The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board

with respect to his claim for a right shoulder injury sustained in the workplace on November 14, 2012. A hearing was held on May 13, 2015 to consider these matters.

Issue

Whether or not responsibility should be accepted for the worker's bilateral elbow condition as being a consequence of the November 14, 2012 compensable accident; and

Whether or not the worker is entitled to wage loss benefits from January 23, 2014 to April 11, 2014.

Decision

That responsibility should not be accepted for the worker's bilateral elbow condition as being a consequence of the November 14, 2012 compensable accident; and

That the worker is not entitled to wage loss benefits from January 23, 2014 to April 11, 2014.

Decision: Unanimous

Background

On January 4, 2013, the worker filed a claim with the WCB for a right shoulder injury that he related to his employment as a glazier. The worker reported: Install glass. Off loading 500 pieces of glass. Average piece of glass weighs approximately 250 lbs plus. Do this constantly throughout the day and then install the glass.

On December 28, 2012, the attending physician noted that the worker described sharp pain in his right shoulder radiating into his elbow and wrist. The diagnosis was right shoulder rotator cuff tendonitis/impingement. In January 2013, the worker returned to light duty work.

In a doctor first report dated January 14, 2013, the attending physician noted that the worker installed windows and was constantly lifting 250 to 350 pounds of glass in front of him and above his head with four other people. In November 2012, the worker first noticed his wrist bothered him and it led to his shoulder becoming painful. The worker complained of right wrist soreness along the radial head on the palmar side. He had numbness and tingling in the fourth and fifth digits of the fingers. The worker was assessed with biceps tendinopathy with possible pectoralis minor strain and ulnar neuropathy.

On March 11, 2013, a right shoulder MRI report stated: IMPRESSION: Mild tendinopathy with a possible small insertional tear of the supraspinatus is noted. Degenerative changes are seen within the acromioclavicular joint. Increased signal intensity is seen here possibly related to recent trauma.

In May 2013, the treating surgeon recommended that the worker undergo right shoulder surgery and responsibility for the proposed surgery was accepted as a WCB responsibility. On September 9, 2013, right shoulder surgery was performed.

On October 24, 2013, a WCB medical advisor opined that the expected healing time was 5 to 6 months for a rotator cuff repair plus acromioplasty of the right shoulder.

On January 8, 2014, the orthopedic surgeon reported that the worker had near full range of motion of his right shoulder and that he was complaining of some elbow problems.

On January 20, 2014, the worker advised his WCB case manager that his right shoulder was much better and that he was having left elbow surgery on January 23, 2014 to have a nerve removed.

On January 21, 2014, the accident employer was advised that based on the current medical information, the worker was fit to return to work with temporary work restrictions. These included limited repetitive weighted overhead use of the right arm and to limit the use of his right arm away from the body envelope. In claim notes dated January 21, 2014, the WCB case manager noted that the accident employer had one handed duties available for the worker to count supplies such as nuts and bolts as well as general clean up duties. The job duties were at body level and waist high.

On January 27, 2014, the worker was advised that wage loss benefits were being suspended effective January 23, 2014 given that he was unable to participate in the return to work program due to an unrelated condition (left elbow surgery).

In March and April 2014, memos were placed on file regarding discussions that took place between WCB staff and the worker regarding his right wrist and bilateral elbow complaints.

In a decision dated April 16, 2014, the worker was advised that the WCB was not accepting responsibility for wage loss or medical expenses related to both elbows. The case manager's decision was outlined as follows:

Left elbow:

· You reported to the WCB that you began to have symptoms in the spring and summer of 2013. You felt it was a result of overcompensating for your right side when performing your job duties of glazing which includes lifting and carrying windows.

· You confirmed that you performed these same job duties for 20 years without any difficulties in the past.

· Your medical provided confirmed a diagnosis of ulnar neuropathy which required surgery in January 2014.

· I reviewed this condition with our WCB Medical Advisor. In his opinion he was unable to define a causal relationship to your shoulder condition or workplace duties. This condition often occurs naturally outside of any activity. In some cases it can occur with repetitive trauma to the elbow area. In our discussions you were unable to confirm any repetitive direct trauma during work.

Based on the above information I am unable to establish a relationship between the development of your ulnar neuropathy and your work duties...

Right Elbow:

· You reported that you began to experience symptoms in your right elbow in September/October/November 2012 after performing your regular job duties and repetitively moving windows. You informed the WCB that your right elbow has now been diagnosed with ulnar neuropathy (same condition as your left).

As outlined above, this condition typically occurs naturally, or in some cases, due to repetitive direct trauma. In reviewing your job activities of 2012, I was unable to confirm activities that involved direct trauma. As such, the WCB is unable to accept responsibility for this condition.

On August 25, 2014, the WCB again wrote the worker to advise that based on review of additional medical information, the WCB was still of the position that his right and left ulnar neuropathy conditions were not related to his regular job duties and the repetitive moving of windows. On September 22, 2014, a worker advisor appealed the decision to Review Office.

In a Review Office decision dated November 24, 2014, it was confirmed that no responsibility could be accepted for the worker's bilateral elbow condition. Regarding the worker's left elbow, Review Office noted that at the time the worker developed left elbow difficulties, he was performing light duties similar to supervisory duties. The worker reported no symptoms from January 2013 to June 2013. In an August 2013 neurology report, the worker denied having problems prior to the previous three weeks. Review Office stated that it accepted the August 2014 WCB orthopedic consultant's medical opinion that:

The diagnosis is severe ulnar neuropathy at the left elbow...Known etiological factors for such a condition would include bone trauma with protruding bone spurs, osteoarthritis with protruding osteophytes, single or repetitive direct trauma to the ulnar nerve at the postero-medial aspect of the elbow, and a variety of diseases of the peripheral nerves. Repetitive trauma may be repetitive flexion and extension of the elbow against resistance over a prolonged period of time.

Review Office concluded that the modified duties performed by the worker starting in January 2013 did not involve the anatomical movements expected to cause his left ulnar neuropathy. The evidence did not support the duties prior to the onset of symptoms involved repetitive flexion and extension of the elbow against resistance.

Regarding the worker's right elbow complaints, Review Office was unable to find that the duties performed by the worker involved the anatomical movements required for the development of a right ulnar neuropathy. The duties performed by the worker did not involve repetitive flexion and extension of the elbow against resistance. Review Office also stated that it did not agree with the position outlined by the worker's representative that the worker's job duties that were considered causal in the development of the worker's right shoulder injury should also be considered causal in the development of his bilateral elbow condition. The worker's work above shoulder level was considered a main factor in determining the relationship between the worker's job duties and the right shoulder injury. Review Office did not find that work above shoulder level would be causal in the development of an ulnar neuropathy. The worker's duties were heavy in nature but varied throughout his shift.

On December 8, 2014, the worker advisor requested Review Office to reconsider the case manager's decision of January 27, 2014 that the worker was not entitled to wage loss benefits for the period January 23, 2014 to April 11, 2014. The worker advisor outlined the position that the duties offered to the worker to count supplies and general clean up did not constitute suitable work as defined by the WCB's RTW policy and that there was insufficient evidence to conclude the worker would have been accommodated with full time hours at his normal rate of pay.

On February 19, 2015, Review Office determined that the worker's loss of earning capacity from January 23, to April 11, 2014 was unrelated to the November 14, 2012 workplace injury. Review Office stated that the work restrictions outlined in 2012 were similar to what was recommended in January 2014. Within the scope of the RTW policy, the current duties identified and the employer's previously demonstrated effort in accommodating the worker supported there was "suitable work" within the worker's restrictions.

Review Office commented that the worker advisor expressed concern that a potential loss of earning capacity existed as it was not confirmed by the case manager what the worker's remuneration would be during the workplace accommodation. Review Office found the argument to be speculative given the employer's past accommodation efforts did not place the worker at a loss of earning capacity.

Due to reasons unrelated to the claim, Review Office noted that the worker elected not to participate in the return to work program and on April 12, 2014, his wage loss benefits were reinstated as the worker underwent further surgery in relation to his compensable injury.

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The worker has an accepted claim for an injury to his right shoulder. He is appealing the WCB Review Office decision that his bilateral elbow condition is not related to his November 14, 2012 compensable injury. He is also appealing Review Office's decision that he is not entitled to wage loss benefits from January 23, 2014 to April 11, 2014.

Worker's Position

The worker was represented by a worker advisor who provided a written submission and outlined the grounds for the worker's appeal. The worker answered questions from his representative and the panel regarding the type of work he performed, the impact of his work on his arms and the projects he worked on which he felt contributed to his injuries.

Issue 1: Whether responsibility should be accepted for the worker's bilateral elbow condition as being a consequence of the November 14, 2012 compensable accident.

With respect to the first issue the worker advisor advised that:

"In regard to the worker’s right-sided ulnar neuropathy, we submit this condition, first formally diagnosed on January 14, 2013, is causally connected to his regular job duties, along with what we submit was an associated increase in workload performed during the months of November and December of 2012."

and

"In regard to left-sided ulnar neuropathy, we assert this condition is also compensable on the basis of both the work duties the worker performed over an approximate seven-month period in 2013, combined with an overreliance on his non-dominate left arm to perform work and activities of daily living, made necessary by his compensable right shoulder and wrist injuries."

The worker explained that he worked as a glazier, installing windows in buildings. Most of his work was on commercial buildings but he also did retro-fitting on several large condominiums. He identified two projects which he was working on when his neuropathies developed.

One project involved work on a new six storey building over a period of several months with the heaviest work in November and December of 2012. This was a curtain wall installation, which required the use of a swing stage. The glass pieces weighed between 250 and 300 pounds. Due to the building structure, the worker said that they had to handle each piece of glass four times compared to one time in a usual building. He estimated there were more than 500 pieces of glass in the building. The worker demonstrated the actions involved in installing the glass in this structure. He said that after the glass is in place, the workers use an impact gun to attach it to the frame. Duties also included getting a pressure plate ready for installation, and helping the welder weld the frames, putting flashing around the building, installing the pressure plates and moving the swing gate.

The second project was a renovation in several institutional buildings. The work involved tearing out old wooden frames and putting in a new curtain wall system. Duties included cutting the frames and using a pry bar to get them out. They also had to remove and re-install small decorative concrete panels. The worker estimated that the panels weighed about 100 pounds and were three by three foot squares. The panels were attached by up to 50 or 60 nails which had to be ground down upon removal. The worker also had to check the plans one or two times a day to ensure the work was being done in accordance with the plans. He also had to clean up the site which involved picking up garbage. He used his left arm for all his duties as his right arm was injured.

Issue 2: Whether the worker is entitled to wage loss benefits from January 23, 2014 to April 11, 2014.