The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

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

This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s bilateral shoulder condition arose out of and in the course of his employment.

Worker's Position

The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by his representative and the panel.

The worker advisor submitted that the worker's employment as a miner caused his bilateral shoulder condition. She asked the panel to find, on a balance of probabilities, that the worker's work duties are linked to the bilateral glenohumeral OA, either directly as a cause of that condition, or alternatively, as a significant aggravating factor within the parameters of the WCB’s policy on pre-existing conditions. She noted that the worker's duties involved heavy overhead work. In support of her position, she relied upon the opinions of several physicians who have treated the worker.

The worker advisor told the panel that the worker worked as an underground miner for 22 years before working in Manitoba. He started mining in Manitoba in 1984 and worked for several companies. His primary duties between 1984 and 2002 were drilling tunnels and doing ground support. He advised that he always worked with a co-worker.

The worker provided a detailed description of his duties in Manitoba. He explained that, before overhead screens could be applied, it was necessary to remove loose rock. He explained/demonstrated the use of a scaling bar to remove loose rock. This involved significant overhead work. He said that after the loose rock is removed it is necessary to drill and attach screens above the work area. This involved the drilling of holes overhead, and installing bolts to attach screen material. The number of bolts to hold the screen would vary from 15 to 18 bolts. The worker said he did less bolting before he came to Manitoba because the tunnels were narrower in the mines he had been working in. The worker described the various pieces of equipment he used to perform his drilling duties, including a stoper for upward drilling and a jack leg for horizontal drilling. After completing the scaling and installation of screens, the worker would have to install pipes, cables and ventilation tubes.

After the preparation, the worker said he would use the jumbo drill to drill holes for blasting. He estimated he would use the jumbo drill for two to three hours. He would then have to clean up the silt in a process called scooping. This sometimes required the worker to shovel the material.

The worker advisor referred to a Jobs Demand Analysis which supports the view that the work involved was very heavy.

The worker said that since 2000, he has not had to perform overhead work. He said that while he is right-handed, he used both his arms equally in performing his duties.

With respect to symptoms, the worker said initially his left shoulder was painful and then both became painful. He said that his shoulders did not bother him at work but were very painful when at home. He had trouble sleeping and was prescribed painkillers. He said that a physician told him that while working his shoulders are lubricated and when at home they are dry and therefore hurt when moved.

The worker advisor submitted that the claim was compensable as an accident under subsection 1(1) (b), being the thing that is done and the doing of which arises out of and in the course of employment. As a secondary position, she said that the claim is acceptable as an aggravation and enhancement of a pre-existing condition. She said that if there is a pre-existing condition and the work duties in Manitoba made the condition worse to the point that surgery was required, the claim should be accepted. She also said that the worker believes that his work was the dominant cause of his condition and that it should be accepted as an occupational disease.

Employer's Position

The worker's claim deals with duties that he performed over more than 40 years. He began work in Manitoba in 1984 and worked for three employers. His employer from 1984 to 1986 no longer exists. His employer from 1986 to 2002 participated in the hearing and was represented by its Claims Supervisor. The employer for the period 2002 to present did not participate in the hearing.

The employer representative advised that the employer opposed acceptance of the worker's claim. The employer representative submitted that the worker's claim is not acceptable.

The employer representative acknowledged that the miners are involved in heavy manual labour, but that medical literature indicates that this type of primary OA is a degenerative condition, and the only exception is a specific form of post-traumatic arthritis, which requires major trauma, such as fractures and dislocation. She said that arthritis most often occurs in people over the age of 50. OA may also be hereditary and affects one in 10 Canadian adults. She submitted that there is no evidence to support that he suffered significant trauma to either of his shoulders during his employment with the employer.

In answer to a question from the panel, the employer representative said that she is not aware of any medical studies that link mining duties to the development of OA. She also said that she was not aware of any employee who required bilateral shoulder replacement.

The employer representative agreed with the worker's description of his job duties.

Analysis

The issue before the panel is whether the worker's claim is acceptable. For the worker's appeal to be acceptable, the panel must find that the worker's duties caused the worker's bilateral shoulder condition or aggravated or enhanced a pre-existing shoulder condition.

We were not able to make this finding. We find, on a balance of probabilities, the worker's shoulder condition, diagnosed as bilateral glenohumeral OA, did not arise out of or in the course of his employment. We find there is insufficient medical evidence to support the worker's position.

In reaching our decision, we rely upon the opinion of the WCB orthopaedic consultant dated June 2, 2011. The orthopaedic consultant opined that the worker's bilateral condition is not related to his employment. With respect to the cause of OA the orthopaedic consultant wrote that:

"Osteoarthritis of the shoulder is:

a. Primary - idiopathic - unknown etiology.

b. Secondary - This includes conditions such as rheumatoid arthritis, sepsis, gout or secondary avascular necrosis.

c. Previous Trauma - intraarticular fractures, dislocations, major soft tissue injuries to rotator cuff, glenoid labrum etc"

The orthopaedic consultant concluded that:

"It remains my opinion that the claimant developed idiopathic primary arthritis of the shoulders, unrelated to his occupation. I repeat that I have identified no clinical or imaging study information on the file that the claimant had any of the conditions which could be reasonable for the development of secondary osteoarthritis"

At the hearing, the worker advisor referred to the opinions of several treating physicians. We have considered these opinions but are not able to attach weight to the opinions. While we note that the physicians indicate the worker was involved in heavy overhead work, their opinions do not provide a supporting medical rationale for a causal relationship.

The worker's representative advanced three possible theories for acceptance of the claim. The first was that the worker's duties, heavy overhead work with vibration and repetition, caused the injury. We considered this theory but find that it is not supported by the evidence. In our opinion, there is insufficient medical information to indicate that this type of work causes this type of injury. Even if vibration and repetitive overhead work could cause such a condition, in this case we found the duties were not significantly repetitive. As to the overhead work, we note that much of the overhead work was done by the worker's drills, and there weren't the prolonged periods of overhead work that had been presumed to be the case by the worker's treating physicians. We found there to be a significant variation in the duties over the shift. We also note that the worker shared the duties with a co-worker.

Regarding the possible aggravation or enhancement of a pre-existing condition, the evidence does not establish that the worker had a pre-existing condition that had been aggravated or enhanced. The panel notes that the worker relates his OA condition to job duties that he performed until 2000, after which he switched to less onerous jobs. He did not seek medical attention at that time, and in fact did not file a claim until 2008, some 8 years later, suggesting that the condition continued to worsen while away from those job duties. In the panel's view, the development of this condition is more consistent with the idiopathic etiology suggested by the WCB specialists than a work-related cause suggested by the treating physicians.