The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board dated March 14, 2012 and June 6, 2013. A hearing was held on July 19, 2012 to consider these matters.

Issue

1992 claim:

Whether or not the worker's current right shoulder difficulties are related to the December 15, 1992 compensable injury.

2011 claim:

Whether or not the claim is acceptable.

Decision

1992 claim:

That the worker's current problems with her right supra scapular and right supraspinatus are related to the December 15, 1992 compensable injury.

2011 claim:

That the claim is not acceptable.

Decision: Unanimous

Background

1992 claim

The worker filed a claim with the WCB for injury to her right thumb and wrist with the accident date of December 15, 1992. In February 1993, the worker was diagnosed with tendinitis involving the wrist, elbow and shoulder all secondary to repetitive strain from her activities as a seamstress.

On May 18, 1993, the worker was seen by a WCB medical advisor at a call-in examination. It was determined from this assessment that the worker suffered from regional myofascial pain syndrome of the right shoulder and de Quervain's tendonitis of the right wrist. In July 1993, the examining medical advisor stated that there was a relationship between the worker's myofascial pain syndrome and her employment activities.

In December 1994, the worker underwent surgery for de Quervain's tenosynovitis and eventually returned to her regular duties by 1995.

In 1996, the worker was treated with injections to her right shoulder. On June 26, 1996, a WCB medical advisor commented that the worker was receiving symptomatic relief from the injections and opined that the tendonitis which was a result of the compensable injury had resolved.

In January 1998, the worker stopped working due to right arm pain. On September 21, 1998, the worker was advised that the WCB was not accepting further responsibility as the medical information provided no ongoing objective medical findings to support time loss from work as a result of the 1992 compensable injury. This decision was again confirmed on December 1, 1998.

In a memo to file dated December 24, 1998, a WCB case manager spoke with the worker and her representative. The worker indicated that the main reason she went off work in January 1998 was due to her wrist and thumb and that her shoulder and arm also became a problem after she had surgery in 1995.

On December 24, 1998, the worker was seen by a WCB physical medicine and rehabilitation specialist for an examination of both upper extremities. Following this assessment, the WCB advised the worker on January 21, 1999 that based on the examination findings, there was no evidence to indicate that her current complaints were related to her 1992 compensable injury.

An MRI examination of the right shoulder was taken March 8, 1999. The report stated that there was no evidence for a rotator cuff tear. Minor impingement was suspected related to degenerative change in the acromioclavicular joint.

On March 2 and 9, 1999, the worker was seen at the WCB's Pain Management Unit ("PMU"). It was concluded from the assessments that the worker had chronic pain syndrome and that its development was significantly affected by her workplace injury. It was also felt that the chronic pain syndrome was not sufficient to keep the worker off work.

On August 13, 1999, the WCB accepted the diagnosis of chronic pain syndrome.

File records showed that the WCB arranged for the worker to undergo a four to five week (between September and October 1999) out of province multidisciplinary pain management program for treatment of her condition. After completion of the program, a return to work program would be initiated for a period of six weeks.

In December 1999, the worker completed the graduated return to work program with the accident employer but expressed concerns that she may not be able to work full time hours. Nevertheless, the worker resumed her regular job duties. From 1999 to 2011, the worker continued to work full time as a seamstress, and had no further involvement with the WCB.

On March 7, 2011, the accident employer submitted an Employer's Incident Report stating that the worker claimed that her shoulder and arm was sore - reason unknown. The date of accident was October 18, 2010.

A medical report from the family physician dated March 11, 2011 diagnosed the worker with a strain of the right shoulder. An x-ray of the right shoulder dated February 16, 2011 showed no bone or joint abnormality. The worker was instructed to rest her shoulder for a period of three months.

On March 15, 2011, the worker advised the WCB that she had pain in her shoulder since her 1992 claim. The pain was in the back and front of her shoulder and it never went away. Her shoulder pain was worse when working at her sewing station. The worker indicated that she had been off work since February 18, 2011.

On March 22, 2011, a sector services manager concluded that the information provided by the employer, the worker and the doctor's first report did not support a recurrence. The file was then forwarded to Short Term Claims to establish a new claim involving the worker's right shoulder.

2011 claim:

On March 7, 2011, a rheumatologist indicated that the worker had been seen in the past for shoulder difficulties and that she underwent cortisone injections when seen at a clinic a few years prior. The present diagnosis was right adhesive capsulitis and bicipital tendinitis.

On April 13, 2011, a WCB case manager spoke with the worker through a translator to obtain additional information concerning her work duties and the development of her shoulder difficulties. On April 14, 2011, the accident employer was also contacted to confirm the worker's employment history, job duties and shoulder complaints.

On May 20, 2011, a WCB medical advisor reviewed the medical reports to determine the etiology of the worker's shoulder condition. The medical advisor stated:

• the family physician reports provided little information to determine a diagnosis
• based on reports from the rheumatologist and a physiotherapist, the worker's presentation was consistent with rotator cuff or bicep tendinopathy
• rotator cuff/bicep tendinopathy can come about from degeneration which was the normal aging process of the rotator cuff or from an acute trauma such as a blow to the shoulder, a fall on an outstretched hand or traction to the shoulder. It can also occur from overuse such as repetitive heavy lifting or prolonged overhead work or if the arms are held in position of impingement
• the worker had a lengthy claim from 1992 with respect to right rotator cuff tendinopathy. There was no evidence that this current diagnosis was related to the prior diagnosis as the worker was able to return to her pre-accident duties for many years and there was no documentation to support continuity of symptoms
• the 1999 MRI showed some AC joint arthrosis (degenerative) and a lateral downsloping acromion (anatomic variant) which were impinging on the rotator cuff. Over time, these will pinch on the rotator cuff, increasing the likelihood of developing rotator cuff degenerative tendinopathy. This was more likely to be the etiology of the worker's shoulder problems than any workplace factors

By letter dated May 25, 2011, the worker was advised that the WCB was unable to establish a relationship between the development of her right shoulder difficulties diagnosed as rotator cuff or bicep tendinopathy to an accident occurring at work or to her employment activities.

On June 17, 2011, the worker's advocate requested a meeting with the WCB as it was felt that the information outlined in the case manager's April 13, 2011 memorandum had incorrect information related to the worker's job duties.

At a WCB meeting held on June 22, 2011, the worker provided the WCB with details related to her job duties.

On July 18, 2011, the family physician indicated that the worker suffered from right shoulder/arm strain, adhesive capsulitis, bicipital tendonitis and chronic pain of right shoulder and arm on lifting movement. In the physician's opinion, the worker's repetitive daily work activities caused her shoulder and arm complaints.

On August 23, 2011, a WCB rehabilitation specialist provided the following information after attending the worker's job site:

Work is repetitive in nature - same work cycle repeated until order is completed. I timed the cycle of a work completing the black fabric liner and it took approximately 35 seconds. Hands and arms are used continually when sewing linings. Right shoulder repeatedly flexes and abducts to mid ranges. Forces are light in nature and are mainly through the fingers that pull and hold fabric into place.

On September 20, 2011, the WCB case manager wrote the worker to advise that her claim file and recent work site assessment including video and pictures had been reviewed in consultation with a WCB medical advisor. The medical advisor's opinion was that her shoulder was not held in the position of impingement and that her workplace activities would not cause the current diagnoses (right shoulder/arm strain, capsulitis, bicepital tendonitis and chronic pain of right shoulder and arm). The case manager stated: "Although your job duties are repetitive in nature, your hands/arms are in neutral position, forces are light in nature and are mainly through the fingers that pull and hold fabric in place. It is the opinion of Rehabilitation and Compensation Services that the work you perform would not cause your right shoulder difficulties as diagnosed. Based on this we are unable to accept your claim."

On January 3, 2012, the worker's advocate appealed the September 20, 2011 decision to Review Office. The advocate submitted that the medical diagnosis and prognosis by the worker's family physician was ignored and that the case manager did not offer any convincing medical evidence that repetitive pressure on the fingers while pulling the fabric would not aggravate the worker's right arm and shoulder difficulties. The advocate submitted an MRI report of the worker's right shoulder dated September 30, 2011. The radiological report indicated: "High grade partial bursal insertional tear supraspinatus."

On January 10, 2012, Review Office referred the worker's file back to primary adjudication to consider the MRI report of September 30, 2011.

On January 16, 2012, a WCB medical advisor commented that the tear noted on the MRI had been there for quite some time and that there was no mention of an acute injury from review of the worker's claim file. She stated the most likely cause of a rotator cuff tear in a 61 year old person with no history of trauma and no repetitive work activities with the shoulder held in an impingement position would be degenerative. Based on this opinion, primary adjudication advised the worker on January 17, 2012 that there was no relationship between her work duties and the rotator cuff tear identified on the MRI. On January 23, 2012, the worker's advocate appealed the case manager's decision to Review Office.

On March 14, 2012, Review Office determined that the worker's 2011 claim was not acceptable as the evidence on file did not support a causal relationship between her right shoulder condition and her job duties. Review Office referred to the family physician's diagnosis of bicipital tendonitis and his opinion that the condition was caused by the worker's repetitive work duties.

Review Office noted that although the worker's job duties were repetitive, there was no evidence that her job duties required her shoulder to be held in a position of impingement or that using pressure to pull the fabric would result in any stress on the worker's right shoulder.

On April 8, 2012, the worker's advocate appealed Review Office's March 14, 2012 decision to the Appeal Commission and a hearing was convened on July 19, 2012. The hearing of July 19 was adjourned as only the 2011 claim had been appealed yet the worker wished to address entitlement under both the 2011 and the 1992 claim. The 1992 claim was not able to be considered as it had not yet been considered by Review Office.

The worker's advocate then requested further adjudication of the 1992 claim.

On August 7, 2012, a WCB case manager wrote the worker and stated: "I have considered your claim that you have sustained a recurrence of your 1992 injury and find that the information on this file and claim (2011) does not support that you have sustained a recurrence of your 1992 injury." On September 21, 2012, this decision was appealed to Review Office. In November 2012, Review Office returned the file back to primary adjudication to gather additional information and to re-visit its earlier decision.

Primary adjudication obtained additional medical information from the worker's treating physicians and referred the file to the WCB's healthcare branch for a medical opinion regarding the worker's arm condition. A medical opinion is on file dated March 6, 2013.

On March 15, 2013, the case manager wrote the worker to advise that after reviewing the file information and the WCB medical opinion, she was still unable to conclude that the worker sustained a recurrence of her original work injury. The case manager stated in part:

The healthcare consultant who reviewed your file noted that medical reports document there are preexisting structural issues in your shoulder including AC arthrosis, the joint changes appearing to suggest impingement and there is documentation of a Type II acromion that could predispose you to impingement. He goes on to opine that your work duties would not be expected to aggravate your condition. He stated: "the current shoulder issues and rotator cuff tear have no plausible relationship to the original claim initiation or to the job physical demands.

On April 9, 2013, the worker's advocate appealed the March 15, 2013 decision to Review Office.

On June 6, 2013, Review Office referred to specific medical reports on file to conclude that the worker's current right shoulder difficulties were not directly related to her workplace injury. Review Office stated in part that it did not accept the worker's representative's position that the worker had "chronic tendinitis, secondary to repetitive strain from her activities as a seamstress."

It was unable to relate the September 30, 2011 right shoulder MRI findings to the 1992 compensable injury. Review Office accepted the WCB medical opinions outlined on May 20, 2011 and January 16, 2012. Review Office accepted the WCB physical medicine consultant's opinion that: "there is no physical or pathoanatomic diagnosis that couples the original diagnoses to the current symptomatic complaints."

On July 23, 2013, the worker's advocate appealed Review Office's decision of June 6, 2013 on the 1992 claim to the Appeal Commission. The advocate also advised the Appeal Commission that he wanted to appeal the WCB's decision to deny the worker's 2011 claim. On November 26, 2013, a hearing was held at the Appeal Commission to consider both matters.

Following the November hearing, the appeal panel requested and received additional medical information from the worker's treating physicians. The medical reports were then forwarded to the worker's advocate for comment. On May 2, 2014, the panel met further to discuss the case and render decisions on the issues under appeal.

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. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.

The Worker’s Position

The worker was represented by an advocate at the hearing and her spouse was present as an observer. The services of an interpreter were provided. The position advanced on behalf of the worker was that her current right shoulder difficulties were related to her original workplace injury suffered in 1992. The worker stated that she was forced to go back to work in 1999, and that no one seemed to understand the severity of the pain she was going through. She was dependent upon receiving injections and taking medication to enable her to continue to work from 1999 to 2011. When the worker contacted the WCB in 2011, she said that her pain had never resolved since her return to work in 1999.

It was submitted that the WCB's decision should be overturned for the following reasons:

1. The decision was in denial of the medical evidence. Medical practitioners directly involved in the worker's care had diagnosed her as suffering from chronic tendonitis secondary to repetitive strain from activities as a seamstress.
2. The WCB did not accept judicial acknowledgment given by the Supreme Court of Canada for chronic pain as a disability.

The advocate made further submission regarding legal issues affecting the claim, which will be addressed below under the heading "Preliminary Matters."

Analysis

Preliminary matters:

As part of the worker's appeal, the worker's advocate introduced two legal issues for the panel's consideration, which the panel will deal with at the outset. The first deals with the requirement for the Appeal Commission to interpret and abide by the Canadian Charter of Rights and Freedoms (the "Charter"). The second deals with the standard of proof to be used by the Appeal Commission in making decisions.

Jurisdiction re Charter issues

The worker's advocate made extensive reference to the Supreme Court of Canada decision in Nova Scotia (Workers Compensation Board) v. Martin [2003] SCC 54. He submitted that the case stood for the following propositions:

1. That Nova Scotia's restriction of Worker's Compensation benefits for employees disabled by chronic pain to a four week functional restoration program was contrary to the equality rights guaranteed to disabled persons by section 15(1) of the Charter; and

2. It was within the jurisdiction of the Nova Scotia Workers Compensation Appeals Tribunal to decide this issue, namely a question of law.

It was submitted that the Martin case was of direct application to the worker's case. The worker suffered from repetitive strain and shoulder pain which resulted in chronic pain syndrome. The total denial of benefits to the worker for her condition was a violation of the worker's equality rights. It was submitted that the worker was discriminated against both on the grounds of her being disabled and based on her ancestry. The worker's advocate stated that the Appeal Commission was subject to the section 15(1) equality rights under Charter and that it had the jurisdiction and duty to decide Charter issues. In support of his position, the advocate cited the following portion of the Martin decision:

[a]dministrative tribunals which have jurisdiction -- whether express or implied -- to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. The presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter issues from the tribunal's authority over questions of law.

The panel accepts that it has the jurisdiction to decide questions of law arising under the Act. The question then turns to whether we also have the concomitant jurisdiction to decide the constitutional validity of that provision. In this regard, we note that s. 60(2.2) of the Act provides that: "The board and the appeal commission do not have jurisdiction over constitutional questions." It is the panel's view that the presumptive jurisdiction to decide the constitutionality of any provision of the Act has been clearly rebutted in the exact manner contemplated by the Supreme Court of Canada. The Manitoba Legislature has expressed in clear language, in an amendment introduced into the Act in 2007, that the Appeal Commission does not have jurisdiction over constitutional questions which we view as including a Charter challenge to the Act. As noted at the outset of these reasons, the panel is bound by the Act and the policies of the Board of Directors. Accordingly, the panel cannot entertain a Charter challenge of any provision of the Act or Board policy. It remains open for the worker to have any Charter issues dealt with in other forums that might allow for same.

With respect to the question of whether or not the Appeal Commission is subject to acting in compliance with the equality provisions of the Charter, there is no question that the Appeal Commission is absolutely required to conduct itself in a fair and just manner which does not contravene any of the protected rights under the Charter. The issue in this case, however, deals with causation and whether or not the worker's current right shoulder difficulties can be causally linked back to the injury she suffered in the workplace accident of December 15, 1992. This will be a finding of fact to be made by the panel, and has nothing to do with the differential treatment and discrimination issues addressed in the Martin case. We are of the view that the Martin case is of no application to the present appeal. We believe that the worker's advocate is confusing the issues and we reject the proposition that a determination that the worker is not entitled to benefits is automatically a violation of her equality rights. Whether or not the worker is entitled to further benefits is solely a question of fact, and does not involve any Charter challenge to the provisions of the Act.

With respect to the allegations that the worker was discriminated against on the basis of her ethnic origin as noted above, the panel acknowledges that it must comply with the Charter and treat all individuals equally before the law and without discrimination. To the extent that the worker's advocate is seeking redress for alleged discrimination (of which, parenthetically, the panel sees no evidence) the Appeal Commission is not the proper forum in which to seek this relief. Our jurisdiction is limited to determining entitlement under the Act.

Standard of Proof

The worker's advocate submitted that the standard of proof of "a balance of probabilities" is no longer the appropriate standard to be used by this panel or the Appeal Commission. He cited the Supreme Court of Canada's decision in Dunsmuir v. New Brunswick [2008] 1 SCR 190 in support of this position. The advocate stated:

The Court has decided that henceforth there shall be only two standards, correctness and reasonableness. The standard of correctness must be maintained in respect of jurisdiction and questions of law. So here we are dealing with the law and the standard which should have been applied has to be correctness and not a standard of reasonableness or probabilities.

In the panel's view, Dunsmuir only addresses the standards (the correctness or reasonableness of the decision) that are to be used by the courts in their judicial review of decisions that are made by administrative tribunals like the Appeal Commission. It applies only to courts. It does not replace the adjudicative standards that different administrative tribunals may themselves use. In the case of the Appeal Commission, the panel views our standard of proof as being based on a balance of probabilities, after our completion of an inquiry-based process. This is a common standard in civil matters.

We find that the Dunsmuir decision has not changed the panel's procedures, our inquiry process or the standards on which we assess the evidence and reach our determinations; it only applies down the road to the standards to be used by a superior court in the event of a judicial review of our decision.

We turn now to the two specific issues being appealed.

1992 Claim

The issue before the panel is whether or not the worker’s current right shoulder difficulties are related to the December 15, 1992 compensable injury. In order for the appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injuries she sustained in the December 15, 1992 workplace accident. On a balance of probabilities, we are able to make that finding.

Recent medical reports indicate that there are a number of conditions present in the worker's right shoulder. For the reasons set out below under the heading "2011 Claim," we do not accept responsibility for the worker's rotator cuff bursal tear or the degenerative osteoarthritis and impingement. We do find, however, that there has been continuity in the worker's soft tissue complaints related to the suprascapular area.

The compensable diagnosis initially accepted by the WCB in respect of the 1992 claim was regional myofascial pain syndrome involving the right shoulder and also a right de Quervain's tendonitis of the right wrist. The WCB subsequently accepted responsibility for Chronic Pain Syndrome and supported the worker's participation in a 4 week Pain Rehabilitation Program in September 1999.

Following the Rehabilitation Program, when the worker returned to her job duties as a seamstress in November 1999, she was still complaining of pain in her shoulder. It may not have been disabling pain, as evidenced by the worker's subsequent ability to maintain full time employment, but the panel acknowledges that the worker did consistently report a continuity of symptoms. Independently of the WCB, the worker received treatment from a pain specialist, which consisted of suprascapular nerve blocks and trigger point injections of the right trapezius muscle. It would appear that this treatment continued into 2003. Medical reports indicate that the worker continued to report difficulties with her shoulder in 2005.

In April, 2013, the worker resumed treatment at the pain management centre. The report of March 14, 2014 indicated that the worker was receiving right sided suprascapular ultrasound guided nerve blocks at three to four week intervals and that these procedures provided her with pain relief for approximately three weeks duration. This was the same type of treatment as she had been receiving in 2003.

At the hearing, the worker's evidence was that during the period from 1999 to 2011, she continued to experience the same type of pain in her shoulder, despite the fact that she worked her full regular duties. She relied on the injections and medication to keep herself functioning at work. It is notable that during this time period, the worker continued to perform the same job duties which originally caused her condition to develop in 1992.

On a balance of probabilities, the panel accepts that the worker's compensable 1992 shoulder injury has never fully resolved. Although the pain did not prevent her from working her regular duties from 1999 to 2011, the panel accepts that there was a continuity of symptoms. We therefore find that the worker's current right shoulder difficulties are, at least in part, related to the December 15, 1992 compensable injury. The worker's appeal on this issue is allowed.

2011 Claim

The second issue before the panel is whether or not the worker's 2011 claim is acceptable. In the panel's view, the 2011 claim relates only to the partial bursal insertional tear of the supraspinatus which was identified in the MRI of September 30, 2011(the "rotator cuff tear"). In order for the appeal to succeed, the panel must find that the rotator cuff tear was caused by the work duties being performed by the worker. On a balance of probabilities, we are not able to make that finding.

On March 8, 1999, the worker had an MRI of the right shoulder which showed no evidence for a rotator cuff tear with minor impingement suspected related to degenerative change in the acromioclavicular joint. It would therefore appear that the tear had no relationship to the 1992 claim. It would also appear that at this early date, degenerative processes were present.

The job duties being performed by the worker as a seamstress were investigated by the WCB and were reviewed by its medical advisor. The WCB medical advisor's opinion was that the rotator cuff tear was not likely to have been caused by the work duties. In her memo of January 16, 2012, she indicated that a rotator cuff tear can occur from acute injury, repetitive heavy lifting, overhead work or work with arms held in a position of impingement. The panel agrees with the medical advisor's assessment that the work duties being performed by the worker as a seamstress did not involve any of these activities. The WCB medical advisor's assessment was that the most likely cause of a rotator cuff tear in a 61 year old person with no history of trauma and no work duties involving repetitive activities with shoulder in an impingement position would be degenerative. The panel accepts this opinion and we find that the tear identified in the 2011 MRI is not work related. We therefore find that the worker does not have an acceptable claim for the 2011 rotator cuff tear. The worker's appeal on this issue is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of June, 2014