The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decisions made by the Workers Compensation Board ("WCB") that the worker's claim was acceptable for a right shoulder injury occurring in the workplace in March 2012 and that the worker's rotator cuff tear was a result of her compensable injury. A hearing was held on January 29, 2014 to consider these matters.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker's right shoulder rotator cuff tear is a consequence of the compensable accident.

Decision

That the claim is acceptable; and

That the worker's right shoulder rotator cuff tear is a consequence of the compensable accident.

Decision: Unanimous

Background

On June 5, 2012, the worker filed a claim with the WCB for a right shoulder injury that she related to her job duties that involved lifting boxes of heavy produce. The date of accident was March 26, 2012. In a letter to the WCB dated June 18, 2012, the employer stated that they were unaware of an injury to the worker's right shoulder on March 26, 2012.

Primary adjudication contacted the worker to obtain additional information related to the onset of her right shoulder difficulties and the specific work duties that led to her difficulties. The WCB also obtained medical information from the treating physician as well as MRI results of the worker's right shoulder dated April 21, 2012. The results were read as showing moderate tendinosis of the supraspinatus and infraspinatus tendons with tearing of the supraspinatus tendon. Mild acromioclavicular osteoarthritis was also identified.

On June 27, 2012, a WCB medical advisor reviewed the worker's file at the request of the adjudicator to determine whether a relationship existed between the worker's job duties and her right shoulder condition. The adjudicator described the worker's job duties as follows:

"[The worker]…working in the salad department. Here she would take mostly pre chopped items combine them to a recipe standard in a plastic bowl and place them on the sales shelf. She had been in this position for some time and found it did not aggravate her shoulder. She works 25 - 28 hours per week in this job.

On March 28, 2012, she was being trained to work on the wet wall. This required that she get produce from a pallet or shelf (lettuce, celery beets, individual carrots etc) in the back, place them in a cart and bring them to the sales floor for stocking. She reports this increase in activity caused her injury…[the worker] has a prior right shoulder injury…MRI done 02/08/10."

On July 5, 2012, the WCB medical advisor outlined the opinion that the current diagnosis was moderate tendinosis of the supraspinatus and infraspinatus tendons with tearing of the supraspinatus tendon at the right shoulder. She stated that tendinosis of the rotator cuff would be due to repetitive movements at the shoulder at chest level or overhead. Repetitive pulling, pushing or lifting activities at chest level or overhead can also lead to the development of rotator cuff tendinosis. Rotator cuff tears can also be due to tendon degeneration which occurred with age or they can occur acutely due to falls or sudden powerful raising of the arm against resistance. The medical advisor indicated that the worker had pre-existing mild right shoulder AC joint osteoarthritis. This could increase the predisposition for the MRI documented rotator cuff pathology.

On July 18, 2012, the worker was advised that her claim for compensation was denied as the WCB was unable to establish that her job duties were the cause of her right shoulder diagnosis. The WCB adjudicator based her decision on the following factors:

• the employer was unable to confirm that the worker was having difficulties with her right shoulder on or around March 26, 2012; and
• the worker did not describe an injury or job duties that involved repetitive movement at or about shoulder level, a fall on an outstretched arm or sudden powerful raising of the arm against resistance.

On March 15, 2013, a union representative, acting on behalf of the worker, appealed the adjudicator's decision to Review Office. The union representative indicated that the file evidence showed that the worker's job duties did involve repetitive lifting and pushing activities at chest level and overhead (as noted on the Form 3 and Claim Notes of June 20, 2012) and that the WCB should have made a greater effort to elicit more detailed information from the worker regarding her job duties. He noted that the WCB focused on the light nature of placing vegetables on the wet wall and paid insufficient attention to the overhead lifting and handling of 30 and 40 pound boxes.

In a submission to Review Office dated May 27, 2013, the employer's representative indicated that the evidence did not support that the worker's right shoulder injury had arisen out of and in the course of her employment and they agreed with the July 18, 2012 decision that the worker was not entitled to benefits for her right shoulder. The employer based their arguments on the following factors: There was no proof of an accident, the MRI findings were not compatible with the alleged mechanism of injury, the diagnosis was degenerative in nature and the worker repeatedly attributed her injury to her WCB claim(s) rather than to her recent work activities.

A copy of the employer's submission was provided to the worker's union representative for comment and his response to Review Office is dated June 7, 2013.

On July 4, 2013, Review Office determined that the worker's claim for compensation was acceptable and that Compensation Services was to determine the extent of the worker's benefit entitlement. Review Office stated, in part:

"The Review Office must find the evidence to establish that the worker had an "accident". In so determining the question for the Review Office to answer is whether or not the worker's duties of working in the Produce Department son (sic) March 26, 2012 and March 27, 2012, had on a balance of probabilities, caused an injury. We were able to make this finding but not for an injury of a rotator cuff tear….The Review Office did not find an "accident" at work to have caused the tears in the supraspinatus tendon as seen in the MRI of April 21, 2012. There would need to be a specific event such as a sudden high stress motion or impact to cause the tear(s); or powerful raising of the arm against resistance. We found no evidence of this. There was no such reported mechanism.

The worker's work activities over a couple of days involving some repetitive reaching and lifting activities at the chest/shoulder level or overhead would not cause a condition of rotator cuff tendinosis (which develops over time) nor tear(s) in the supraspinatus tendon in a degenerative environment.

The Review Office finds that the worker's activities at work in March 2013 (sic) resulted in an injury to the underlying tendinosis. It is unlikely that she would have had a structural change in her tendinosis but the overhead activities in the Produce Department can cause a previous asymptomatic tendinosis to be symptomatic. On that basis we accept that she had an injury by accident.

The worker's claim is acceptable."

On July 23, 2013, the employer's representative appealed Review Office's decision of July 4, 2013 to the Appeal Commission.

On August 13, 2013, the union representative asked Review Office to reconsider their position that the worker's rotator cuff tear was not related to her compensable accident based on a July 17, 2013 report from the treating surgeon which stated:

"I have reviewed your letter, the attached description of her work activities and my clinical notes. In response to your question, I do feel that on balance of probabilities, it is likely that [the worker's] work activities contributed significantly to her developing the high grade partial thickness rotator cuff tear for which I treated her.

The supraspinatus tendon is engaged maximally with the arm in 90° of forward elevation, which should be the position that you described for lifting heavy boxes of vegetables to chest and shoulder height. It therefore stands to reason that this type of activity could have resulted in a tear to her supraspinatus tendon. This fits with her clinical history of having onset of severe pain after doing this type of activity repetitively for several days."

On September 23, 2013, the employer's representative provided Review Office with their written comments with respect to the union's submission of August 13, 2013.

In response to questions posed by Review Office, a WCB orthopaedic consultant provided the following opinions on October 30, 2013:

Q: Is the nature of the pathology in the operative report degenerative or traumatic?

A: The operative report dated 4-April-2013 described "very thin and poor quality" tissue of the rotator cuff and a high grade partial thickness tear on the bursal surface of the rotator cuff. The nature of this pathology is degenerative rather than traumatic, on balance of probabilities.

Q: What does a "high grade" partial rotator cuff tear mean?

A: The higher grade of a partial thickness tear indicates that it is almost, but not quite, a full thickness tear.

Q: The operative report refers to "evidence of impingement against the under surface of the acromion and matching this area was a high grade bursal sided tear of the rotator cuff."

What is causing the impingement and does it or the impingement play a role in causing the tear?

A: Impingement of the surface of the rotator cuff upon the acromion causes pain and inflammation of the subacromial bursa. The cause of the rotator cuff tear is not the impingement. Rather, the tear is caused by graduated wear and thinning of the rotator cuff in an area of poor blood supply of the tendinous structure. The thinning, fraying and tearing increases gradually with activities of daily living over several years. In traumatic tears, the defect allows the torn edges to retract, and typically there would be no thinning of the cuff on either side of the tear.

On October 30, 2013, Review Office provided the union and the employer with a copy of the following information for their comments:

• report from the treating orthopaedic surgeon dated January 21, 2013
• operative report dated April 4, 2013
• diagnostic imaging results dated January 21, 2013
• the October 30, 2013 opinion expressed by the WCB orthopaedic consultant

On November 1, 2013, the union representative provided Review Office with comments regarding the additional information that forwarded to him on October 30, 2013. On November 12, 2013, the employer's representative advised Review Office that he would not be providing further comments regarding the information he received dated October 30, 2013.

On November 14, 2013, Review Office concluded that the accepted accident under this claim resulted in a personal injury of a rotator cuff tear. Review Office indicated that the worker had a definite tear in her right shoulder that was reported on an MRI and confirmed and repaired at surgery on April 4, 2013 of "a high grade partial rotator cuff tear." Review Office indicated that the factors which led to the tear were as follows:

• the characteristic of the tissue in the worker's right shoulder at the site of the tear combined with the forces from the worker's activities of reaching and lifting boxes weighing 30 to 40 pounds, which would add resistance to the upper arms and shoulders when lifting the box up to the chest/shoulder level or lifting a weighted box from overhead as performed repeatedly by the worker in the produce department on March 26 and 27, 2012.
• the July 17, 2013 opinion of the orthopaedic surgeon who stated that the worker's work activities contributed significantly to her developing the high grade partial thickness rotator cuff tear.

On November 18, 2013, the employer appealed Review Office's decision of November 14, 2013 to the Appeal Commission. On January 29, 2014, a hearing was held at the Appeal Commission to consider both issues brought forward by the employer.

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.

Relevant provisions of the Act include:

• ss. 4(1) provides that 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.
• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
• ss. 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
• ss. 40(1) provides that the loss of earning capacity is the difference that the worker's net average earnings before the injury and the net average amount the WCB determines the worker is capable of earning after the accident.

The WCB Board of Directors enacted WCB Policy 44.10.20.10, Pre-existing Conditions, which is applicable to cases where the worker has a pre-existing condition which may have been aggravated or enhanced in an accident.

This is an employer appeal. The worker has an accepted claim for a right shoulder injury. The employer is opposed to the WCB's decision that the claim is acceptable and to the WCB decision that the worker's right shoulder rotator cuff tear is a consequence of the compensable accident.

Employer's Position

The employer was represented by an employer advocate. The advocate made a submission on behalf of the employer and answered questions from the panel.

The employer representative reviewed the worker's prior claims for the years 2009, 2010 and 2011 and the worker's current claim. He noted inconsistencies in the description of the accident on each file and commented that the worker is a poor historian. He cautioned the panel about relying on the histories provided by the worker.

The employer representative noted that a February 20, 2010 MRI found that the worker had a Type 3 acromion. He noted that Type 3 acromia are more prone to impingement. The employer representative advised that this is not a degenerative condition and submitted that the Type 3 acromion is most likely the cause of the tear seen on the April 21, 2012 MRI. He submitted that the evidence does not support a finding that the tear resulted from an accident as there is no evidence that the worker had a sudden pain which would have occurred if the cause was traumatic. He noted that the operating surgeon noted evidence of impingement.

The employer representative said that it was significant that the worker did not immediately file a claim arising from the 2012 accident. He noted that the worker had filed other claims and was aware of reporting procedures. The employer representative said that the review of the prior claims demonstrates that the language was not a barrier and should not be used to excuse the delay in filing the 2012 claim. He also noted that the employer was not aware of the injury until June 5, 2012 after the worker was terminated for an unrelated matter.

The employer representative also noted that the worker completed her work on March 26 and March 27 , 2012 without reporting the injury and without any signs of discomfort.

The employer representative noted that the worker's physician did not report the injury after he saw her on March 29, 2012 which suggests the physician did not view this as a new injury; rather, it could have been treatment of an ongoing degenerative condition or a routine check-up.

The employer representative disagreed with the summary of the accident submitted to Review Office by the worker's representative. He submitted that it is not a reasonable representation of the facts of the case and that medical reports using this description of the accident should not be relied upon. He said the description included in the July 18, 2012 decision letter is a more accurate description. He said that nowhere in the file does the worker described a traumatic event as the cause of her injury. He also said it was incomprehensible that the worker with a chronic shoulder condition would attempt lifting heavy boxes at shoulder height.

The employer representative disputed the worker's description of her duties. While he had not visited the worker's worksite, he advised the panel that the employer has developed a model that is used in every store and differs from the worker's description. Regarding work in the produce cooler, the worker representative agreed the work involves lifting and moving boxes of produce which can be piled on pallets up to 6 feet in height. He disagreed with the estimated weight of the boxes. He also said that heavy boxes are placed on the bottom of the pallet and lighter boxes on the top. He said that the lifting would not be repetitive and would involve lifting items above shoulder height. He agreed that worker worked in the produce cooler.

The employer representative concluded that the injury was gradual and not the result of a workplace accident.

Worker's Position

The worker was represented by a union representative. The worker was assisted by an interpreter. She answered questions posed by her representative and the panel.

The worker representative advised the panel that from September 2006 until March 2012 the worker worked in the salad bar area. She made salads and sandwiches. Beginning in March 2012, the employer began to train the worker to work in the produce department. This work required workers to get stock in the produce cooler and take it out to the interior of the store and place on the "wet wall". He noted that boxes of vegetables are stacked on pallets to height of about 6 feet. The boxes can weigh 30 to 40 pounds.

The worker's representative noted that after working in the produce area on March 26 and 27, the worker's right shoulder became painful so she saw her physician on March 29, 2012. He said she also complained to a co-worker and a supervisor.

The physician then referred the worker for an MRI on an urgent basis. Upon receipt of the MRI report, the worker reported the injury to the WCB.

Regarding the employer representative's suggestion that the accident description is incorrect, the worker's representative noted that the Worker Incident Report (form 3) indicates "I was lifting heavy boxes, the boxes are heavy and even with 2 people hard to lift. The boxes were full of celery and we had to constantly lift heavy boxes because of a sale." The worker representative also noted that the worker told the WCB case manager about lifting heavy boxes in a conversation on file dated June 5, 2012. The case manager indicated that a change of duties initiated the medical treatment so this was a new injury.

The worker representative noted that prior to the March 29, 2012 physician visit, the worker had seen the physician on two occasions in the past two years, October 12, 2010 and July 7, 2011. He said that this and the decision to order an MRI support a finding that something significant happened at work over March 26 and 27, 2012.

The worker representative relied upon the operating surgeon's July 17, 2013 opinion that he feels on balance of probabilities, it is likely that [the worker's] activities contributed significantly to her developing the high grade partial thickness rotator cuff tear.

Analysis

There are two issues before the panel.

1. Whether the worker's claim is acceptable?

The employer argues that the claim for aggravated tendonitis of the right shoulder is not acceptable. For the employer's appeal to be successful, the panel must find that the worker's pre-existing tendonitis was not aggravated by the worker's workplace duties. The panel is not able to make this finding. The panel finds, on a balance of probabilities, that the worker's tendinitis was aggravated by her workplace injury.

In reaching this decision the panel notes:

· The worker saw her physician 2 days after her right shoulder started bothering her. This is consistent with the worker's evidence that an injury occurred at work on March 26 and 27, 2012.

· Unlike the worker's previous two other visits to her physician, on the March 27, 2012 visit the physician ordered an MRI of the shoulder on an urgent basis. This supports a finding that the physician found something new and more serious on this occasion and is consistent with the worker's evidence that she sustained an injury to her shoulder at work.

· The worker's previous appointment with her physician was on July 7, 2011, approximately 9 months before her March 29, 2012 appointment. This is consistent with the worker's position that her pre-existing shoulder problem was not causing her significant difficulty before the March 2012 accident.

· The worker had an MRI on February 20, 2010 which found that "the rotator cuff is intact with no tear, tendinosis or atrophy. Degenerative cysts are present in the greater tuberosity of the exterior supraspinatus insertion." This contrasts with the MRI conducted on April 21, 2012 which shows "Moderate tendinosis of the supraspinatus and infraspinatus tendons with tearing of the supraspinatous tendon…" This demonstrates a significant change in the worker's shoulder and again is consistent with the worker's evidence and complaints of increased pain after the March 2012 accident.

At the hearing, there was a discussion regarding the worker's job duties on March 26 and March 27, 2012. The evidence shows that the worker was not working at her regular duties as a Salad Bar Clerk on March 26 and 27, 2012, instead she was training and working in the produce cooler. She was required to lift and move boxes of fruit and vegetables. This was a change of duties requiring greater use of the upper extremities. The panel notes that the employer representative agreed that the worker did work in the produce cooler and that the work involves lifting and moving boxes of fruit and vegetables which are piled on pallets up to 6 feet in height.

While there was disagreement regarding whether the worker's duties included overhead lifting, the panel is satisfied that the worker's duties included lifting at least to chest level and shoulder level. The panel also finds that the lifting was repetitive in the produce cooler. The panel finds that the worker sustained an aggravation to her pre-existing tendonitis while performing duties in the produce cooler on March 26 and 27, 2012.

The employer's appeal on this issue is dismissed.

2. Whether the worker's right shoulder rotator cuff tear is a consequence of the compensable injury?

The employer argued that the rotator cuff tear was not a consequence of the above noted workplace injury but is related to the worker's pre-existing shoulder condition. For the employer's appeal to succeed, the panel must find that the worker's rotator cuff tear is not related to the accepted workplace injury. The panel is not able to make this finding. The panel finds, on a balance of probabilities that the worker's rotator cuff tear is a consequence of her workplace injury and her pre-existing condition and is therefore compensable.

In reaching this conclusion, the panel relies upon the worker's evidence that she injured her right shoulder at work while performing duties in the produce cooler and upon the opinion of the WCB medical advisor dated July 5, 2012 and the opinion of the treating orthopaedic surgeon dated August 13, 2013 which is reproduced in detail in the background to this decision.

The WCB medical advisor noted tendinitis of the rotator cuff "… can be due to repetitive movements at the shoulder at chest level or overhead. Repetitive pulling, pushing or lifting activities at chest level or overhead can also lead to the development of rotator cuff tendinosis. Rotator cuff tears can be due to tendon degeneration which occurs with age or they can occur acutely due to falls, or sudden powerful raising of the arm against resistance." Regarding the worker's condition the medical advisor commented that the worker's pre-existing mild right shoulder AC joint OA can increase the predisposition for rotator cuff pathology. This opinion is consistent with the panel's finding that the worker's pre-existing condition predisposed her to the rotator cuff tear which resulted from performing duties in the produce cooler.

The treating orthopaedic surgeon opined that "…I do feel that on balance of probabilities, it is likely that [the worker's] work activities contributed significantly to her developing the high grade partial thickness tear for which I treated her."

The employer's appeal on this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 24th day of February, 2014