The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her right shoulder condition was not related to the compensable accident and the decision to accept responsibility for only limited modifications at her primary residence. A hearing was held on June 18, 2013 to consider these matters.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder condition; and

Whether or not financial responsibility should be accepted for the installation of a new door with a lowered floor threshold.

Decision

That no responsibility should be accepted for the worker's right shoulder condition; and

That financial responsibility should be accepted for the installation of a new door with a lowered floor threshold.

Decision: Unanimous

Background

The worker filed a claim with the WCB for left shoulder, rotator cuff and cervical spine difficulties that she related to the repetitive nature of her work duties and the workplace ergonomics. The date of injury was recorded as being September 30, 2010 and the worker's last day at work being January 31, 2011.

The Employer's Accident Report indicated that the worker reported pain and burning on her left arm/shoulder/neck area and numbness in her finger, possibly due to repetitive strain issues, impacting the nerves in the cervical spine area. The employer noted that they had a new computer system which involved more keying and mouse work.

On March 17, 2011, the worker advised her WCB case manager that she used a wheel chair for mobility and had been for more than 30 years. Her wheel chair was manually powered and did not have any arm rests. The worker attributed her difficulties to a repetitive strain injury caused by the awkward positioning at her computer and using a phone over a period of time. The symptoms in her left upper shoulder commenced around the end of September 2010.

On September 21, 2011, the worker was seen at the WCB for a call-in assessment. The sports medicine advisor stated that the original and current diagnosis appeared to be a subacromial impingement process affecting the left shoulder. This process occurred in the environment of pre-existing degenerative changes at the left shoulder. There was also a pre-existing tendinopathy affecting the left rotator cuff tendons.

In January 2012, the worker was seen by an orthopaedic surgeon for bilateral shoulder pain, left greater than right. The surgeon's diagnosis was bilateral glenohumeral and AC joint arthritis, moderately severe symptoms, left greater than right. A left shoulder arthroscopic subacromial decompression and distal clavicle resection was recommended. If the surgery went well, the same procedure was suggested for the right shoulder.

On January 18, 2012, the worker spoke with her WCB case manager regarding the proposed shoulder surgery. The worker felt that her right shoulder difficulties were related to her compensable left shoulder injury, noting that the information from her treating physician at the inception of her claim mentioned right shoulder issues.

The WCB's sports medicine advisor reviewed the file information on January 20, 2012. The medical advisor's opinion was that the proposed surgery to the left shoulder was not a WCB responsibility, as the current diagnosis of left glenohumeral and AC joint arthritis was related to a pre-existing condition and was not related to the September 30, 2010 workplace activities. It was felt that the reported workplace activities were not anticipated to have materially changed the pre-existing degenerative changes at the left shoulder. A similar opinion was outlined for the right shoulder. It was felt that the right shoulder diagnosis of glenohumeral AC joint arthritis was pre-existing and degenerative in nature and was unlikely to have been materially influenced by the work injury.

By letter dated January 24, 2012, the worker was advised that no responsibility would be accepted for the proposed shoulder surgeries as the need for surgery was related to pre-existing factors and not the September 30, 2010 accident.

On March 21, 2012, the treating orthopaedic surgeon stated:

To summarize again, the pre-existing condition was not symptomatic until she had the workplace injury that was confirmed by WCB's own doctor. I think my clinic letter has somehow given them the opportunity to reverse the decision, which was not my intention. I think she has tendonitis, which could be treated with subacromial decompression. This always (sic) required as any glenohumeral arthritis has not been symptomatic for her. She is going to appeal WCB decision and hopefully they will approve the surgery and we can proceed in the near future.

On May 10, 2012, a WCB orthopaedic consultant reviewed the surgeon's March 21, 2012 report. The consultant opined that "…the principal cause of the bilateral shoulder pain is osteoarthritis (OA) of the gleno-humeral and AC joints, brought about by the additional weight-bearing stresses encountered by the shoulder girdles by the activities of daily living of a paraplegic person." He said the issue of ability to work was related to the natural history of the OA of the shoulders, and not to the workplace injury.

On May 11, 2012, the worker was advised of the WCB's position that her current issues were related to non-compensable bilateral OA and she was therefore not eligible for medical, medical aid or wage loss costs.

On June 22, 2012, a worker advisor acting on the worker's behalf, contended that the worker's left shoulder diagnosis of chronic tendonitis was related to poor ergonomics in the workplace and the time it took for the ergonomic changes to be implemented. She also contended that the worker's right shoulder condition developed from the poor work ergonomics and the increased use of her right shoulder to compensate for her left shoulder.

In a decision dated October 2, 2012, Review Office determined that the worker was entitled to wage loss and medical aid benefits beyond May 18, 2012 due to the effects of her compensable left shoulder injury but that no responsibility could be accepted for her right shoulder condition.

With respect to the right shoulder condition, Review Office's opinion was that the right shoulder complaints were more reasonably associated with the osteoarthritic changes found in the glenohumeral and AC joints.

On August 14, 2012, the worker underwent a left shoulder arthroscopic debridement with removal of loose bodies, subacromial decompression and distal clavicle excision.

On November 1, 2012, a WCB rehabilitation specialist noted to the file that the worker had made modifications to her home prior to her left shoulder surgery. The modifications were as follows:

• installation of a new door at the side entrance/garage entrance
• a door threshold ramp for the new door entrance
• installation of a new lever handle
• a light switch adjacent to the door
• extension of the existing ramp

The WCB rehabilitation specialist opined that the home renovations to the entrance door, the existing wheelchair ramp, the door handle and the light switch not be recommended for reimbursement. It was felt that the structures were required for the worker's pre-existing medical history of paraplegia to access her home. As the worker's condition was pre-existing, any maintenance, repairs and upgrades were the responsibility of the home owner and not the responsibility of the WCB. The rehabilitation specialist indicated that compliance with building codes was the responsibility of the homeowner. A home door, door handle and light switch were the responsibility of the homeowner as essential items on all homes. The worker was right hand dominant and had functional use of her right upper extremity to assist in completing manual wheelchair mobility. The renovations were not indicated in relation to physical restrictions for the compensable injury.

On December 6, 2012, the case manager advised the worker that there was no compensable basis for the changes to take place. He indicated that the wheelchair ramp and the removal/replacement of the garage door entry in relationship to the compensable shoulder surgery had not been established as being required. It was agreed, however, that the handle on the door being changed from a knob to a lever did allow for some change in functionality and would be considered as an item that could be covered.

On December 17, 2012, the worker appealed the December 6, 2012 decision to Review Office. The worker felt that her compensable shoulder surgery of August 14, 2012 resulted in necessary changes to the grade of the existing wheelchair ramp and replacement of the garage door entry to her home with lowered floor threshold and lever door knob. The surgical procedure resulted in decreased functional status affecting range of motion, strength and personal safety. The changes to her primary home entrance alleviated safety concerns and enhanced independent access/exit to residence.

In a report dated December 20, 2012, the treating orthopaedic surgeon reported that the worker's left shoulder surgery had improved her symptoms. The fact that the worker's condition was improving with surgery suggested that the glenohumeral arthritis was not the cause of her problems. "Likely this is tendinosis related to her overuse injury at work."

On February 14, 2013, Review Office determined that no responsibility should be accepted for the worker's right shoulder difficulties and that responsibility should only be accepted for the ramp extension.

With respect to the right shoulder, Review Office noted that the worker was working reduced hours when the onset of her right shoulder difficulties commenced. Review Office felt it was more likely that the worker's pre-existing condition in her right shoulder was the cause of her right shoulder difficulties. It found that the opinion by the treating orthopaedic surgeon regarding the outcome of the recommended right shoulder surgery was speculative and that his report did not provide sufficient evidence to support that the right shoulder injury was the result of the poor set-up of her workstation or the result of overuse due to her left shoulder injury.

Review Office found the installation of a new door with a lowered floor threshold was a permanent home modification that would not have been required due to the compensable left shoulder injury. It was felt that the worker's pre-existing non-compensable condition was more likely the reason for the new door.

Review Office felt the ramp extension in the garage would be considered a minor temporary modification that would improve access for the worker. It determined that responsibility should be accepted for the cost of the materials for the ramp extension. Should the ramp need to be removed in the future, Review Office indicated that the cost of the removal of the ramp was not the WCB's responsibility. On February 26, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy:

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)

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

Medical aid payments for expenses such as home renovations are payable under subsection 27(1) which provides as follows:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

WCB Policy 44.120.30 Rehabilitation and Compensation Services, Support for Daily Living (the "Daily Living Policy") provides guidance regarding the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The Daily Living Policy states: "The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products." Part F of the Daily Living Policy deals with home modifications and sets out the conditions under which the WCB may provide financial support for modifications to a worker's residence.

The worker’s position:

The worker was self-represented in the appeal. Prior to the hearing, the worker provided the panel with a detailed outline of her submission which was very helpful. The worker described her job position and the changes which occurred at work when a new computer system was transitioned in late 2010. She described increased demands on her upper extremities, which resulted in left shoulder pain and led to her compensating with the right shoulder. In mid- November 2010, she moved to a new office location which led to additional shoulder stress due to the layout of the building and her work station. The worker's position was that her right shoulder symptoms, which worsened over an extended period of approximately two years, was caused by both compensating for the left shoulder work-related injury and by poor ergonomics at work. She had no prior history of right shoulder complications before the September 2010 left shoulder work injury.

With respect to the home modifications, the worker submitted that the main entrance to her home (located in the attached garage) adequately met her independent living requirements prior to her left shoulder surgery of August 14, 2012. The surgery compromised the strength and function of her left shoulder and as a result, a special order door with a lowered floor threshold was installed. This installation was not routine maintenance of the residence. Prior to the surgery, this type of entrance accommodation was not a consideration or a need. The door with the lowered threshold provided ease of access, improved mobility (with one functional arm) and provided the ability to safely enter or exit the residence while alone. The WCB supported the need for a lever door handle and ramp modification to improve access during left shoulder recovery. It seemed reasonable that a door with a lowered floor and no threshold would also be supported to provide safe mobility in and out of the residence during recovery.

Analysis:

There are two issues under appeal before the panel. We will address each one separately.

1. Whether or not responsibility should be accepted for the worker's right shoulder condition.

The first issue concerns whether the difficulties the worker is now experiencing in her right shoulder are compensable. In order for the worker’s appeal to be successful, the panel must find either that the right shoulder difficulties are predominantly attributable to the left shoulder compensable injury or that work duties caused the right shoulder condition. On a balance of probabilities, we are unable to make either of those findings. In coming to our conclusion, the panel relied on the following:

• The operative report dated April 4, 2013 described an arthroscopic debridement, acromioplasty and distal clavicle excision of the right shoulder. The pre- and post-operative diagnoses were right partial thickness rotator cuff tear, AC joint arthrosis and glenohumeral arthritis. The two latter diagnoses of AC joint arthrosis and glenohumeral arthritis are conditions associated with natural degenerative processes which progress with aging and the panel does not accept that either of these two conditions would have developed over the period of approximately two years as a result of overcompensating for the left shoulder injury. This is particularly so as Grade 4 chondromalacia was observed, which is a fairly advanced form of degeneration. The panel finds these two diagnoses are more likely attributable to the natural progression of aging.
• Due to a pre-existing physical disability, the worker's upper extremities are subjected to additional physical demands. The May 10, 2012 opinion of the WCB orthopedic advisor was that the principal cause of the worker's bilateral shoulder pain was osteoarthritis of the gleno-humeral and AC joints brought about by the additional weight-bearing stresses encountered by the shoulder girdles by the worker's activities of daily living. The January 20, 2012 report of the WCB medical advisor also opines that the glenohumeral AC joint arthritis is pre-existing, degenerative in nature, and unlikely to have been materially influenced by work. The panel accepts these opinions.
• The types of activity which are typically associated with the diagnosis of rotator cuff pathology are shoulder abduction and flexion, arm extended, abducted or flexed in the elbow more than 60 degrees, continuous elbow elevation, work with the hand above the shoulder, load carrying on the shoulder, and throwing action. The panel finds that the worker's job duties did not involve significant amounts of these types of activities. For the most part, the work performed was within the worker's body envelope with her elbows tucked in against her body. There was little weight bearing with her right shoulder, nor was there significant loading of the shoulder.
• Although the worker did have to reach high over her head to reach paper on the fax machine and printer, this was not a task which was performed frequently throughout the day. The worker's evidence was that there would be approximately 10 faxes per day and she would only be required to take papers off the printer approximately 15 times per day.
• When demonstrating how she would talk on the phone, the worker's elbow was to the side and tucked against her body. We do not see any significant strain on the shoulder when performing these duties.
• When asked about the specific ways in which she was required to overcompensate with her right side, the worker listed repetitive activities such as mousing, overhead reaching for the printer and fax machine, and manually opening doors with significant tension. The panel does not view these activities as constituting a significant transfer of work load from the left to the right side.
• The panel's impression of the worker was that she was active and strong prior to her compensable injury. She was independently mobile despite her pre-existing disability. Although the worker identified the opening and closing of doors as being one of the problematic work activities, the panel does not view this task as being a new or unusual strain on her right shoulder. This is particularly so given that she is right hand dominant.
• At the hearing, the worker's evidence was that she first developed right shoulder symptoms at the same time as when her left shoulder difficulties began, but that the symptoms were less severe. The documentary record shows that the first definitive mention of objective symptoms on the right side was on June 2, 2011 when the family physician referred to tightness in the right trapezius. There was mention of right-sided issues in the family physician's earlier reports in April and May of 2011, although it appears that the physician may have misspoken and intended to refer to the left side, particularly with respect to findings of tendinosis on MRI in the right arm. The MRI was of the left arm.
• When considering the compensatory demands on the right arm, it is notable that the worker was off work for the first two weeks of February 2011, and then returned to work on a graduated basis, working only two days per week, then transitioning to three days. The worker's right arm exposure to workplace demands was therefore limited in the period prior to the references to right-sided difficulties which began appearing in approximately June 2011. Even though she was very busy while she was at work with a full case load, there was extended time off between shifts and ample opportunity to be relieved from the ergonomics of the workplace.

For the foregoing reasons, the panel is not satisfied that the worker's right shoulder condition was caused by either overcompensating or by her work duties and accordingly, responsibility should not be accepted for the worker’s right shoulder condition. The worker’s appeal on this issue is dismissed.

2. Whether or not financial responsibility should be accepted for the installation of a new door with a lowered floor threshold.

The second issue concerns the provision of medical aid and whether the costs of the modified entryway to the worker's residence should be covered. In order for the worker's appeal to succeed, the panel must find that the modifications were necessary to cure and provide relief from the left shoulder injury.

At the hearing, the worker demonstrated how she managed to negotiate the threshold prior to her left shoulder injury. She would lean back and raise the front wheels of her mobility device and then use force to propel herself over the threshold. Her evidence was that following the surgery, the pain in her shoulder prevented her from performing this maneuver. It took several months for the pain to decrease.

The panel accepts that the changes to the threshold were reasonably required following the left shoulder surgery to allow the worker to independently enter and exit her residence. Although the renovation was not pre-authorized as is required by the Daily Living Policy, the panel notes that at the time of the surgical procedure the WCB was not accepting responsibility for the worker's left shoulder condition. This decision was subsequently reversed by WCB Review Office. Given the status of the adjudication of the worker's left shoulder claim, we do not feel that her entitlement to reimbursement should be prejudiced by failure to follow the procedure set out in the Daily Living Policy.

Overall, the panel finds that the modification to the door threshold was required to provide improved access and mobility for the worker during her recovery from the compensable left shoulder surgery and she should be entitled to coverage for same. The worker's appeal on this issue is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 15th day of August, 2013