The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his left shoulder complaints were not related to an accident arising out of and in the course of his employment. A hearing was held on October 28, 2013 to consider the matter.

Issue

Whether or not the worker's claim for a left shoulder injury is acceptable.

Decision

That the worker's claim for a left shoulder injury is not acceptable.

Decision: Unanimous

Background

On October 22, 2012, the worker filed a claim with the WCB for a left upper and lower arm injury that occurred in the workplace on September 5, 2012. The worker reported that he dislocated his arm in January 2011 when he fell at home in a back lane. After a course of physiotherapy he returned to work in June 2011 and was performing light duties. He then had shoulder surgery in September 2011 and returned to light duties again in January 2012. The worker indicated that he obtained a note from his doctor which said that he should perform modified work from July 30, 2012 to January 1, 2013.

The worker indicated that between August 11, 2012 and September 4, 2012 he was performing housekeeping duties that involved cleaning toilets, dividers, counters and mirrors. Around September 5, 2012, he reported to the operations manager that his left arm/elbow became completely swollen. The operations manager then told the shift manager and he continued to perform his duties but used his right hand instead of his left.

The Employer's Incident Report signed by the shift manager on October 24, 2012 stated that a left upper and lower arm injury was not reported by the worker.

Medical information received from the worker's treating physician showed that the worker attended for treatment on September 12, 2012. The physician stated:

[The worker] was seen today in follow-up of his left elbow. He requested this appointment because he was having some difficulties at work. He says that on September 4, 2012, he was working when he noted that his arm became quite swollen. He apparently showed this to his supervisor and they moved him to a light duties position and he began to wear his sling at work. The swelling has since resolved. He is concerned that there is something wrong with his elbow and he has requested that I increase his restrictions because of this episode.

On examination, I do not see any evidence of swelling in his arm. He does have some tenderness distal to the medial epicondyle consistent with medial epicondylitis. His range of motion is full and nearly symmetrical except for a very small deficit of flexion as compared to the other side. His pronation and supination is full.

I had a lengthy discussion with [the worker] about the fact that there is nothing seriously wrong with his elbow and certainly nothing that is correctable surgically. He does have some swelling, which likely relates to the previous fracture dislocation, which he sustained…[the worker] requested a re-referral to physiotherapy as he thinks it may be better to evaluate his status for return to work and I think that this is probably true. I will refer him back to physiotherapy, so they can treat and evaluate him. If his workplace wants to obtain one, I think that a functional capacity evaluation would be reasonable to evaluate his actual work capabilities…

In a report dated November 28, 2012, an orthopaedic surgeon reported that he saw the worker regarding his left shoulder/arm complaints. Based on his examination findings and review of x-rays related to the left shoulder and left elbow, the surgeon indicated that the worker's present symptoms and signs were compatible with bursitis of the left shoulder.

In a decision dated January 2, 2013, the worker was advised that his claim for compensation was not acceptable as the WCB was unable to find a relationship between his diagnosed condition and an accident as defined in subsections 4(1) and 1(1) in The Workers Compensation Act (the "Act"). The adjudicator determined that the worker's current upper and lower arm condition was related to his pre-existing non-work-related injury. The adjudicator said there was no evidence to support that his job duties (described as wiping with both hands while using a wet cloth and a dry cloth and transferring supplies from one hand to the other) caused an aggravation to his pre-existing condition or enhanced it.

On January 30, 2013, the worker appealed the adjudicator's decision to Review Office. The worker submitted that his employer had increased his modified work duties which led to his left shoulder bursitis. On February 11, 2013, the worker provided Review Office with additional information for consideration.

In a note to file dated February 21, 2013, Review Office asked that the WCB adjudicator review the new information submitted by the worker on February 11, 2013 and to determine whether further investigation was warranted or whether a decision can be reached.

On February 27, 2013, the WCB adjudicator advised the worker that she was unable to confirm that his current issues were related to his job duties at work and therefore no change would be made to the decision to disallow his claim.

On March 6, 2013, the worker submitted to Review Office that the reason his left arm was not swollen when he saw his doctor on September 12, 2012 was because he put ice on it. He said his doctor referred him to a physiotherapist which was concrete evidence that he injured his arm at work. He noted that his employer had increased his work duties during his modified duty program.

A submission was made to Review Office by the employer's representative dated March 7, 2013. The representative noted that the worker claimed that his work duties changed in October 2012 and that this caused bursitis in his left shoulder. The representative noted that the modified duties in the housekeeping department that were provided throughout this claim were consistent with any medical restrictions that have been identified. She noted that bursitis can follow a traumatic accident such as the fall that the worker had in 2011 or it can occur with no known cause. The representative concluded that the overwhelming weight of evidence supported the fact that there was no relationship between the worker's work duties and his current left arm difficulties.

Prior to considering the worker's appeal, Review Office contacted the treating physiotherapist for information regarding the worker's left arm/shoulder condition.

On April 8, 2013, Review Office determined that the worker's claim for an injury to his left arm was acceptable but not to his left shoulder. Review Office referred to certain evidence to support that the worker experienced an injury by accident arising out of and in the course of employment on or about September 4, 2012 with respect to his left arm.

With respect to the worker's left shoulder complaints, Review Office was not able to find that the worker had "an event" or a "thing that is done and the doing of which" caused his left shoulder bursitis condition. Review Office found no evidence to support that the worker repeatedly used his injured left arm/shoulder to perform the majority of his work duties. Review Office noted that the worker did not mention shoulder difficulties when he filed his claim with the WCB but only noted injury to his left upper and lower arm only. The worker did not mention shoulder difficulties to his doctor on September 13, 2012, but only mentioned his left arm complaints. Review Office therefore was unable to conclude that the worker's shoulder injury arose out of and in the course of his employment.

On June 14, 2013, Review Office considered new information submitted by the employer and the worker and made the determination that the worker's claim was not acceptable for an injury to his left shoulder. Review Office noted in its decision that it considered reports from the worker's treating physiotherapist and it was evident from these reports that the worker had some symptoms in his left shoulder in March 2012 but that this was not due to an injury caused by his work. It noted that discomfort was not necessarily an injury and the worker's symptoms may be associated with his non-compensable elbow surgery/injury. It noted that the worker was not attributing his left shoulder injury onset to his work in March 2012 but rather to his modified work duties that began on July 30, 2012, more specifically to his work in the washrooms cleaning toilet bowls from top to bottom.

Further, Review Office noted that the worker informed his physiotherapist and the WCB that he injured his shoulder at work without describing a traumatic event or an onset of symptoms while at work. It noted that the physiotherapist's report of September 21, 2012 attributed the worker's shoulder pain to his non-compensable surgery for the elbow. This was considered post-operative treatment and not treatment because of a work injury.

Review Office was unable to establish that the worker's left shoulder bursitis was caused by an "accident" as defined in the Act. On July 12, 2013, the worker 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.

The worker is appealing the WCB decision to deny acceptance of his claim for a left shoulder injury.

Worker's Position

The worker was self-represented at the hearing and was assisted by an interpreter. The worker provided the panel with a copy of his submission. He answered questions from the panel.

He states that he has bursitis of his left shoulder which is due to repetitive duties he performed in August, September and October 2012. The worker said he was assigned to do general cleaning duties which involved cleaning public washrooms and other areas of the workplace. The worker provided a detailed description of his duties which included wiping down toilets and using a brush to wash the bowl, wiping down stalls, wiping down counters, fixtures and mirrors. He said that he used both hands to perform these duties. He also had to wipe tables and dust machines using a duster with a 24 inch handle. He believes the washroom cleaning duties caused his shoulder injury.

Employer's Position

The employer was represented by an advocate. The employer's Operation Manager and Senior Consultant, Health and Wellness also attended. The employer called one of the worker's shift managers as a witness.

The employer's representative advised that the employer agrees with the Review Office decision. She noted the report from the worker's treating orthopedic surgeon and a memo from a WCB medical advisor. She submitted that the "…overwhelming weight of evidence in this case supports the fact that there is no relationship between [worker's] work duties and his claim for a left shoulder injury."

Analysis

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker injured his left shoulder by accident arising out of and in the course of his employment. In other words, the panel must find that the worker injured his left shoulder at work. The panel is not able to make this finding. The panel finds, on a balance of probabilities, that the worker's claim for a left shoulder injury is not acceptable.

The worker suffered a non-work related injury to his left elbow in January 2011. He had surgery to his left elbow in September 2011 and returned to modified work in December 2011. He claims that his left shoulder injury occurred while he was working in the modified duty position. Specifically, he claims that his left shoulder injury occurred as a result of the modified duties he was assigned in the last two weeks of August 2012, on September 18, 2012 and on several dates in October 2012. The panel was not able to find sufficient evidence to support the worker's position.

In reaching our decision, the panel relies upon the following:

• the worker was working in a modified duties position under restrictions recommended by his orthopedic surgeon, specifically no lifting more than 20 lbs, no carrying more than 20 lbs and no pushing/carrying more than 50 lbs. The panel finds that the duties were not highly repetitive.
• the worker saw the orthopedic specialist who is treating him for a non-compensable left arm injury on September 12, 2012, approximately one week after the worker reported his work related injury to the employer and did not report left shoulder problems to his physician. The physician's report notes complaints of left arm problems but no mention of a left shoulder problem. The physician advises that "I had a lengthy discussion with [worker] about the fact that there is nothing seriously wrong with his elbow and certainly nothing that is correctable surgically."
• the worker advised the panel that he did not advise the orthopedic specialist of his left shoulder problem because he thought the physician was aware of the injury.
• the worker also advised the panel that he did not know he had a left shoulder problem until September 21, 2012 when he felt shoulder pain as his physiotherapist moved his arm. This is not consistent with his evidence that he thought the orthopedic surgeon was aware of the left shoulder injury on September 12, 2012.
• the worker did not identify a left shoulder problem when he notified his employer about his left arm on or about September 5, 2012.
• the worker did not identify a left shoulder problem when he reported his left arm injury to the WCB on October 22, 2012.

The panel finds that the above information does not support the worker's position that he sustained a left shoulder injury at work.

At the hearing, the panel asked the worker about his modified duties and asked him to describe these duties and identify those elements that he believes caused his left shoulder injury. He said that his left shoulder injury was due to washroom cleaning duties which he performed including, using a brush to clean toilets and urinals, wiping down toilets, wiping down stall doors and walls, cleaning mirrors and fixtures. He said he used both hands alternatively to perform the duties.

The panel notes the worker only performed the duties for 9 days at the end of August and a few days in September and October. The panel finds that the job was primarily a one-handed job and that the worker is right hand dominant, however, the panel accepts the worker's evidence that he used both hands. The panel finds that even if the worker used both hands, the duties were not significantly repetitive and would not result in a repetitive strain injury or bursitis in the left shoulder as claimed by the worker.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of November, 2013