Decision #76/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that her claim for a right shoulder injury was not acceptable as a recurrence of her compensable left shoulder claim of April 2010 or as a new accident. A hearing was held on May 1, 2012 to consider the matter.

Issue

Whether or not the worker's claim for a right shoulder injury is acceptable as a recurrence of the April 2010 compensable injury or as a new accident.

Decision

That the worker's claim for a right shoulder injury is not acceptable as a recurrence or as a new accident.

Decision: Unanimous

Background

The worker filed a claim with the WCB for left shoulder discomfort that started on April 15, 2010 while employed as a general merchandise clerk.

On June 9, 2010, the worker advised the WCB that she was not sure what caused her left shoulder discomfort but she reported the injury to her employer on May 20, 2010 after seeking medical attention.

On May 28, 2010, an advocate for the employer opposed the acceptance of the claim based on the following factors:

  • the worker delayed in reporting an injury to her supervisor and in seeking medical attention for a period of up to eight weeks;
  • the worker had been doing the same job duties for more than 6 years without complaint; and
  • the worker could not identify a specific incident which caused her discomfort nor could she pinpoint the first onset of her discomfort.

The WCB subsequently obtained further information from the worker, the worker's supervisor and from co-workers regarding their knowledge of the worker's left shoulder difficulties.

On July 14, 2010, the WCB determined that the worker's left shoulder strain/impingement injury arose out of and in the course of her work duties in April 2010 from lifting boxes onto shelves and an increased workload. The worker did not lose time from work as a result of her injury and was working modified duties at full time while attending physiotherapy treatment.

On July 19, 2010, the treating physician reported that the worker had developed a right trapezius strain secondary to over-use of her right arm.

On July 22, 2010, the employer advised the WCB that the worker was claiming discomfort in her right shoulder due to using it more frequently as a result of her left shoulder injury. The employer stated: "Given that [the worker] is reporting that her right shoulder injury is the result of overuse due to her previous left shoulder injury, we ask that should the Board accept the right shoulder injury, as arising out of and in the course of employment, that it be amalgamated into her left shoulder claim."

In a memo to file dated November 2, 2010, the WCB case manager documented that he spoke with the worker and her left shoulder was about 95% better. The worker noted that she returned to full regular work duties and was going to finish off her approved physiotherapy treatments.

On January 4, 2011, the worker advised the WCB that she was having issues with both her shoulders and that the doctor advised her to attend physiotherapy treatment. The worker indicated that her left shoulder had been fine but it started to bother her after her right shoulder went bad.

On February 3, 2011, the WCB case manager advised the worker that her recurrent shoulder issues could not be dealt with on her left shoulder claim as there was no continuity to establish a probable relationship to the original compensable injury of April 15, 2010.

On January 13, 2011, the worker filed a claim with the WCB for work-related right and left shoulder difficulties with the accident date of December 27, 2010. With regard to her right shoulder, the worker reported that it started to hurt about mid-July 2010. She said she saw her doctor around July 18 and the doctor recommended that she perform light duties at work. The doctor told her that her right shoulder was probably due to overuse because of the left shoulder. The doctor did not recommend anything for the right shoulder at that time as it was not severe. On September 21, 2010 she saw a different doctor and he agreed that the right shoulder was probably due to compensating for the left shoulder. Her right shoulder progressively got worse and by the middle of December 2010, it really started to bother her.

With respect to her left shoulder difficulties, the worker said she finished physiotherapy in October and her left shoulder felt 95% better. When she saw a doctor on December 31, he did a range of motion test and told her that the left shoulder was impinged again and physiotherapy was suggested for both shoulders. She now had lifting and other restrictions.

A doctor's first report dated December 31, 2010 diagnosed the worker with right rotator cuff impingement/myofascial pain in the right trapezius. The physician noted that the worker had pre-existing left sided rotator cuff tendinopathy.

The advocate for the employer opposed the acceptance of the claim based on the following factors:

  • the worker was relating her discomfort to overuse of her right shoulder as a result of a left shoulder injury that had been fully healed for more than a month;
  • the worker reported her right shoulder discomfort while recovering from the left shoulder injury, but did not seek treatment for the right shoulder or require modified duties for the right shoulder at that time.
  • the worker was right hand dominant and therefore would have been accustomed to making greater use of her right shoulder than her left shoulder;
  • the worker would also have to compensate for the injured left shoulder in her personal activities as well as her work activities;
  • proof of accident had not been established;
  • the worker had not given evidence as to how her injury could have been caused by her job duties, especially given that she was relating the onset of this injury to overcompensation for an injury which had already healed.

After an investigation into the claim which included contact with the worker and the employer's advocate, the worker was advised on March 1, 2011 that no responsibility would be accepted for her claim. The WCB case manager noted that the worker related her right shoulder difficulties to overuse due to her left shoulder injury from too much lifting above her head with weight and to her arms being extended when lifting above shoulder height. The worker related her left shoulder difficulties to over-compensating for her right shoulder difficulties. There was no specific accident or incident at work and no significant changes to her job duties or increase in workload to account for the onset.

The case manger indicated it was difficult to account for the onset of symptoms to the worker's right shoulder in relation to her reported job duties, as her left shoulder was fully healed since October 12, 2010 and the worker was at full regular duties. He noted that the worker had been performing the same duties for several years and there was no new inciting incident or influence which "triggered" the onset of symptoms.

On June 3, 2011, a union representative submitted that the worker's claim for right shoulder difficulties should have been accepted as an injury arising out of and in the course of her employment. He noted that the worker's right shoulder problems were reported to her employer who in turn reported the right shoulder difficulties to the WCB on July 22, 2010. The diagnosis was a right shoulder rotator cuff impingement. He noted that the worker reported her right shoulder concerns during the period of time when she was continuing to work on modified duties due to the left shoulder injury. The worker reported at that time that she was compensating for the injured left shoulder by overusing the right, which was becoming increasingly symptomatic.

In a decision dated June 9, 2011, the WCB case manager advised the union representative that there was no evidence to warrant a change to the decision of March 1, 2011. She stated that the WCB was unable to establish the necessary link between the current diagnosis and an accident occurring at work. A specific provocative workplace factor had not been recognized. On July 14, 2011, the union representative appealed the decision to Review Office. A rebuttal submission was made by the employer's advocate dated September 9, 2011.

The worker provided Review Office with MRI results of both shoulders taken on July 14, 2011. The MRI report was given to the employer's advocate for comment. Their response was then provided to the worker's union representative for comment.

On October 19, 2011, Review Office determined that responsibility should be accepted for the worker's right shoulder injury as a secondary injury to the compensable left shoulder injury of April 15, 2010. Review Office noted that the worker developed right shoulder problems that she reported to her employer and sought medical attention on July 19, 2010. The worker attributed her difficulties to using her right arm more at work because of her left shoulder injury. The treating physician diagnosed the worker on July 19, 2010 with a right trapezius strain secondary to overuse of her right arm. It noted that the diagnosis and findings were consistent with the worker's complaints and were consistent with what she reported to the WCB and to her employer. Review Office noted that the worker did not miss any time from work due to this injury and the only medical aid required was when she attended the doctor in July 2010.

Review Office also determined that the worker's December 2010 claim for a right shoulder injury was not acceptable as either a recurrence of the April 2010 compensable injury or as a new injury by accident arising out of and in the course of her employment. Review Office stated that the worker had a trapezius muscle strain confirmed by the examination on July 19, 2010 but the absence of complaints to her practitioners at her medical visits/treatment, to the WCB or to the employer would suggest that she had recovered from this secondary injury prior to her return to full regular employment duties by October 12, 2010. Review Office also stated there was no evidence suggesting that the worker experienced a new injury to the right shoulder by accident arising out of or in the course of her employment in December 2010. The MRI findings of a tear in the right shoulder could not be accounted for by the trapezius strain injury of July 2010 or by an accident arising out of and in the course of her employment in December 2010 as there was no evidence of an accident causing her right shoulder injury.

On February 13, 2012, the worker, through her union representative, appealed the decision made by Review Office that her right shoulder claim was not acceptable 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 her employment.

Worker’s position:

The worker was assisted by a union representative at the hearing. The worker’s position was that her work tasks were the cause of her right shoulder injury. The worker's daily job duties involved the unloading of pallets and the placement of products on shelves. The shelves were 6 to 8 feet high and required the worker to stand on a step stool to place items on shelves. She had been doing these duties for over six years and did not have any problems until her workload increased. The worker had an accepted left shoulder claim and an increased workload and additional stresses were acknowledged in the left shoulder claim. The union representative questioned why this same perspective did not apply to the right shoulder claim. It was submitted that the tasks were the same and that both of her shoulders suffered injury in the spring and summer of 2010. When the worker returned to full duties in October 2010, she worked for about two months when she again suffered an injury to her right shoulder.

An MRI performed in July 2011 revealed a 4 mm full thickness tear of the posterior insertional fibers of the supraspinatus in the worker's right shoulder. Left shoulder exam showed a possible articular surface partial thickness tear. It was submitted that both of these conditions arose out of and in the course of employment. It was possible that the tears were degenerative in nature, but more probable that the tears were caused by years of overhead work. It was also submitted that the claim could be viewed as an aggravation of a pre-existing condition. It was impossible to determine when the tears occurred but the duties the worker was performing were causative factors in the development of supraspinatus tears.

At the hearing, the union representative clarified that they were not arguing that there was a recurrence and stated that the MRI findings probably reflected a pre-existing condition. The worker's position was that the return to regular duties performed in November and December 2010 caused an aggravation of the worker's pre-existing right shoulder condition. The worker reported her symptoms and her condition ought to be compensable.

Employer's position:

An advocate appeared on behalf of the employer and participated via teleconference. The employer's position was that entitlement was not in order for the right shoulder condition diagnosed on or after December 2010 as a new injury or as a recurrence in the existing left shoulder claim. There was no evidence of a specific acute traumatic incident that could have resulted in a right shoulder injury. The evidence also did not support an accident by way of gradual onset or disablement. The accident history did not provide evidence of an identifiable workplace duty or duties performed over time which would have gradually brought about right shoulder symptoms. It was also submitted that there was no causal relationship between a workplace mechanism of injury and the worker's right shoulder diagnosis of a full thickness tear of the supraspinatus tendon. The file did not contain any medical opinions suggesting that there was a specific workplace incident or disabling workplace activity which could have caused the worker's right shoulder pathology.

Analysis:

The issue before the panel is whether or not the worker's claim for a right shoulder injury is acceptable as a recurrence of the April 2010 compensable injury or as a new accident. In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced with her right shoulder were related to her job duties with the accident employer. We are unable to make that finding.

At the outset, the panel notes that at the hearing, the union representative indicated that they were not arguing for a recurrence. The panel therefore focussed its deliberations on whether or not there was a new accident.

The panel gave careful consideration to the nature of the work being performed by worker. The worker described her position as being responsible for stocking shelves in the baby department of a retail store. She would pull pallets of product from the warehouse in the back of the store and bring them to her department. There she would be responsible for placing the various types of product on the shelves. When listening to the worker's descriptions, the panel was looking for loaded extended or overhead activity with the right arm which would cause strain on the right shoulder, which is the type of activity we understand as being capable of inducing the right shoulder rotator cuff symptoms.

The panel's overall impression was that we did not find sufficient movement in the way the worker performed her duties to lead us to conclude that the work duties caused her right shoulder pathology. While there was some requirement for overhead work, the panel found it to be minimal, particularly given the worker's evidence that after October 2010, she self-modified the way she performed her duties so as to avoid raising her hands above her shoulders. She made use of a step stool and ladder so that she would not have to reach up to stock the higher shelves. She also limited the amount of weight she would lift. It was clear that after her return to regular duties in October 2010, the worker was careful with the way she moved and generally avoided any loaded overhead activity. It is therefore difficult for us to conclude that her work duties caused the impingement first reported in December 2010.

In the panel's opinion, the right shoulder pathology identified in the MRI more likely reflects the natural course of degeneration rather than a condition related to the job duties being performed by the worker. In the absence of any significant overhead or forward extension activity, the panel finds on a balance of probabilities that this pre-existing degenerative right shoulder pathology was not aggravated by work.

For the reasons set out above, the panel is unable to relate the difficulties the worker experienced with her right shoulder to her job duties with the accident employer. We therefore find that the claim for a right shoulder is not acceptable, either as a recurrence or as a new accident. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 20th day of June, 2012

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