The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his right shoulder condition did not arise out of and in the course of his employment. A hearing was held on August 23, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

An Employer Injury Report dated November 21, 2011 indicated that the worker had ongoing issues with his right shoulder that he related to his daily duties as a carpenter.

On February 1, 2012, a WCB adjudicator spoke with the worker to gather information about his shoulder difficulties and the nature of his job duties. The worker stated:

• his main function was preparing interior and exterior doors for installation. The doors weighed 10 to 50 pounds depending if they were hollow or solid. He would move the doors around on his table saw or work bench.
• the worker moved and cut plywood. The plywood weighed about 50 pounds.
• there was not a lot of overhead work. The majority of his job was done in the front of him. When he carried doors or plywood, his left hand was on the top of the sheet/door and the right hand was on the lower part.
• he started to notice shoulder symptoms about mid October 2011. He did not think it was serious. It started out as an ache and was continuous. It did not seem to change when he was home or off work on his regular days off. It progressed to the point that he had radiating pain down his arm and into his bicep.
• there were no changes to his job duties.
• the worker had similar issues with his left shoulder a few years previous.
• on November 14, 2011 he saw his doctor and was referred to physiotherapy. An MRI was ordered.

A Doctor's First Report dated November 14, 2011 diagnosed the worker with a right rotator cuff injury. A physiotherapy report dated November 29, 2011 outlined the diagnosis of rotator cuff tendonitis.

An MRI of the right shoulder was taken on January 7, 2012. The results showed a complete tear of the long head of the biceps tendon just beyond its anchor and supraspinatus tendinopathy.

The worker's claim for compensation was accepted as a WCB responsibility.

A WCB medical advisor reviewed the file on February 2, 2012 and formed the following opinion:

The diagnoses in this case are right acromioclavicular osteoarthrosis, supraspinatus tendinosis and a tear of the long head of biceps tendon.

The acromioclavicular osteoarthrosis and supraspinatus tendinosis are degenerative changes. In both of these conditions, pain relatively well localized to the subacromial region typically slowly develops over a period of months. Symptoms are typically worst when the arm is held in a position of elevation, particularly when lifting with the arm in this position.

A tear of the long head of biceps tendon most often occurs as a result of acute trauma. An example of such trauma would be forced elbow extension with the biceps loaded e.g. while lifting. A tear of this tendon may also occur as the endpoint of tendinosis. If the biceps tendon tear is acute then there is an abrupt onset of pain, weakness and possibly bruising. If the biceps tendon tear occurs as the endpoint of tendinosis, then there would typically be a somewhat abrupt onset of symptoms but this may be less traumatic than if the tear occurs in the setting of trauma.

On February 21, 2012, a different adjudicator spoke with the worker and the following information was documented to the file:

• the worker confirmed that he did not know when his shoulder injury happened. At the beginning or mid October, he noticed his shoulder getting sore and he felt pain going into his arm and it steadily became worse.
• while shaving one morning at the end of October, his bicep was retracted towards his elbow and this was the first time he noticed a deformity.
• he mentioned it at work a day before seeing his doctor on November 14, 2011.
• the worker could not confirm when he first started noticing a shoulder ache. After a lot of prompting, the worker said it may have been in the middle of the day one day but nothing was reported and he did not seek medical treatment.
• the worker felt his shoulder was related to work because he did no other heavy lifting at home.

On February 27, 2012, the adjudicator spoke with an employer representative who stated that he was not exactly sure when the worker spoke to him about his shoulder difficulties. The representative stated that it may have been in October that the worker said his shoulder was sore and that the worker told him that he needed help with lifting. He said he did not see an accident having occurred.

By letter dated February 28, 2012, the worker was advised that the original decision to accept his claim had been overturned as no accident had been established for the injury provided. The adjudicator made reference to the WCB medical opinion dated February 2, 2012. He noted that in addition to this opinion, a review of literature regarding proximal bicep tears showed that they were predominantly degenerative in nature, a high occurrence in people over 60 years of age and there was typically preceding shoulder pain and sudden pain associated with an audible snap. The adjudicator noted that the employer was not able to provide a day when an accident could have happened. The adjudicator concluded that as he could not put the worker at work at the time of the tendon tear and given that this type of tear was predominantly degenerative, he could not find on a balance of probabilities, that it was related to the worker's work duties.

On March 12, 2012, the worker appealed the decision to deny his claim to Review Office. The worker argued that his injury was caused by repetitive action at work and although it was not caused by any single incident, it could have been caused over a period of time. He noted that the WCB medical advisor did not exclude this possibility when he said "tears like this occur most often from an acute trauma", which meant that this did not preclude a slower occurrence of such a tear. The worker indicated that he talked with his family doctor and after doing research on the internet, it would seem that it was possible for this to happen a little at a time, which would explain the lack of an abrupt onset of pain.

In a decision dated May 4, 2012, Review Office determined that the claim was not acceptable. Review Office said there was insufficient evidence to conclude that the worker sustained an injury to his right shoulder in October 2011. It noted that the diagnosis of the worker's shoulder condition had been reported as acromioclavicular osteoarthrosis and supraspinatus tendinosis which were both degenerative conditions. In the opinion of Review Office, although these conditions may be considered as a "disease," it was not an occupational disease as defined in the Act. It found that in the worker's case, personal injury by accident arising out of and in the course of employment had not been established. On June 6, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Chairperson Choy and Commissioner Finkel:

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. Subsection 4(1) of the Act 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 right shoulder condition arose out of and in the course of his employment.

The worker’s position:

The worker was self-represented at the hearing. The worker submitted that what happened to his shoulder was directly work-related. While the WCB denied his claim based on the fact that there was not a specific incident that occurred to cause the injury, the worker believed that it was simply repetitive stress which caused the injury. He likened it to a claim for carpal tunnel syndrome or occupational hearing loss, which are acceptable as work related claims, but do not result from a specific incident. At his job, the worker was repetitively picking up doors and sheets of plywood and he believed that over time the stress caused his injury. The worker advised that he had a very high pain tolerance so even though his shoulder was sore, he would ignore it and go in to work. This happened for over a month until eventually it became so painful that he realized he had better go and see a doctor. It was at that point that he reported the injury to his employer.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s right shoulder condition arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the worker’s condition was caused by the performance of his work duties. On a balance of probabilities, the majority is not able to make that finding.

The MRI of January 7, 2012 identified three conditions present in the worker's right shoulder: acromioclavicular osteoarthritis, supraspinatus tendinopathy and a complete tear involving the long head of the biceps tendon just distal to its anchor.

With respect to the acromioclavicular osteoarthritis and supraspinatus tendinopathy, the WCB medical advisor's opinion dated February 2, 2012 indicated that these are degenerative changes. As such, they would be considered to be non-work-related. The worker did not dispute the WCB medical advisor's opinion in this regard, and in the absence of any contrary medical opinion, the panel finds that these two conditions are not compensable.

With respect to the tear of the long head of the biceps tendon, the worker noted that although the WCB medical advisor indicated that such tears most often occur as a result of acute trauma, he did not say "always." When the worker discussed etiology with his family doctor, his family doctor indicated that it was possible that these types of tears can occur over time. The worker acknowledged that most of the literature he reviewed on the internet also identified trauma as the typical cause of a tear.

The panel must make its decisions based on a balance of probabilities. That means that the evidence must convince us that it is more likely than not that the performance of job duties, rather than a non-work related factor, caused the long head of the biceps tendon to tear. The majority acknowledges that the repetitive performance of some job duties can cause micro traumas which cumulatively result in a workplace injury. We do not, however, feel that this is such a case. While the medical opinion and literature acknowledges that it is possible, the test that must be met is probable. Further, at the hearing, the worker described his job duties and working conditions. His work as an in-house carpenter primarily involved preparing doors for installation. There was a significant amount of lifting involved, and while interior doors were not too heavy, exterior doors could involve quite a bit of weight. The worker described his techniques for lifting and said that he would not "be stupid" with his lifting and would use leverage to execute lifts. When demonstrating with his arms, the worker's elbows were held close to the body and he acknowledged that his body movements were controlled. His work was performed in a closed indoor workshop with a smooth concrete floor. In the majority's view, the work environment was stable, in the sense that it was not conducive to sudden awkward slips or unexpected movements (as might be expected in an outdoor environment where uneven ground and weather may be a factor). There was little chance of an abrupt "jerk" to the biceps tendon that may contribute to a tear. In response to a question from the panel, the worker indicated that slips or drops were rare. In the majority's opinion, lifting weight alone would not cause a biceps tendon tear to develop over time. We therefore do not accept that the tear was caused over time by the performance of work duties.

It is clear from the WCB file material and from the worker's testimony at the hearing that there was no sudden or traumatic incident at work which could be identified as an acute cause of the biceps tendon tear.

For the foregoing reasons, the majority finds that the worker's claim is not acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of September, 2012

Commissioner's Dissent

(ii) thing that is done and the doing of which arises out of and in the course of the course of employment….

It is my opinion that his work-related duties played an active role in aggravating his shoulder condition to the point whereby he had to attend for medical attention. Therefore, it is my opinion that this claim should be accepted as compensable.

C. Anderson
Commissioner

Signed at Winnipeg, this 26^th day of September, 2012.