Decision #91/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on April 17, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
In his Worker's Incident Report dated May 19, 2017, the worker reported that he injured his right shoulder on December 15, 2016 in the course of his duties as a maintenance worker. The worker said he felt the injury was caused from shoveling. He shoveled on the snow days. He shoveled for about 1-2 hours when it snowed. He had to shovel in between about thirty cars in the parking lot.
In the Employer's Accident Report, the employer stated that the worker reported the incident on February 14, 2017.
The worker first sought medical attention on February 8, 2017, where he reported shoulder pain with limitation of movement at the right shoulder. Medication was prescribed and a referral was made for an MRI.
On February 14, 2017, the worker saw a physiotherapist, who reported that the worker's description of the injury was a three week history of right shoulder pain, with insidious onset, which the worker attributed to shoveling snow. The physiotherapist noted that no specific workplace injury was reported. The physiotherapist diagnosed the worker with right supraspinatus tendonitis, and queried radicular neck pain.
The worker was seen by another physician on March 24, 2017, who described the reason for the visit as "cervical radiculopathy." The physician noted on examination that neurovascularly the worker's right hand was intact, but he could not elevate his right arm above shoulder height.
On May 17, 2017, the worker saw his family physician, who noted that the results of a May 16, 2017 MRI revealed that the worker had a full thickness anterior supraspinatus tendon tear and a partial thickness tear of the infraspinatus tendon. The physician referred the worker to an orthopedic surgeon.
In an initial conversation with the adjudicator on May 26, 2017, the worker stated that he attributed the onset of his symptoms to repetitive use, specifically shoveling snow. He explained that he had to shovel more snow over the past winter than the previous season. He believed the increase in shoveling activities, including lifting and throwing motions, caused the development of his condition. He thought the pain would just go away, as aches and pains were a normal part of his work. He only went to see the doctor when he could no longer raise his right arm past shoulder height.
On June 5, 2017, the worker's file was reviewed by a WCB medical advisor. The WCB medical advisor stated that rotator cuff tears may occur acutely in relation to a specific trauma or as a degenerative change. He noted that in the worker's case, there was not a singular injurious event and the worker's physiotherapist reported no specific workplace injury. The WCB medical advisor opined that given the history in this case, it was likely that the rotator cuff tearing identified on the MRI was the end point of degenerative changes.
On June 14, 2017, Compensation Services advised the worker that his claim was not acceptable. Compensation Services stated that after consideration of the worker's reported method of injury and the degenerative issues noted on diagnostic tests, they had determined that the worker's symptoms were the result of degenerative changes and not an injury arising out of or in the course of the worker's employment.
On July 10, 2017, the worker requested reconsideration of Compensation Services' decision by Review Office. Prior to making its decision, Review Office requested further medical information from the worker's family physician, which was received on July 26, 2017.
On August 3, 2017, Review Office advised the worker that his claim was not acceptable. Review Office stated that due to the described onset of the worker's right shoulder difficulties, the delays in reporting an injury and in seeking medical attention, and the failure to identify a work-related cause when medical attention was first sought, it was unable to conclude that the worker had an accident as defined by The Workers Compensation Act (the "Act").
On November 9, 2017, a worker advisor acting on behalf of the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by 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.
"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,
(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.
WCB Policy 188.8.131.52, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was assisted by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation on the worker's behalf. The worker responded to questions from the worker advisor and the panel.
The worker's position was that his snow shoveling duties at work caused or contributed to his right shoulder difficulties, and his claim is acceptable.
The worker advisor noted that the information confirmed the worker reported an onset of his right shoulder pain symptoms on December 15, 2016 while he was shoveling snow at work. He had to shovel by hand between thirty cars in the parking lot. The snow was wet and heavy. There was more snow than any previous year. He described how he was required to lift and throw the wet and heavy snow.
It was submitted that the worker is right-hand dominant, and the majority of force needed to lift and throw snow repetitively explained his right shoulder difficulties. Multiple websites confirm that shoveling snow is a common cause of rotator cuff tears.
The worker advisor submitted that although there were delays in reporting the accident, and in seeking medical attention, the reasons for that delay were reasonable ones. Prior to seeking medical attention or officially reporting his injury, the worker tried to self-help by taking medication and applying cream. He tried to continue working until he could no longer lift his arm past shoulder height. It was submitted that information on file confirmed that the delay in reporting was due to the worker's work ethic. He wanted to continue to work and he thought the pain would go away, but it did not. It was submitted that the worker should not be penalized for trying to continue to work and to mitigate the consequences of injury.
The worker advisor noted that the same description of the accident was consistently reported to the employer and to the WCB, and confirmed by the worker's healthcare providers.
It was noted that although rotator cuff tearing can be a degenerative process, the worker was asymptomatic until he performed the snow shoveling duties at work. It was submitted that the information on file consistently confirmed his report of ongoing difficulties related to these specific tasks, and that the right shoulder injury was therefore connected to the employment, being identified as a supraspinatus tendon injury.
In support of their position, the worker advisor referred to a report from the treating orthopedic surgeon dated June 22, 2017. The worker advisor noted that having reviewed the MRI findings, the surgeon opined that the documented rotator cuff tear was compatible with the mechanism of injury of doing a lot of shoveling and confirmed that the worker's right shoulder injury was a work-related rotator cuff tear.
It was further submitted, with respect to the WCB medical advisor's opinion that the MRI findings were part of a degenerative process, that the WCB is still responsible where a workplace activity has aggravated or enhanced an underlying or pre-existing condition. The worker advisor referred to a further report from the treating orthopedic surgeon dated October 11, 2017, which had been provided in advance of the hearing. The worker advisor noted that the surgeon opined in that report that based on the presenting signs and symptoms, examination and imaging, the worker's rotator cuff tear represented an acute or at least acute on chronic condition, exacerbating a prior degenerative condition, and that the occurrence of his symptoms after a period of vigorous snow shoveling would be consistent with, at least, an exacerbation of a prior condition.
The employer was represented by its controller. The representative advised that they did not really have a position on the issue under appeal, but if the worker was entitled to compensation, they were not opposed and hoped he would get it. The representative indicated that the purpose of his attending the hearing was to assist the panel by answering questions, if required.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of his employment. The panel is able to make that finding.
In response to questions from the panel, the worker described his job duties at the hearing. The employer's representative fully concurred with the worker's description of his duties. The panel accepts the worker's evidence with respect to his job duties, including how he did those duties, as described.
The panel also accepts the mechanism of injury of shoveling snow between December 2016 and February 2017 as described by the worker. The panel notes that the description of the mechanism of injury was consistent throughout the file and in the worker's evidence at the hearing. The panel also understands that there was an inordinate amount of snow during this period of time, which was very wet and heavy.
The panel further finds that the mechanism of injury is consistent with a right rotator cuff injury.
The panel places weight on the October 11, 2017 report from the treating orthopedic surgeon, who stated, in part:
It is my opinion based on his presenting signs and symptoms, examination and imaging, that his rotator cuff tear represents an acute or at least acute on chronic condition, exacerbating a prior degenerative condition. At the age of…he certainly (sic) be expected to have some degenerative changes in his rotator cuff. The occurrence of his symptoms however after a period of vigorous snow shoveling would be consistent however (sic) with at least and (sic) exacerbation of a prior condition.
It is certainly possible that an exacerbation of a pre-existing condition would present with progressive symptoms as opposed to a sudden acute painful shoulder.
Using the supplied definitions I would think that his current condition is at least an enhancement of a previous condition.
The panel accepts the orthopedic surgeon's opinion that the rotator cuff tear represents at least an "acute on chronic condition, exacerbating a prior degenerative condition." The panel notes that the worker advised at the hearing that he underwent surgery to repair his rotator cuff in late October 2017. As the worker's injury or change in his condition resulted in surgery being necessary, the panel finds that the worker's duties caused an enhancement of his pre-existing condition, which is compensable.
The panel accepts the explanation for the worker's delay in seeking medical attention and reporting the incident to the employer and the WCB. The panel notes that the delay was largely due to the worker's work ethic and values and his belief that his difficulties were temporary. The panel is satisfied that any delay in reporting was not unreasonable in the circumstances.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment, and the claim is therefore acceptable.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of June, 2018