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 November 22, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB for right shoulder, neck, arm and hand injuries that she attributed to her work duties on July 14, 2015. The worker advised that she reported her injuries to the employer on July 16, 2015.

The Employer's Accident Report dated July 24, 2015, stated that the worker appeared to have reinjured an injury from approximately four years ago. On July 23, 2015, the worker reported to their health unit that one week prior, she was working on a broken rail and the product was getting piled up so she had to work faster. She did not identify anything in particular, only that at the end of her shift she had more pain than normal on her right side, and pain to her right shoulder, arm and hand. The employer reported that the worker was currently on alternate work for her left shoulder and had not been in for any kind of treatment in the health unit since July 16 with prior visits on July 14 and July 7. On all of these occasions, the worker did not mention that her right shoulder was sore.

On August 21, 2015, the worker met with a WCB adjudicator to discuss her claim. The worker stated:

…was moving products [animal parts] from one container (dumper = 3 feet high x 3 feet wide) into another container. She demonstrated lifting, slight bending & left to right trunk rotation. At onset of symptoms, the products got stuck on the conveyor line. When the line was finally fixed, the products came flowing fast into the dumper - so much so that some of them fell into the floor. Consequently, she had harder time picking up the products. She immediately went to the health unit to complain of right upper back/shoulder pain…worker explained that they have been experiencing staff shortage in her line. Because of this, she had been spending extra time on certain rotations. She explained that she spent 4 hours processing [animal parts] instead of only 2 hours in the past.

On July 29, 2015, the worker sought treatment from a physiotherapist for the following complaints: "Pain at right sided neck and down arm. No neurological symptoms. Increases with regular duties, more pain/some post work shift." The diagnosis outlined was myofascial pain.

In a decision dated August 21, 2015, the worker was advised that her claim for compensation was denied as the WCB was unable to relate her diagnosed condition of myofascial pain to a personal injury connected to her employment.

Subsequently, the WCB received new information which consisted of cervical spine MRI results dated October 15, 2015 and a physical demand analysis related to the worker's job duties.

On November 13, 2015, a WCB medical advisor reviewed the MRI findings which identified "Degenerative disc disease in the cervical spine and tendinosis in the right supraspinatus tendon." The medical advisor indicated that there were no specific workplace factors that were known to contribute to the development of cervical spine degenerative disc disease. Regarding the diagnosis of tendinosis, the medical advisor stated "This is an internal degeneration of this tendon. Its incidence also increases with age. Again, it may be just an MRI finding and may be asymptomatic."

On December 17, 2015, the worker was advised that no change would be made to the decision to deny her claim, as the WCB found no evidence to support that her work duties involved the activities that were associated with the development of rotator cuff tendinosis (or tendinosis of the supraspinatus) and there were no specific workplace factors that were known to contribute to the development of cervical spine degenerative disc disease.

On February 10, 2016, a worker advisor submitted to Review Office that the act of quickly picking up product and putting it into containers is the thing that was done and the doing of which during the course of employment resulted in the onset of the worker's neck and shoulder symptoms.

The employer's representative, on April 20, 2016, submitted to Review Office that the worker's job duties are not associated with the development of a rotator cuff injury.

On May 6, 2016, Review Office determined that the claim was not acceptable as it was unable to identify an event arising out of and in the course of the worker's duties that caused an injury.

Review Office accepted the employer's evidence that the worker did not report an accident until July 23, 2015 rather than the worker's evidence that it was reported on July 16, 2015. Review Office noted that the worker demonstrated full mobility and no neurological findings when she was examined by the treating physiotherapist on July 24, 2015. When the worker attended the employer's health unit on July 14 and 16, 2015, she did not mention right shoulder difficulties at that time. Based on these findings, Review Office said it was unlikely that the worker suffered an injury on July 14, 2015. On May 16, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on November 22, 2016.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information from the worker's treating physician. The requested medical information was later received and was forwarded to the interested parties for comment. On January 24, 2017, the panel met further to discuss the case and rendered its decision.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB 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.

This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s right shoulder, neck, arm and hand injury arose out of and in the course of her employment.

Worker's Position

The worker was represented by a worker advisor who provided a written and oral submission. She was also assisted by an interpreter and by a union representative.

The worker described her duties which involved working on a production line with a conveyor system. On the day of the injury, the conveyor was not functioning properly. The belt ran too fast, causing the product to come to the worker's work area too quickly.

The worker explained that:

When they pushing or trying to fix it then the product would fall. When the product fell then it was all full, so when they were falling they were accumulating. And when I tried to grab them, because I was trying to grab four or five as fast as I could, because the product was falling on me, so I tried to do it and do it fast, but I was not able to grab all the product. So then around six containers were full and that’s that product that goes into the mill because it went into the floor, it fell because I was not able to grab all the pieces. And that happened for around 20 minutes, maybe half an hour.

The worker's union representative provided a description of the work area and the equipment malfunction problem.

Regarding witnesses, the worker indicated that:

The general supervisor was there, the supervisor in charge of that line, two red hats for another line and the one for my line. There was a lady, a white hat lady that also works there, the backup for the line was there too, and the fellow workers that were working around me.

After she stopped working at this rotation, the worker advised that:

But after I finish my turn there, I told my immediate boss that I needed to go to the health area because I couldn’t stand the pain. When I got to the health area I asked the nurse, I ask her that I needed ice because I couldn’t stand the pain.

Upon returning from the health area, the worker returned to her work station but was assigned to an area where she did not have to work as fast.

With respect to the employer's health unit, the worker advised that the nurse who she saw did not speak her language. She believes that the nurse misunderstood her when she said that her right shoulder was injured, and given that she was being accommodated for her left shoulder at that time just assumed it was for the left shoulder.

The worker explained that due to a prior left shoulder and neck injury, she was working at modified duties on the day of her right shoulder injury.

The worker's representative noted that the worker described the mechanism of injury surrounding the July 14, 2015 event and explained how the chain on the assembly line broke. After being repaired, the product came very fast causing her to work quickly to keep up. Some of the product fell on the floor and she had to work even harder to pick it up to keep up with the line. While doing this her right shoulder became painful. The worker therefore suffered a work-related injury to her right shoulder.

Employer's Position

The employer was represented by an advocate who advised that it is the employer’s position that the claim is not acceptable. She noted that the employer had concerns about this claim from the onset as it was not reported until July 23, 2015. She advised that the employer contests the worker's evidence that she visited the health unit for her right shoulder on July 14. The employer representative acknowledged that the worker did visit the health unit for her left shoulder which was an ongoing complaint and noted that it was recorded as such by the employer. She noted that the worker made a second visit to the health unit on July 16 and again there was no mention of a right shoulder injury.

The employer representative noted that the worker was working within restrictions for her left shoulder to avoid lifting above shoulder level and no lifting over 25 pounds and limited push/pull up to 10 pounds. These are her regular duties and they fall within these restrictions.

The representative submitted that even if the worker did have to work a bit faster pace for a period of 20 minutes, the employer does not believe that it would result in the diagnoses provided by the physiotherapist.

The employer representative noted the physical demands analysis, which is on the WCB file, gives a clear indication of the activities involved and the rotations of positions that the worker would go through over the course of her shift.

Regarding the medical evidence, the employer's representative noted that the diagnosis provided by the treating physiotherapist is myofascial in origin which suggests a non work-related cause for her right shoulder pain. She also noted the October 15, 2015 MRI of the cervical spine showed multilevel degenerative disc disease, and the right shoulder MRI revealed degenerative tendinosis and arthritis, and did not show a rotator cuff tear.

The employer representative asked that the panel accept the November 13, 2015 opinion of the WCB medical advisor who reviewed the file and noted the diagnosis of myofascial pain is often referred to as non-specific pain, indicating pain and tenderness but no structural abnormality.

The employer representative submitted that:

So in conclusion, although the incident as described may have entailed doing some faster work for a period of about 20 minutes, it doesn’t account for the findings of the MRI, or the diagnosis provided by the physiotherapist.

In closing, the employer representative submitted that that none of the diagnoses on file would arise from the nature of the work activities on July 14, 2015.

Analysis

The worker is appealing the WCB decision that her claim for a right shoulder, neck, arm and hand injury is not accepted. For the worker's appeal to be approved, the panel must find on a balance of probabilities, that the injuries were caused or aggravated by the worker’s job duties. The panel was able to make this finding, specifically an aggravation of a pre-existing degenerative right shoulder condition.

The panel finds that the worker did sustain the shoulder injury at work on July 14, 2015 as reported to the WCB. The panel finds that the shoulder injury occurred in the environment of a pre-existing right shoulder condition and a compromised left shoulder.

The panel finds that the injury occurred as a result of the worker compensating for her injured left shoulder. The panel notes the Physiotherapy Initial Assessment conducted on May 20, 2015 which indicated significant restrictions relating to the worker's left shoulder which would have required sole use of the right shoulder on July 14, 2015. The worker then returned to job duties that could be performed with the right arm only.

The panel considered the mechanism of injury described by the worker and the union representative and finds that this malfunction contributed to the etiology of the worker's injury. There was a significant speed up of work to clear a backlog and required extensive use of the right upper extremity. The panel acknowledges that the job duties even with the speed up would not likely have caused injury in a healthy shoulder but finds that the duties were challenging for an individual with a compromised (pre-existing) right shoulder condition.

The panel notes that the worker did attend the on-site health clinic twice, with complaints regarding her shoulder. The panel notes that the worker was not directly examined, and accepts the worker's evidence that there was a language barrier and that she had referenced her right shoulder issues. She was given ice, which she used for her right shoulder and not her left. These visits occurred during her work shifts, suggesting a significant increase in symptoms consistent with the reported speed up of work. This evidence is consistent with the right-handed accommodation that she was working with.

In reaching this decision, the panel attaches weight to the July 29, 2015 "Physiotherapy Initial Assessment." The report noted complaints of "pain at right side sided neck and down arm, no neurological symptoms, increases with regular duties, more pain/sore past work shift." It also provides a diagnosis of myofascial pain, joint stiffness causing scapular dyskinesia and restricted shoulder mobility. The panel finds these soft tissue type symptoms to be consistent with an injury at work to the worker's right shoulder while performing her job duties.

The panel notes the worker attended her physician on August 11, 2015. The physician recorded complaints of pain in her right elbow and shoulder due to repetitive movement at work. The clinical exam findings included "right shoulder full ROM with pain and positive jobe test." The panel finds that these shoulder symptoms are related to the workplace duties. However, the panel does not find the evidence related to the worker's job duties supports the diagnoses of tennis elbow and index trigger finger which were referenced in the physician's report.

The worker's claim is accepted for a right shoulder injury.

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 23rd day of February, 2017