The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for left shoulder and elbow difficulties was not compensable. A hearing was held on March 15, 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

The worker filed a claim with the WCB for difficulties she experienced with her left shoulder to elbow region, with the accident date of March 12, 2015. The worker attributed her difficulties to the repetitive nature of her job duties. The worker noted that she worked 24 hours weekly prior to October 2014, then started working 30 hours weekly when a co-worker retired, and had been working even more since January 2015.

Medical information on file showed that the worker sought treatment from a physiotherapist on March 12, 2015. The worker complained of severe pain in her left shoulder and down the arm and elbow. The worker advised the physiotherapist that she had had a very busy day with extreme repetition. The worker was diagnosed with tennis elbow and a repetitive strain of the shoulder and elbow.

In a Doctor First Report dated March 16, 2015, it was reported that the worker complained of extreme pain in her left shoulder to elbow. The physician's diagnosis was left shoulder tendinitis.

In a consultation report dated March 16, 2015, a sport medicine physician reported that the worker gave a history that she started having right shoulder pain approximately 5 to 6 months ago. There was no traumatic incident and the pain improved over time with physiotherapy treatment. X-rays from January 12, 2015 showed calcific tendinopathy. The worker also complained that she had experienced left shoulder pain for the past week which was much more painful than the right shoulder was at that moment. The pain was in the shoulder and radiated down the left upper arm. X-rays of the left shoulder showed a small area of calcific tendinopathy. The worker was diagnosed with calcific tendinopathy of both shoulders. The right side was sub-acute and appeared to be improving. The left shoulder appeared to have an acute tendinopathy at that moment.

On April 7, 2015, the worker was advised that her claim for compensation was denied, as a causal relationship between the development of her left shoulder symptoms and her employment had not been established. The WCB found that the worker had a pre-existing condition in her left shoulder based on X-ray results, and her job duties were varied, did not involve strenuous, resisted or forceful movements, and were not highly repetitious.

On May 6, 2015, a second physiotherapist diagnosed the worker with radial nerve entrapment and scapular and thoracic spine dysfunction, and reported that she had improved significantly since March.

On May 21, 2015, a WCB medical advisor reviewed the physiotherapist's report and diagnoses of radial nerve entrapment, scapular dysfunction and thoracic spine dysfunction. The medical advisor stated that these were labels which describe a nonspecific pain condition of the forearm, posterior shoulder, and mid back respectively. The labels often implied that there was an associated muscle imbalance (usually non-neurogenic muscle weakness or muscle shortening). Causative factors for these conditions were multifactorial and could usually not be attributed to a single event/activity.

On June 10, 2015, the Worker Advisor Office provided the WCB with a report from the second physiotherapist which stated:

Patient job requires her to cut and style hair and she is left handed. My diagnosis is radial nerve entrapment and T4 syndrome which can originate from repetitive, one-sided tasks, like hair styling.

Since the start of care she has shown good improvement but she is still having numbness and tingling in her L hand whenever she goes to perform fine motor tasks with sustained gripping. This makes it difficult to hold scissors and perform the tasks required by her job.

The worker advisor stated:

It is our opinion [the physiotherapist] has provided support of an association between the mechanics of [the worker's] duties and the onset of her left arm symptoms. It is also our opinion the increase in work hours also increased [the worker's] "repetitive one sided tasks", therefore putting her more at risk for the development of left sided symptoms.

On July 7, 2015, a second WCB medical advisor stated:

In a May 6 15 report the physiotherapist noted diagnoses of "radial nerve entrapment, and scapular and thoracic spine dysfunction."

A more recent enclosure from the worker advisor contains a report from the same PT noting diagnoses of "radial nerve entrapment and T4 syndrome."

The diagnoses reported in this more recent report are essentially the same as those reported in May. A "new" diagnosis has not been reported.

Based on the WCB medical advisor's opinion, the worker was advised on July 20, 2015, that the WCB remained of the opinion that a relationship between her employment activities and the development of her diagnosed conditions had not been shown to exist. Therefore no change would be made to the initial decision to disallow her claim.

On August 25, 2015, the worker advisor provided Review Office with a submission from the worker for their consideration.

On September 25, 2015, Review Office found that there was no substantive evidence to support the assertion that the development of the worker's left shoulder problems was related to the work duties she performed or that an accident occurred. On October 19, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was held on March 15, 2016.

Following the oral hearing, the appeal panel met to discuss the case and requested additional medical information. On June 2, 2016, the worker advisor was provided with a copy of the medical information for comment. On July 6, 2014, the panel met further to discuss the case and render its decision on the issue under appeal.

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.

Subsection 4(1) of the Act provides that 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured.

Worker's Position

The worker was represented by a worker advisor, who made a presentation on the worker's behalf. The worker responded to questions from the worker advisor and from the panel.

The worker's position was that she sustained an injury to her left shoulder and elbow while performing her job duties and her claim should be accepted. It was submitted that there had been a significant change in the worker's duties after January 2, 2015. She was the only person left working after that date, but there was no decrease in the number of regular appointments or the work to be done. The amount of work exceeded the capabilities of one individual, and she was overwhelmed by the continued volume. She was not provided with any volunteer help or other assistance. The work was highly repetitive. She did everything possible to provide services to the clients, and would often stay late to complete a service.

On March 12, 2015, the worker experienced the onset of pain in her left shoulder and arm while performing her duties. The pain intensified during the course of her duties, and she sought medical attention that same day. It was submitted that the increase in her work activities triggered this onset of her left shoulder and arm symptoms.

In conclusion, the worker advisor submitted that although there was no confirmed diagnosis at this time, acceptance of a claim is not based on diagnosis, but on the onset of physical symptoms of injuries that are established through clinical findings. It was submitted that the weight of evidence in this case supports that a workplace accident occurred on March 12, 2015, and that the claim meets the requirements of the Act and should be accepted.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. In order for the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's left shoulder and elbow difficulties arose out of and in the course of her employment, or in other words, were caused, aggravated or enhanced by her job duties. The panel is unable to make that finding.

The panel notes that a number of different diagnoses have been referred to by different medical practitioners in the course of this claim. The panel acknowledges these diagnoses, but is unable to find that the etiologies are consistent with the mechanism of injury.

The panel notes that the initial diagnosis by the sport medicine physician on March 16, 2015 was calcific tendinopathy. The physician's report indicated that the worker was complaining that she has been experiencing left shoulder pain for the last week that is much more painful than the right shoulder and that "there was no injury to the left shoulder." An X-ray of the same date found that a "small calcification…raises the possibility of calcific tendonitis" and that there was mild degenerative arthrosis at the AC joint. The worker was diagnosed with calcific tendinopathy of both shoulders.

The panel is unable to identify any medical evidence which would support that the condition of calcific tendinopathy of the left shoulder was caused, aggravated or enhanced by the worker's job duties. The panel is satisfied, on a balance of probabilities, that the evidence indicates that this was a pre-existing condition, which may have become symptomatic at various points in time, but was not caused by the worker's job duties. Stated differently, it may at times hurt more at work without being injured at work.

That this was a pre-existing condition is further supported by a recent MRI of the worker's left shoulder, dated May 19, 2016, the findings of which were:

1. Moderate acromioclavicular joint osteoarthritis.

2. Small focus of tendinosis of the distal infraspinatus tendon.

3. No rotator cuff tendon tear.

Based on the evidence, and on a balance of probabilities, the panel finds that calcific tendinopathy was a non-compensable pre-existing condition that was not caused, aggravated or enhanced by the worker's job duties.

The second physiotherapist diagnosed the worker with radial nerve entrapment. In response to a question from the panel as to whether she had a sense of what the likely medical problem was, the worker indicated that the biggest relief for her came from the treatments she received from the second physiotherapist for this condition. She said that the physiotherapist had indicated that the radial nerve problem would have been caused by repetitive use, and the particular job which would have triggered that injury was haircutting, and more specifically, the constant cutting movement with the scissors. Asked if any other tasks would have triggered the same muscles, the worker said she thought that all of them would.

At the hearing, the panel questioned the worker with respect to the duties she performed in the course of the day, both before and after January 2015. With respect to the periods of time after October 2014 and January 2015, the evidence indicated that there was not so much a change in the number of hairstyling or hairdressing services which the worker performed, but more a change in the amount of administrative and support work that she had to do, given that she was the only person working in the salon. With respect to the hairdressing services, the worker said she had to rearrange the appointment schedules, and change standing appointments with the result that clients would attend less frequently. With respect to the support time, she noted with more than one person in the salon they would share the duties. Once she was alone in the salon, she had to do all of the administrative and support duties which would previously have been shared. When it was put to the worker that it was the support time that was much greater for her alone, but the actual service time was the same, she pointed out that she would stay late sometimes, to complete a service.

Based on the evidence, the panel is unable to connect the diagnosis of radial nerve entrapment with the worker's job duties. While the worker submitted that the job is highly repetitive, the panel is not satisfied, on a balance of probabilities, that haircutting at a rate of up to 7 haircuts a day was sufficiently repetitive to be causative of radial nerve entrapment. The panel notes that the worker's other duties involved different movements, and is unable to relate these duties, either alone or in combination with the haircutting duties, to a diagnosis of radial nerve entrapment.

Further, it is the panel's understanding that radial nerve entrapment is an injury which is more typically associated with compression rather than over-use. The panel is unable to find a connection between the repetitive activities described by the worker and any type of compression.

The panel also notes that a radial nerve injury was not confirmed when the worker underwent a nerve conduction study in August 2015, which suggests that this is not the source of the worker's injuries.

The panel notes that the sport medicine physician has also diagnosed the worker with lateral epicondylitis. Based on our review of the evidence on file and the evidence given at the hearing, the panel is unable to find, on a balance of probabilities, that the worker's job duties would have resulted in the development of a lateral epicondylitis condition in her left arm.

The panel's general impression of the worker's job duties was that the work was relatively fast-paced and included a number of tasks which involved the use of the worker's hands and elbows, and in particular her left hand and arm, given that she is left hand dominant, but that overall there was far more "busy" work than work involving prolonged or sustained force and repetition that would be causative of lateral epicondylitis. On a balance of probabilities, the panel is therefore unable to relate the diagnosis of lateral epicondylitis to the work duties which the worker was performing.

In conclusion, on a balance of probabilities, the panel is unable to find a causal connection between the worker's left shoulder and elbow difficulties and the work duties she was performing.

As a result, the panel finds that the worker did not suffer a work-related injury within the meaning of subsections 1(1) and 4(1) of the Act, and her claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 4th day of August, 2016