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 a right shoulder injury was not compensable.  A hearing was held on January 27, 2016to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On July 25, 2013, the worker filed a claim with the WCB for a right shoulder injury that occurred on February 1, 2010. The worker reported:

I was just doing a lot of shoveling, we were doing 50 pound boxes of [product]. I was icing the boxes. The boxes needed two scoops of ice. The boxes would become heavier, weighing up to 75-80 lbs including ice and [product]. We would do about 500-600 a day, sometimes more.

The worker believed that his shoulder injury was caused from "Extending my arm and holding up the shovel, extending, dumping. Constantly extended the shovel and twisted the shovel to dump it."

The worker reported that he began to notice symptoms around November and December of 2009. The worker indicated that he told a supervisor in February 2010 that he had a sore shoulder and that it was related to shoveling.

The Employer's Incident Report signed on October 15, 2013 by the Human Resources Coordinator stated: "This injury was never reported to employer therefore, we have no details to provide at this time."

File records show that WCB adjudicative staff spoke with the worker who answered questions related to his work history and job duties, the names of physicians he attended for treatment and when and how he reported his shoulder difficulties to the accident employer. The WCB also gathered information from employer representatives regarding their knowledge of any shoulder complaints or incidents made by the worker pertaining to his right shoulder.

On April 19, 2010, the treating physician reported that the worker was seen for ongoing right shoulder pain. It was reported that the worker had pain on lifting his shoulder above his head. There was no injury. The worker had been using medication for pain. There was no tenderness, erythema or deformity creptitus on moving. Abduction was restricted. The worker was assessed with OA (osteoarthritis). The treatment plan was sick leave to rest his shoulder.

An x-ray report dated April 20, 2010 stated that bone, soft tissue or articular abnormality was not observed.

On August 6, 2013, a second physician reported that the worker attended his clinic between May and July 2013. On his first visit, the worker reported that he had been suffering from right shoulder pain for several weeks. In his opinion, his right shoulder pain was the result of many months of constant and repetitive lifting of items weighing anywhere from 5 to 10 pounds off the beltline and throwing them onto another beltline, with a swing that involved the right arm constantly and repetitively through his work day. The worker did not complain to his supervisor about the pain in the initial months. He kept on working, hoping for spontaneous improvement.

The physician reported that the initial diagnosis was Acute on Chronic Repetitive Strain of the right shoulder joint. At the last visit on July 26, 2013, the examination showed tenderness over the supraspinatus and infraspinatus muscles, a positive impingement test, abduction to approximately 5-0 degrees, with pain on both internal and external rotations of the joints. The physician stated that rotator cuff syndrome was a strong possibility and he would await the result of an MRI.

On October 7, 2013 an MRI report of the right shoulder identified AC arthrosis.

In a decision dated October 10, 2013, the worker was advised that his claim for compensation was denied as the WCB was unable to establish an accident arising out of and in the course of his employment. The WCB's decision was based on the following findings:

• the worker sought medical treatment in April 2010 and did not seek further treatment again for his right shoulder until May 2013.
• the worker had been off work for unrelated issues since February 2013 and there had been no improvement in his right shoulder in the past few years.
• the accident employer did not have any records to show that the worker reported a right shoulder workplace injury in February 2010 and there was no record of an injury report/green card completed for a right shoulder workplace injury in December 2012.
• based on medical information on file, the WCB considered osteoarthritis and AC arthrosis as being pre-existing degenerative conditions.

In January 2014, the worker filed an appeal with Review Office regarding the adjudicative decision dated October 10, 2013. On January 20, 2014, Review Office referred the worker's claim file back to primary adjudication to complete further investigation and review.

Subsequently, the WCB obtained information related to the worker's job duties from February 2010 onwards which involved trimming, ice shoveling and deboner positions. The WCB also gathered additional information from the accident employer regarding the reporting of any right shoulder injuries by the worker.

On March 17, 2014, a WCB medical advisor responded to questions posed by the WCB case manager. He indicated, in part, that

· Presently, a diagnosis beyond non specific right shoulder pain is not apparent. Imaging has not demonstrated any evidence of rotator cuff tear or tendinosis. In Aug 2013 [second physician] reported a diagnosis of rotator cuff impingement syndrome, though this is a clinical diagnosis, not dependent on imaging results

· The MRI of Oct 7 2013 demonstrates pre-existing age related osteoarthrotic degeneration at the AC joint of the right shoulder. This pre-existing condition may predispose to the development of rotator cuff impingement syndrome.

· In summary, if [the worker] developed a right shoulder injury (rotator cuff syndrome/impingement syndrome) in relation to performance of job duties in 2010 there is no compelling evidence that the condition persisted and/or caused continued significant functional impairment which would relate to his current reported status. The recent MRI does not demonstrate structural pathology at the rotator cuff in terms of tears or tendonopathy."

On March 19, 2014, the worker was advised that the WCB was unable to relate his current and ongoing right shoulder issues to his job duties and therefore no change would be made to the original decision. The WCB case manager stated that she was unable to confirm that the worker was given light duties in April 2010 because of a right shoulder injury. The employer could not confirm that the worker requested to work in certain areas or requested shift changes due to an injured right shoulder. The case manager noted that the worker may have developed right shoulder impingement in 2010 in relation to his job duties; however, there was no evidence that the condition persisted or caused any functional impairment that would relate to his current status. The recent MRI did not demonstrate structural pathology at the rotator cuff in terms of tears or tendonopathy. The worker reported ongoing right shoulder issues but was away from his work duties since February 2013 with apparently no change in symptoms. The worker had degenerative non-work-related pre-existing condition of osteoarthritis.

On February 5, 2015, the Worker Advisor Office submitted new medical information for review by the WCB case manager. The information included a June 30, 2014 right shoulder operative report, follow-up clinic notes, a report from a surgeon dated November 19, 2014 and literature on Labral Tears of the Shoulder, from the Sports Care Website.

On February 23, 2015, the worker was advised that based on the February 20, 2015 opinion of a WCB medical advisor, the initial decision to disallow his claim was unchanged. The referenced opinion notes, in part, that:

· The diagnosis to account for the right shoulder symptoms is nonspecific right shoulder pain, There is known degenerative changes in the right shoulder as supported by the October 7, 2013 MRI.

· The diagnosis of degenerative osteoarthritis of the shoulder is further supported by the April 19, 2010 note from the treating Physician where they document crepitus with range of motion at the shoulder, a sign common with degenerative shoulder change (though not common with the type of SLAP lesion described in the June 30, 2014 operative report). It is highlighted that the preoperative diagnosis was degenerative arthritis right shoulder with AC joint arthritis and the post operative diagnosis was the same.

· There is pre-existing osteoarthritis of the right shoulder. The majority of [the worker's] right shoulder arthroscopic treatment on June 30, 2014 was directed at same. The SLAP lesion is of uncertain onset and to propose that its onset was related to work or that it is a pain generator in [the worker's] shoulder, in the absence of medical evidence to support those assertions would be speculative.

· The treating orthopedic surgeon described a SLAP lesion seen at arthroscopy that was not grossly unstable.

On June 19, 2015, the worker advisor appealed the above decision to Review Office stating the position that the medical information supported an association between the worker's duties and his right arm difficulties.

On July 30, 2015, an employer representative submitted to Review Office that the worker's shoulder condition was not work-related.

In a decision dated August 12, 2015, Review Office determined that the claim was not acceptable as it was unable to find from the file evidence that the worker injured his right shoulder in 2009/2010 as a result of his work duties. Review Office stated that it was unable to find that the diagnosis of AC arthrosis noted on the October 2013 MRI was a compensable condition but rather it was a long standing condition that was not caused by the worker's employment duties. Review Office concluded that the diagnosis outlined in the June 2014 operative report (degenerative arthritis right shoulder with AC joint arthritis) was not a condition that arose out of a work related cause. Review Office also noted that the October 2013 MRI did not report a labral tear; however, the operative report did identify a SLAP tear. Review Office considered this to be a new finding and was unrelated to the work duties performed in 2009/2010. On August 24, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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 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 is appealing the WCB decision that his claim for a right shoulder injury is not acceptable.

Worker's Position

The worker was self-represented. He outlined his reasons for appealing the decision.

The worker described the various duties that he performed at his workplace. He advised that his duties involved processing a food product. The duties included:

• working on the deboner
• working on the grader - sealing boxes
• icing products - shovelling ice onto product
• trimming products and throwing product on to conveyor
• scaling - using a hand held machine and scaling larger product

The worker explained that he first noticed the right shoulder injury at home, in the morning, when he went to get a coffee cup and couldn't lift his arm. He missed work that day and saw a physician.

The worker advised that he gave his supervisor a green card and that his supervisor told him the employer was not accepting his claim. He said this was in the last week of April 2010 before he was laid off. He returned to work in June but did not complain about the shoulder injury until November and December. He said that he told his employer he could not work on the deboner but his employer insisted that he work on it.

The worker advised that in January or February 2011, he was hurt again and filled in a green card. He said he switched shifts and worked at a different job, the back of the grader, where he wasn't lifting his arm that much. In this job he had to pick up the boxes briefly and then send them down the roller. He said he continued to have pain and used medications for the pain. He was subsequently moved to a more physically demanding job and the pain increased.

The worker advised that in January 2013 he was lifting boxes, moving product, unloading a pallet of product and was hurt again. He said he again filled in a green card but the supervisor did not include his shoulder on the card. He said that in the second week of February 2013, he stopped working and did not return. He used his vacation entitlement, then went on EI and other benefits.

In answer to questions about the 2010 accident, the worker advised that he was unsure of the exact time of the accident. He thought it occurred in February or April 2010 but thinks it was likely April. At the time of the injury, he was working with fresh product on the filleting line or scaling product. He said it was fast-paced and involved a lot of shoulder work. Filleting involved trimming product which can require significant pressure because the product can be tough. Scaling involved holding larger product and using a hand held machine which weighed about 2 pounds to remove scales. He also worked in deboning, where he was responsible for packing ice on the packaged product. He said that it can be difficult because the snow can turn into ice and must be chopped. He also noted that the shovels are heavy when loaded with ice.

In answer to a question from the panel, the worker acknowledged that he spoke with the surgeon who operated on his shoulder. He said the surgeon told him that he found osteoarthritis and labrum damage which the surgeon repaired. He said the surgeon said labrum damage could be work-related and that it's a real source of pain generation. The surgeon also told him if there was a problem with his bicep that he should see him again. The worker confirmed he has not had a bicep problem. His family doctor advised him not to return to a fast-paced workplace because the pain would come back.

The worker advised that he contacted his employer about returning to work but the employer did not have any suitable work for him.

The worker raised other concerns which are not within the jurisdiction of the panel, and accordingly the panel declined to hear the issues.

Employer's Position

The employer was represented by an employer advocate and by its Director of Human Resources.

The employer's representative submitted that the employer agrees with the WCB decision. She noted there are numerous medical reviews on file and also noted the non-specific nature of the injury, the significant pre-existing condition that medically seems to account for the worker's symptoms and the timing of the reporting of the claim. She said that the accident was not reported until 2013 even though it allegedly occurred in 2010.

The employer's representative reviewed the medical information on the file. She noted that an April 19, 2010 report from a physician noted symptoms and exam findings consistent with right shoulder impingement syndrome. The physician's next note, March 17, 2011, advised time off work in relation to post trauma arthritis of the right shoulder and elbow. She referred to another medical report dated February 20, 2015 which indicated non-specific shoulder pain can be caused by many mechanisms, from degenerative change, to trauma to traction, to repetitive

and/or overhead lifting of the shoulder.

The employer's representative commented that a characteristic of non-specific shoulder pain caused by repetitive use, is that the symptoms will decrease or resolve over the course of several weeks of rest. She noted that the worker had been off work for several months and that his symptoms appeared to worsen. The employer representative also noted that a WCB medical advisor memo dated March 17, 2014 indicated that the MRI demonstrated pre-existing age-related osteoarthritic degeneration of the AC joint of the right shoulder which may pre-dispose to the development of rotator cuff impingement syndrome. As well, another WCB medical advisor's memo dated February 20, 2015 indicated there is pre-existing osteoarthritis in the right shoulder, and that the arthroscopic treatment was directed at this condition.

Regarding the diagnosis of SLAP lesion (labral tear), she said it is of uncertain onset and to relate it to the work or as a pain generator, in the absence of medical evidence, would be speculative.

The employer representative noted that the worker has not returned to work since he was advised of a complaint about his conduct at the workplace.

The employer representative submitted that:

Based on the fact that there was no injury reported and no objective medical evidence to support an injury at work, we’re of the view that it can’t be demonstrated that [the worker's] condition is work-related, and in our view, based on this, the claim is not acceptable.

Analysis

The worker is appealing the WCB Review Office decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find that the worker was injured by accident arising out of and in the course of his employment as provided by Subsection 1(1) of the Act.

The panel considered all the information including the worker's claim file and the worker's and employer's submissions at the hearing. After considering all the evidence, the panel finds, on a balance of probabilities, that the worker's claim is not acceptable.

The panel first notes that the worker underwent surgery on June 30, 2014. The operative report indicates a pre-operative and post-operative diagnosis of "Degenerative arthritis right shoulder with AC joint arthritis." The panel is not able to find that this diagnosis is related to the worker's duties.

The panel notes that this diagnosis is consistent with the diagnosis provided by the worker's physician on April 19, 2010. In a "Patient Encounter History" form, the physician notes that the worker complains of ongoing right shoulder pain and provided a diagnosis of OA (osteoarthritis).

The panel also notes that in correspondence to the worker dated November 19, 2014, the orthopedic surgeon, in addition to commenting on the worker's degenerative condition, comments that:

The other arthroscopic finding, not discussed in your MRI or pre-op evaluations, is presence of labral tearing. It was cleaned up by debridement. This was not identified on MRI, and in certain situations can be considered trauma related but requires some type of documented traction-type of injury to the shoulder reported in the workplace.

In considering the orthopedic surgeon's comments, the panel asked numerous questions about the worker's job duties and the events surrounding the injury. The panel then considered whether the job duties would likely cause the worker's labral tear. The panel was not able to find that the job duties caused the labral tear. The worker did not describe a "traction-type injury" to the shoulder nor did the duties as described by the worker involve traction type activities.

The panel notes and accepts the February 20, 2015 opinion of the WCB Medical advisor who reviewed the worker's file. With respect to the potential work-related causes of a labral tear (also referred to as a SLAP lesion), the medical advisor comments, in part:

The SLAP lesion is of uncertain onset and to propose that its onset was related to work or that it is a pain generator in [the worker's] shoulder, in the absence of medical evidence to support those assertions would be speculative.

...In his November 19, 2014 correspondence, the treating orthopedic surgeon states that the typical mechanism of injury for a SLAP tear would be some sort of documented traction injury. Notwithstanding that a SLAP lesion could possibly (rather than probably) be provoked by repetitive shoulder activity, the medical information on file does not support that an injury occurred to [the worker's] shoulder that would have provoked the SLAP lesion beyond speculation

The panel also notes that in a "Patient Encounter History" form dated January 30, 2013 a physician indicates that "exam...both shoulder rom good, no swelling". This is not consistent with a significant shoulder injury at that time.

The panel finds that the worker's claim for a right shoulder injury is not accepted. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of February, 2016