Decision #84/10 - Type: Workers Compensation

Preamble

The worker is appealing a decision by Review Office of the Workers Compensation Board (“WCB”) that her right shoulder difficulties were unrelated to her work duties as a central sterilizing technician (“CSR”). An appeal was filed with the Appeal Commission through the Worker Advisor Office and a hearing was held on July 20, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker's ongoing right shoulder condition is related to the September 28, 2004 compensable injury.

Decision

That the worker's 2008 claim is not acceptable; and

That the worker's ongoing right shoulder condition is related to her 2004 compensable injury.

Decision: Unanimous

Background

In early March 2008, the worker filed a claim with the WCB for right shoulder difficulties that she related to her job duties as a CSR in a healthcare facility. The accident was reported as occurring February 20, 2008 and being reported to the employer on March 3, 2008. The worker stated that her shoulder difficulties were ongoing and that she injured her shoulder in the past which she believed was due to arthritis.

The employer’s accident report indicated that the worker had a previous injury to her right shoulder and that it had been aching for over a year. The worker thought it was due to arthritis as it ached and worsened to the point where the muscles kept tightening up and her two fingers were numb. During a formal meeting in regard to the worker's attendance record, the worker disclosed that she was currently trying to work through her sore shoulder.

Initial medical information showed that the worker attended for treatment on February 20, 2008 complaining of right shoulder pain with limitation of movement above shoulder level for many months. The diagnosis outlined was right rotator cuff syndrome.

Upon referral from the treating physician, the worker was seen by a physiotherapist in February 2008. The diagnosis was rotator cuff tendinopathy and muscular spasm.

A WCB adjudicator spoke with the worker by telephone on March 4, 2008 to obtain additional information regarding the onset of symptoms, the reporting of her shoulder difficulties to the employer and specifics regarding her job duties. A Physical Demands Analysis of the worker’s job duties is also on file.

On April 2, 2008, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor confirmed that the most likely diagnosis was rotator cuff tendinopathy. She indicated that the most likely cause of the condition was repetitive overhead work, especially with force and heavy lifting. She stated that the rotator cuff degenerates with age and can cause pain without any history of trauma.

In a decision dated April 9, 2008, the worker was advised that her claim for compensation was not acceptable as the WCB was unable to establish a relationship between her job duties and the diagnosis of rotator cuff tendinopathy. The adjudicator noted that the most likely risk factors associated with rotator cuff tendinopathy were repetitive overhead work, especially with force and heavy lifting. She indicated that the worker’s job duties of frequent light lifting with both arms, occasional moderate lifting with both arms and occasional over-shoulder lifting with both arms did not meet the risk factors associated with rotator cuff tendinopathy.

Subsequent to the above decision, medical information showed that the worker was seen by an orthopaedic surgeon on July 15, 2008. The surgeon reported that the worker jarred her right shoulder at work in 2004 when she fell while leaning back to sit down on a chair. The worker missed time from work but her shoulder symptoms eventually resolved. Over the last year, the worker had a recurrence of superior shoulder pain that was worse with any lifting or repetitive activities. Her job involved a fair bit of overhead work which seemed to aggravate the problem. The specialist reported that an MRI of the shoulder showed mild osteoarthritis (“OA”) at the acromioclavicular (“AC”) joint but was otherwise normal. He felt the worker had features of AC joint arthrosis that was likely related to a work injury. The suggested treatment was an AC cortisone injection and possibly an arthroscopic AC joint resection.

On August 8, 2008, a WCB adjudicator wrote the worker to advise that the July 15 report was considered but based on the results of a physical demands analysis of her position provided by the employer, the WCB could not establish that her job duties were consistent with the current diagnosis.

On March 27, 2009, a worker advisor asked the WCB to reconsider the April 9, 2008 decision based on new information which included a statement from the worker along with a copy of her job duties as an OR/CSR technician and a medical report dated August 21, 2008. The worker submitted that she had been involved in a lot of overhead work at her job. She was 5’3” tall and did a lot of additional reaching due to her short stature. She noted that the basin racks stand 6 feet tall and are loaded 2 dozen times per shift. The worker stated that the additional reaching aggravated her right shoulder which became progressively worse and she filed a claim on February 26, 2008. The report from the treating surgeon dated August 21, 2008 outlined the opinion that the worker’s right AC joint arthrosis appeared to be related to a 2004 work injury when she landed on her right arm and injured her shoulder. The worker advisor indicated that the specialist supported that the worker’s previous 2004 compensable right shoulder injury was aggravated by her work duties and that this condition resulted in surgical treatment on December 29, 2008. It was the worker’s position that the evidence supported a causal relationship between her right shoulder condition and her work duties.

Following review of all new information which included the worker advisor’s submission, the statement from the worker, the medical report of August 21, 2008 and information obtained from the employer, the WCB adjudicator confirmed on May 27, 2009 that the WCB was unable to establish a relationship between the worker’s current diagnosis of AC joint arthrosis and osteoarthritis to her work duties or a relationship between the worker’s current injury and an injury that occurred on September 28, 2004. On May 29, 2009, the worker advisor appealed the decision to Review Office.

On June 4, 2009, Review Office asked primary adjudication to arrange for a WCB vocational rehabilitation specialist to attend the worksite and perform a job task analysis.

A work site visit took place on July 31, 2009.

In a letter to the worker dated September 29, 2009, the WCB adjudicator stated the following:

“…the worksite assessment recently completed included an emphasis of a review of your job duties in relation to shoulder use. I have reviewed your claim in its entirety. Based on a complete review of the information on file, I acknowledge that your job duties involve a lot of hand, arm and shoulder movement throughout your varied duties. There is some heavier lifting with both hands, however there is a variety of weights of the pans lifted and carried. In order to accept this claim for right shoulder tendinopathy or an aggravation of this condition, repetitive overhead or over-shoulder tasks must be established. Your job duties involve some occasional bilateral over-shoulder activity, but unfortunately I am unable to establish sufficient exposure of repetitive right arm overhead or over-shoulder tasks in your job duties…”

In a submission to Review Office dated October 8, 2009, the worker advisor submitted that the worker’s surgeon provided support for a causal relationship between the worker’s current right shoulder condition and the October 2004 compensable injury in his August 21, 2008 report. The worker’s opinion was that the additional stocking of CSR carts and shelves prior to February 26, 2008 aggravated her pre-existing right shoulder condition.

On November 12, 2009, the employer’s advocate submitted to Review Office that the available evidence on file did not support a link between the worker’s recent shoulder difficulties and her work duties over the past several years.

In a decision dated November 26, 2009, Review Office determined that the worker’s claim for compensation was not acceptable. Review Office considered the worker’s prior compensable injury that occurred on September 28, 2004 when the worker fell from her chair, landing on her outstretched right arm in an attempt to break her fall. When the worker stopped seeking medical attention for the rotator cuff strain, her symptoms were approximately 80% improved. When the worker filed her claim in March 2008 she stated that her right shoulder had been aching for the past year. Her condition was diagnosed as a right rotator cuff syndrome, however, surgical intervention revealed a normal rotator cuff and a Type 1 acromion. The post operative diagnosis of right AC arthrosis was made by the surgeon who noted an MRI finding of mild OA of the AC joint.

Review Office stated that it was unable to accept the assertion that the mild OA of the worker’s AC joint was caused by the rotator cuff strain sustained in 2004. It also did not consider the worker’s job duties to have materially contributed to her right shoulder complaints diagnosed as AC joint arthrosis. Review Office concluded that the 2008 claim was not acceptable. On December 14, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

On June 29, 2010, the worker advisor provided the Appeal Commission with an information sheet on AC arthritis that would be discussed at the oral hearing.

Reasons

Preliminary Issues

The worker's appeal to the Appeal Commission was originally framed on a single issue on whether or not there was an acceptable claim in 2008 with respect to the worker's right shoulder difficulties. It became evident at the hearing that there was a second possibility with respect to the adjudication of the worker's difficulties, namely that the worker's current condition could be causally related to the worker's prior 2004 WCB claim which established a compensable right shoulder condition at that time.

A review of the Review Office decision at the Appeal Commission hearing, in the presence of both parties, indicates that there was considerable analysis within it regarding the relationship to the 2004 compensable injury, but that the final decision made by Review Office only addressed the acceptability of the 2008 claim. Both parties at the hearing indicated that they were prepared to deal with both arguments and both claims at the hearing (claim acceptability for a 2008 injury, and whether there was a causal relationship between the 2004 injury and the worker's current condition). The panel had already been provided with and reviewed copies of the entire WCB files regarding each of the claims, and given the consent of all interested parties, the panel indicated that it was prepared to address both issues.

The panel indicated that procedurally it was required by Regulation to ask the Chief Appeal Commissioner to add the issue to the appeal, but was fully prepared to have both issues discussed at the hearing. This was done, with the concurrence of both parties. The panel did in fact make this request immediately following the hearing, and the issue was formally added by the Chief Appeal Commissioner.

As such, the issues in this appeal were amended to add a second issue, namely whether or not the worker's ongoing right shoulder condition is related to the worker's 2004 compensable injury. This decision deals with both issues.

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), any supporting Regulations, and policies enacted by the WCB Board of Directors.

The first issue deals with the worker's appeal on her 2008 claim as to the acceptance of her claim.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

Subsection 1(1) provides specific definitions of what qualifies as an accident. In particular, it provides:

"accident" means 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 second issue deals with an appeal by the worker on her 2004 claim as to whether her ongoing right shoulder complaints are casually related to her 2004 compensable injury to her right shoulder.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.

Subsection 27(1) of the Act provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

The Worker's Position:

The worker was represented by a worker advisor at the hearing. Their position was that the worker's ongoing right shoulder difficulties are related to her work duties. They were equally prepared to argue that a) there was a new accident in 2008, caused by ongoing aggravation over the previous year from her job duties, or that b) the worker's current diagnosis was linked to the worker's earlier 2004 work injury to that same area. In their view, the net result would be the same for the worker. They submitted that the worker's right shoulder surgery in December 2008 clarified that the worker's right shoulder complaints were specifically due to AC joint arthrosis/osteoarthritis, rather than the many earlier diagnoses which had been considered including rotator cuff syndrome, rotator cuff tendinopathy, and muscle spasms.

The worker advisor proposed two alternative scenarios to the panel with respect to the AC arthrosis diagnosis. The first was that the AC arthrosis was a sequela to the worker's original work-related right shoulder injury in 2004. In other words, the nature of the injury in 2004 led to the later development of AC arthrosis, with the passage of time. The second was that the worker had a pre-existing AC arthrosis, as identified in diagnostic tests and later in the surgery, and that the worsening of the worker's right shoulder over the year prior to her February 2008 accident claim was caused by her performance of repetitive job duties that involved considerable use and range of motion of her hands, arms, and shoulders over the course of her work days. As such, the worker had an acceptable claim in 2008 on the basis of an aggravation of a pre-existing medical condition in her right shoulder.

The Employer's Position:

The employer was represented by an advocate. His position was that he supported the rationale provided in the earlier Review Office decision, and encouraged the panel to adopt a similar rationale in making its decision in this case. If anything, he advised there was more likely to be a relationship to the 2004 claim than to a new claim in 2008.

Analysis:

For the worker to be successful in her appeal, the panel would have to find either that the worker suffered a new accident in 2008, or that the worker's ongoing right shoulder complaints are causally related or a sequela of her earlier 2004 compensable injury to her right shoulder.

After consideration of all the evidence on the file as presented at the hearing, the panel has found on a balance of probabilities that there was no new accident in 2008, but does find that the worker's ongoing right shoulder difficulties are causally related to her earlier 2004 claim, for the reasons that follow:

  • In the 2008 claim, the worker's and employer's original accident reports do not indicate an acute injury to the right shoulder. Rather, they indicate that her right shoulder had been aching for over a year, and she had referenced the possibility or belief that she had arthritis in her shoulder. There had been no change in her job duties. Her shoulder would get worse while she was performing her work duties as a technician in a health care facility in which she was receiving, cleaning and preparing a variety of instruments and trays for a variety of uses in the facility.
  • The panel notes that the worker's orthopaedic surgeon has provided a diagnosis of AC arthrosis in the worker's right shoulder, following his review of an MRI, and which he ultimately confirmed during an arthroscopic surgery that he performed on the worker on December 29, 2008. More specifically, the surgery disclosed that other earlier diagnoses that had been proposed such as rotator cuff syndrome, rotator cuff tendinopathy and muscle strain were ruled out, as the shoulder was normal in all other respects. The panel therefore accepts the diagnosis of AC arthrosis as being the basis for the worker's pain complaints in 2008 and for her pain complaints in the year prior to her filing her claim in February 2008.
  • The question then turns as to the potential cause(s) of the diagnosis of AC arthrosis, and whether it has, on a balance of probabilities, arisen out of either the 2008 or 2004 claims. The worker advisor provided the panel with literature describing various causes of AC arthrosis, and directed the panel to references that one cause of AC arthrosis is a previous injury to that shoulder, and particularly: "the arthritis may be the result of an old injury to the joint, such as an acromioclavicular separation. This injury is common and can result from a fall on the shoulder. The shoulder gets better after the injury and years may go by before the degeneration causes the AC joint to become painful." The panel notes that this etiology has also been proposed by the worker's orthopaedic surgeon, who in his report of August 21, 2008 notes that: "She was diagnosed with right AC joint arthrosis which appears to have been related to a work injury in 2004." At the hearing, the panel did have the opportunity to hear evidence from the worker about her 2004 injury, when she fell off a chair and landed on an outstretched arm, jarring her shoulder. The worker did have medical treatment at that time, with a short time away from work, but was described as only being 80% recovered at the time she returned to work. In the panel's view, the mechanism of injury at the time of the worker's 2004 workplace injury is consistent with the type of jarring or shoulder injury that was described by the worker's attending orthopaedic surgeon and the literature available to the panel as to the causes of this particular medical condition. The later development of painful symptoms and the eventual need for surgery is consistent with the worker's evidence that she has had ongoing right shoulder symptoms over the years, which worsened over the year prior to the worker's reconnection with the WCB in 2008 with respect to her medical difficulties and job attendance issues.
  • With respect to the worker's 2008 claim, the panel notes that much of the adjudication and information gathering on the file focused on exploring causal relationships between the earlier working diagnoses of rotator cuff injuries to the worker's job duties. However, as noted, the diagnosis changed in later 2008 to AC joint arthritis, and the panel notes that there is no medical support and nothing in the literature provided to suggest that an AC arthrosis would occur directly from the worker's performance of repetitive job duties. Therefore there is no basis for the panel to conclude that the worker's AC joint arthritis was directly caused by her work duties as a CSR technician.
  • As for the argument that the worker's job duties aggravated the worker's pre-existing AC arthrosis condition, it is the panel's view that the worker's shoulder was hurting at work (that is, becoming sorer at work) but was not hurt at work. The panel finds that that the worsening of the worker's shoulder condition is more consistent with the expected development and worsening over time of an arthritic condition associated with the worker's right shoulder injury in 2004, rather than a new accident having occurred in 2008.

On the basis of this analysis, the panel has concluded on a balance of probabilities that the worker did not suffer a new accident in 2008 with respect to her right shoulder. Rather, the worker's right shoulder AC arthrosis condition is causally related to her 2004 compensable injury. Therefore, the worker's appeal is unsuccessful with respect to the first issue, being the acceptability of her 2008 claim, and the worker is successful in her appeal with respect to the second issue, being the relationship of her ongoing right shoulder difficulties to her 2004 claim.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of September, 2010

Back