duties.”

Based on his assessment, the worker was diagnosed with mild chronic pain syndrome, mild chronic fatigue and mild headache. The sport medicine physician stated “the mild impairment associated with these conditions is based on the history of symptoms since I did not identify any physical findings that would indicate [the worker] is physically impaired to any degree. It is my opinion that the mild impairment identified is not permanent.”

In a July 29, 2001 report, the treating physician suggested that the worker was experiencing right shoulder severe impingement syndrome NYD (not yet diagnosed). He noted that the worker was treated in the past by a different physician who gave her an injection to the right shoulder in October 2000. Subjective symptoms were listed as insomnia, significant right shoulder pain, headaches, dizziness and blurred vision. The physician stated, “pt. cannot use her R shoulder for lifting also having difficulty sleeping, these issues need to be sorted out before she returns to work.”

On August 22, 2001, a different sports medicine physician reported that the worker had right shoulder pain for a few years which was getting worse. His diagnosis was acromioclavicular tendonitis secondary to acromioclavicular arthrosis.

In a narrative report dated December 18, 2001, the second sports medicine physician stated, “…I was given information as follows: that her right shoulder had been increasingly developing pain over the previous several years for which she had physiotherapy and injections in the past and that her left arm is also developing progressive worsening pain over the previous several months including the forearm and elbow. She has not worked since September of 2000 due to these limitations. She is also developing associated neck pain. On exam she was found to have symptoms of rotator cuff tendonitis in the right shoulder with associated AC arthrosis of a chronic nature. Therefore despite the injections done on September 12 I would not anticipate full resolution of her degree of symptoms and that she may require symptomatic treatment indefinitely. Physiotherapy would be helpful to improve her general conditioning though I do not anticipate that this will also result in resolution of her symptoms.”

On December 27, 2001, the sports medical specialist indicated that the worker had hip and groin pain with hand pain and spinal stiffness. The diagnosis was “Generalized osteoarthritis”.

In a report dated April 18, 2002, a rheumatologist noted that the worker was bothered by her shoulders, hands, and hips. The diagnosis was fibromyalgia, an adhesive capsulitis of the right shoulder and an element of osteoarthritis.

An occupational health physician reported on April 24, 2002, that the worker worked as a meat wrapper for 27 years, full time, 37 hours a week. She worked on her feet in a refrigerated cutting and wrapping room at 50 degrees Fahrenheit. She did extensive lifting, reaching, carrying as well as repetitive circular motion of hands and wrists pulling down plastic wrap and wrapping it around meat. The work involved handling weights less than 20 pounds but a high frequency on a repetitive basis. The occupational health physician noted that the worker had no work related pain complaints until 1996. She was off work for a few weeks with a right shoulder ache or sprain which she felt resolved 100%, a few months later she had no residual symptoms of pain or weakness. In 1998, she gradually developed onset of a more diffuse pain described as aching, stabbing discomfort in her neck, shoulder and both arms and in her low body, legs and buttocks.

The physician stated,”. . [the worker]has a three year history of soft tissue pain and decreased endurance to activities with associated fatigue. Symptoms are predominantly in her upper torso and upper extremities, more so on the right side, where there is contributing degenerative rotator cuff involvement and postural changes that likely contribute…It was interesting to observe that referred pain from hypertonic scalene muscles affect her hands and arms. I would expect that this is significant to her pain pattern, particularly in her repetitive work in a refrigerated environment, with forward reaching and bending. There are also several consequences to her forward shoulder and head posture which I recommended be addressed.”

An MRI of the worker’s shoulder dated June 12, 2003, indicated that there was no rotator cuff tear and no significant AC joint arthrosis. It suggested that “there is minor increased signal within the supraspinatus which has the appearance of tendinosis.”

The Appeal Commission Decision dated April 13, 2004

In a decision dated August 13, 2002, the worker was advised that her claim for compensation had been denied on the basis that none of the medical reports on file indicated that the worker’s shoulder problems were caused by her work duties and there was no specific incident or an increase in her work duties or workload to account for the onset of her shoulder symptoms. As such, the WCB was unable to establish that her condition was related to her general work activities.

Subsequent file records show that the worker provided the WCB with medical and other information to support her contention that her right shoulder complaints were related to her work. As both primary adjudication and the Review Office ruled that the worker’s shoulder difficulties were not work related, an appeal was filed with the Appeal Commission.

A hearing took place before an appeal panel on February 18, 2004. On April 13, 2004, the appeal panel determined, on a balance of probabilities, that the worker suffered an injury to her right shoulder that was related to her work duties. As a rationale for its decision, the appeal panel stated the following under Appeal Panel Decision No. 46/04:

“…the panel notes that the claimant’s job duties as a meat wrapper over the past 25 years were of a highly repetitive nature, involving heavy lifting, bending, turning, twisting and reaching. The physician who assessed the claimant’s job as a meat wrapper was of the opinion that the duties were of a repetitive nature involving heavy lifting of over 15 lbs. The claimant’s manager also described her duties as involving heavy repetitive lifting above and below waist levels.

The panel is further satisfied after hearing the evidence of the claimant and the store manager, that the demands of the claimant’s job increased when she was moved to the new store in November 1999. The panel notes that the store manager confirmed that the meat department doubled in size with a substantial increase in the volume of product. The panel accepts the evidence of the claimant, corroborated by notes on file from her supervising manager, that for the majority of the time there was no increase in staff to effectively assist the claimant with the dramatic increase in product and heavy trays she was required to lift in order to either wrap manually or feed product into the automatic machine. The evidence of the claimant and her supervising manager indicates that the automatic wrapper did not significantly decrease the volume of work. Although the job functions and hours of work remained the same, the panel concludes that there was a substantial increase in the claimant’s workload following the move to the new facility.

The panel also notes that in the few months preceding and following September 28, 2000, there is medical evidence indicating that the claimant suffered a repetitive strain injury to her right shoulder that was work-related. The claimant’s family physician indicated that he was treating the claimant for worsening right shoulder pain during the period from July to November of 2000. On August 30, 2000, the physician described the problem as “bursitis” and “overload”. The physiotherapist’s report during this period refers to a diagnosis of repetitive strain injury and that the claimant’s condition was aggravated at work with heavy repetitive lifting.

In the Attending Physician’s Statement completed on October 12, 2000, the family physician indicates a primary diagnosis of bursitis with a secondary diagnosis of possible rotator cuff problems. The notes of the family physician in October and November of 2000, indicate that the claimant received cortisone treatments and physiotherapy for her shoulder and when examined on November 15, 2000, the claimant’s range of motion in her shoulder had significantly improved.

While there was medical evidence indicating that subsequent to November 2000 the claimant sought treatment for multiple complaints other than the right shoulder problem, there was a diagnosis in August 22, 2001, relating to a pre-existing degenerative condition described as rotator cuff tendonitis with associated acromioclavicular arthrosis of a chronic nature and mild osteoarthritic changes. The panel is of the view that the medical evidence related to the claimant’s right shoulder supports the conclusion that the claimant suffered a temporary aggravation of her pre-existing degenerative rotator cuff condition. The panel is satisfied that the increased workload following the move to a new store in November 1999 likely resulted in a repetitive strain injury to the claimant’s right shoulder that temporarily aggravated her pre-existing degenerative shoulder problems.

As the panel has determined that the claimant’s injury to her right shoulder resulted from a temporary aggravation arising out of or in the course of her employment, the definition of “accident” has been met and claim is accepted on that limited basis. Issues relating to the entitlement of benefits will be matters that the WCB will consider as part of their further adjudication of this claim.”

Events Subsequent to the 2004 Appeal Commission Decision

A medical opinion contained in a May 19, 2004, WCB memo to file suggests that the worker's underlying problem was fibromyalgia and possible osteoarthritis of the AC joint with no proven evidence of source. The memo to file suggests that the worker stopped working in September 2000 then returned to work in May 2001 at reduced hours for approximately five weeks.

On May 27, 2004, the worker was advised by her WCB case manager that a decision had been reached concerning wage loss benefits in relation to her accepted right shoulder claim. The worker was advised that she would be paid wage loss benefits up to February 14, 2001, which was the date that she saw a sports medicine physician (the third party examination).

The worker was advised “The temporary aggravation of your pre-existing right shoulder problem had resolved by February 14, 2001 as no physical findings were identified at the time of the exam by [the sports medicine physician]. At that point the need for any ongoing time loss from work was related to your other medical problems and not to your right shoulder complaints.”

In November 2004, the worker’s union representative asked Review Office to consider whether the worker’s pre-existing condition was related to her original shoulder injury in 1996 and/or a continuance of her regular work duties following that injury. As this issue had not been addressed by primary adjudication, Review Office referred the case back to that department for consideration.

In a letter dated February 25, 2005, the WCB case manager stated that she was unable to reach the conclusion that the worker’s 1996 shoulder injury was the cause of her ongoing right shoulder complaints. She noted that the worker suffered a nine day time loss from work in March 1996 as a result of a right shoulder strain. Between 1996 and 1998, there was no evidence to show that the worker was treated for any right shoulder complaints. The medical information obtained from 1998 indicated that the worker developed diffuse pain in her neck, shoulder, arms, lower body, legs and buttocks. The worker then stopped working as a result of right shoulder complaints in 2000. In 2002, she filed a claim with the WCB for her right shoulder. It was the Appeal Commission’s finding that this claim was a temporary aggravation of a pre-existing condition.

The case manager also found that there was no relationship between the worker’s pre-existing condition and the continuance of her regular work duties following her 1996 claim. The case manager pointed out that the worker worked her regular job duties from 1996 to 2000. When seen by an occupational health physician in April 2002, he reported that the worker had been off work for a few weeks in 1996 with a right shoulder ache or sprain that completely resolved after a few months with no residual symptoms of pain or weakness. The case manager noted that there was no evidence of a degenerative condition in the worker’s right shoulder until 2003 when she had already been off work for three years. She noted that the worker’s shoulder complaints continued and worsened after she went off work in 2000. As the worker was not working, the case manager’s opinion was that the work duties were not the cause of her increasing and ongoing shoulder complaints.

With regard to work capabilities, the case manager noted that the accident employer would have been able to accommodate the worker with work that respected her shoulder restrictions. The employer would not have been able to provide the worker with a job that suited all of her other non-compensable related medical complaints.

A WCB medical advisor reviewed the file on September 13, 2005. He concluded that he saw no evidence of any significant work related injury having occurred to the right shoulder nor of any significant pre-existing condition in the right shoulder that might have been aggravated by the worker’s work activities. He went on to note that the MRI report refers to a minor changes indicative of tendinosis (not tendonitis) which is degenerative in origin and may or may not cause symptoms both inside or outside of work. In his view, the 1996 accident did not cause the pre-existing condition as it was a minor strain with minimal time loss and would have no long lasting effects. Based on the examination of February 14, 2001, he was also of the view that the worker's right shoulder condition was not disabling the worker from working regular or alternate work duties.

The case was then considered by Review Office on September 23, 2005, and the following was determined:

• That the worker’s pre-existing shoulder condition was not acceptable as a compensable condition. Based on this determination, Review Office found that the worker should not be reimbursed for costs associated with retraining and that she did not have a loss of earning capacity associated with either of her compensable injuries beyond February 14, 2001.

Review Office noted the union representative’s argument that the worker’s pre-existing condition was related to her March 12, 1996, shoulder injury and/or was related to the continuance of her regular work duties following the March 12, 1996, injury. Following review of the medical evidence noted on file, Review Office concluded that there was no identifiable long-term impairment sustained by the worker from her 1996 injury and that she made a complete recovery from this event. There was no continuity of symptoms from the time of the 1996 injury up to the time when the worker discontinued working to support the argument that the worker’s pre-existing condition was caused or worsened by her repetitive work duties. Review Office found that the argument put forth that the worker developed an inflammatory process as a result of the 1996 compensable injury which then caused the degenerative changes was refuted by various treating physicians who found no evidence of swelling/inflammation or that a primary inflammatory process existed.

Review Office noted that the case manager chose February 14, 2001, as the worker’s date of recovery on the basis of an examination that occurred on that date by a sports medicine physician. It reviewed the specialist’s report and found no evidence of findings or disability associated with the compensable shoulder injury as of that date. Medical information beyond February 14, 2001, provided no diagnosis associated with the compensable injury.

Review Office concluded that the worker’s right shoulder condition resolved and her loss of earning capacity beyond February 14, 2001, was not associated with either of her compensable injuries. As the worker did not have a loss of earning capacity beyond February 14, 2001, she was not entitled to reimbursement of the costs she incurred for her retraining.

Review Office concluded that there was no pre-existing right shoulder condition attributable to the 1996 injury and acceptable as a compensable condition;

On September 6, 2008, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

The Oral Hearing

The worker advanced a number of arguments in her oral submissions. In particular, she took issue with the February 26, 2001, examination by the first sports medicine physician. She argued that the examination was focused on fibromyalgia and did not relate to her shoulder. She also suggested that the credibility of the February 26, 2001, conclusion that she did not have fibromyalgia was undermined by a subsequent opinion dated May 19, 2004, that she did have fibromyalgia.

In her discussions with panel members, the worker agreed that at the time of her February 26, 2001 examination, her shoulder had improved. She attributed this improvement to cortisone injections. She also acknowledged that her appointment on that date was a lengthy one involving a full body examination in which she was required to move all her joints.

The employer's representative noted that over the years the worker had as many as eight diagnoses relating to her issues. She suggested that following the 1996 workplace injury, the worker had gone for two years without experiencing workplace difficulties and that when she did experience pain it was diffuse and difficult to relate to 1996 injury or ongoing job duties. The employer's representative also noted that the worker's radiological findings were normal until 2003 when degenerative supraspinatus tendinosis was identified

Reasons

The Statutory Framework

Section 4(1) of The Workers Compensation Act provides that:

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.

Section 4(2) states

Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Similarly, section 39(2) (a) notes that wage loss benefits are payable until the loss of earning capacity ends.

Overview

Based on a balance of probabilities and considering the evidence as a whole, the panel finds that:

the worker’s right shoulder difficulties should not be accepted as a compensable condition in relation to the 1996 compensable injury and/or to the general nature of the worker’s duties subsequent to 1996;

the worker is not entitled to wage loss benefits beyond February 14, 2001; and

the worker should not be reimbursed for costs associated with retraining

Key Findings

While the panel's determinations are based on a balance of probabilities and arrived at after a consideration of the record as a whole, the panel places particular reliance on the following findings:

The panel observes that the physician's findings are supported as well by the April 2002 comments of the occupational health physician that the worker:

was off work for a few weeks [in 1996] with a right shoulder ache or sprain which she felt resolved 100%, a few months later she had no residual symptoms of pain or weakness. In 1998, she gradually developed onset of a more diffuse pain described as aching, stabbing discomfort in her neck, shoulder and both arms and in her low body, legs and buttocks.

In the panel's view, there was no identifiable long-term impairment sustained by the worker from her 1996 injury.

• Given the February 14, 2001, findings of the sports medicine specialist that no trigger points were present at that point in time, the issue of fibromyalgia or of a myofascial pain syndrome cannot be related to the 1996 compensable injury and/or to the general nature of the worker’s duties subsequent to 1996. The panel notes the specialist conducted an extensive soft tissue examination on February 14, 2001. Based upon a balance of probabilities, it accepts his findings that:

No active trigger points were identified. No taut bands were palpated. Local twitch responses were not noted.

While subsequent medical reports again raise the issue of fibromyalgia, this cannot be related to the 1996 compensable injury or to the general nature of the worker's duties subsequent to 1996 given the discontinuity in symptoms and the passage of time.

• Based upon the 2003 MRI which is not disputed by the worker, the worker was experiencing a degenerative tendinosis in her right shoulder. There was no evidence of a rotator cuff injury or significant AC joint arthrosis in her right shoulder.
• The degenerative tendinosis in the worker's shoulder cannot be related to the 1996 compensable injury or to the general nature of the worker's duties subsequent to 1996. In making this determination based on a balance of probabilities, the panel places heavy emphasis upon and adopts the opinion of the WCB medical advisor who reviewed the file on September 13, 2005.

He concluded that he saw no evidence of any significant work related injury having occurred to the right shoulder nor of any significant pre-existing condition in the right shoulder that might have been aggravated by the claimant's work activities. He went on to note that the MRI report refers to a minor changes indicative of tendonosis (not tendonitis) which is degenerative in origin. In his view, the 1996 accident did not cause the pre-existing condition as it was a minor strain with minimal time loss and would have no long lasting effects.

In the panel's view, based upon a balance of probabilities, the worker's job duties did not cause her degenerative shoulder condition.

•  As of February 14, 2001, there was no loss of earning capacity related to the 2000 compensable injury, the 1996 compensable injury or to the general nature of the worker’s duties subsequent to 1996.

In making this finding based upon a balance of probabilities, the panel relies upon and accepts as credible the findings of the sports medicine specialist that there were no “physical findings that would indicate [the worker] has an impairment of physical function that in turn would disable her from her occupational duties.” The panel notes that these findings were accepted in the 2005 report of the WCB medical advisor who held that based on the examination of February 14, 2001, he was also of the view that the worker's right shoulder condition was not disabling the worker from working regular or alternate work duties.

The panel notes that the specialist's conclusion in this regard are supported by the worker's frank admission in the oral hearing that at the time of her February 26, 2001 examination, her shoulder had improved. It notes as well that the November 2000 report of the physiotherapist and the January 2001 report of the attending physician are also suggestive of a general improvement in the worker's shoulder condition.

In making its determination, the panel notes the sports medicine specialist conducted what the worker described as a “lengthy” examination including “a full body examination in which she was required to move all her joints.”

While the worker argues that the sports medicine physician was focused on the issue of fibromyalgia and did not address his mind to any specific shoulder injury, the panel based upon a balance of probabilities, rejects that contention. It notes that the mandate of the sports medicine specialist was a broad one in which he was directed to consider all medical conditions adversely affecting the worker’s health and her physical function. It observes that the specialist expressly conducted an examination of the worker's range of motion. Moreover, the specialist clearly had the issue of the shoulder injury before him as it was raised in the fall and early winter of 2000 reports of the physiotherapist and the attending physician which were cited at length in the sports medicine specialist's report.

• Given the panel's findings that the worker’s right shoulder condition is not associated with either her 1996 injury and/or her subsequent job duties and that her loss of earning capacity beyond February 14, 2001, was not associated with either of her compensable injuries, the panel finds that reimbursement for retraining cannot be accessed as the need for retraining is not related to a compensable accident.

Conclusion

Based upon a balance of probabilities, the panel finds that:

The worker's right shoulder difficulties cannot be accepted as a compensable condition with regard to her 1996 compensable injury or the general nature of her duties subsequent to 1996.

While the worker suffered compensable injuries in 1996 and 2000, there is no loss of earning capacity related to those injuries after February 14, 2001;

Reimbursement for retraining cannot be accessed as the need for retraining is not related to a compensable accident.

Accordingly, the appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 26th day of February, 2009