The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board that she was not entitled to further benefits in relation to her claim for injuries sustained in January 2015. An oral hearing was held on March 23, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her dominant right shoulder, arm, fingers and back that she related to her work duties as a leather cutter. The date of accident was January 19, 2005. The worker described the accident as follows:

"...always standing and she has to bend over at the waist to work over her table, she has to pick up leather from under the table so she has to crouch down, she is cutting with a knife in her right hand, pressing hard on the leather, because the leather is thick. She is constantly reaching and pressing down with her right hand on the knife to cut the leather. She does this all day cutting of the leather."

The claim for compensation was accepted based on the diagnosis of epicondylitis.

On March 26, 2005, the worker underwent an MRI of her right shoulder which revealed:

1. Mild acromioclavicular osteoarthritis ("OA").

2. Full thickness tear of the supraspinatus tendon with minimal retraction and mild atrophy of the supraspinatus muscle.

In April 2005, a WCB medical advisor commented that the supraspinatus tear was likely related to the workplace duties. On August 16, 2005, the worker underwent a right shoulder arthroscopy, arthroscopic acromioplasty and cuff repair which was accepted as a WCB responsibility.

In May 2005, the treating surgeon reported that the worker also had pain in her left shoulder. On July 29, 2005, an MRI of the left shoulder revealed:

1. Increased signal relating to insertion of supraspinatus. The features are consistent with tendinosis.

On January 13, 2006, a WCB orthopedic consultant advised the treating surgeon that the WCB was unable to accept responsibility for the proposed surgery to the left shoulder as no work-related injury to the left shoulder had been claimed. He noted that x-rays taken March 3, 2005 showed degenerative changes at the rotator cuff insertions on both shoulders. Considering this and the MRI findings, the consultant felt the present pathology was not work-related injury but was more likely due to degenerative changes.

The file was reviewed by another WCB medical advisor on February 9, 2006. He stated that the right shoulder showed a tear of the rotator cuff, which could be considered an aggravation of pre-existing pathology.

On March 28, 2006, the worker underwent a left shoulder arthroscopy, arthroscopic acromioplasty and cuff repair. On May 17, 2006, a WCB orthopedic consultant said he did not think the left shoulder surgery was related to the compensable injury.

In a memo to file dated May 18, 2006, the WCB case manager stated:

"...Met with [WCB orthopedic consultant]...He felt that on the balance of opinion (sic) there was no cause-effect relationship between the workplace injury and the current condition, but concurred he could not definitively say it wasn't. [WCB orthopedic consultant] advises that the diagnosis of subscapular tendon is common in aging populations without any workplace relationship.

I noted that the claimant had first developed problems to her right shoulder and compensated with her left. When her left became symptomatic she opened her current claim. Medical information supports bilateral shoulder pain complaints...The decision to accept the left shoulder will be an adjudicative one."

Responsibility for the left shoulder surgery and the resulting recovery period was accepted as a WCB responsibility. File records show that the worker was paid various types of benefits from the WCB which concluded on July 30, 2007.

On February 26, 2015, the worker advised the WCB that she was having ongoing bilateral shoulder difficulties and was undergoing further right shoulder surgery. The worker indicated that she tried working but was unable to do so because of her shoulder condition and felt she was entitled to wage loss benefits.

The WCB requested and obtained updated medical reports from the family physician and an orthopedic surgeon which included MRI results and a copy of the operative report pertaining to the right shoulder dated April 10, 2015.

On April 23, 2015, a WCB orthopedic consultant reviewed the new information and responded to questions posed by the WCB case management. The consultant stated, in part, that the most probable diagnosis of the workplace injury was a strain/sprain of the neck, back and right upper limb, left upper limb with bilateral lateral epicondylitis. This was consistent with the mechanism of repetitive stress of bending over a table from a standing position and cutting leather with the dominant right hand.

The consultant also referred to the MRI findings of the right shoulder dated March 26, 2005. He commented that the August 16, 2005 surgery confirmed a nearly full thickness tear of the supraspinatus portion of the rotator cuff. He said the usual causation of the OA of the AC joint was a degenerative process occurring over several years, unrelated to trauma. The usual causation of rotator cuff near-full thickness tears would be a degenerative tendinopathy rather than trauma. Although repetitive stress may cause such pathology in the rotator cuff, it is more probable that it would be related to degeneration and activities of daily living.

The consultant commented that the left shoulder surgery done on March 28, 2006 also confirmed a near-full thickness tear of the subscapular portion of the left rotator cuff. He said such changes are more likely caused by a degenerative process rather than by acute or repetitive trauma.

On a balance of probabilities, the consultant concluded that the right shoulder surgery in 2005 for repair of the rotator cuff and acromioplasty was not related to the workplace injury but was due to a degenerative condition, a condition which was progressive in nature over the years and was not related to the workplace injury. The symptoms related to the left shoulder were also related to a degenerative process rather than to repetitive stress in the workplace.

In a decision dated May 5, 2015, the WCB advised the worker that based on a full review of her 2005 claim file, the following was determined:

• no responsibility could be accepted for her recent right shoulder surgery.

• the earlier right shoulder diagnosis and resulting surgery were not the responsibility of the WCB. Any wage loss, medical aid or medical treatment resulting from such should not have been accepted in relation to the 2005 mechanism of injury.

• the earlier decision to accept responsibility for left shoulder difficulties and surgery should not have been accepted by the WCB.

The worker's case was then considered by Review Office as the worker disagreed with the May 5, 2015 decision. On September 24, 2015, Review Office determined that there was no entitlement to further benefits.

Review Office found that the worker's current right shoulder difficulties and the April 10, 2015 surgery were related to a progressive, degenerative condition and not the effects of the workplace injury. Review Office agreed with the WCB orthopedic medical opinion that the worker's report of ongoing right and left shoulder symptoms following the workplace injury were related to a degenerative process and not due to repetitive stress in relation to her work duties.

Review Office accepted that the workplace injuries involved a strain/sprain of the worker's neck, back, right upper limb, left upper limb with bilateral lateral epicondylitis. This was consistent with the mechanism of injury described by the worker and the clinical findings at close proximity to the workplace accident. On October 12, 2015, the worker appealed Review Office's decision 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 Board of Directors.

The worker has an accepted claim for an injury arising from a January 2005 workplace accident. She is seeking further benefits.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker attended the hearing with her son who outlined the reasons his mother has appealed. In addition, the worker was assisted by an interpreter.

The worker's son noted that this is the second time his mother's shoulder has been operated on for the same exact issue. He said that as result of the various surgeries and the things that she’s going through with all the surgeries, she could not find a job. He noted that she trained to do bloodwork after she left her job with the accident employer. Unfortunately she could not perform the duties involved and left this employment. She is not able to work and is receiving CPP disability benefits.

He said that they have no idea why Workers Compensation did not approve the claim and did not pay for the surgery or other related benefits.

Regarding the 2015 surgery, the worker advised that the surgery did not help. She said she expected two kinds of pain to be reduced or removed by that surgery. One is a pain at rest, and another one when she moved a shoulder. She said neither type of pain was reduced back to a low level.

The worker described the job duties she was performing at the time of the injury. She said that she was cutting large pieces of leather, 25 to 30 kilograms in weight and up to three by five meters, so that the ends would go over the edge of the table. She had to shake the leather and rearrange its position on the table before it was perfectly flat with no wrinkles. She said that had to look at all five or six sheets to analyze and preplan how to cut particular portions so they appear as more uniform on a sewn product.

The next task was cutting the leather. She used her right hand to cut and used her left hand to put pressure on the form she was following to prevent it from sliding. She had to stretch to the opposite side of the table. Regarding the height of the work table, the worker and panel examined a photo of the table and noted that it was about hip height to the worker.

She said she had to cut up to 700 to 800 square feet of leather each day, making 60 to 200 pieces.

The worker advised that she can no longer use her shoulders, hands and arms and cannot perform normal household duties. She advised that when her right arm was injured, she used her left arm with the result that it was injured as well.

The worker advised that the surgeon, who operated on her shoulders, provided a medical certificate supporting her claim.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the September 2015 WCB Review Office decision that the worker is not entitled to further benefits arising from her January 2005 accident. As noted in the background, Review Office determined that the worker was not entitled to further benefits in relation to her right and left shoulder conditions.

For the worker's appeal of this decision to be approved, the panel must find that the worker sustained a further loss of earning capacity and required additional medical aid as a result of the 2005 injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker is not entitled to further benefits with respect to this claim.

In reaching this decision, the panel has reviewed the job duties outlined in a memo dated January 25, 2005. The panel notes that the duties are performed on a large table at waist height and include:

1. retrieve pre-designed patterns from rack

2. retrieve material from horse

3. arrange pattern on desktop; attempt to avoid excess wasted material

4. trace pattern with utility knife

5. remove excess material for storage or waste

6. fold cut materials: store holding bench for transport to sewing department

7. repeat process.

The worker uses a sharp utility knife to cut material. The duties are classed as light physical demand.

The worker's description of the duties at the hearing varied slightly from the above description. To the extent that the worker offered a different description, the panel places more weight upon the original description which was provided at the time the claim was established. The panel finds that the job duties did not involve significant overhead activities or activities away from the body which would stress the shoulder areas, and concludes that the duties were not causative of the worker's shoulder conditions.

The panel also attaches weight to the April 23, 2015 opinion of the WCB orthopedic consultant who reviewed the file, including the job description, and opined that the usual causation of rotator cuff near-full thickness tear would be degenerative tendinopathy rather than trauma. He noted similar findings for the worker's non-dominant left shoulder were similar which suggest they are degenerative rather than work related. He concluded, in part, that:

On a balance of probabilities, surgery on the right shoulder for repair of the rotator cuff and acromioplasty on August 16, 2005, would not have been related to the workplace injury.

The need for further surgery for the right shoulder in 2015 is related to a degenerative condition, a condition which is progressive in nature over the years. In my opinion the need for such surgery is not related to a workplace injury…

In my opinion, it is more probable that the symptoms in the left shoulder were related to a degenerative process than to repetitive stress in the workplace.

The panel also accepts the January 11, 2007 opinion of a second WCB orthopedic consultant who noted that:

On March 3, 2005, x-rays of both shoulders showed "sclerosis and spurring of the proximal margins of the greater tuberosities consistent with degenerative change at the rotator cuff insertions." In my opinion these changes would have been pre-existing to the claimant's work related injury.

Considering all the evidence, the panel also finds that the job did not aggravate or enhance the worker's pre-existing degenerative conditions.

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 3rd day of May, 2016