The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on April 26, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker reported injuring his right shoulder in a Worker Incident Report dated December 15, 2016. He described the incident as:

Repetitive over the head motion. 

I do a lot of lifting of pain (sic) pails, cement pails, ladders, scaffolding, and motion of rolling out paint onto walls. Extending the arm continuously and constantly moving at an extended position. 

Back in 2014: I noticed loss of feeling in my hand. Pain in the shoulder, there was progressive nerve pain. 

At one point when I began seeing my Physiotherapist, she has diagnosed it as tendonitis at elbow and shoulder. I got as much treatment as I could afford; wore a brace - tensor brace. 

Progressively got worse. I noticed a lack of mobility in the arm. Loss of range of motion. 

  I am still able to make a fist, but I feel it in my shoulder. 

Current: still poor. I had been working with my doctor this summer, with pain medication as we move to surgery date which is sometime in January 2017. In spite of pain medications, there's still pain on my arm, to the point that I could hardly lift anything. 

I could not sleep comfortably on my back or on that side. Work has become increasingly limited.

In a discussion with the WCB on December 21, 2016, the worker stated that his last day of work was December 15, but he had been missing time sporadically since January 2016 due to his condition. He said he thought his symptoms would eventually resolve with treatment so he kept trying things until an MRI confirmed that he required surgery. He had been able to manage at work with high doses of pain medications but his condition had progressed to the point where he could no longer function. He attributed his symptoms to repetitive over the head motion, keeping his arm continuously extended and constantly moving it in an extended, often awkward position in particular.

The worker had an MRI of his right shoulder on August 23, 2016, which showed:

1. Mild - moderate hypertrophic acromioclavicular joint osteoarthritis. 

2. No rotator cuff tendon tear present.

On October 18, 2016, the worker was seen by an orthopedic surgeon, who recommended surgical repair of his right shoulder.

The worker saw his family doctor on November 18, 2016, who diagnosed him with a "right shoulder ligament tear" and recommended that he be off work for sixteen weeks. At a further appointment on January 6, 2017, the worker's family doctor noted that the worker's right shoulder was "swollen anteriorly" and that he was scheduled for surgery on January 24, 2017.

On January 13, 2017, the worker was advised by Compensation Services that his claim was not accepted. Compensation Services stated to the worker that although his family doctor diagnosed a right shoulder ligament tear, they could not establish that a specific accident or incident occurred at work to account for the onset or progression of his symptoms. Compensation Services also noted that the worker reported an additional diagnosis of osteoarthritis which is a degenerative condition, but denied any significant change in his job duties or increase in workload to support evidence of an aggravation or enhancement resulting from his employment activities.

On February 6, 2017, the worker requested reconsideration of Compensation Services' decision by Review Office. On February 16, 2017, the employer advised Review Office that they supported the worker's claim.

On February 24, 2017, Review Office determined that the claim was not acceptable. Review Office acknowledged that the worker had sought medical treatment for his right shoulder and that the worker had pre-existing degenerative changes (AC joint arthritis) in his right shoulder for which surgery was recommended. Review Office was of the opinion, however, that the degenerative changes in the worker's shoulder were not caused or structurally altered/enhanced as a result of his job duties. Review Office was also unable to account for the diagnosis of a right shoulder ligament tear in relation to the worker's employment, in the absence of a definitive work event.

On August 28, 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.

Reasons

Applicable Legislation and Policy

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.

"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.

WCB Policy 44.10.20.10, 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.

Worker's Position

The worker was assisted by a worker advisor who provided a written submission in advance of the hearing, and made a presentation to the panel.

The worker also provided a comprehensive demonstration and description of his work activities, and responded to questions from the worker advisor and the panel.

The worker indicated that he had been doing the same work for approximately 23 years, 20 of which had been spent working with the accident employer. He estimated that 20 to 25% of his work in the course of a year was taping, and 75 to 80% of his work was painting, which included preparation and priming, and woodwork finishing. In response to questions from the panel as to which of his jobs were the hardest on his shoulder, the worker said that the hardest was sanding, and everything involving the ceiling. He indicated that the brush work/cutting along ceiling lines was particularly hard, as his arm was always extended.

The worker stated that in or around 2011, the crew he was working on was reduced from 5 to 3, which resulted in a change in workload, and in particular in the division of labour. The two workers they lost were experienced painters. The worker said that the crew would still be doing similar amounts of work from year to year. He believed that the reduction in the size of the crew affected his shoulder more, as he would be doing considerably more sanding and preparation work, and a lot more paint rolling. As one of the two remaining workers with experience, he would also be doing all of the ceiling work.

The worker's position was that the file evidence, medical documentation supplied in advance of the hearing, and the worker's description of his job duties all support that his employment was responsible for his right shoulder difficulties and satisfy the requirements for an acceptable claim.

The worker advisor submitted that the worker's many years of work as a painter and taper, which included repetitive right upper extremity work out and away from his body and at or above shoulder level, contributed substantially to the development and subsequent deterioration of the worker's diagnosed AC joint osteoarthritis ("OA").

It was submitted that the worker's employment involved risk factors which were known to contribute to the development and/or worsening of the worker’s diagnosed shoulder conditions. This was substantiated by the worker's attending physician and his treating orthopedic surgeon, whose reports ought to be accorded significant weight.

The worker advisor urged the panel to rely, in particular, on the orthopedic surgeon's August 16, 2017 report, in which he reiterated that the worker's job duties encompassed the accepted causal risk factors, being repetitive rotational stresses and loads, for an AC joint arthritis. Even if the condition had developed independent of the worker's employment, continuing to work in the same manner until December 2016 resulted in repeated aggravation of his condition, thereby accelerating the deterioration to the point that surgery was required.

Employer's Position

The employer advised in advance of the hearing that they supported the worker's claim being accepted. The employer noted that the work which the worker performed was tough on the body, especially the shoulders, with a lot of it being done above shoulder height and above the head. The employer did not otherwise participate in the appeal hearing.

Analysis

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's injury was caused, aggravated or enhanced by an accident that arose out of and in the course of his employment. In other words, the panel must find that the worker's job duties were the cause of his injury or that they aggravated or enhanced his pre-existing condition.

Based on our review of all of the information before us, on file and as submitted in advance of and at the hearing, and for the reasons that follow, the panel is satisfied, on a balance of probabilities, that the worker's pre-existing right shoulder AC joint OA was enhanced by his job duties.

In arriving at our decision, the panel relies on the worker's description and demonstration of the nature of his job duties and methods he used to perform those duties. We note that the worker was very specific in how he described his various duties and how he did his job.

An operative report which was filed in advance of the hearing showed that the worker underwent surgery on January 24, 2017 for "AC joint arthritis and chronic tendinitis shoulder right," with the post-operative diagnosis being "The same plus synovitis right shoulder."

The panel notes that in his presentation, the worker advisor relied on a report from the treating orthopedic surgeon dated August 16, 2017, in which the orthopedic surgeon stated that "It is well known that rotational stresses and loads on a repetitive basis on the acromioclavicular joint will promote arthritic and degenerative changes in the AC joint. It is not always symptomatic, but frequently it is…A sample discussion of this well-known clinical syndrome is noted in the attached document."

At the hearing, the panel expressed concern with respect to the issue of causation and whether there was medical or scientific evidence to support that the worker's job duties could cause AC joint osteoarthritis. The panel noted that the article which was referred to by the orthopedic surgeon in his August 16, 2017 report was an internet article of a general nature.

The worker advisor indicated at that time that he had gathered a number of other articles from medical journals which talked about degenerative disease of the AC joint and the risk factors for AC joint arthritis. The worker advisor provided 11 journal articles which were accepted by the panel as information to be reviewed by the panel following the hearing.

The panel has reviewed and considered those journal articles, and notes that article #1 in particular, which was based on a population study that focused on AC joint OA, concluded that certain types of work methods can lead to aggravation or the development of severe arthritis in the AC joint. The panel relies on that article as providing a base against which the worker's duties can be assessed.

The panel is not satisfied, based on the evidence and the information which is before us, that the worker's AC joint OA was caused by his work duties.

The panel is satisfied, however, that the worker's particular job duties and the methods he used and manner in which he performed them aggravated a pre-existing condition of AC joint OA.

Based on our review of the evidence, the panel finds that the worker's job duties and the specific methods he used and manner he performed them were consistent with the types of methods which can lead to an aggravation of arthritis in the AC joint as indicated in article #1. These included continued and extensive up and down movements, working above shoulder height, and loading of the shoulder area. The panel also finds support for this conclusion in article #8 which was provided by the worker advisor and involved a study on house painters and ceiling work.

The panel notes that while article #1 indicated that "age alone was the strongest factor that influenced the development of osteoarthritis in the acromioclavicular joint," we are of the view that age was not a factor in this case. While the worker had been doing this type of work for many years, he is still relatively young.

The panel is further satisfied that as the aggravation or change in the worker's right shoulder condition made surgery necessary, the worker's injury resulted in an enhancement of his pre-existing condition, which is compensable.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's job duties resulted in an enhancement of his pre-existing right shoulder AC joint arthritis. The panel therefore finds that the worker's claim is acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of June, 2018