The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that his claim for compensation for a left shoulder injury was not acceptable.  Hearings were held on April 29, 2015and September 10, 2015 to consider the worker's appeal. 

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker has an acceptable claim with the WCB for a right shoulder injury that occurred on August 22, 2012. In April 2013, the worker underwent right shoulder surgery.

In a WCB decision dated April 14, 2014, the worker was advised that the WCB was unable to relate his current left shoulder condition to his right shoulder injury. The decision noted that a left shoulder MRI taken April 1, 2014 described "different degenerative changes in your shoulder in severe hypertrophic acromioclavicular joint osteoarthritis and a labrum tear that is described as "likely degenerative in nature." The MRI findings are not considered the result of the worker over-using his left arm and shoulder because of his right shoulder injury but was related to general degenerative changes.

In May 2014, the worker filed a claim with the WCB for a left shoulder injury that he related to overcompensating for his right shoulder injury. The worker believed that his left shoulder injury arose from using drills and grinders overhead and to the sides and bottom, wherever holes were required to be drilled. The worker said he noticed symptoms three to four years before reporting them.

The Employer's Accident Report stated that the worker never reported an injury or raised any concerns about his left shoulder. He never asked for any accommodations for his left shoulder nor did he bring any medical information to support a left shoulder injury.

With the assistance of his daughter, the worker spoke with a WCB adjudicator on June 9, 2014 regarding his left shoulder difficulties. The worker described the job duties he performed which led to his left shoulder condition. The worker stated that prior to his right shoulder surgery in April 2013, he had a few jobs over the years where he installed windshields and performed mostly overhead work. He used his left hand, arm and shoulder more as he had limited success with right shoulder surgery. His left shoulder difficulties arose 4 to 5 years ago and a supervisor and a first aid person were aware of his difficulties. When his right shoulder difficulties began, he also had left shoulder difficulties. He said his healthcare providers told him to focus on the right shoulder first and when everything was said and done, they would focus on his left shoulder.

On June 20, 2014, the supervisor identified by the worker was contacted by the WCB. The supervisor provided details of the job duties performed by the worker. He stated there was no mention of any left shoulder difficulties.

Via email correspondence dated July 3, 2014, a Disability Case Coordinator outlined his involvement with the worker following his work related right shoulder injury. He stated in part:

I do not recall being informed of any specific incidents that directly involved this left upper limb in the time frame that I worked with this employee but can confirm [the worker] did express concern on more than one occasion with regards to left arm symptoms while performing modified duties. I can confirm that any return to regular duties was not medically appropriate and would have placed him at risk of further injury (potentially to either/both upper limbs.) It was these symptoms in conjunction with the initial work related right shoulder injury that resulted in the return to work plan designed..."

On July 22, 2014, a WCB medical advisor opined that the most likely diagnosis to account for the worker's left shoulder symptoms were degenerative changes as reported on the April 1, 2014 MRI. The medical advisor also opined that a relationship between the worker's described job duties and the left shoulder condition was improbable.

On August 15, 2014, initial adjudication determined that the worker's left shoulder difficulties were not compensable. The adjudicator noted that the worker sought medical treatment for his left shoulder on December 2, 2013 after going off work for his right shoulder difficulties. The worker did not seek medical attention for his left shoulder again until February 2014. A left shoulder MRI of April 1, 2014 reported findings of tendinosis, partial-thickness tearing, acromioclavicular osteoarthrosis and subacromial spurring which were all considered degenerative changes. When considering the medical information and the fact that the worker's left shoulder symptoms began 3 to 4 years prior, an accident as defined in the Act had not been identified.

On September 18, 2014, a worker advisor appealed the August 15, 2014 decision to Review Office on the worker's behalf. The worker advisor advanced the position that the worker's increased left shoulder difficulties were associated with his compensable right shoulder injury. The worker advisor stated:

In summary (the employer) Accommodation Form supports [the worker] reported left shoulder difficulties at the time of the right shoulder injury. An e-mail from the Disability Case Co-ordinator supports [the worker] performed modified duties mostly using his left arm and made complaints of increased left shoulder symptoms. Following surgical treatment and recovery of the right shoulder [the worker] had to use his left arm solely to perform activities of daily living. As [the worker's] right arm function did not improve, he has had to continue using his left arm. The April 1, 2014 MRI demonstrates [the worker] has a severe pre-existing left shoulder condition which puts his left shoulder at risk with over use.

In conclusion the evidence presented supports [the worker's] severe pre-existing left shoulder condition has been affected by the compensable right shoulder injury. An association has been established between the worsening of [the worker's] left shoulder symptoms and the compensable right shoulder injury. Therefore the claim should be accepted.

On November 13, 2014, the employer's representative submitted to Review Office that the facts and weight of evidence did support that the worker's left shoulder problem was a consequence of regular or modified duties. The representative stated, in part, that the worker was not performing direct assembly line work and was only demonstrating various techniques while simply holding tools in front of new employees. The physical demands of the modified duties would be significantly less than while performing the full assembly work in view of the lack of force required and the intermittent and sporadic holding of tools. The representative stated that no green form or incident report was completed although the former disability management coordinator stated that he was aware of the worker's left shoulder complaints. The representative referred to the WCB medical opinion that if the left shoulder condition was a result of his modified work duties, it would not explain the significant increase in symptoms while off work.

On November 24, 2014, the worker advisor provided a written submission to Review Office from the worker's daughter in response to the employer's submission of November 13, 2014.

On December 12, 2014, Review Office determined that the worker's claim was not acceptable as it was unable to find that the worker sustained personal injury by accident arising out of and in the course of employment.

Review Office noted that the worker has degenerative conditions in his left shoulder. The worker complained about his left shoulder as early as July 2013; however, he had not worked since April 2013. Prior to his right shoulder surgery, the worker was performing modified duties.

Review Office concluded that the modified duties performed by the worker were not causal in the development of his left shoulder difficulties or that they aggravated or enhanced his pre-existing left shoulder condition.

On December 22, 2014, the worker filed an appeal with the Appeal Commission as he disagreed with Review Office's decision of December 12, 2014. This led to an oral hearing held on April 29, 2015. Due to the length of the hearing on April 29, 2015, the hearing was adjourned and it reconvened on September 10, 2015.

The September 10, 2015 hearing was also adjourned and the employer's representative was asked to provide the appeal panel with further information related to the worker's job duties. The information obtained from the employer was forwarded to the worker for comment. On January 22, 2016, the panel met further to discuss the case and rendered their decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's 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 provide 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.

In this appeal, the worker is appealing the WCB decision that his claim for a left shoulder injury is not acceptable.

Worker's Position

The worker was represented by his daughter and was assisted by an interpreter.

At the hearing on April 29, 2015, the worker's representative outlined the worker's reasons for appealing the WCB's decision. She advised that the worker had a very physically demanding job. She said that he used both hands to perform his duties and had dedicated his whole life to being a hard-working employee.

The worker's representative noted that the worker sustained an injury to his right shoulder in 2012. She submitted that at that time, his left arm was also injured. She said that language issues prevented the worker from reporting the full extent of his injury. She also noted that the WCB referred to the worker's left shoulder as a degenerative condition but submits that the degeneration is due to the worker's 22 years of hard manual work for the employer.

The worker's representative said that at the time of his right shoulder injury in 2012, the worker reported that both shoulders and elbows were painful. She noted that both shoulders were referenced when he went to the physiotherapist. She said that the dominant right hand was more injured, and that there was a focus by the doctors on the right, despite the fact that his family physician kept observing the left arm and had placed restrictions on it.

The worker's former supervisor described the worker's job duties. The worker confirmed that the description provided by his former supervisor regarding duties on the "J Line" were accurate, except that they often worked in crews of 3 not 4. He also disputed the supervisor's evidence that he rarely was sent to work on the "D Line." He said he worked on the "D Line" at least once per week.

The hearing reconvened on September 10, 2015 for the employer to complete its presentation on the appeal. However, it was then determined that the appeal would proceed by written submissions rather than oral submissions and arguments.

The worker subsequently provided a written submission which was received on November, 25, 2015. In the submission, the worker states his conditions were due to wear and tear:

...the wear and tear is focused specifically to the upper limbs bilaterally and is consistent with where the main point of force would be located anatomically with the typical job tasks associated with this employee's position over the 22 years of employment.

The submission states further that:

While there is no specific event that resulted in left shoulder symptoms, being forced to work with ones non dominant hand in a repetitive fashion, resulted in the work related symptoms.

The submission also notes the opinions of the worker's physicians dated January 27, 2015 and February 18, 2015 who support the existence of a work injury.

Regarding his job duties, the worker provided a written description of the duties on the "J Line", modified duties after surgery, and the modified duties performed August 24-27, 2012, August 30 to December 23, 2012 and January 2 to April 19, 2013. He also provided a description of the "D Line" duties he performed for 10 years.

The worker also provided a letter from the employer's former disability management specialist. The disability management specialist supported the acceptance of the worker's claim and questioned the completeness of the employer's file disclosure, suggesting there are materials on the employer's file which are supportive of the worker's claim that had not been released to the worker or WCB. He advised that worker was "back at work performing light duties with only a few days of time loss (right shoulder)" and that he had the worker working outside the health unit, arm in a sling helping educate newly hired employees on the "D" line which was not his normal work location. He said this activity continued for a few weeks and that the worker returned to his normal work area because of a pending layoff.

The worker's final submission was received on January 6, 2016. It included a further letter from the employer's former disability management specialist who asserted that "... I can attest that all information has not been provided by the employer."

The final submission asks that consideration be given to the following:

• Left shoulder/Right shoulder MRI results and the worker's physicians' opinions, that the cause of the injury is that it is likely overwork and repetitive strain, and that weight be given to the physicians' opinions "as they based their opinions on hands on involvement versus an opinion at arm's length."

• Physical Demands analysis - the report was conducted in October 2015 and does not demonstrate 22 years of work on the "J Line" and "D line." It illustrates only recent physical demands.

• Evidence of co-worker noted the job is very demanding and requires use of arms and shoulders.

• Language barrier which prevented the worker from fully representing his position.

• Modified duties - evidence that several calls were made to the WCB to inform them that the worker was returned to regular duties despite doctor's recommendations.

• Worker's psychological state - asks the panel to consider the opinion expressed in the WCB Pain Management Unit Psychological Assessment notes dated March 4, 2014.

In conclusion, it was submitted that, on a balance of probabilities, the worker's left shoulder difficulties are directly related to his work with the employer.

Employer's Position

The employer was represented by an employer advocate who was assisted by the worker's supervisor and its disability management coordinator. She advised that the employer agrees with the Review Office's decision. She provided a detailed submission outlining the employer's position.

At the April 29, 2015 hearing, the employer representative responded to the worker's position which she said advanced five causes for the worker's left shoulder condition. The employer representative submitted that the preponderance of evidence supports that the worker's left shoulder condition is a result of factors unrelated to the workplace and not the compensable right shoulder injury, and is therefore not compensable.

The employer representative noted that at various points the worker provided different explanations for how his work duties caused or worsened his left shoulder condition. She responded to each of these explanations.

The employer's representative submitted that the work duties performed by the worker during the

three to four years prior to his left shoulder claim cannot be shown to be causally related to his left shoulder condition. She said that he worked on the "J Line", which does not involve overhead work. The only time the worker was required to do overhead work was when he worked on the "D Line" which he was transferred from in 2005.

The worker's supervisor provided a detailed description of the job duties the worker performed at the time he sustained his right shoulder injury in 2012. He answered questions from the panel regarding the job duties. He advised that the task primarily involved the attachment of the roof to the coach. He said that it did not involve overhead work.

As noted previously, subsequent to the conclusion of the hearing on April 29, 2015, the hearing reconvened on September 10, 2015. At that time it was determined that the hearing would proceed by written submission.

Further submissions were received from the employer on September 25 and October 30, 2015. A final submission was received on December 9, 2015.

The employer's September submission included a summary of the file, argument of the employer, descriptions of the duties performed by the worker while on modified duties for the 2012 injury, and "D Line" Physical Demands Analyses ("PDA") for the various component of the "D Line" duties.

The employer noted that the worker provided several possible work related causes for the left shoulder, including:

1. That he began experiencing problems with his left shoulder three or four years before he reported the left shoulder claim on May 27, 2014.
2. That his left shoulder condition was present around the same time as the compensable right shoulder injury of August 22, 2012.
3. That his left shoulder difficulties began on October 5, 2012, claiming that while awaiting right shoulder surgery he was performing modified duties that required him to use his left shoulder more frequently.
4. That while on modified duties, he was required to perform regular duties, which also led to the left shoulder problem.
5. That due to the lack of improvement following his right shoulder surgery the worker had to keep using his left shoulder solely to perform activities of daily living, which contributed to his left shoulder problem

The employer disagreed with the worker's claim of a relationship between his duties and left shoulder injury.

The employer's October 30, 2015 submission included:

• a summary of the worker's relevant work history
• an October 19, 2015 document entitled "Physical Demands of the Three D Line tasks and Association with increased Risk of left shoulder Musculoskeletal Injury" prepared by a certified professional ergonomist dated October 19, 2015
• an October 14, 2015 opinion from an occupational health physician.

The employer representative provided a final submission on December 9, 2015. The employer representative submitted, in part, that:

• the right and left shoulder conditions were different, and that the right shoulder was accepted as compensable for a specific incident which resulted in a tear of the worker's rotator cuff and biceps tendon.
• the work provided to the worker subsequent to the right shoulder claim was not causative of the worker's left shoulder condition.
• the "D Line" duties, specifically the drilling of the A-Post was not causative of his left shoulder injury.
• the "J Line" duties were not causative of the worker's left shoulder condition.
• the modified duty assignments were not causative of the left shoulder condition.

Analysis

This appeal proceeded by way of an oral hearing which convened on April 29, 2015 and reconvened on September 10, 2015. The appeal concluded by receipt of written submissions and evidence from the parties.

The worker, a long term employee of the employer, appealed the WCB decision that his claim for injury to his left shoulder was not acceptable. For the worker's appeal to be approved, the panel must find that the worker sustained an injury by accident which arose out of and in the course of his employment. In other words, the panel must find that the worker's left shoulder injury was caused by his work duties. The panel was not able to make this decision.

After careful consideration of the evidence, including the claim file information and information received through the oral hearing process and written submissions, the panel was not able to find, on a balance of probabilities, that the worker's left shoulder difficulties are caused by his work with the employer. Accordingly, the panel finds that the worker's claim is not acceptable.