The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her claim for compensation was not acceptable.  A hearing was held on February 26, 2015to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On August 15, 2014, the worker filed a claim with the WCB for a right shoulder and neck injury that occurred at work on July 14, 2014. The worker attributed her injuries to the following accident description:

We have a 25 foot long dishwasher that needs to be cleaned weekly. The water sprayers have to come out (some have 5 heads). I reached up to pull out the sprayer and it got stuck. It let go suddenly and I felt a sharp pain in my neck. The pain slowly increased over the next few weeks to the point where it was keeping me up at night. My shoulder is constantly sore. I am experiencing numbness from my shoulder to my finger tips and I get a tingling sensation in my right, middle and index fingers.

The worker stated that she reported the injury to her employer on August 11, 2014 as she tried self-treatment and saw a chiropractor.

A Chiropractor First Report showed that the worker attended for treatment on July 21, 2014 and was diagnosed with a mild cervical spine strain at C5-6 and a possible right rotator cuff tear. The chiropractor described the worker's injury as "pulling sprayer out of washer to clean, strained neck/shoulder."

A Doctor First Report showed that the worker attended for treatment on August 7, 2014 with complaints of right shoulder pain and neck discomfort. The physician noted that at her next visit on August 12, 2014, the worker reported that she pulled out a heavy machine at work and felt a pull in her neck.

On August 20, 2014, the worker spoke with a WCB adjudicator and provided the following information:

• on July 14 she was working in the dish room and was pulling out the 5 tubed water sprayer. She was facing the sprayer and she reached up with both hands to grasp it. The sprayer was located above her head. With both hands she pulled the sprayer straight out towards her. The sprayer became stuck so she pulled more on it and suddenly it let go and she used her right hand to push it back so that it would not hit her. At first her right neck area hurt and then her shoulder began to hurt. She is right-handed.
• she continued to work her full regular duties until August 7, 2014. She thought her injury would heal. She thought it was her neck even through her shoulder hurt. Her neck began to get better but her shoulder did not.
• the worker said she did not report the injury until August 7, 2014.
• the worker indicated that she thought she just jarred her neck, took Advil and self-medicated. They were short staffed so she did not want to go off work.
• the worker advised that a co-worker knew of her injury and that she was having trouble.

On August 20, 2014, the WCB adjudicator contacted the co-worker identified by the worker. The co-worker indicated that a couple of weeks ago right before the worker went off sick, the worker stated that her shoulder was sore and it was from cleaning the dish machine and pulling out the pieces. The co-worker said she was not present when the incident occurred.

On August 20, 2014, the WCB adjudicator spoke with the worker's manager who indicated that she was unaware of an injury to the worker. The manager indicated that the worker filed a green card on August 14, 2014. The WCB adjudicator also spoke with a second manager who indicated that she was not advised of an injury until August 11, 2014 when the worker had been off for two days. The worker stated that she thought she injured her shoulder when taking the sprayer out of the machine. The manager indicated that the sprayer was not a light piece and that the worker continued with her regular duties and did not ask for assistance.

In a decision dated August 26, 2014, the WCB advised the worker that her claim for right shoulder difficulties had been disallowed as the WCB was unable to establish that the definition of an accident had been met. In arriving at her decision, the WCB adjudicator noted that the worker continued to work her normal duties and did not make any ongoing complaints of right shoulder symptoms to co-workers. The worker did not notify the employer of an injury until August 11, 2014 and she did not notify a medical professional that a workplace injury occurred when she initially sought medical treatment.

File records showed that the worker underwent an MRI on August 27, 2014 which revealed a massive right rotator cuff tear of the supraspinatus and infraspinatus tendons and degenerative changes of the cervical spine.

On August 29, 2014, the worker asked the WCB to reconsider its decision based on the MRI results of August 27, 2014 as she felt that the rotator cuff tear was a result of the injury she sustained in July 2014.

In a statement dated September 1, 2014, the co-worker wrote: "On July 14, 2014 we were dismantling and cleaning the dishwasher. [The worker] was removing the sprayers and drapes, when she brought them out of dish room she was holding her neck and told me she had trouble removing a large sprayer and when it let loose it came out with a jolt fast and she felt pain immediately in her neck."

In a report dated September 2, 2014, the treating physician noted that the worker came to his office on August 8, 2014 with complaints of right shoulder/neck pain and right arm numbness. The worker stated that her condition began after collapsing while lifting heavy machinery at work.

On September 4, 2014, the worker's manager was again contacted by the WCB adjudicator for additional information. The manager indicated that she was not aware of any problems or injuries and that the worker did not say anything was wrong or that she was having any difficulty with her duties. The manager noted that the worker had other health issues for which she was taking pain medication.

The worker's file contains two statements from co-workers who observed that the worker was holding her neck and that she related it to her job tasks that involved dismantling the sprayer on the dishwasher.

On September 9, 2014, a WCB physiotherapist reviewed the file with a WCB adjudicator and stated: "The initial worker report focused on the neck. There are no reports of shoulder weakness in the chiropractic or medical reports. The worker was able to continue working regular duties. None of the above is consistent with an acute massive rotator cuff tear."

In a second decision dated September 10, 2014, the worker was advised that the WCB was unable to establish that a workplace injury occurred based on the worker's significant delays in reporting and seeking medical attention, the fact that the worker continued to work her regular duties, the contradictory medical reports and statements on file and the opinion expressed by the WCB physiotherapy consultant on September 9, 2014.

On September 30, 2014, the Worker Advisor Office asked Review Office to reconsider the WCB decision dated September 10, 2014. The worker advisor referred to file evidence to support that the worker was injured in the workplace on July 14, 2014 and therefore her claim for compensation should be acceptable.

On October 10, 2014, the employer's representative submitted to Review Office that the evidence did not support that the diagnosed injury of a massive rotator cuff tear was due to an acute or non-specific work accident.

In a decision dated November 17, 2014, Review Office determined that the claim was not acceptable as it was unable to find that the worker was injured in an accident on July 14. Review Office stated:

"The Act's definition of accident requires that there is evidence of an injury arising out of, and in the course of, a worker's employment. In reviewing the evidence, we determine that neither the event (it was not witnessed and went unreported for almost a month), nor an injury can be confirmed. The worker first related her neck and shoulder problems nearly a month following the unconfirmed event that she is relating it to. Further, she demonstrated normal functional levels (working regular duties) and did not seek medical treatment promptly."

On November 25, 2014, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

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)

WCB Policy 44.10.20.10 (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

The definition portion of the Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

Worker's Position

The worker was assisted by a worker advisor at the hearing, and her daughter and a friend were in attendance as observers. It was the worker's position that she injured both her neck and right shoulder on July 14, 2014 while taking apart the large commercial dishwasher for cleaning. It was submitted that the mechanics of pulling on a sprayer that suddenly let go could account for the onset of the worker's symptoms. Co-worker statements supported that the worker demonstrated neck and right shoulder symptoms following the incident and first reports from the chiropractor and the doctor identified clinical neck and right shoulder findings. The reports also described the mechanism of injury of pulling on a sprayer.

The MRI imaging showed a broad based posterior disc complex and large osteophytes in the worker's cervical spine. The right shoulder MRI showed a massive rotator cuff tear involving the supraspinatus and infraspinatus tendons. The worker said that she was taking pain medication at the time of the incident for another condition and did not realize how serious her injuries were. The worker had neck surgery on January 16, 2015 and a decompression, foraminotomy and fusion of C5-6, C6-7 was performed. The worker's right shoulder was assessed by an orthopedic surgeon on February 4, 2015 who noted that the neurological symptoms had improved in the right shoulder since the cervical spine fusion. The orthopedic surgeon recommended strengthening of the right shoulder once the worker recovered from neck surgery.

It was submitted that the evidence supported on a balance of probabilities that the worker sustained injuries to her neck and right shoulder on July 14, 2014 when taking apart the dishwasher for cleaning, and that the claim should be accepted.

Employer's Position

The employer was represented by an advocate at the hearing. The employer agreed with the decisions made by the WCB that the claim was not acceptable. It was submitted that the evidence did not support that the diagnosed injury of a massive rotator cuff tear was due to any acute or non-specific work accident. The worker initially reported her symptoms as being much more neck related than shoulder related. Further, the worker did not sustain an immediate onset of disability, which would be expected with a massive tear. She continued to work her full duties for quite some time after. The presence of osteoarthritis in the affected shoulder joint suggested that the rotator cuff tear was degenerative in nature. The recent operative report from the procedure performed on January 16, 2015 indicated a pre-operative diagnosis of chronic stenosis which is a wholly non-compensable diagnosed condition.

With respect to reporting, the worker failed to report the injury to the employer or the WCB on a timely basis. The worker saw her chiropractor on July 21, 23 and August 14 but did not advise her problems were due to work until the August 14 appointment.

Finally, it was noted that the co-workers were not able to articulate that the worker had an acute accident.

Overall, it was submitted that neither a workplace accident nor a workplace injury had been established. As such, there was no basis upon which to overturn the decisions already made on the claim.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. In order for the worker’s appeal to be successful, the panel must find that her right shoulder and/or neck condition was related to her employment, either causally or as an aggravation of a pre-existing medical condition. On a balance of probabilities, we find that the worker suffered an aggravation and enhancement of a pre-existing neck condition.

The MRI performed August 27, 2014 identified pre-existing degenerative conditions in the worker's neck and right shoulder. In her cervical spine, osteophytes were present at C3-4, C5-6 and C6-7 with narrowing of the neural foramen. In her right shoulder, there was a massive rotator cuff tear and osteoarthritis was present in the acromioclavicular joint. An orthopedic shoulder specialist's report dated February 4, 2015 described the tear as being a "massive, chronic retracted cuff tear" which showed "evidence of chronicity with significant reduction and superior migration of humeral head."

Despite the presence of these pre-existing findings in the worker's neck and right shoulder, the worker's evidence was that prior to the workplace injury of July 14, 2014, she had no complaints of neck or right shoulder pain and was able to perform her regular job duties. The panel accepts the worker's evidence. At the hearing, the worker provided the panel with a detailed description of her job duties as a dietary aide. The panel finds that while the work being performed by the worker was repetitive, the tasks were of a relatively light nature. The weights involved were minimal and most of the work was performed within the body frame. There was very little reaching involved. The only duty which was of a more demanding nature was the weekly cleaning of the dishwasher, which is the duty the worker was performing when her injury occurred.

Following the accident, the worker reported a change in her physical condition. She described post-accident symptoms of pain on the top of the shoulder which radiated down from her neck, arm numbness and hand twitching/trembling. On January 16, 2015, the worker underwent surgery where decompression, foraminotomy and C5-6, C6-7 fusion was performed. The diagnosis being treated was reported as "chronic stenosis, C5-6, C6-7."

The worker's evidence was that in her discussions with the treating orthopedic spine surgeon, he acknowledged that the condition being treated was pre-existing but said that the trauma of the workplace accident could have disrupted the pre-existing condition, thus making it symptomatic. The panel accepts that this is what happened. The mechanism of injury involved a sudden jarring motion and we accept that there was a whiplash effect on the worker's neck. This caused her pre-existing condition to become symptomatic. We acknowledge that the worker did continue to perform her regular duties for several weeks after the incident, but we accept the worker's explanation that she was already taking painkillers for another unrelated condition, and further, as noted earlier, the worker's job duties were relatively light with controlled movements. The panel accepts that despite being symptomatic, the worker was able to continue to perform those duties for a period of time. The panel also notes that the worker first sought chiropractic treatment for her neck on July 21, 2014, which was seven days after the incident. We are satisfied that the reporting of symptoms was sufficiently proximate to the date of the incident, in light of the worker's explanation.

The worker's evidence was that after the surgery, her symptoms of radiating neck pain, arm numbness and hand twitching resolved. The orthopedic shoulder specialist noted that as the neurological symptoms in her right arm had significantly improved following the cervical spine fusion, there was no role for surgery for her massive chronic retracted rotator cuff tear.

Based on the foregoing, the panel finds on a balance of probabilities that the workplace accident of July 14, 2014 caused an aggravation of the worker's pre-existing cervical spine condition. As this aggravation made necessary the surgery performed January 16, 2015, the worker is entitled to benefits for an enhancement of her pre-existing neck condition.

With respect to the pre-existing rotator cuff tear, the panel is not satisfied on a balance of probabilities that an aggravation of this condition occurred. The post-accident symptoms of pain, numbness and twitching resolved after treatment of the cervical spine, and no surgical treatment of the shoulder is being pursued. In the circumstances, we are unable to find that there was an aggravation of the shoulder condition.

We therefore find that the worker has an acceptable claim for a cervical spine aggravation and enhancement. The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 20th day of March, 2015