The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions made by the Workers Compensation Board ("WCB") that his claims are not acceptable. A hearing was held on July 11, 2019 to consider the worker's appeals.

Issue

Date of Accident: August 20, 2017

Whether or not the claim is acceptable.

Date of Accident: October 11, 2017

Whether or not the claim is acceptable.

Decision

Date of Accident: August 20, 2017

That the claim is not acceptable.

Date of Accident: October 11, 2017

That the claim is not acceptable.

Background

Date of Accident: August 20, 2017

The worker filed a Worker Incident Report with the WCB on August 30, 2017. He reported that he had injured his right shoulder, right hand, neck, elbow and right eye at work on August 21, 2017. In a telephone conversation with a WCB adjudicator on September 5, 2017, the worker clarified that he noticed the onset of pain on August 20, 2017, before he went to work, but still felt he could perform his job duties. On August 21, 2017, he reported to his supervisor that he was in pain and was given lighter job duties for one week. As the worker was still in pain after that time, his supervisor told him to seek medical attention.

The worker saw his family physician on August 29, 2017. He reported right shoulder "plate" pain which affected his sleep and work, and which he related to his job duties. The family physician examined the worker's right shoulder, noted muscle atrophy "…in comparison to the left shoulder" and diagnosed the worker with a right rotator cuff injury. The physician completed a Work Accommodation Form indicating that the worker could return to work, on modified duties, to be re-assessed in eight weeks.

On September 5, 2017, the worker attended for an initial physiotherapy assessment. He reported right shoulder/neck pain with pain radiating down his arm, tingling and coolness in his right arm, difficulty with sleeping and difficulty pushing, pulling and lifting. He reported that the pain started on August 20, 2017 after an increased workload that month. The physiotherapist noted "limited right cervical spine rotation/flexion" and "right shoulder abduction/internal/external rotation limited," and diagnosed the worker with cervical spine radiculopathy, right rotator cuff strain and an elevated right first rib.

In a further conversation with the adjudicator on September 25, 2017, the worker stated that his neck and right shoulder were sore on August 19, 2017, but were not bothering him. The worker said it was normal to be sore, but the pain became more intense on August 20, 2017, and was more than the normal aching or fatigue. The worker said he believed the injury was from repetition. They were shut down from July 16 to August 8, 2017 and he had no difficulties then, but when they returned from shutdown, they had to do more painting than usual.

On October 4, 2017, the worker was seen by a sports medicine physician who diagnosed him with right shoulder rotator cuff tendonopathy, myofascial pain and cervical spondylosis and referred him for an MRI of his right shoulder. The sports medicine physician provided restrictions of avoiding heavy lifting, pushing, pulling and overhead work. In a conversation with the adjudicator on October 4, 2017, the employer indicated that there had not been an increase or change in the worker's job duties in August 2017.

On October 6, 2017, Compensation Services advised the worker that his claim was not acceptable, as they were unable to establish a causal connection between his right shoulder difficulties and his job duties. On May 15, 2018, the worker requested that Review Office reconsider Compensation Services' decision.

On June 15, 2018, Review Office upheld Compensation Services' decision that the worker's claim was not acceptable. Review Office noted that the information on file supported that the pain began insidiously, when the worker was not at work, and appeared to continue months later even though the worker was removed from the work duties within a few days of the onset of right-sided pain. Review Office noted that when the worker was advised that his claim was not accepted, he offered that his injuries could be related to his 20 years of working.

Review Office accepted that the worker experienced an insidious onset of right shoulder and neck pain, which progressed down his right arm. Review Office also accepted that this pain began while the worker was at home and progressed, regardless of what he had been doing physically at work. Review Office did not find evidence to support that the worker's condition was related to his 20 years working with the accident employer, and was unable to find that the worker's right-sided neck and shoulder pain were related to some "hazard" of the workplace. Review Office found that an accident had not been established.

Date of Accident: October 11, 2017

On October 13, 2017, the worker reported to the WCB that he injured his left shoulder, neck and arm while performing the modified duties provided to him under the restrictions from the previous WCB claim. The worker indicated that while performing the modified duties, he started to feel fatigue then pain to his left shoulder which radiated to his neck, behind his shoulder and arm.

On October 11, 2017, the worker sought medical attention from his family physician, reporting that he injured his left shoulder because of the repetitive movements of the modified duties. The treating physician noted "left shoulder RoM (range of motion) was tender with clicking" and diagnosed the worker with a "work-related left shoulder injury." The physician also completed a Work Accommodation Form indicating that the worker was unable to work for six weeks due to his injury.

On October 26, 2017, the worker attended for an initial physiotherapy assessment. He advised the physiotherapist that he injured his left shoulder and neck "Doing repetitive light duties at work…" while not using his right arm. The physiotherapist noted reduced cervical spine range of motion bilaterally and painful weakness with all left and right shoulder movements. The worker was diagnosed with cervical spine radiculopathy.

On November 3, 2017, the employer had an ergonomic assessment conducted on the workspace where the worker was performing the modified job duties. In a November 8, 2017 report of that assessment, the ergonomist wrote that "…the ergonomic risks are low except if the worker positioned the chair and scanner improperly and the worker performed the task in a fast paced manner. However, even if there was poor technique and a rushed pace, the worker should have been able to slow down, rest and recovery (sic) at the first signs of arm fatigue."

On November 8, 2017, the worker saw the sports medicine specialist, who diagnosed him with a strain/myofascial pain and ordered a cervical spine x-ray. The x-ray, performed that same day, indicated that "There is mild loss of disc height at C5-C6 and moderate loss of disc height at C6-C7. Diffuse and mild facet joint arthropathy is shown."

On January 17, 2018, the worker attended a call-in examination with a WCB medical advisor. The WCB medical advisor opined that the likely diagnosis to account for the worker's symptoms was left cervical spine radiculopathy. The WCB medical advisor observed that "Cervical radiculopathy generally arises idiopathically in relation to degenerative cervical spine changes" and that degenerative cervical spine changes were indicated in the worker's November 8, 2017 x-ray. The medical advisor noted that the worker's modified duties between September and October 2017 involved repetitive scanning activities. The medical advisor further opined that it was not probable that those modified duties would be associated with tissue injury, and in particular with development of a radiculopathy, as the duties did not involve significant lifting or other excessive forces.

On January 30, 2018, Compensation Services advised the worker that his claim for left arm and neck difficulties was not acceptable. Compensation Services noted that while the modified duties the worker was performing were repetitive, there was no significant lifting or force involved, the work station was adjustable and the duties were self-paced. Compensation Services therefore determined that they were unable to relate the worker's left arm and neck difficulties to his job duties.

On May 16, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that he was performing repetitive modified duties with his left arm, which he found difficult to do as he was right-hand dominant, and he was not given time to heal from his right-sided difficulties. He further noted that the ergonomic assessment was done after he reported his injury and the work station was not adjustable.

On June 15, 2018, Review Office determined that the worker's claim was not acceptable. Review Office noted that the worker was placed on modified duties from September 1, 2017 to October 11, 2017 and working in a sedentary, light duty job. The worker could work at his own pace, take breaks when necessary, and was not expected to lift weight greater than "…a couple of pounds."

Review Office accepted the comments of the WCB medical advisor who, after examining the worker on January 17, 2018, opined that the modified duties he was engaged in between September and October 11, 2017 "…did not involve significant lifting or other forces…" and that it was not probable that the described scanning activity could be associated with a tissue injury or with the worker developing a radiculopathy. Review Office found that the degenerative changes in the worker's neck were the most probable cause of the worker's bilateral upper limb issues, and that they were unable to relate these to a "hazard" or workplace accident.

On January 14, 2019, the worker appealed the Review Office decisions on both claims 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 adjudicating and administering compensation, and states, in part, that:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

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 self-represented, and provided a written submission in advance of the appeal. The worker made a presentation at the hearing, and responded to questions from the panel.

The worker's position was that his job duties caused injuries to both his right and left shoulders and his claims are acceptable.

The worker stated that he has been employed by the accident employer for 23 years as a painter. He submitted that during that period of time, he sustained an injury to his right shoulder which has limited his ability to perform his duties as a painter. He attributed this injury to the physical activities he performed over the course of his employment, and noted in particular the repetitive nature of his duties and lack of rotation. The worker stated that he has been dealing with this injury for almost two years, and it has not subsided. It has affected his everyday activities, but he continues to do the best he can.

With respect to his second claim, the worker submitted that he suffered a left shoulder injury as a result of the modified duties he was given following his right shoulder injury, which involved scanning pictures in an office setting. The worker noted that this was not a physical job, but was a repetitive one. The worker said that he was using his left hand only to do this job. He said that while doing this job over the course of six weeks, he aggravated or fatigued his shoulder to the point that he could no longer continue. The worker said he was off work for seven months after that. He returned to work in June 2018, and has been working continuously since then on other modified duties.

Employer's Position

The employer was represented by a Safety and Disability Management Consultant, and by its Senior Disability Management Specialist and a Supervisor.

The employer's position was that they agreed with the Review Office decisions on June 15, 2018 that the worker's claims were not acceptable, and that the worker's appeals from those decisions should be dismissed.

With respect to the first of the worker's claims, the employer's representative submitted that they agreed with the previous decision that the facts do not support a relationship between the worker's right shoulder and neck pain and his work duties. The employer's representative referred to various findings from the Review Office and Compensation Services' decisions. The representative submitted, in addition, that the painting-related duties were performed by the worker only a portion of his shift, that other tasks were also rotated through the shift and there were regular breaks. The representative also noted that the worker indicated he did not experience any difficulties while off work prior to the July 15 to August 7, 2017 plant shutdown. The reported August 20th injury would have had to occur after performing only nine days of regular duties following shutdown, with no specific incident. The employer's representative also noted that diagnostic testing revealed degenerative changes to the worker's neck with no evidence of an acute injury.

With respect to the worker's left shoulder difficulties, the employer's representative submitted that repetition alone is not sufficient to create a musculoskeletal injury, and that it is the combination of repetition, excessive force and awkward postures that may increase the risk of this type of injury. The representative referred to the findings of the ergonomic assessment of November 8, 2017, and submitted that ergonomic risk for injury to the left arm would have been low as determined in that report.

Analysis

Date of Accident: August 20, 2017

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 suffered a personal injury by accident arising out of and in the course of his employment. The panel is unable to make that finding.

The worker has advanced a claim for a right-sided shoulder and neck injury or right upper extremity difficulties.

The panel notes that the evidence does not indicate that there was any specific workplace event or incident that caused or triggered the worker's right-sided difficulties. Rather, the evidence shows that the worker's pain developed over the weekend, while the worker was at home. When asked about this at the hearing, the worker stated:

So my arm felt sore, as it does at the end of the week. Went home. Usually by Sunday you're recovered and…you're back to a certain amount of normalcy. Well, that Sunday, and that's how this kind of gets, it wasn't normal, like you know your body after 20 years of doing this, that, okay, this isn't -- this doesn't feel normal I haven't recuperated, something's wrong.

The panel carefully questioned the worker at the hearing with respect to the work duties he performed over the course of his employment and prior to August 20, 2017. The worker indicated that he had worked in different positions over the years, and that he had been working on painting for two years before his injuries. With respect to the painting position, the panel is satisfied that while the work was repetitive, the worker also performed a variety of other tasks as part of that work, including a certain amount of sanding, taping and washing.

The panel further noted that the worker continued to experience pain once he was off work, and the worker stated at the hearing that currently, after two years, his injury "hasn't seemed to get any better, has not subsided."

The panel also places weight on the report of the WCB medical advisor following the call-in examination on January 17, 2018 where, after noting that "degenerative cervical spine changes were noted in a cervical spine radiograph" which "would serve as the most probable substrate for the left arm radicular symptoms," the medical advisor opined that:

Also of note, [the worker] has reported similar right upper extremity symptoms as developing insidiously without specific relationship to a singular injurious event. The observation of radiculopathy occurring bilaterally and not in relation to a singular injurious event, increases the likelihood that cervical radiculopathy has occurred idiopathically in relation to degenerative changes.

The panel acknowledges the worker's complaints of right-sided difficulties, but is unable to find, based on the information which is before us, that such difficulties are causally related to, or aggravated or enhanced, by his work duties. The panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment. The worker's claim is therefore not acceptable.

The worker's appeal on this issue is dismissed.

Date of Accident: October 11, 2017

The issue on this second claim is also claim acceptability. For the worker's appeal to be successful, the panel must again find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The panel is unable to make that finding.

The worker has advanced this claim for a left-sided shoulder and neck injury or left upper extremity difficulties. The worker has submitted that his left-sided injuries or difficulties were caused by the use of his left arm to perform the modified duties which were assigned to him as a result of his right arm injury and restrictions.

The panel again notes that the evidence does not indicate that the worker suffered an acute incident or accident. The panel is also satisfied, based on the evidence, that although the duties were repetitive, they did not involve significant lifting or other forces. The panel is further satisfied that the modified duties were self-paced and the worker could get up and move around or take breaks as needed. The panel also notes that the ergonomics assessment of the workspace where the worker was performing those duties indicated that the ergonomic risks were generally low. In response to a question at the hearing, the worker stated that he was not familiar with office settings or ergonomics, but that he "did everything how I felt comfortable…it was what I was comfortable with."

The panel places weight on the WCB medical advisor's January 17, 2018 opinion that the likely diagnosis to account for the worker's left upper extremity symptoms is left cervical spine radiculopathy," and that "Cervical radiculopathy generally arises idiopathically in relation to degenerative cervical spine changes. Where this issue has been studied, a significant relationship between occupational tasks and the development of cervical spine radiculopathy has not been identified."

Based on the foregoing, the panel is satisfied, on a balance of probabilities that the worker's left-sided shoulder or neck difficulties are not causally related to, or aggravated or enhanced, by his work duties. The panel therefore finds that the worker did not suffer a personal injury by accident arising out of and in the course of his employment, and his claim is not acceptable.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
B. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of September, 2019