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 difficulties did not arise out of and in the course of her employment. A hearing was held on September 21, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB for a left shoulder injury with the accident date of March 1, 2016.

The Employer's Accident Report indicated that the worker submitted an unsigned two page explanation of an aggravated pre-existing injury to her left shoulder.

On March 21, 2016, the worker spoke with a WCB adjudicator to discuss her claim. The worker described the job duties that she felt led to her shoulder difficulties. The worker noted that she was picking up and carrying panels that were 4 feet by 7 feet and they weighed approximately 30 pounds. The worker stated:

• Has to wheel the parts into the parts control area (panels are on the cart) 

• Then has to put her hand through the panel, put over her shoulder, then grab the panel and carry it approximately 100 feet to when she would put the panel down, flip it around and stand it against a fence, and bungee it to the fence 

• At time of injury, was lifting panels over 30 pounds 

• When order needed to be filled, then panels would need to be picked up from the fence, then put on a cart, and then pushed in a cart with other parts. She advised she doesn't know how much it weighs. It was easier to push

The worker advised that she had shooting pain that started a year ago and it felt like her shoulder would get tired. She said she saw her doctor but didn't tell him it was a work-related injury because she didn't want to be off work. Her symptoms stayed the same with no improvement. The worker noted she had a RSI (repetitive strain injury) with her right arm from several years ago and was compensating with her left arm and shoulder. The worker said she had no problems with her shoulder in the past.

The worker said there were no changes in her job other than lifting the smaller panels. She is not moving the big heavy carts with the panels on them. She said her duties are modified due to her current WCB back injury claim.

In March and April 2016, the WCB contacted the witnesses identified by the worker along with other employer and union representatives. The worker was also contacted on several occasions to discuss her claim.

In a decision dated April 20, 2016, Compensation Services advised the worker that her claim for compensation was not acceptable as the WCB was unable to find a causal connection between a workplace accident and her left shoulder difficulties and an accident "arising out of and in the course of" her employment. The decision stated in part:

"As you changed job duties…and were no longer lifting the panels, which you report initially caused the injury; however, in the absence of these duties, and the fact you were also off work for 4 weeks in January 2016 and saw no improvement, it is unlikely your left shoulder difficulties were directly related to your workplace duties. Over the past year, you were able to work without reporting an injury occurring from a workplace accident, despite given (sic) multiple opportunities to report…As well, there was a delay in seeking medical attention for your shoulder. The WCB would expect symptoms from a workplace injury to change or improve with the absence of the duties that caused the injury."

On June 2, 2016, Compensation Services advised the worker that it had considered the additional information she provided about the weights and sizes of the panels at work and a report from her physician dated May 20, 2016 and that the decision to disallow her claim would remain unchanged.

On July 25, 2016, a worker advisor wrote the WCB case manager to advise that the medical information on file supported that the workplace duties caused the worker's left shoulder injury. Included with the submission was a report from the treating physiotherapist and a copy of an email from the health and safety co-chair. The worker stated there was no rest for her shoulder while she was off for four weeks because her shoulder was being aggravated by the physiotherapy treatments for her back and there was still lifting and repetition involved in her new duties at the new location. The worker advisor noted that statements from co-workers and supervisors was that the worker would make ongoing complaints about her shoulder and that she "said her shoulder always hurt when she put the panel on the rack" (March 23, 2016).

In a memo to file dated August 5, 2016, the WCB case manager documented information she obtained from the worker's prior claims with the WCB (i.e. 2009 injury for right elbow and arm, 2016 claim for a back injury, and the current 2016 claim for her left shoulder).

In a decision dated August 9, 2016, it was determined by the case manager that based on the information previously submitted and the new information provided, the WCB was not able to establish an accident "arising out of and in the course of" employment. On August 26, 2016, the worker advisor appealed the decision to Review Office.

On September 22, 2016, the worker provided Review Office with her own submission to clarify some facts related to her clam.

In a submission addressed to Review Office, the employer's representative outlined the view that the condition in the worker's shoulder diagnosed as bursitis, was not related to the physical demand of her job tasks.

On November 24, 2016, the worker advisor and the worker each provided a rebuttal submission to Review Office with the respect to the employer's position.

On November 30, 2016, it was determined by Review Office that the worker's claim was not acceptable as it was unable to find a relationship between the worker's left shoulder difficulties and the performance of her regular duties as a store keeper and an accident arising out of and in the course of employment. Review Office's decision was based on its review of the file information which included the information provided by the worker regarding the nature of her job duties and symptom onset as well as information provided by two co-workers and a plant manager. On January 18, 2017, the worker advisor 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 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 provided an oral and written submission on behalf of the worker. The worker answered questions from the panel.

The worker attributed her left shoulder injury to her job duties.

The worker's representative reviewed the details of the accident and submitted that the worker's claim is acceptable under subsection 1(1)(b)(ii) which provides that an accident includes an injury resulting from work duties as "a thing that is done and the doing of which arises out of, and in the course of employment."

The worker's representative noted that:

• the worker's duties involved occupational risk factors associated with shoulder injuries, such as reaching above shoulder height, pulling and pushing with her left arm, and heavy lifting 

• the worker used her left arm to compensate for her injured right arm

The worker's representative referred the panel to an article by the American Academy of Orthopedic Surgeons entitled "Shoulder Impingement and Rotator Cuff Tendinitis". She noted that the article indicates that;

Rotator cuff pain is common in both young athletes and middle aged people…Those who do repetitive lifting or overhead activities using the arm, such as paper hanging, construction, or painting are also susceptible.

The worker advised that: 

• her left shoulder was painful 

• her shoulder injury was due to lifting materials at work, particularly large panels 

• her physiotherapist was treating her for a back injury when she diagnosed her shoulder condition. She noted that the worker was unable to perform an exercise that was prescribed for her back condition 

• she used her left shoulder more due to an injury to her right shoulder 

• her co-workers were aware that she had a shoulder problem and often assisted her with lifting 

• she did not file a claim immediately because she thought her shoulder would resolve. As well, she moved to a different worksite dealing with different materials. She thought her condition would resolve because she no longer had to move the large panels. 

• she obtained physiotherapy treatment through the employer's provided benefit plan but had to pay a portion of the costs.

The worker answered questions about her job duties and the development of her condition. She also described her frustration in dealing with the WCB on her claim.

Employer's Position

The employer was represented by an employer advocate and its Disability Management Specialist.

The employer representative submitted that, on a balance of probabilities, the worker's claim is not acceptable. She submitted that the worker's duties did not include significant repetition against resistance and heavy lifting to cause the worker's shoulder injury.

Regarding the worker's diagnosis, the employer's representative submitted that

From a review of the physical demands of the job tasks identified, we cannot support that performing these tasks contributed substantially to the presumed pathology.

Given that the evidence fails to support a relationships between the job tasks and an accident arising out of and in the course of her employment, it remains our position that the appeal must be dismissed.

The employer's Disability Management Specialist advised that there was not a complete job description for the worker's position at the time of the injury. She did not dispute the worker's description of her duties.

Analysis

The worker is appealing the WCB decision that her claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of her employment. The panel must find that the nature of the worker's job duties caused her condition which has been described as a chronic rotator cuff strain. The panel is not able to make this finding.

As noted previously, the worker attributed her left shoulder injury to her job duties. The worker was employed in a store keeper/inventory control position. Her duties involved managing inventory. This would include receiving and distributing inventory, loading and unloading carts and shelves, and related duties. She advised that she began to feel the pain with her job duties in about 2015. She noted in particular that moving large panels which were roughly 4.5 feet by 8 feet and weighed approximately 20.5 pounds contributed to her injury.

The panel assessed the worker's job duties as described on the file and discussed at the hearing. The panel found that the job duties:

• did not involve significant repetition 

• did not involve significant heavy lifting

• did not involve significant overhead lifting 

• did not involve repetitive pushing and pulling 

• jobs were varied

Given these findings, the panel is not able to find that the worker's job duties caused or aggravated her left shoulder condition.

Further, the panel was not able to find the worker's duties changed. The panel notes that the worker has been involved in the stores/inventory area for a significant time. The evidence at the hearing suggests the job remained much the same but that materials she worked with changed. The panel is not able to find that the change in materials is a significant change in duties.

The worker attached significance to the size and weight of the panels that she had to move. The panels were noted to be 4.5 feet by 8 feet, weigh 20.5 pounds and were made of a foam material. The worker said that she dealt with 8 panels each day. She described carrying the panels by placing her left arm through an opening in the panel, lifting the panel and carrying it on her left shoulder. While we find that the size of the panels is awkward, we find that the panels were not heavy and were not handled repetitively.

The panel notes the May 19, 2016 letter from the treating physiotherapist in which she comments that:

Upon assessment, findings were consistent with a chronic rotator cuff strain which can be associated with repetitive lifting, especially above the level of the shoulder. This would be consistent with the nature of the job [worker] had described to me.

The panel is not able to attach weight to this opinion, given our finding that there was no repetitive lifting.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 26th day of September, 2017