The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right shoulder difficulties were not related to a workplace accident. An oral hearing was held on May 2, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 15, 2014, the worker filed a claim with the WCB for injury to his right shoulder which he attributed to the nature of his job duties as a heavy duty mechanic. The worker reported that his shoulder difficulties started around October 2014 and that he reported them to his immediate supervisor. His said his shoulder symptoms then started to get worse and he attended a local hospital for medical treatment and went to physiotherapy. The date of accident was recorded as being November 8, 2014.

The Employer's Accident Report dated December 16, 2014 indicated that the worker reported a progressive right shoulder injury from overcompensating due to permanent left arm restrictions. The employer indicated that they were protesting the claim on the basis that the right shoulder symptoms were due to non WCB permanent left arm restrictions.

On January 6, 2015, a WCB adjudicator contacted the worker by telephone to gather additional information related to the onset of his right shoulder symptoms. The worker stated that he had been doing modified/restricted duties since 1994 and has a WCB claim with another province (while working with the accident employer) for a torn cartilage in his left wrist. He said he wears a working splint on his left wrist/forearm and has permanent left wrist restrictions. The worker reported that he used his right arm more than usual because of the damage to his left wrist.

On January 19, 2015, the WCB accepted that the worker's right shoulder difficulties were related to an accident arising out of and in the course of his employment. On January 20, 2015, the employer appealed the decision to Review Office. The employer later provided Review Office with their full written submission dated February 12, 2015.

On April 10, 2015, Review Office accepted the employer's appeal and determined that the worker's claim was not acceptable. In reaching its decision, Review Office noted that the worker did not report any incident or any specific job duty other than to note that he had worked for the accident employer for 28 years in the same role. Review Office found that the worker's job duties were not repetitive or heavy in nature and the majority of his work duties were done at or below shoulder level. It noted that the worker performed sedentary duties in his role as a mechanic for an hour each morning and his restrictions limited the amount of heavy lifting he took part in.

Based on its review of the medical information on file which included an opinion from a WCB medical advisor dated March 4, 2015, Review Office found that the worker's right shoulder discomfort was a result of degenerative changes and was considered a disease of life. The worker's job duties did not present sufficient risk factors to state that his degenerative right shoulder osteoarthritis was causally related to his employment.

On April 23, 2015, the worker wrote Review Office appealing their decision dated April 10, 2015. The worker explained that it was never mentioned that he also did traction motor change-outs on all types of locomotives, which involved working on sides of the trucks and under the locomotive (overhead work). None of this work was regarded as "light work" or "moderate work." The worker indicated that on the day his injury occurred he reported to his supervisor that he had done something to his right shoulder while working on a wheel truing machine. The worker indicated that injuries are to be investigated and documented but this did not occur. He was told to take it easy as it was close to the end of his shift. Over a period of days, he thought it was a muscle strain and it would go away. As his shoulder pain was not getting better, he decided to go to the hospital in December 2014 as his regular doctor was not available. He was diagnosed at that time with possible bicep tendonitis.

The worker indicated that he did in fact report the injury when it happened and the company chose not to report it when the accident occurred. The worker outlined in his submission the duties he performed at work were in the undercarriage repair department.

On July 10, 2015, Review Office confirmed that the worker's claim was not acceptable after considering the worker's appeal along with a report from the worker's treating surgeon dated May 1, 2015. Review Office concluded that the worker's job was not characterized as heavy, repetitive or requiring continuous overhead work. This, and an absence of a traumatic incident, provided no causal connection between the worker's rotator cuff tear(s) and his job duties. In August 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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 is appealing the WCB Review Office decision that his claim is not acceptable. The key issue to be determined by the panel deals with whether the worker suffered an injury by accident that arose out of and in the course of his employment.

Worker's Position

The worker was self-represented. The worker advised that he had expected his union representative to attend the hearing and represent him. The panel offered to adjourn the hearing to a later date, to allow the worker to obtain representation. The worker declined the offer of an adjournment, indicating that he preferred to proceed with the hearing.

The worker said that he was originally injured when he was working on a truing machine. The worker explained the process he followed in using the truing machine. The worker advised that the injury occurred on a Saturday morning in November 2014. He said that he started the work at 8:00 AM and had completed working on three of four wheels when he felt a sharp pain.

The worker said that he told his boss "I did something to my shoulder. I’m not exactly sure, may have strained it, whatever." He said that the health and safety rep was also aware that his shoulder was bothering him.

The worker said that although he reported the accident "nothing ever became of it." He said that he continued to work until it got to the point where he couldn’t sleep at night anymore because of shoulder pain. The worker then attended a hospital and ultimately had surgery on his shoulder.

The worker was asked about his visit to the hospital and the notation in the hospital record that there was no traumatic incident. He was not able to explain this notation. He acknowledged that he could not provide a specific accident date to the hospital.

In answer to questions, the worker provided detailed information on all of the job duties he performed in the shop. He said it was considered heavy repair but that there are cranes to do the lifting. He said "it’s still physically demanding." He advised that when he was working on traction motors, he could be working the underside "where it’s all overhead, disconnect cables and break apart." With respect to the pain the worker felt at work, he said it was a jolt then it was "just sore." He thought it was a muscle strain. He rated it as possibly 7 out of 10 on a pain scale and said it settled down to about 4. He said that when he moved in bed the pain level could increase to 9 out of 10.

Regarding the impact of his earlier restrictions on his left arm on his ability to perform his job duties, the worker said that he probably does 80 to 85 percent of the job. Co-workers assist him when needed.

Employer's Position

The employer was represented by its WCB Specialist. The employer's Return to Work Coordinator also attended the hearing.

The employer representative advised the employer agrees with the WCB Review Office decision. She noted that the worker reported, on his worker incident report dated December 15, 2014, that his right shoulder symptoms were originally reported in October of 2014. He stated that his right shoulder symptoms were from his work duties.

The employer representative also noted that the emergency treatment record of December 8, 2014 states that his pain was incited by repetitive overhead movement, and no traumatic incident. The record also notes that the pain had started three weeks prior. She referred to a doctor’s report dated January 7, 2015, which states that he has chronic right shoulder pain and that the treating orthopedic surgeon advised that the worker did not recall a specific incident and reports that he did a lot of overhead work.

The employer representative said that the physical demands analysis of a full-time heavy-duty mechanic indicates occasional heavy lifting, occasional above shoulder level reaching, and occasional working in awkward positions. The worker's job duties would not be considered repetitive resisted activities at or above shoulder level. The job is noted to have occasional work above shoulder level, defined as 6 to 33 percent of the work shift. Pursuant to the physical demands analysis, the worker's job duties would not be considered repetitive resisted activities at or above shoulder level.

The employer representative also noted that the worker was working in a modified position due to unrelated left arm restrictions which occurred about 20 years prior.

The employer representative noted that the worker first reported a traumatic injury approximately six months after the accident. She suggested that this mechanism of injury be dismissed, as its contrary to the worker's initial reports to the employer, WCB, the emergency room physician, physiotherapist and his surgeon. She stated that the information closest to the reported date of injury is the most accurate and should be relied upon.

With respect to the medical information, the employer representative said that objective medical information, by way of diagnostic and operative reports, show that the worker has degenerative osteoarthritis of his right shoulder. These degenerative changes were characterized as longstanding. She listed known risk factors for degenerative rotator cuff tears. Degenerative changes are a disease of life and, in no way, solely related to a specific work duty. The employer representative submitted that:

The facts regarding the job duties do not contribute to his symptoms. [The worker's] job is not heavy, not repetitive and does not require continuous overhead work. He is not required to do the same activity several times a minute for the majority of his workday.

Analysis

The worker is appealing the WCB decision that his claim for a workplace injury is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities that the worker's shoulder injury arose out of and in the course of his employment. The panel was not able to make this finding.

The panel notes the worker provided two different descriptions for the cause of the injury. The description provided by the worker at the hearing was of an acute injury happening when he was working, truing wheels on specific day. He provided a detailed description of the duties he was performing at that time. He said he felt a sharp pain and reported this to his supervisor.

In contrast, the worker provided a different description when he first reported the injury to the WCB and Employer. The Worker Incident Report, dated December 15, 2014, indicated:

This is from my work duties. As a heavy duty mechanic, I twist and turn bolts and put my body in awkward positions to do my work. I use my left arm for support to do my work. I use wrenches, ¾ impact guns. I work 8 hours per day, 5 days per week. I use my shoulder and biceps to move around on a machine to put centres in. It is like a big heavy hub cap in the way while working on a machine.

The panel considered both descriptions in making its decision.

The panel reviewed the worker's job demands analysis provided by the employer. It notes the duties involve occasional lifting greater than 50 pounds, occasional reaching above shoulder level, and occasional working in awkward positions. The panel finds that these tasks, as described, generally do not have the elements associated with the usual causes of a rotator cuff tear.

After careful review of the worker's job duties, the panel notes that the wheel truing duties, as the worker explained them, are well within the body envelope and directly in front of the worker with the exception of the job duty involving the removal of the plate prior to placing the wheel truing machine on the wheel. The worker had to reach to the right to remove five bolts then loosen one bolt, the plate was rotated out of the way and secured by tightening the one bolt again. The rest of the work was "nuts and bolts"; many mechanical assists were used. The panel finds that none of the duties would be causative of an acute or cumulative tearing injury.

While the worker relies upon the orthopedic surgeon's opinion, that his injury was caused by his job duties, the panel has had the opportunity to examine the job duties in greater detail, and therefore places less weight on the surgeon's opinion regarding causation. The description provided by the worker does not suggest an awkward position with his arm away from his body or other positions that could result in a tear while performing the noted duties.

Regarding an acute injury, the panel finds that the worker's retrospective recall of a specific incident was not sufficient to overcome his contemporaneous reporting of no specific incident, to satisfy the panel that an acute injury occurred at the time.

In this regard the panel notes that a statement was obtained, prior to the hearing, on behalf of the panel from the worker's supervisor at the time of the alleged acute injury. The worker indicated that he advised the supervisor of a specific accident and resulting injury. The supervisor, who is now retired, was not able to confirm the worker's position. The supervisor advised that:

All I can remember from [worker] is that he had a repetitive injury cause he always wore an arm brace for his arm and he was complaining-like his arm would get sore and repetitive work, which was I guess using the air gun (inaudible) and all I can remember of him is saying that his shoulder was bothering him, I don't remember the particular time or accident or whatever he is claiming…

As already noted the panel finds that, on a balance of probabilities, the worker's job duties did not cause a chronic overuse condition which would result in a rotator cuff tear. A chronic overuse condition or degenerative condition developing over years would not be considered as work related. The panel finds that the worker was hurting at work, but did not aggravate or enhance his shoulder tear while at work.

The panel considered both mechanisms of injury but was not able to find that the worker sustained an acute injury by accident arising out and in the course of his employment or that his general duties caused a chronic overuse condition and resulting injury. The panel finds, on a balance of probabilities, the worker's shoulder condition was not caused, aggravated or enhanced by an injury arising out of and in the course of his employment.

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 14th day of June, 2016