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 compensation was not acceptable. A hearing was held on January 11, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On March 10, 2014, the worker filed a claim with the WCB for a left shoulder injury that occurred on February 17, 2014. The worker attributed her injury to her job duties that involved going up and down 10 foot ladders to apply hand brakes which she did several times more than normal on February 17. The worker did not report the injury to her employer until March 1, 2014 as she thought it was a pulled muscle and that her condition was not serious.

The Employer's Accident Report dated March 6, 2014 noted that "there is no incident," and that the employee was relating her symptoms to her normal work duties.

On March 11, 2014, the employer's representative provided the WCB with further information to support that the worker's left shoulder symptoms did not arise out of or in the course of her employment.

On March 18, 2014, the worker provided detailed information describing the work activities she performed on February 17, 2014 onwards which led to her left shoulder difficulties. The worker said she asked a supervisor for assistance as it was taking her twice as long to get things done due to extreme weather conditions. She did not tell him that her shoulder was sore at the time. The worker said she awoke with no strength in her left arm on March 1, 2014. 

On March 24, 2014, the employer's representative indicated that the worker's job duties over the past 10 months had not changed and that she completed her duties without a shoulder incident.

On March 31, 2014, the worker's claim for compensation was denied as the WCB was unable to establish that a workplace accident occurred on February 17, 2014 as described by the worker. The WCB's decision was based on the worker's timing of reporting a workplace accident to her employer, the timing of medical attention and being able to perform her regular duties up until February 28, 2014.

On July 25, 2014, the worker appealed the March 31, 2014 decision to Review Office through her union representative. On September 11, 2014, the employer's representative provided Review Office with a second submission to support that the decision to deny the claim should be upheld.

On October 3, 2014, Review Office confirmed that the worker's left shoulder difficulties did not arise out of and in the course of her employment on February 17, 2014. Review Office referred to the comments made by the worker that there was no event that caused injury to her left shoulder on February 17. She did not feel discomfort during her shift until later in her hotel room. On February 18, the worker did not report a left shoulder injury to the superintendent or to the return to work specialist and she continued to perform her regular duties until February 27 with no difficulties reported. From a medical standpoint, Review Office noted that the worker initially reported that her left shoulder was "stiff and sore" and from March 1 onwards, she described numbness in her fingers, shooting pain down to her elbow and limited strength. Review Office could not account for the change in symptoms two weeks later in relation to the February 17 work accident.

On June 1, 2015, Review Office considered a further appeal by the union representative which included correspondence from the worker and her treating physician. Review Office upheld its decision that the worker's claim was not acceptable as it concluded that the treating physician's viewpoint was speculative rather than evidence based and the information provided from the worker involved a labour relations matter and it did not change the relevant facts of the case. On June 21, 2016, 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.

Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows:

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

(a) a willful 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 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;

The worker is appealing the WCB Review Office decision that her claim is not acceptable.

Worker's Position

The worker was represented by a union advocate.  Other representatives of the union attended to assist in providing information. The worker answered questions posed by the panel.

The worker's representative submitted that the case manager and the Review Office erred in its

decision to deny benefits when it failed to recognize that the weight of evidence did, in fact, establish that an accident had occurred out of and in the course of employment.

The worker's representative submitted that while performing duties the worker suffered serious injury to her left shoulder which was initially diagnosed as a rotator cuff strain and bicipital tendonitis.  Upon further investigation, including an MRI, the injury was actually confirmed as severe glenohumeral osteoarthritis with intra articular bodies and moderate interstitial tearing at the supraspinatus tendon.  He noted that the worker continues to suffer from limited motion and, in her left shoulder, occasional pain from this injury to this day.

In regards to whether the claim is acceptable, the representative noted:

• there was no single identifiable event that triggered the injury.  Rather, it wasas a result of repeated overexertions while performing various duties over a ten-day period, where the gradual onset of the injury manifested itself.
• the workplace duties during that period were excessive in nature, repetitive and resulted in repeated traumas to the worker's left shoulder.
• the actual extent of the injury only fully manifested itself some ten days after the original trauma.
• the worker had a prior workplace injury which contributed to her present injury by requiring greater than normal exertion when required to use her non-dominant left shoulder to perform her duties.
• the worker did not initially report the injury but continued to work expecting the symptoms would eventually subside.
• on March 1, 2014, the worker had no strength in her left arm, and pain in her left shoulder.
• in addition to expecting the injury to resolve, the worker was reluctant to report because she feared intimidation by fellow employees on her job performance and was intimidated by management, and possible discipline.
• on February 17, 2014 while working relief, the work of climbing, applying handbrakes, applying retainers and riding on the side of cars took a considerable number of hours.
• this job took much more than the five or ten minutes that the job demands analysis would suggest.
• a co-worker confirmed that on February 28 the worker advised she was experiencing soreness to her left shoulder from a previous trip.
• the location of the work on a hill created additional difficulty.
• the treating physician was supportive of the worker's position that her injury arose out of and in the course of employment, specifically, that it is probable the injury occurred as a result of the tasks the worker performed between February 17 and February 27, 2014.
• the treating physician also suggested that the severe degeneration is suggestive of an overuse pattern related to the shoulder
• the worker also relies on the opinion of the occupational health clinic physician and an ergonomist, who stated that the risk factors present in this task are sufficient to result in, contribute to, or aggravate a shoulder musculoskeletal injury.

The worker's representative submitted that based on the medical evidence, the professional opinion of the physicians, the ergonomist and the nature and description of the excessive work performed, there is clearly enough evidence to suggest that a causal relationship between her job duties and her injury to her shoulder is evident.   He noted that the employer provided no written evidence or medical opinions to suggest otherwise.

The worker's representative also noted that the employer's statistics indicate that shoulder injuries do occur to staff who are operating handbrakes, lining switches, and also entraining and, detraining activities.

The worker answered questions from the panel on her duties on the dates of the injury including the operation of the handbrakes.  She indicated that due to a left leg injury she had additional difficulty climbing up and down the ladders which stressed her shoulders.

The worker advised that her family physician has advised that she will need a shoulder replacement.  

In closing, the worker's representative submitted that the worker's delay in reporting was not significant.  He noted that she had reasons for not reporting including the hope that symptoms would disappear and that everything would have been fine.  As well, she was quite concerned about further discipline, she was aware of cases where fellow employees were called in over the submission of accident reports, or injury reports.

The worker's representative also commented on the employer's job demands analysis which indicated that on average it is five to approximately 30 minutes of a ten-hour day.  However, in this case, the worker "in one day alone, I believe it was between five and six hours working outside, applying hand brakes, releasing handbrakes, climbing cars.  There was another day 4/10 where there was two hours outside releasing handbrakes."

The worker's representative also submitted that "it wasn’t specifically an injury that occurred on that date.  I believe that there was a strain which actually developed further over the week with all the work that she did."

The worker said, in closing, that:

"…I do truly believe that I was injured on that day and it worsened, and it got to the point where I, like it says in there, that March 1st I phoned my superintendent and I couldn’t even lift my arm, I couldn’t lift it to do anything…

That’s the only thing that it could possibly be from, because that’s all I was doing, was working."

Employer's Position

The employer was represented by its WCB Specialist who participated by teleconference.  The Disability Management Manager attended the hearing in person.

The employer submitted that the left shoulder injury did not arise out of and/or occur in the course of her employment.  She said that it is necessary to consider injury reporting and employment hazards.

She noted that a supervisor worked with the worker for over two hours on the day of the injury and at no time did the worker report left shoulder symptoms.  He also had a lengthy conversation with her regarding work duties, and at no time during that conversation did the worker report left shoulder symptoms.

The employer representative also noted that the worker doesn’t work alone and had ample opportunity to report a workplace injury.  She’s also familiar with having to immediately report any workplace injuries.  She noted that the report from the co-worker is two and a half years after the alleged date of incident.

She submitted that a work hazard did not cause a left shoulder injury. She noted that the worker's job duties for ten months prior to the alleged date of injury had not changed, and she completed those duties without a shoulder incident.  Regarding the physical demands analysis, she noted it provides that reaching above and below the shoulder is done occasionally, and the holding onto the handrails while moving, is done occasionally.

The employer representative referred to the employer's investigation which was completed March 13 and 14, 2014, at which time the worker could not pinpoint exactly what happened or when. The worker reported that at the conclusion of her tour of duty on February 18 she did not feel any discomfort or pain associated with her left shoulder. The worker reported that she was just tired, and that it was just a normal day. The employer representative submitted that there was no event during the worker's tour of duty on February 17 that caused an alleged injury. The employer representative noted that the worker stated she noticed feeling the discomfort once at her hotel and at the end of a normal workday.  She said the worker called for assistance on February 17, not because she was injured, but because she was taking a lot of time.  She also noted that the worker confirmed there were no defects with any of the cars.

The employer representative also noted that the MRI of August 29, 2016 refers to glenohumeral osteoarthritis which the employer submits is not work-related.

Analysis

The worker appealed the WCB decision that her claim is not work-related.  For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury arising out of and in the course of her employment.  The panel was not able to make this finding.  The panel finds, on a balance of probabilities, that the worker did not sustain an injury by accident arising out of and in the course of her employment in February 2014.

In making this decision, the panel places significant weight
upon the August 31, 2016 MRI report.  The panel considers the MRI to be the best evidence regarding the worker's left shoulder condition.  The MRI report indicated that:

Impression:

Severe glenohumeral osteoarthritis and intraarticular bodies.  There is moderate grade interstitial tearing at the suparspinatus tendon footprint.  A full thickness rotator cuff tear is not seen.

The panel notes this is a degenerative condition and not related to an acute cause.

The panel notes that the worker's family physician opined that this condition is: "suggestive of an overuse pattern related to the shoulder.  This could be related to excessive and/or repetitive arm work, and overhead work."

The panel finds this opinion to be speculative.  The physician indicates "this could be" which does not support a finding that it is probable.  In addition, the panel is not aware of general medical research studies or literature which would support that overuse results in osteoarthritis.

The panel notes the worker's representative's submission that "there was no single identifiable event that triggered the injury rather, it was a result of repeated overexertions while performing various duties over a ten-day period, where the gradual onset of the injury manifested itself."  The panel is not able to find that 10 days of work with overexertion, as described by the worker, would, on a balance of probabilities, result in a degenerative condition. 

Finally, the panel notes the worker's explanation provided to the employer, that at the end of work on February 17, she "felt sore" in her "whole body" but that "It was just a long day."  The panel notes the worker worked for an additional nine days without seeking medical assistance. The panel is not able to relate the worker's complaint of discomfort and tiredness to the findings on the MRI.

The worker's claim is not acceptable.  Her appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of February, 2017