Decision #122/14 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's rotator cuff tear was due to a non compensable left shoulder condition as opposed to the repetitive nature of his workplace activities. A hearing was held on September 10, 2014 to consider the matter.Issue
Whether or not the worker is entitled to benefits beyond April 4, 2014.Decision
That the worker is not entitled to benefits beyond April 4, 2014.Decision: Unanimous
Background
The worker filed a claim with the WCB regarding a work-related injury that occurred to his left shoulder on November 12, 2013. The worker reported that on the day of accident he felt a sharp piercing pain in his left shoulder and had difficulty lifting his arm at work.
When seen for medical treatment on November 26, 2013, the treating physician noted that the worker had slight atrophy to his rotator cuff of his left arm with painful external rotation. The diagnosis outlined was impingement of supraspinatous, infra spinatous.
On December 16, 2013, the worker provided the WCB with information related to his daily job duties. The worker indicated that he performed prep work 95% of his day at an autobody shop which entailed the use of an orbital sander and some painting. The worker used both arms at or above shoulder height at least half the time of his shift. Prior to the November workplace accident, the worker reported that he had had aches and pains in his shoulder but November was the first time that he ever saw a doctor for his shoulder symptoms.
The worker's claim for compensation was accepted by the WCB as a non-specific injury, no specific accident on the job.
On January 23, 2014, an MRI of the worker's left shoulder identified a large full-thickness insertional tear of the supraspinatus. On February 6, 2014, a left shoulder open rotator cuff repair was suggested by the worker's treating orthopedic surgeon.
On March 19, 2014, a WCB medical advisor reviewed the worker's claim file and responded to questions posed by WCB case management. The medical advisor stated:
On a balance of probability the worker's presentation of a well defined large full-thickness tear of supraspinatus of the left shoulder which does not present with any longer-term findings such as fatty muscle infiltrate or muscular fraying or muscular tendinosis suggests an acute incident rather than a repetitive long-term and protracted injury process as being the cause.
On April 15, 2014, the worker was advised that the WCB was unable to accept further responsibility for his claim. The case manager referred to the WCB medical opinion outlined on March 19, 2014. The case manager outlined the position that the type of tear found on the MRI findings was caused by a specific acute incident rather than repetitive heavy movements over a period of time.
In a consultation report dated April 24, 2014, the treating orthopedic surgeon reported that the worker was proceeding with a left open rotator cuff tear. The surgeon also stated:
He has been fighting with WCB because they think the tear is large and there is no atrophy and that this is most likely acute in nature. I agree with this interpretation except that there is no data to support in terms of timing of when the muscle will turn to fat from the time of the injury. I think the patient is just lucky that his muscle bulk is not turning to fat yet and I think he is still a good candidate for repair of the left rotator cuff if the muscle is repairable.
On April 25, 2014, the worker appealed the case manager's decision of April 15, 2014 to Review Office. The worker contended that the cause of his shoulder injury was related to his 40 years of repetitive work activity in an autobody shop and that his shoulder condition was not the result of a specific acute incident.
Prior to considering the worker's appeal, Review Office spoke with the worker by telephone on May 9, 2014. The worker stated that he could not recall a specific accident and he did not fall on his shoulder or arm. His shoulder symptoms consisted of a dull ache and one week in November it increased which caused him to seek medical attention. There were no changes to his job duties and he was not able to lift his arm above shoulder height and needed treatment. The worker advised Review Office that he used both arms when using a sander. He described using a three foot long board to manually sand the vehicles. The electric sanding was done with one hand to provide a smooth finish.
At Review Office's request, a WCB orthopedic consultant reviewed the treating surgeon's report dated April 24, 2013 and stated:
The workplace injury was not a single event. Repetitive movements of both shoulders at work have been described. I am not convinced that this mechanism of injury would be likely to cause the rotator cuff tear demonstrated on MRI.
It cannot be stated with certainty when the rotator cuff tear had occurred. Such a tear would generally be a traumatic event, with sudden pain and loss of shoulder function. Occasionally, a tear of this nature would develop slowly over time, but that would be seen less frequently.
After a rotator cuff tear of this size, there would be development of muscle atrophy and fatty infiltration more often than not. Dr. [orthopedic surgeon] correctly has pointed out that absence of fatty infiltration on MRI is not absolute proof that the rotator cuff tear might or might not be of gradual onset over time. However, the balance of probabilities suggests that the rotator cuff tear was not caused by the repetitive workplace activities.
On May 29, 2014, Review Office concluded that the worker was not entitled to benefits beyond April 4, 2014. Review Office noted that the mechanism of injury provided by the worker pertained to the performance of his regular work duties. The worker had a dull ache involving his shoulder and then about a week before November 12, 2013 his symptoms increased. The work duties did not change at that time. Review Office referred to WCB medical opinions on file to support that the worker's rotator cuff tear was not related to a workplace injury or to repetitive workplace activities. Review Office determined that the worker's need for work restrictions and medical treatment beyond April 4, 2014 was related to a non-compensable left shoulder condition (rotator cuff tear).
On June 11, 2014, the worker's employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. The employer contended that the worker's claim was just and that the worker should be entitled to further compensation benefits.
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.
The employer is appealing the WCB's decision that the worker's current injury is not related to his compensable accident.
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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, or the worker attains the age of 65 years.
Employer's Position
The employer was represented by its manager who advised that the employer supports the worker's claim. He advised that the worker's injury is a long term work related injury. He said it is the result of performing repetitive work for many years.
Worker's Position
The worker attended the hearing and advised that he disagrees with the WCB and Review Office decisions.
The worker advised that he has worked in the auto body industry for over 40 years. His job included preparation of vehicles for painting. This involved sanding and filing vehicles after the body filler has been used to fill in dents, masking the vehicles and applying primer. Each vehicle would be sanded several times commencing with coarse sandpaper and working up to a very fine sandpaper. The worker used a sanding board which could range from 4 to 5 inches up to 36 inches long. He used his right hand only on boards under 15 inches, but boards 15 inches or greater required 2 hands.
The worker explained that much of the work is overhead. He said the lower panels on vehicles were sanded from ground height. The worker would lay on his back on a "creeper" and slide along the side of the vehicle sanding the lower portions. He also said that arms had to be extended when sanding vehicle hood and roofs. He also explained the activities associated with masking vehicles.
The worker said that he would spend about 4 hours each day filing and sanding and 2 hours masking. About half his day involved hard physical work.
Regarding his injury, the worker said that he first noticed pain in October 2013. He had aches before but this was a different pain. The worker said that the first week was difficult but he continued to work. The second week was very painful. He saw his physician and participated in physiotherapy. He was referred to a surgeon who told him he needed surgery but was concerned that the surgery might not work. The worker advised that he had surgery on June 16, 2014 and that it was successful. The surgeon told him he would require between 9 and 12 months for recovery. He is currently off work and is participating in physiotherapy. He feels he is improving.
The worker said he is right hand dominant but that most of his job duties are bilateral.
Analysis
The issue before the panel is whether the worker is entitled to benefits beyond April 4, 2014. For the appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical benefits after April 4, 2014 as a result of his workplace injury. The panel was not able to make this finding.
The primary issue in this appeal deals with whether the tear identified on the MRI and confirmed by the orthopedic surgeon in the subsequent surgery is related to the worker's duties. The mechanism of injury provided by the worker was of repetitive work over 40 years causing the injury. The worker confirmed there was no change in his duties before he noticed the pain. He said that one day he developed a different pain while performing his regular duties. There was no traumatic event that caused the pain. He thought it was just due to doing the same work for such a long time.
The panel has considered all the evidence. It finds that the medical information does not support a finding that the daily performance of repetitive duties caused the injury which ultimately required a surgical repair and continues to keep the worker off work. The panel finds that the tear was not related to the worker's employment. In reaching this decision the panel relies upon the following:
- January 23, 2014 MRI of left shoulder which noted a complete tearing of the supraspinatus tendon. The MRI also notes "there is no focal atrophy or fatty infiltration of the rotator cuff musculature."
- March 19, 2014 WCB medical advisor opinion that the worker's rotator cuff tear is not related to a workplace injury. He considered the MRI findings and opined that "on balance of probability the worker's presentation of a well defined large full-thickness tear of supraspinatus of the left shoulder which does not present with any longer-term findings such as fatty muscle infiltrate or muscular fraying or muscular tendinosis suggest as acute incident rather than a repetitive long-term and protracted injury process as being the cause."
- May 28, 2014 WCB orthopedic specialist opinion that "The workplace injury was not a single event, repetitive movements of both shoulders at work have been described. I am not convinced that this mechanism of injury would be likely to cause the rotator cuff tear demonstrated on MRI."
The panel notes that the treating orthopedic surgeon agreed in part with the WCB medical advisor's opinion that the tear is typical of an acute event, although he pointed out that "there is no data to support in terms of timing of when the muscle will turn to fat from the time of the injury." The panel acknowledges this point but finds on a balance of probabilities that the issue of timing is not really at issue, as an acute tear or incident has not been identified at work at any point in time.
The appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of September, 2014