The Appeal CommissionThe Workers Compensation Act of Manitoba

Initial Report

On May 16, 2008, the worker filed a claim with the WCB for right shoulder difficulties that he related to the heavy lifting, pushing and moving of gear and panels of significant weight that was required as part of his work duties as a mechanic. The worker wrote in his Incident Report that he first noticed symptoms in September 1995, which he described as a lack of strength and a constant aching pain in his shoulder. He also wrote that he had noticed that there was something wrong with his shoulder prior to 1995.

Employment History

The worker has been employed with the same employer since 1980, beginning in the position of Junior Mechanic. He testified that in the early 1990’s he started having discomfort and worsening pain in his right shoulder.

The evidence indicated that the worker was employed as a Mechanic and Aircraft Technician from 1980 to 1991; as a Certified Aircraft Technician (CAT) from 1991 to 1998; as an Aircraft Inspector (AI); Lead Licensed Aircraft Technician (LLAT) from 1998 to 2003; and Process Auditor from 2003 to 2008. At the hearing, the worker and a co-worker described the duties of his positions from 1980 until 2003, as having been physically demanding. The worker described in detail the repetitive overhead duties he performed in his positions as a Mechanic, CAT, AI and LLT from 1980 to 2003, which involving heavy lifting, pushing and pulling, often using the right shoulder to hoist and lift heavy parts of the airplane. The worker testified that by 2003 his shoulder pain was so severe that he decided to take the position of Process Auditor, and from then on he performed significantly lighter duties that did not involve as much hands-on mechanical work or physically demanding duties.

At the hearing the worker described the onset of his shoulder pain as having progressed very gradually from 1995 to 2008. He testified that in 1995 it wasn’t a daily problem and that it slowly worsened over 5, 6 or 7 years. He testified that the pain and discomfort continued to progress after 2001-2002 and during the period between 2006 and 2008, he was experiencing constant pain that would not go away. He did not associate the pain with any specific traumatic event.

Medical Reports on File

According to the September 10, 2008 medical report from the worker’s family physician, the worker initially presented with shoulder complaints in 1998, when he complained of crepitus in both shoulders. In September 2001, the worker complained specifically of pain and stiffness in his right shoulder. The family physician noted that no specific injury was reported to account for his symptoms, but the worker felt that the constant pushing, pulling and overhead activities of his work was responsible. An x-ray of the right shoulder taken on November 27, 2001 showed advanced degenerative changes. The physician reported that in 2006 the worker “continued to struggle with constant pain, aggravated by his workplace activity” and he was referred to an orthopaedic specialist.

The file indicates that the worker had been assessed by an orthopaedic surgeon in 2002 who noted in a report dated January 18, 2002 that the worker’s right shoulder had been troubling him for the last few years and that his symptoms appeared to be progressing. The orthopaedist noted that the worker had milder symptoms on his left side. The report indicated that the x-ray showed moderately significant degenerative changes and the orthopaedic surgeon concluded that the worker’s symptoms were secondary to degenerative arthritis of the right shoulder. Surgical treatment was not recommended at that time given the worker’s young age.

The worker was referred to an orthopaedic specialist in 2006 who examined the worker on June 5, 2006 and on July 4, 2007. X-rays of the right shoulder taken on May 13, 2005 and May 6, 2006 showed advanced degenerative changes. An MRI of the right shoulder taken on August 31, 2006 showed severe osteoarthritic changes and noted that there was no evidence of a rotator cuff tear. The physician’s July 4, 2007 chart notes indicate that the worker was seen for recurrence of pain in his right shoulder. The chart notes also refer to left shoulder symptoms and an x-ray of the left shoulder was ordered. An x-ray of the left shoulder taken on January 11, 2008 showed moderate degenerative changes.

The worker was examined on August 10, 2007 for a consult with the orthopaedic surgeon for right shoulder pain. The examination notes indicate that the worker advised that he had pain for many years and that he had not experienced any trauma or accident in the past. A review of the x-rays and MRI showed severe osteoarthritic changes on the right shoulder and there was no evidence of rotator cuff tear. The worker was told that the principal reason for his problem was osteoarthritis of his shoulder. Surgery was scheduled for May 27, 2008.

The worker was examined by the orthopaedic surgeon on May 20, 2008. The surgeon’s report indicates that on that day the worker was reassessed with regard to his left shoulder and that the worker “has had left shoulder osteoarthritis for the past several months… His increasing shoulder problems were investigated at the last visit and he was found to have osteoarthritis of the left shoulder….A recent MRI shows right shoulder advanced glenohumeral osteoarthritis with extensive degenerative tearing of the posterior labrum. On the left side, he also has glenohumeral osteoarthritis, which is less severe than the right side. Also, he has degenerative tearing of the posterior labrum. His left side is currently more symptomatic.”

A right shoulder hemiarthroplasty was performed on May 27, 2008. The operative report confirmed right shoulder osteoarthritis.

WCB and Review Office Decisions

The WCB advised the worker in July 2008 that his claim for compensation was denied on the basis that the medical information indicated that the significant osteoarthritis in his right shoulder was a degenerative disease of life and was not related to his work duties. The WCB received the September 10, 2008 report from the worker’s family physician referred to above and advised the worker that this medical information did not change its previous decision denying the claim.

By notice dated September 12, 2008, the worker’s union representative requested that the Review Office reconsider the adjudicator’s decision arguing that the worker’s repetitive work duties played a role in the development of his osteoarthritis. The representative provided a report dated June 11, 2008 from the worker’s treating surgeon who examined the worker following surgery. The report stated: “To reiterate this man’s history, he is a long-standing mechanic at [employer’s name] with a repetitive style of work from 1980 to 2003. He has had shoulder pain since 1995. He was a member of the Canadian Armed Forces as a rifle marksman. The repetitive activity at work likely contributed to his early degeneration. It, in my opinion, has enhanced the previous injuries he sustained as a marksman with the butt of the rifle repetitively impacting the anterior shoulder.”

In a decision dated October 2, 2008, the Review Office determined that the worker’s claim was not acceptable and denied the appeal. The Review Office noted that the medical evidence showed that the worker had osteoarthritic changes in the glenohumeral joint of both the left and right shoulders. The Review Office pointed out that osteoarthritis is a progressive disorder that leads to joint symptoms as a result of a gradual breakdown of articular cartilage or “wear and tear” and that this type of progressive osteoarthritic condition is not considered an injury caused by an accident arising out of and in the course of employment under The Workers Compensation Act (the “Act”).

Additional Medical Information

The worker’s union representative filed an appeal to the Appeal Commission and provided two additional medical reports. A report dated February 4, 2009 from the worker’s treating surgeon stated that the worker’s long standing complaints dated back to an injury at work on September 8, 1995; that he has only treated the worker since August 2007; that the worker related long standing pain worsening over the last couple years and concludes that “the likelihood is that the jobs that he had previously held were an enhancing feature of his chronic ongoing pain.”

The union representative also submitted a report dated March 4, 2009 from the worker’s family physician confirming that the worker has complained of right shoulder pain since 1995; that his right shoulder problem had progressively worsened over the years as a result of stress and strain in the workplace; and that x-rays confirmed severe osteoarthritis which was consistent with the severe pain and suffering he experienced with even light activity.

Following the hearing held on May 26, 2009, the appeal panel asked the worker’s treating surgeon to clarify the comments made in his May 20, 2008 notes, which stated that the worker’s left shoulder was more symptomatic than his right. The surgeon responded in a letter dated June 8, 2009 stating:

“… I reviewed the chart note dated May 20^th, 2008 with regard to the above-named patient. This man has bilateral osteoarthritis. Originally, the left side was more symptomatic. He then decided subsequently that he would like to have the right side done as his symptoms became more severe on the right.”

A further letter from the treating surgeon dated October 6, 2009 was provided to the panel. The letter advised that the worker had reviewed the matter with the surgeon and asked him to clarify his comments on the worker’s bilateral osteoarthritis. The surgeon wrote that the worker only mentioned left shoulder problems once in a visit to another orthopaedic specialist and when he met with the worker on May 20, 2008. The surgeon wrote that the worker had a very brief bout with left sided shoulder pain and predominately throughout the years, his right shoulder has been the problem. The surgeon did not change his diagnosis that the worker has bilateral osteoarthritis.

The panel also referred the file to the Appeal Commission Medical Advisor to obtain an independent opinion from an orthopedic specialist on the etiology of the worker’s right shoulder condition and the relationship if any between the worker’s shoulder condition and his work duties. The panel received a report from an orthopaedic surgeon dated September 11, 2009.

In the report, the orthopaedic surgeon confirmed that the worker suffers from glenohumeral osteoarthritis of the shoulder bilaterally. The orthopaedic surgeon noted that the medical literature indicates that this type of primary osteoarthritis is a degenerative condition and that the only exception is a specific form of post-traumatic arthritis, which requires major traumas such as fractures or dislocations, rather than repetitive lesser traumas of the kind associated with the worker’s heavy duties. The surgeon also noted the bilateral nature of the worker’s osteoarthritis, which indicates a primary degenerative condition and the absence of any rotator cuff tears or rotator cuff disease that is frequently related to overhead work. As the surgeon noted, in the worker’s case “there is no rotator cuff pathology and my understanding of the literature does not indicate that overhead work generates degenerative arthritis of the shoulder.”

Conclusion

Subsection 4(1) of the Act provides for payment of compensation benefits where “personal injury by accident arising out of and in the course of employment is caused to a worker”.

Subsection 1(1) of the Act defines “accident” as “a chance event occasioned by a physical or natural cause; and includes

(a) a wilful 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.”

The panel is of the opinion that on a balance of probabilities, the evidence supports a conclusion that the worker’s osteoarthritis in his right shoulder is an ordinary disease of life that progressed as a result of the normal aging process and the degenerative nature of this disease and the worker’s condition was not caused by, aggravated by or enhanced by his work related duties. Accordingly, the worker’s condition did not result from an accident arising out of and in the course of his employment as required under the Act. We have reached this conclusion for the following reasons:

• The September 11, 2009 report of the orthopaedic surgeon explained that the osteoarthritis suffered by the worker was degenerative and not related to any major trauma, such as a fracture or dislocation that, according to the medical literature, is required to cause post-traumatic arthritis.
• The worker’s evidence was that his shoulder condition progressed gradually over many years beginning in the early 1990’s. While he testified that his duties from 1980 to 2003 involved repetitive heavy lifting, pulling and shoving with his right shoulder, his evidence was that he did not suffer any specific or significant trauma such as a fracture or dislocation or other major event.
• While the worker’s treating surgeon opined that the worker’s jobs likely enhanced his chronic pain, we note that when he provided this opinion in his report dated February 4, 2009, he was under the impression that the worker’s shoulder complaints related to a September 8, 1995 work injury, which was not the case. The evidence before the panel did not indicate that the worker suffered any specific injury or significant trauma on that date, but rather the worker indicated that he began noticing symptoms of weakness and chronic pain in September 1995.
• The worker’s family physician who first treated the worker in 1998 indicated that the worker first presented with complaints of crepitus in both shoulders and no association with any major trauma at work was indicated.
• In addition, the evidence of the orthopaedic surgeon in 2002 was that the worker’s symptoms were secondary to degenerative osteoarthritis. There was no indication at that time that the worker’s condition was related to post-traumatic arthritis; and
• The medical evidence indicates that the worker suffered from bilateral glenohumeral osteoarthritis, which, in the absence of evidence of significant trauma to both shoulders, is associated with a degenerative disease. The worker’s evidence was that it was his right shoulder that caused him pain as a result of the repetitive heavy lifting and pushing he did primarily with his right shoulder. The medical evidence that his condition is bilateral suggests that the worker suffers from a degenerative condition and the natural wear and tear process to the shoulders bilaterally, rather than work-related post-traumatic arthritis.