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 is not acceptable. A hearing was held on September 26, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable

Background

The worker reported a right shoulder injury that occurred on December 10, 2016, to the WCB on June 29, 2017. The worker advised her employer on June 16, 2017 that "Since approximately December, I have been experiencing pain in my right shoulder. It started out as intermittent pain. It would come and go and get better with rest (on my days off). On June 15, 2017, I saw my physician. By this time the pain in my shoulder had become constant and I was also experiencing neck pain due to compensating for my shoulder. My physician stated he believed it is my rotator cuff."

On June 15, 2017, the worker attended an appointment with her family physician who noted she had a "positive drop arm test on the right" and a "torn rotator cuff." The physician referred her for an x-ray, an MRI and for a possible infection for pain. An x-ray was conducted on June 15, 2017 and reported "No bone or joint abnormality is seen."

At a follow-up appointment with her family physician on July 27, 2017, the worker was diagnosed with rotator cuff tendinitis in her right arm.

The WCB requested a WCB medical advisor to review the worker's claim. On September 23, 2017, the WCB medical advisor opined, in part:

[The worker] presents with right shoulder pain. The only objective finding the doctor provides is a positive drop arm test. On June 15, he indicates this is due to a cuff tear; on July 27, he provides a dx (diagnosis) of cuff tendonitis.

A drop arm test is typically indicative of a cuff tear, but without other clinical detail this dx is not confirmed. This would be considered a cuff tendonopathy until further detail is available.

The causes of cuff tendonopathy are:

• Combination of force/repetition - moving the shoulder against force (> 25 lbs) several times an hour over most hours of a work day

• Combination of force/posture - moving the shoulder against force (> 25 lbs) with the arm held at or greater than 600 of flexion or abduction

• Prolonged work with the arm held at or greater than 600 of flexion or abduction

• Highly repetitive work - moving the shoulder in the same motion with a cycle time less than 30 seconds (equates to doing the same action at least twice per minute) over 2/3 of the typical work day

• Acute trauma - fall on outstretched hand, traction, direct forceful flow, sudden stretch or contraction of tendon greater than its capacity • degeneration

On September 29, 2017, the WCB advised the worker that her claim was not acceptable. The WCB advised the worker that a causal relationship between her job duties and the symptoms she was reporting could not be established as there was not enough repetition and force set out in her job duties that would normally occur for the development of shoulder tendonopathy.

The worker's family physician provided a letter to the WCB, dated October 30, 2017, providing further medical evidence as he disagreed with the September 29, 2017 decision. The worker was advised by the WCB on December 11, 2017 that the further medical evidence had been reviewed but the decision of September 29, 2017 remained unchanged.

The worker's representative requested reconsideration of the WCB's decision to Review Office on January 23, 2018. The worker's representative disagreed with the WCB's opinion that the worker's job duties did not require enough repetition or force to result in her injury. The worker's representative advised that it was the worker's position that her injury resulted due to the heavy repetitive activities of her job. A representative of the employer provided a submission to the Review Office on February 14, 2018 and the worker's representative provided a response to the submission on February 22, 2018.

On March 16, 2018, Review Office advised the worker that her claim was not acceptable. Review Office found that the worker's job duties were not generally forceful or repetitive and she did not do overhead duties against force, nor did she perform such duties for a prolonged period of time. Review Office considered the worker's description of her job duties but noted that her description did not fit the meaning of repetitive as that would require that the same or similar actions or motions are performed several times a minute for most of the working day. Review Office also noted that the worker had performed her job duties for ten years prior to any symptoms occurring and the worker's left shoulder was not affected even though the worker would use her left arm for many of the same job duties. Accordingly, Review Office was unable to establish that the worker's job duties resulted in her right shoulder issues and her claim is not acceptable.

The worker's representative filed an appeal with the Appeal Commission on April 26, 2018. 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 to the worker.

"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 44.05, Arising Out of and in the Course of Employment, provides information on the interpretation of the phrase arising out of and in the course of employment, and states, in part:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

Worker's Position

The worker was represented by a union representative. The worker's representative provided a written submission. The worker's representative and the panel asked the worker questions regarding her job duties and her accident.

In reply to questions, the worker advised, in part, that:

• she has worked as a healthcare aide for 15 years.

• she works in 100-bed facility. All rooms are single and have toilets and sinks.

• the facility is on one floor.

• she is assigned to 10 to 12 patients per shift.

• she works a full-time shift, which is 10 shifts in two weeks, consisting of seven nights straight, with two days off, then back for three day shifts,   and another two days off.

• the night shift starts out generally quieter but as it progresses the duties increase and it gets busier.

• the day shift starts getting the residents up, ready and dressed for the day and out for breakfast and other meals.

• on night shift there are 2 healthcare aides and a nurse working in each wing. There are more staff on the day shift.

The worker described the various duties she performs on the night shift:

• shift begins at 11:00 in the report room, and report is given on the previous shift in regards to the residents.

• hourly breath checks, to ensure that residents breathing and are safe.

• stock duties where stocking towels onto shelves that are often above their heads.

• stock incontinence product cart for our first round of changes.

• mobility cleaning, which involves cleaning wheelchairs and Broada chairs, scrubbing them, removing stains from the cushions, washing the pedals and wheels.

The worker also advised that her duties include:

• repositioning sleeping patients.

• changing incontinent patients between 20 and 25 times per shift.

• dealing with patients who suffer dementia or who are combative.

• dealing with patients who are heavy.

She commented that on "night shift typically you are dealing with a heavier workload because the people are not quite awake and able to help you as much". She advised that a sling is often used to help move or turn a patient.

Other duties include waking patients, assisting them to get dressed, collection of soiled clothing and linens, loading transportation charts with dirty clothes and bags of laundry. The bags can be heavy and require two staff to move. She noted that laundry bags are an issue because it is necessary to raise the bags "up and over" into a cart.

Regarding moving the bags, the worker said:

We’ll do two at least, maybe three of those blue bags, and then two garbage bags, and then two of the personal laundry bags, but those are usually very light on nights because we don’t change people out of their pajamas like day shift does…

In reply to a question about how much of the work involves using arms at a 60 degree or greater position, the worker replied:

Well, if you take into consideration the positioning, or repositioning of the residents who require it, and that ranges depending on their abilities and their skin integrity, the incontinent changes that we had at the time, it could be upwards of four hours worth of that type of extension and flexion at (sic) I’m doing, keeping my hands and arms away from my body. Because, and if you even factor in getting the residents up at the end of the shift as well, then you could probably add another half an hour to 45 minutes of that movement.

The worker advised that her current duties and routine are similar to her duties and routines over the past 15 years. She said that the level of care changes. She stated:

More and more we’re finding, like I said earlier, more dementia residents, people entering our care. Younger residents due to MS or other reasons entering our care. And with the increased obesity rate of people these days, we are finding more heavy people entering our care and that, in turn, makes our work heavier.

The worker provided a list of residents which described the type of care provided to the listed residents. In reply to a question about why she provided the list, the worker advised:

I wanted to give you an appropriate picture of the type of care and the levels of care, heavy care I was giving at the time, so that you had a good idea of what I was doing regularly. And after having explained more of what the process is of providing the care to these residents, you might have a better idea looking at it that it is, it’s hard work and it’s physical.

The worker advised that she began a graduated return to work and as of the date of the hearing she was working 6 hours per day on a 5 day shift. As of the hearing date, she has not returned to her former shift.

Regarding treatment, the worker advised that she switched physiotherapists and this has "had a major improvement."

The worker's representative submitted that:

…the evidence provided today establishes that [the worker's] claim should be accepted as her duties as a health care aide caused her injury.

The worker stated that her condition developed gradually to a point she realized"…maybe there is something wrong because it then became so consistent." She could not pinpoint an actual date.

The worker stated that:

• it started out as an ache, very generalized her shoulder area, front and back, and it wouldn’t, stick around long.

• she would take Advil.

• it progressed to be more an ache for two or three days, or be sore when she made a particular movement but not bad enough to stop her from doing that movement.

• it progressed further to the point where it was starting to affect her range of motion, reaching behind her back or around behind her.

• it changed from being an ache to being a pain.

• she was stubborn and continued to work.

• finally she went off because it was at the point where it was unbearable.

• her neck muscles were starting to be affected to where the muscles would tense up and run up her neck and sharp pains coming across her collarbone.

• she then sought medical attention.

On the subject of lifting patients, the worker's representative commented that;

There might be varying degrees of lifting or how you have to look at the definition of lifting, but I would view rolling the person even to the side would be a form of lifting. Lifting the head when they’re in the bathtub, lifting body parts in order to wash. There’s consistently a substantial amount of activities that she does that could be defined as lifting.

Subsequent to the close of the oral hearing the panel obtained a copy of an MRI performed on December 16, 2017.

Employer's Position

The worker's employer did not participate in the appeal. It had opposed acceptance of the claim when the matter was considered by the Review Office.

Analysis

The issue before the panel is whether or not the worker's claim is acceptable. For the worker's appeal to succeed, the panel must find that the worker's right shoulder difficulties were causally related to the performance of her job duties. The panel is unable to make this finding, for the reasons that follow.

The panel notes that the December 16, 2017 MRI Scan report noted:

• mild osteoarthritis of the acromioclavicular joint and mild lateral downsloping of the acromion.

• no full-thickness rotator cuff tear is seen.

• rotator cuff is otherwise intact.

• the tendon of the long head of the biceps is normal.

• impression: supraspinatus tendinosis - No tear is identified.

• no surgery is felt necessary at the present time.

The panel also notes the December 19, 2017 chart note from the consulting orthopedic surgeon indicated that the worker's shoulder pain is suggestive of supraspinatus tendinosis. He noted that her diagnosis is consistent chronic repetitive lifting and the manual duties associated with her job as a nurse's aide.

The worker provided a detailed description of her duties on both night and day shifts. On the worker's file, there was also a Physical Demands Analysis for a Health Care Aide pertaining to a different institution, which provided some information on the physical demands of health care aides in general. The panel considered the description of the duties but was not able to relate performance of the duties to the worker's diagnosed injury of supraspinatus tendinosis.

The panel's assessment of the worker's duties is that the duties do not involve "chronic repetitive lifting" as suggested by the orthopedic surgeon and by the worker's representative. The panel does not find actions, such as those involved in involved in repositioning a patient's head or limbs, to be the type of strenuous activity that would cause the worker's shoulder condition.

While the panel finds that there is some lifting and some movements with resistance required to perform the duties of a health care aide, these are not constant and repetitive and rarely involve movements at or above shoulder height.

The panel finds on a balance of probabilities, that the worker's physical injury cannot be accounted for in relation to her duties as a health care aide.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of December, 2018