Decision #54/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his right shoulder complaints did not arise out of and in the course of his employment. A hearing was held on February 22, 2012 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On March 25, 2011, the worker filed a claim with the WCB for right shoulder difficulties that he related to the use of a mig welder on a repetitive basis. The worker described his work duties as follows:
I am a left handed welder, but I had to use my left hand with the welder and I supported the welder with my right arm. It was always stretched out. Some parts were small and tight and awkward positions to get into. The welder was on a scissor lift and I was on a man lift. The welding harness was running from the welder which was on the scissor lift about 15 feet away below me. I had to hold the line and the weight of the harness and being in outstretched upward position. I had to put 3 passes on every welding. My arm would be outstretched and upward for about 65 to 70 percent of every day. I was working 7 days per week. I was roughly 28 days up there and one week back. I was working 10 hour shifts. My right arm was bothering me when I came home in May from working at the job site. I continued to work through it until June or July 2010. I started to see the doctor around July 2010.
The Employer Injury Report dated April 18, 2011 indicated that the employer did not view the worker's condition as a work-related injury. The employer felt the worker's shoulder difficulties were due to shoulder cartilage deterioration and further noted that the worker was scheduled for surgery.
A doctor's first report dated March 23, 2011 indicated that the worker was doing welding in awkward body positions when he hurt his shoulder in early 2010 and that his shoulder condition progressively worsened. The diagnosis was degeneration of the right shoulder.
On March 16, 2011, an orthopaedic surgeon reported that the worker had an MRI which demonstrated severe arthritic changes with a complete obliteration of the glenohumeral joint space. There were large inferior osteophytes present. There was some posterior subluxation of the head with some early biconcavity. The rotator cuff appeared to be intact. The surgeon outlined the view that the worker had severe limiting symptoms from severe osteoarthritis of the right shoulder and the only viable surgical option would be an arthroplasty.
In April 2011, a WCB adjudicator spoke with the worker to gather specific information related to the nature of his work duties while welding and details related to the onset of his shoulder difficulties.
A WCB medical advisor reviewed the file with a WCB adjudicator on April 28, 2011. The medical advisor noted that the worker developed pain in his right shoulder that started one month after completing work from October 2009 to May 2010, with no specific injury described. The medical advisor opined that it was unlikely that the severe changes seen in the MRI would have developed over approximately eight months of employment. As the worker did not describe the onset of right shoulder symptoms in relation to any incident, it was likely that his current reported right shoulder symptoms were unrelated to work and were more likely related to the natural history of severe osteoarthritis of the shoulder.
The consultant also noted that the orthopaedic surgeon's exam findings may be consistent with the development of an adhesive capsulitis in the worker's right shoulder which was a common occurrence in diabetics. While it was not possible to determine the extent to which the worker's currently reported right shoulder symptoms may be related to osteoarthritis versus an adhesive capsulitis, it was unlikely that either were causally related to his welding work from October 2009 to May 2010.
On May 4, 2011, a decision was issued to the worker stating that his claim for compensation was denied on the basis that no trauma had been identified to account for the degeneration in his right shoulder; it was unlikely that his right shoulder osteoarthritis was related to the eight months he spent working on the work project; and that his symptoms were more likely related to the natural history of severe osteoarthritis.
In a report dated May 26, 2011, the orthopaedic surgeon stated that it was difficult to draw a causal relationship directly between the development of arthritis and the worker's repetitive overhead welding. He noted that osteoarthritis can often develop spontaneously. He stated, however, that the worker was very young to be developing arthritis at 40 years old and he did not have any symptoms from the shoulder prior to doing this type of work. Work certainly aggravated it to some degree. He stated: "I think that even if his arthritis was idiopathic and that he would have developed it anyway, he was not doing this heavy type of overhead work, he likely would have been able to continue for a number of years without developing symptoms in his shoulder, perhaps maybe not ever."
On June 1, 2011, the family physician stated: "His condition was seriously aggravated due to his work conditions (welder in awkward positions due to the nature of his worksite)."
On June 6, 2011, the family physician advised the WCB that he saw the worker for injury to his right shoulder on January 12, 2010 after he had to weld for a substantial amount of time in a very awkward position. There was no previous consultation or reference in his chart of specific shoulder pain prior to that date.
The worker provided the WCB with a video which contained footage of the worker performing welds of hangers and piping at the work site. On June 28, 2011, the worker met with a WCB staff member from the Special Investigation Unit and a sworn statement was taken about the content and origins of the pictures in the video.
On July 5, 2011, a WCB medical advisor outlined the opinion that the worker's right shoulder condition was unlikely to have been caused by the welding he did between October 2009 and May 2010 and that it was unlikely that the worker's workplace duties materially/structurally altered his severe pre-existing degenerative right shoulder condition. He further stated that the worker: "…had a right shoulder at risk of injury due to his pre-existing osteoarthritis. Loading of his pre-existing degenerative right shoulder condition could conceivably have resulted in a combined effect inducing initial and current right shoulder symptoms…Should [the worker's] loaded workplace activity above shoulder height be confirmed, then his current right shoulder condition would be considered compensable as supported by the May 26, 2011 correspondence from the consulting Orthopedic Surgeon."
On September 20, 2011, the worker was advised that the WCB confirmed the details of his job and anatomical movements of his body while performing his regular duties with his employer. The case manager confirmed the earlier decision that the worker's symptoms were likely related to the natural history of severe osteoarthritis.
On October 26, 2011, a worker advisor appealed the above decision to Review Office. The worker advisor submitted that the evidence supported the worker's job involved extensive above shoulder and over head demands, which were significantly greater than that which he was exposed to during the course of his normal employment duties. While there was evidence of a significant pre-existing disease, the worker reported that he was asymptomatic prior to January 2010 which was confirmed through his physician's chart notes. It was also established that the worker's symptoms developed in close proximity to his performance of the work in question. The medical opinions supported that the worker's condition was likely made worse due to his employment demands.
Prior to considering the appeal, Review Office obtained information from the worker's supervisors and co-workers in December 2011 regarding their knowledge of the worker's shoulder condition.
On December 13, 2011, Review Office indicated that it was unable to establish through the evidence that the worker sustained an accident as defined in the legislation. In making its decision, Review Office said there was discrepancy regarding the amount of overhead work performed by the worker in his welding duties. The worker provided inconsistent reports regarding the onset of symptoms, ranging from the fall of 2009 to a month after the project finished in May 2010. The MRI of June 16, 2011 supported that the worker had a pre-existing condition in his right shoulder. Review Office accepted the opinions of the WCB medical advisor dated April 28, 2011 and July 5, 2011 and indicated that the opinion outlined by the treating surgeon in his report of May 26, 2011 was speculative. It found that the worker's condition was not caused, aggravated or enhanced by the work duties in accordance with the WCB's Pre-existing Conditions Policy. On December 23, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
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 key issue to be determined by the panel deals with causation and whether the worker’s claim for right shoulder difficulties arose out of and in the course of his employment.
Worker’s position:
The worker was assisted by a worker advisor at the hearing. The worker’s position was that the duties he was performing as a welder aggravated the osteoarthritis present in his right shoulder. While the degenerative osteoarthritis in his right shoulder was likely caused by his work in the first place, what was being argued at this appeal was that specific welding work being performed by the worker at a particular construction project between October 2009 and May 2010 impacted his pre-existing osteoarthritis. Prior to working on the project, the worker had no difficulties with his right shoulder. The onset of symptoms occurred mid-way through the project. The worker's degenerative condition progressed rapidly due to his work on the project which stressed his shoulder-at-risk. Although the worker had been performing welding work for approximately 15 years, the work on the project was different. The work table was slightly higher so the worker was required to put more weight on his shoulder; there was a lot of overhead work and at-shoulder height work, outstretched reaching and heavy lifting. The intensity was also greater as he was working 12 hour days for seven days per week. The worker continued at this level despite symptoms which continually worsened. It was submitted that the need for shoulder replacement at a relatively young age was the result of the worker's employment.
Analysis:
The issue before the panel is whether or not the worker's claim for his right shoulder condition is acceptable. In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with his right shoulder were related to his job duties with the accident employer. We are unable to make that finding.
The panel gave careful consideration to the nature of the work being performed by worker. We considered the evidence on the WCB file, the activities depicted in the video footage and the worker's oral evidence at the hearing. What we were looking for was loaded overhead activity with the right arm which would cause strain on the right shoulder, which is the type of activity identified in the July 5, 2011 WCB medical advisor's memo as being capable of inducing the right shoulder symptoms.
The worker described his work as involving two stages. During the first stage, he worked in the weld tent/quonset building and most of what he was doing was attaching cables onto a connector. This involved plug welds, which required the worker to position himself above the connector and weld from above. He held the welding gun in his left hand but used his right arm to support and brace the left. There was also some pipe welding. The worker would be required to hold the welding gun in place and he had helpers who would rotate the pipe for him.
During the second stage, the worker moved out into the yard and performed welds in place above the ground from a man-basket. The welder was on a nearby scissor lift and the structure's components were 25 to 30 feet high. Each weld required multiple passes and awkward positioning as the worker would have to crouch to start the weld then bring it all the way to the top of the eight-inch pipe. At the hearing, the worker demonstrated his body positioning.
The panel's overall impression was that while the worker's duties on the project involved long hours and awkward positioning, we did not see significant overhead loading of the right shoulder. For the most part, the arms and elbows were kept relatively close to the body, and while the hands may at times have been above eye level, the elbow rarely went above the shoulder. There was minimal extension of the right arm with weight, particularly given that the welding gun was held in the left hand. There was no continual pounding or stress on the shoulder and the actual welding was done intermittently, with rest breaks in between welds. We also note that the welding work required sight lines to be maintained, which in turn meant that the arms had to be kept relatively close to the body. The panel does not accept that the welds would be performed with the arms extended up and away from the body. The examples shown in the video footage also did not demonstrate loaded overhead activity.
The panel also gave consideration to the timing of the onset of the worker's symptoms. There was some uncertainty in the WCB file as to when the worker first experienced the onset of symptoms, but the evidence at the hearing clarified that the worker first consulted his physician regarding right shoulder difficulties in January 2010 and it was at that time that the requisition for an MRI was submitted. When the MRI was finally performed in June 2010, the degenerative changes in the glenohumeral joint space were identified.
The worker's evidence at the hearing was that in January 2010, he was still in the weld tent performing welds at a table. He was not yet working in the yard on the lift in the man-basket. Although the worker described having to stretch over sometimes and perform welds from the top, the panel did not view the table welds as involving extension of the right arm with weight. The right arm was either held against his body or his elbow rested on a flat surface. It may have been awkward to get in the proper position, but we did not see loading of the right shoulder. The panel is therefore unable to link the onset of the worker's symptoms with loaded overhead activity in the course of performing his job duties. We find that the worker's right shoulder difficulties were not caused, aggravated or enhanced by his work duties.
For the reasons set out above, the panel is unable to relate the difficulties the worker experienced with his right shoulder to his job duties with the accident employer. We therefore find that the claim is not acceptable. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 18th day of April, 2012