Decision #159/11 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") in relation to her claims for work related injuries which she reported occurred on August 18, 2010 and March 27, 2009. A hearing was held on August 10, 2011 to consider the matter.

Issue

Accident date March 27, 2009: Whether or not the claim is acceptable.

Accident date August 18, 2010: Whether or not the claim is acceptable.

Decision

Accident date March 27, 2009: That the claim is acceptable.

Accident date August 18, 2010: That the claim is not acceptable.

Decision: Unanimous

Background

Accident date of March 27, 2009:

On April 20, 2009, the worker filed a claim with the WCB for a left shoulder injury that occurred on March 27, 2009 when she awoke at home and felt a tight and painful neck and shoulder. The worker indicated that she had a previous 2008 WCB claim for a rotator cuff injury that had never healed. The worker noted that she had been performing different job duties for approximately two weeks when her shoulder symptoms started to develop. She did not complain to anyone at work as she thought that her symptoms would go away. She reported the accident to the employer on April 2, 2009.

The employer's accident report indicated that the date of accident was April 3, 2009. The worker advised them that her left shoulder difficulties resulted from an injury that occurred with a previous employer where she had dislocated her shoulder. The injury apparently had flared-up last year and this year. The worker indicated that she was not doing anything unusual or out of the ordinary and was unsure if the cross-training she was doing actually contributed to the flare-up.

On April 23, 2009, the worker advised a WCB adjudicator that her left shoulder problems were due to working on a two week project that started on March 16. The duties were different than her regular duties. She started to notice pain in her left shoulder/neck around or about March 27. The worker noted that she continued to have pain stemming from her 2008 WCB claim for a shoulder girdle/neck strain but this time the pain was different. The worker said she was unable to hold up her arm up or do any movements due to pain.

The employer provided the WCB with a job description of the worker's normal job duties as well as the job duties that she performed between March 16 and 29, 2009.

On April 3, 2009, the worker saw a physician for her left shoulder difficulties. The physician reported that the worker had limited movements of the shoulder and pain in the mid-neck region. The worker advised the physician that she had been lifting more than usual over the last few weeks and that her condition recently worsened. The diagnosis was whiplash and rotator cuff left shoulder injury.

On April 22, 2009, the worker sought treatment from a physiotherapist and was diagnosed with an exacerbation of chronic strain of the left shoulder.

In a decision dated May 7, 2009, the worker was informed that the WCB was unable to accept responsibility for any wage loss or medical treatment costs as an accident had not been established. The adjudicator indicated that she was unable to confirm during her investigation that there was any increase or significant change to the worker's job duties to account for the onset of her non-dominant left shoulder difficulties.

A chiropractic report dated June 2, 2009 showed that the worker received treatment for her shoulder/left scapula area from April 24, 2008 to March 12, 2009.

On June 24, 2009, the worker requested that the WCB reconsider the May 7, 2009 decision as she felt there were some inaccuracies on file concerning the nature of her job duties. Following contact with the worker's employer and upon reviewing further medical information, the worker was advised on July 9, 2009 that the WCB was still unable to establish that an accident occurred.

On December 15, 2010, the Worker Advisor Office appealed the WCB's decision to deny responsibility for the worker's claim. The worker advisor noted that when the worker returned to her regular job duties on July 25, 2008, she only performed light lifting. Subsequently, in March 2009, the worker began lifting window pieces weighing between 30 and 100 pounds. The worker stated that when she began performing regular heavy lifting she experienced an exacerbation of her left shoulder symptoms. Taking into consideration WCB Policy 44.10.20.10, Pre-existing Conditions, it was submitted that the worker had a pre-existing left shoulder condition and the change in her lifting duties in March 2009 exacerbated her left shoulder symptoms.

In a decision dated March 10, 2011, Review Office determined that the worker's claim for left shoulder difficulties was not acceptable. Review Office outlined the opinion that the worker had experienced chronic left shoulder symptoms for many years based on the June 2, 2009 chiropractic report. Review Office indicated that it was unable to establish that the change in the worker's job duties in March 2009 resulted in an accident as defined in the legislation or that the claim met the criteria of Policy 44.10.20.10, Pre-existing Conditions. On March 11, 2011, the worker advisor appealed the decision to the Appeal Commission.

Accident date August 18, 2010:

Th worker filed a claim with the WCB on September 1, 2010 for injury to her middle back and between her shoulders which she reported commenced on August 18, 2010 from the following activities:

I work in specialty shapes area. We were working with a different type of metal. One unit was impossible to clip the metal in. After I was done the one section I felt like a pinched nerve in the upper part of my spine. I couldn't get to the next one.

The employer's accident report dated August 30, 2010 indicated that the worker pinched the upper middle back while applying frame metal.

On September 7, 2010, the worker provided the WCB with additional information about the job she was performing on August 18. The worker noted that the unit she was working on was "tempered metal" which was harder to use and she was applying force to try and clip the metal in. Her upper back between her shoulder blades became very painful, like she had pinched a nerve. The worker noted that she completed the remainder of her shift but her partner helped her with the rest of the metal applications. The worker indicated that she saw a chiropractor the evening of her injury. She attended the chiropractor for maintenance treatments approximately once a month for headaches, left rotator cuff, ankle and also her upper back.

Medical reports on file showed that the worker saw a physician on August 26, 2010 who reported tender muscles in the back. The diagnosis was a muscle spasm.

On August 30, 2010, the worker attended a physiotherapist and the diagnosis was a musculoligamentous strain/sprain of the thoracic spine.

A chiropractic report received at the WCB on September 22, 2010 indicated that the worker came to the office on August 11, 2010 complaining of mid back and left ankle pain. The mid- back started to hurt while at work. The worker was unable to state a specific incident that precipitated the pain but it came on gradually throughout the morning. The diagnosis rendered on August 11, 2010 was "vertebral subluxation of the thoracic spine concomitant with a mild sprain/strain of the associated soft tissues."

On October 1, 2010, the worker was informed that the WCB was unable to accept her claim and she was not entitled to wage loss benefits or medical treatment costs. The adjudicator advised that she was unable to establish a direct relationship between the work activities and the development of the worker's symptoms diagnosed as a vertebral subluxation of the thoracic spine with a mild sprain/strain of associated soft tissues. The adjudicator noted that the medical information confirmed that her symptoms pre-dated her work injury of August 18, 2010 and there was no change in reported symptoms, objective findings and diagnosis per the treating chiropractor.

On December 15, 2010, the Worker Advisor Office appealed the adjudicator's October 1, 2010 decision to Review Office. The worker advisor pointed to the following evidence to support that there was a relationship between the onset of the August 18, 2010 mid-back symptoms and the August 18, 2010 incident of using extra force to clip metal on to a window frame:

  • The worker described an incident on August 18, 2010 and she reported it to her supervisor and sought medical treatment the same day.
  • The mechanics of the August 18, 2010 incident matched the diagnosis of muscle spasms and mechanical thoracic spine pain.
  • The worker sought medical treatment from her doctor and from a sports centre following the August incident which was not part of her regular maintenance care; and
  • The examinations of August 18, August 26 and September 15, 2010 all indicated symptoms in the mid-back region.

On February 17, 2011, Review Office indicated that it was unable to establish that the worker sustained personal injury due to an accident arising out of and in the course of her employment on August 18, 2010. Review Office stated that it placed weight on the medical information provided by the worker's chiropractor. It noted that the chiropractor was not aware that the worker sustained a workplace injury on August 18, 2010. It acknowledged that the worker experienced middle back pain at work; however, it was unable to establish that the presence of back pain met the definition of an accident. On March 18, 2011, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

A hearing was held at the Appeal Commission on August 10, 2011 to consider claim acceptability related to the worker's March 27, 2009 and August 18, 2010 reported accidents. Prior to rendering its decision on the two claims, the appeal panel requested additional information from the worker's treating chiropractor and physiotherapist. The panel also requested a copy of a 1999 WCB claim the worker had previously submitted in respect of a left shoulder injury. On September 22, 2011, all interested parties were provided with a copy of the new information and were asked to provide comment. On October 7, 2011, the panel met further to discuss the appeal and render its final decisions.

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.

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 4(1) 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 worker’s position:

The worker appeared at the hearing assisted by a worker advisor. It was submitted that with respect to the March 27, 2009 claim, the worker had a pre-existing left shoulder condition for which she required ongoing maintenance treatment. She aggravated her left shoulder condition on April 9, 2008 while performing work duties, for which the WCB accepted responsibility. When the worker returned to her regular duties in July 2008, she only performed light lifting. In March 2009, the worker began a new position which required her to lift and work on items weighing between 30 to 100 pounds. Around March 27, she began to experience left shoulder and mid-neck back pain which she attributed to performing the heavier lifting duties. It was submitted that medical reports supported a causal link between the shoulder symptoms and work duties, and further, that she sought treatment from her physician on April 6, 2009 and physiotherapist on April 22, 2009, which was not part of her regular left shoulder and neck treatment.

With respect to the August 18, 2010 claim, it was submitted that the worker described a specific incident where she was working with some sash metal that was very difficult to clip and in so doing, she felt an intense pain and popping sensation between her shoulder blades while performing this activity. She reported the incident and the symptoms to her supervisor the same day and also sought medical treatment. The worker had been regularly attending a chiropractic practice for treatment and did see a chiropractor on August 11, 2010 for a regular maintenance type treatment. On the day of the incident on August 18, however, she attended for more treatment, then again on August 25. This would not have been a regular type of maintenance treatment, which she typically had approximately once a month. These two visits correlated with the onset of symptoms from an incident at work. Given this information, it was submitted that there was evidence to support that the worker did suffer an injury at work and her claim should be accepted.

The employer’s position

An advocate and a representative from the employer were present at the hearing. The employer's position was that there was no question that the worker presented with a chronic left shoulder problem; however, the diagnosis has consistently been that of a strain only and that at no time was there any further pathology documented to the file. The treating chiropractor had confirmed that there was no significant change in the worker's condition from March to April 2009. It was submitted that this was insufficient to justify that an accident, as defined in the Act, had occurred. It was noted that the stressors identified by the worker in the new duties largely involved the right dominant hand, or both sides, rather than specifically affecting the left side. The tasks were multiple and varied, and were not repetitive. The period of time during which the worker claimed to have sustained the accident involved only slight changes to her regular job tasks and the lack of change in her condition was not sufficient to establish that an accident had occurred.

With respect to the August 18, 2010 claim, it was submitted that there were some contradictions on file which led to the claim being denied. The chiropractor appeared to be the most consistent of the medical providers for the worker, and the information from the chiropractor was that the worker had chronic issues with respect to her shoulder and mid back. At the August 11, 2010 appointment, the worker was reported to have been complaining of mid-back pain which started at work with no specific incident. For the August 18 appointment, the diagnosis was stated to remain unchanged. It was submitted that the medical information failed to connect the worker's complaints to a new claim, given that the symptoms pre-dated the incident.

Analysis:

The issues before the panel deal with causation and whether or not the worker’s claims for injury arose out of and in the course of her employment.

For either of the worker’s appeals to succeed, the panel must find on a balance of probabilities that the symptoms complained of by the worker were related to an injury caused by her job duties. Based on the evidence before us, we are able to make that finding in relation to the March 27, 2009 claim.

The challenge with assessing the worker's claims for injury was that the worker had a history of recurrent problems with her left shoulder, neck and upper back. It was therefore difficult to determine whether her work duties caused her to experience symptoms, or whether the symptoms were attributable to her recurrent conditions.

Accident date March 27, 2009

With respect to the March 27, 2009 claim, the panel is satisfied on a balance of probabilities that there was a change in the worker's duties such that it caused her to suffer an injury to her left shoulder.

At the hearing, the worker described having a problematic shoulder ever since an injury she suffered at work in 1996 (should be 1999). She stated that she had multiple scar tissue in her shoulder and rotator cuff area and up into the neck which was always fairly tight. At the time when she started work with the accident employer, her left shoulder did not really irritate her, but she did have some clicking and grinding in the shoulder which was bearable. She would go for regular tune ups with the massage therapist or chiropractor every couple of months.

During a two week period from March 16 to March 28, 2009, there was a slight slow down in her regular area and her supervisor wanted her to work on another line so that she would be able to flex into more than one job application. The worker described the new position as a manual, heavy, awkward job which required a lot of upper body strength. In addition, the worktables in this area were approximately four inches higher than the worker's regular station. The new position required the worker to lift items onto her worktable and assemble custom pieces. There was a significant amount of sanding, screwing and caulking involved, and to a much greater extent than was required by her regular duties. Some of the tools were heavier and there were different types of reaching motions involved. The pace was also different, with more intensity and frequency in the new position.

Following the hearing, the panel obtained medical records from the worker's treating chiropractor and physiotherapist to establish the worker's treatment pattern prior to the reported accident date. We also reviewed information from a previous WCB claim the worker had in 1999. The 1999 claim was submitted in respect of an injury to the left shoulder/middle back. The claim was approximately one month in duration and the worker received chiropractic treatment aimed primarily at the mid-back area. It would appear that the left shoulder was not a significant part of the claim and that the injury had resolved.

The panel notes that the worker also had two subsequent WCB claims in November 2002 and April 2008 in which she suffered injury to her left shoulder area. The injuries appeared to be strain-type injuries which improved within a few months.

The report from the physiotherapist dated August 24, 2011 indicated treatment was initiated at her clinic on April 22, 2009 with subjective complaints from the worker of constant ache and tension left shoulder, neck and upper back and weakness to the left shoulder. The physiotherapist's impression at the initial assessment was: "exacerbation of chronic left shoulder strain." The panel accepts this assessment of the worker's condition. It is evident that the worker did have pre-existing issues with her left shoulder. We accept, however, that her change in work duties could cause a worsening of her previous condition. A left shoulder strain is consistent with the additional loads and posturing which was caused by her changed duties.

The panel notes that the fact that the worker had received a chiropractic treatment on March 17, 2009 which was, at least in part, directed at the left shoulder area, is not fatal to her claim. The employer advocate had submitted that this was prior to the accident date and therefore indicated that the injury was present prior to the change in work duties. In our view, it simply reflects the ongoing problems the worker was experiencing with a recurrently problematic region. It is notable that prior to the March 17, 2009 treatment, her last previous treatment was on January 29, 2009, with no other treatments in the intervening 7 weeks. The panel also notes that the change in job duties commenced on March 16, 2009.

For the foregoing reasons, the panel accepts that the worker suffered an aggravation of a chronic left shoulder strain and her claim for accident date March 27, 2009 is acceptable. The worker's appeal on this issue is allowed.

Accident date August 18, 2010

With respect to the claim for accident date August 18, 2010, the panel is not satisfied on a balance of probabilities that the worker suffered an accident at work which caused an injury to her mid-back area between the shoulder blades.

The panel notes that the WCB correspondence file contains a memorandum documenting a conversation between the worker and her adjudicator on September 7, 2010. The memorandum reads: "I asked the worker if she had any pain in her upper back (shoulders) prior to the start of her shift on DOA (date of accident) and she said no." On October 1, 2010, during another conversation with her adjudicator, the worker is noted as reconfirming that she had no difficulties in that area of injury prior to the start of her shift on DOA.

The information from the treating chiropractor in a letter faxed September 22, 2010 reported that the worker came in to their office on August 11, 2010 complaining of mid back pain which started to hurt while at work. She was unable to state a specific incident that precipitated the pain, but stated that it came on gradually throughout the morning. This information would appear to be at odds with that given to the adjudicator as noted on file.

The chiropractor's September 28, 2010 report indicated that when the worker re-attended on August 18, 2010, her diagnosis remained unchanged. The panel notes that objective symptoms on both dates indicated decreased intersegmental mobility at similar locations on the thoracic and cervical spine, and on both dates the worker had trigger points in the upper trapezius and right and left rhomboids. The treatment provided was essentially the same. Overall, there does not appear to be any noticeable difference between the worker's pre-incident and post-incident condition.

In view of the foregoing evidence, the panel is not satisfied on a balance of probabilities that there was an accident on August 18, 2010 which caused the worker to sustain an injury to her mid back between her shoulders. The evidence does not support a distinct change in the worker's physical condition which can be attributed to her job duties of using extra force with her arms to clip a metal sash onto frame. As such, we are unable to find that the worker has an acceptable claim. The worker's appeal on this issue is therefore denied.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 30th day of November, 2011

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