The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny his claim for a left shoulder injury occurring in February 2011 during the course of his employment as a carpenter. A hearing was held on October 22, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On August 21, 2012, the 61 year old worker filed a claim with the WCB for a left shoulder injury with February 1, 2011 as the date of accident. The worker advised the WCB's call centre that he worked on residential construction as a carpenter. He was unable to recall a specific time where he felt an injury to his shoulder. He does remember making a mental note in February 2011 when he felt pain in his left shoulder that continued up to August 2012. He was not involved in any heavy physical activities outside of work.

An MRI assessment of the worker's left shoulder dated July 19, 2012 revealed:

1. Full thickness, near full width tear of the supraspinatus tendon at the foot print.
2. Subacromial/subdeltoid bursitis with evidence of synovitis.
3. Mild acromioclavicular joint osteoarthritis.

A doctor's first report showed that the worker attended for treatment on August 17, 2012 with complaints of a sore left shoulder, limited range of motion and pain when elevating his arm. The worker's description of injury outlined by the treating physician was "not single inciting event but works as a carpenter - renovations, works overhead a lot, prying boards apart." The diagnosis was a supraspinatus tear.

In a report dated September 17, 2012, the physician stated that the worker was seen regarding left shoulder complaints on March 17, 2011 which had been ongoing for 2 or 3 months. There was no inciting event and the worker was employed in the construction industry. The worker's left shoulder pain was worse when lifting at or about shoulder level. The initial diagnosis was a shoulder strain and a physiotherapist suggested a labral tear. When seen again on April 9, 2012, the shoulder pain was not improving and the worker had anterior shoulder pain near the supraspinatus insertion, decreased abduction and internal rotation due to pain. The physician felt that there were no other medical conditions that would contribute to the worker's shoulder condition and that the nature of his job would be a risk factor for rotator cuff injury.

On November 13, 2012, a WCB medical advisor stated the following:

While the claimant likely does work at or above shoulder level as a carpenter, there is no clear indication that the workplace duties caused injury. Rather, the MRI findings are likely due to degenerative wear and tear over time. Given the claimant's age, it would not be unusual to see such pathology on MRI, given that "asymptomatic full-thickness tears are present in 13% of the population between age 50-59" and "after age 60 yrs, there will be cuff tears in up to 80% of patients"…given that the work duties are not deemed to be the direct cause of the RC (rotator cuff) pathology, the proposed surgery is not deemed to be the responsibility of the WCB.

On November 27, 2012, the worker was advised that his claim for compensation was denied based on the WCB medical opinion of November 13, 2012 and the fact that a workplace accident/hazard had not been established.

In December 2012, the worker appealed the WCB decision of November 27, 2012 to Review Office. On December 14, 2012, Review Office directed that primary adjudication conduct a further claim investigation.

Primary adjudication obtained chart notes from the treating physician for the period March 17, 2011 to January 9, 2013.

On January 11, 2013, the worker advised the WCB case manager that he remembered the job they were doing when he first noticed left shoulder pain. He was completing a job that another contractor had started at a residential home. He was hired to repair the ceilings and other various tasks. He worked at the house for about two weeks and mostly did overhead work due to ceiling repairs. They were required to cut out pieces of drywall and insert new drywall, backing, tape and mud for paint. The worker said he was slow to respond to the injury by seeing a doctor or making a WCB claim mainly because of the nature of his work as a carpenter and an owner of his company. The worker could not remember the exact time and date when he injured his shoulder as it was such a long time ago. He said it was the job itself that he remembered because February was usually a slower month.

In a second decision dated February 21, 2013, the worker was advised that no change would be made to the decision of November 27, 2012. The case manager indicated that the chart notes from the attending physician showed the dates the worker was treated for his shoulder but they did not clarify that he sustained a work-related injury. The notes stated that the worker suffered a sore left shoulder but did not give any further description as to how it occurred. Based upon this information and the fact that the worker could not recall a specific event that may have caused his shoulder injury, no change would be made to the previous decision. On March 11, 2013, the worker appealed the decision to Review Office.

On April 25, 2013, Review Office confirmed that the worker's claim was not acceptable. Review Office noted that the worker claimed that his left shoulder started to bother him in February 2011 yet his treating physician stated on March 17, 2011 that the worker had a 2-3 month history of left shoulder pain with no inciting event.

Review Office indicated that a rotator cuff tear in the presence of degenerative changes was a common finding in adults of the worker's age as noted by the WCB medical advisor on November 13, 2012. Given there was no inciting event which could be associated with the worker's employment, Review Office was unable to find a cause and effect relationship between the worker's left shoulder injury and his work activities. On July 31, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the October 22, 2013 hearing, the panel met to discuss the case and requested additional information from the treating orthopaedic surgeon regarding the worker's shoulder surgery. On November 15, 2013, the worker was provided with the orthopaedic surgeon's report and was given opportunity to provide comment. On December 18, 2013, the panel met further to discuss the case and render its final decision.

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. 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 left 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's position was that his injury arose out of a work-related musculoskeletal injury due to chronic and repeated stress of his occupation as a construction worker for 30 years.

The worker gave the panel details as to the type of work performed by his carpentry business. He had been in the business of renovating homes for people with disabilities for 30 years. His work involved demolition, construction, carrying materials and tools, framing and taping. He was hands-on with usually only one other employee. The worker highlighted some particular exposures experienced on a daily basis, including unloading lumber and heavy equipment and using hand tools. While the worker was right-handed, power tools involving the left shoulder would be compressors, miter boxes and stands, a jackhammer and portable table saw.

The worker took issue with the WCB medical advisor's opinion that the MRI findings were likely due to degenerative wear and tear over time and that given the worker's age, it would not be unusual to see such pathology on MRI. He questioned the credibility of the medical literature cited by the advisor. The worker noted that the diagnostic imaging only indicated "mild" osteoarthritis and "early" degenerative narrowing in the shoulder, which should have been considered an encouraging finding in a sixty year old individual. Overall, the worker felt that the WCB minimalized the fact that he had 30 years of working in the construction industry. Work-related musculoskeletal injuries are multi-factorial, and age alone could not be considered without factoring in the various strenuous activities of work.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s left 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 job duties. On a balance of probabilities, we are not able to make that finding.

Following the hearing, the panel requested a copy of the operative report relating to the worker's November 20, 2012 left shoulder surgery. The pre-operative and post-operative diagnosis was rotator cuff disease of the left shoulder. The operative procedures performed were arthroscopy, debridement, subacromial decompression and rotator cuff tear repair.

It is notable that the condition which required surgical repair was not in the nature of a discrete acute tear of the rotator cuff but rather was suggestive of widespread degenerative and congenital issues within the shoulder, including Type 1 labral tearing of the biceps tendon, undersurface extensive rotator cuff tearing, and a broad acromion with a tight acromial space requiring extensive bursectomy and an acromioplasty. These types of degenerative and congenital issues would be considered to be non-work-related.

The panel gave careful consideration to the worker's strongly held and well-articulated position that his thirty years of working in construction were a causal factor in the development of his left shoulder condition. 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 his shoulder condition. The panel 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 it cannot be denied that it is possible, the test that must be met is probable. The weight of the evidence must support a causal relationship.

The worker's carpentry work duties did involve some degree of left sided overhead work and front extended loading of the left arm but did not reflect a continuous and repetitive performance of these actions such as we would look for in order to satisfy ourselves that a causal relationship exists. The panel also notes that the left side is the worker's non-dominant hand and if work duties were in fact causative of the condition, it would be expected that the right arm would be the first to develop symptomatology. Further, the panel places weight on the fact that the worker is now experiencing gradual onset of the same type of symptoms in his right shoulder, despite the fact that he had been working less in the past year, due to the recovery time required as a result of his November 2012 surgery. This suggests to the panel that natural degenerative processes are at play.

Overall, the panel is not satisfied that there is enough specific work activity present to enable us to conclude on a balance of probabilities that the worker's left shoulder pathology is attributable to his job duties. As a result, we find that the worker's claim is not acceptable. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of January, 2014