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 condition was not related to the duties or events that arose out of and in the course of his employment. A hearing was held on February 18, 2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a pain in his left shoulder which started in the evening of April 18, 2014 after he yawned. The worker reported that he had been working four hours per day from a previous WCB claim (a compensable right wrist injury) and that he must have strained his left shoulder as he was using his left arm more to perform his duties.

The Employer's Incident Report indicated that the worker had been working four hours per day while on a previous claim. His job involved using a skill saw and drill. The worker indicated that his right forearm was feeling "not too bad." When asked how he was doing, the worker did not mention discomfort or problems with his left shoulder.

On April 24, 2014, the worker advised a WCB adjudicator that on April 18, 2014 he went to yawn and felt a sharp pain in his shoulder. The worker confirmed that he did not feel any pain at work on Tuesday, Wednesday or Thursday. The worker reported that he was using his left arm more as he was overcompensating due to his injured right wrist. His left shoulder pain progressed and he went to a local hospital to seek medical treatment.

Medical information on file consisted of hospital emergency reports, test results, and doctor progress reports.

On May 9, 2014, a WCB medical advisor was asked to provide a medical opinion regarding the diagnosis related to the worker's left shoulder condition given that the medical reports on file outlined three diagnoses: sepsis, left shoulder bursitis and left rotator cuff tendonitis. On May 9, 2014, the WCB medical advisor stated that the diagnosis appeared to be inflammatory bursitis and that the diagnosis was likely unrelated to any workplace duties.

On May 9, 2014, the worker was advised that his claim for a left shoulder injury occurring on April 18, 2014 was not acceptable. The WCB adjudicator stated:

"In order for your claim to be approved, there needs to be a causal relationship between your work duties and the difficulties you are having. Based on your symptoms appearing while you were at home, and 1.5 days after you worked your last light duty shift where no symptoms were present, we are unable to confirm that your work duties caused your symptoms of April 18, 2014. Therefore, we are unable to take any responsibility for any time loss or medical treatment associated with this injury."

On May 20, 2014, the worker appealed the May 9, 2014 decision to Review Office.

On September 9, 2014, Review Office confirmed that the worker's claim for compensation was not acceptable. Review Office indicated that for an accident to be established, it must be proven that the worker suffered an injury arising out of, and in the course of, his employment. The worker was at home on April 18 and therefore not in the course of his employment at that time. It followed that an accident could not be established on this date as a result of his activities at home.

Review Office accepted the WCB medical advisor's opinion that the probable diagnosis related to the worker's left shoulder was bursitis and that it was not related to his workplace duties. Review Office noted that the worker was working at reduced hours shortly before the onset of symptoms and that it was unlikely that bursitis would have developed after such a short period of exposure. On December 3, 2014, the worker disagreed with Review Office's decision and an appeal was filed with the Appeal Commission.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and the policies of the Board of Directors.

The key issue to be determined by the panel in this appeal deals with causation and whether the worker’s left shoulder condition arose out of and in the course of his employment.

In this regard the Act provides:

Subsection 1(1): accident means a chance event occasioned by a physical or natural cause; and includes...

(b) any

(i) event arising out of and in the course of the employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment...

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… (emphasis added)

Worker's Position

The worker was self-represented. He outlined his position and answered questions from the panel. He disagreed with the WCB's position that the injury did not happen at work.

The worker advised that he performed his regular work as a carpenter using his left hand because his right hand was injured. He said there was no light duty work. He believes that the symptoms he suffered were due to overcompensating with his left arm. He said that he used his left arm to operate power tools. His duties were to prepare the worksite for final inspection. This included doing framing and blocking. He used a framing nailer which weighed 20 to 25 pounds. The majority of work was at shoulder level. He had to use a ladder for some of the work. He used other tools including a skill saw and impact drill.

In answer to a question about what triggered his injury, he said that he feels the use of the framing nailer with his left hand was the cause.

The worker said that he worked alone at the site and had no one to assist with the heavier work. He noted that the worksite was unheated and estimated the temperature as being between 0°C and 5°C.

The worker said that he did not exceed the restrictions relating to his injured right hand because he did the work with his left hand.

The worker advised that his right hand has recovered and that he has returned to work using his right hand. He has been referred to an orthopedic surgeon. He has not spoken with a physician about the MRI report.

The worker advised that he has never had a problem with his left shoulder and has been a carpenter for more than 30 years.

Employer's Position

The employer did not participate in the appeal.

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 injury was caused, aggravated or enhanced by an accident that arose out of and in the course of his employment. In other words, that the injury was directly related to his employment duties.

The panel was not able to make this finding. The panel finds that the worker's claim is not acceptable.

The panel finds the worker to be credible and accepts his evidence regarding the duties he performed on the days prior to the onset of his symptoms. However, the panel is not able to find that the duties caused his symptoms or injury.

The panel notes that:

• the worker worked 4 hours per day for 3 days before the symptoms arose. Prior to this he was off work for a right hand injury
• the worker's duties involved the use of power tools including a skill saw, impact drill, and nail gun
• the worker used his left arm to perform the duties because his dominant right hand was injured
• the worker did not experience pain while performing the duties
• the onset of symptoms occurred more than a day after he last worked, when he yawned while at home
• the worker has worked as a carpenter for more than 30 years

In assessing the claim, the panel considered the findings of an MRI performed on December 29, 2014. The MRI found:

MR Shoulder, left-Protocol

There is a linear attachment tear of the distal supraspinatus tendon without tendon retraction. This appears to be primarily involving the bursal surface. The articular surface may be intact. There are adjacent cystic changes in the humeral head suggesting some chronicity. There is no muscle atrophy. This linear tear extends over an AP dimension of approximately 2 cm.

Moderate AC joint degenerative changes. No joint effusion. The subscapularis tendon and biceps tendons appear intact. No labral tear is seen.

IMPRESSION:

Linear tearing at the attachment (sic) the supraspinatus tendon on the humerus. This extends over a length of 1.8 cm in the AP direction and involves the bursal surface. The articular surface of the tendon still appears intact. There is no tendon retraction. Cystic changes in the adjacent humerus suggest some chronicity.

Moderate AC joint degenerative changes.

The panel notes the reference to chronicity and the finding of AC joint degenerative changes. It is most likely that the condition developed over a significant period of time. The panel finds, on a balance of probabilities, that the worker's duties consisting of working 12 hours over a 3 day period are not responsible for the chronicity and the degenerative condition and related findings on the MRI report.

The panel considered whether the worker's workplace duties over the 3 days aggravated or enhanced the worker's condition. The panel is not able to make this finding. The panel attaches significant weight to the limited hours worked, the lack of symptoms while at work, and the delayed onset of symptoms, more than 24 hours after the worker performed the duties in reaching this decision.

With respect to the diagnoses which have been considered, namely sepsis, left shoulder bursitis and left rotator cuff tendonitis, the panel is not able to find that the work duties, performed over 12 hours on three days, are the cause of these conditions. The panel accepts the opinion of the WCB medical adviser that the diagnosis of inflammatory bursitis is not related to the work duties.

The worker's appeal is dismissed.