The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on December 6, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on September 1, 2021 reporting injury to their right shoulder that occurred on June 30, 2021. In the report, the worker noted, “There wasn’t a specific incident that happened. When I felt a knot in my shoulder on Aug 23rd and the doctor told me to be off work for a week, that’s when I reported it.” The worker further noted that symptoms began a few days before they saw the doctor on July 2, 2021 and they related the development of their right shoulder difficulties to “The repetitive motion of turning the wheel while driving”.

On July 2, 2021, the worker attended an appointment with their treating physician, reporting that they use their shoulders a lot while performing their job duties and noting their belief that this caused their right shoulder pain. The physician noted positive Jobe and Neers test findings and diagnosed unspecified shoulder pain. An x-ray of that date indicated mild acromioclavicular (“AC”) arthrosis in the worker’s right shoulder.

At follow-up on August 23, 2021, the treating physician examined the worker and reported: “On exam patient clearly has impingement and some tenderness in the anterior aspect over the biceps as well. Neers and Job’s now more strongly positive.” The physician indicated the worker likely had a “…tendinopathy related to the patient’s job of prolonged driving and loading and unloading a truck during that period of time” and recommended the worker attend physiotherapy. On the same date, the worker attended a physiotherapy assessment and was diagnosed with right rotator cuff strain.

The employer provided an Employer’s Accident Report to the WCB on September 1, 2021 that indicated the worker injured their right shoulder at work on June 30, 2021, which was reported to the employer on August 23, 2021. The employer noted “Employee reported general wear and tear to be the cause from turning the wheel.” The employer further noted attempts were made to contact the worker to determine if the reported injury was related to work and to offer modified duties, which were available for the worker.

On September 1, 2021, the worker saw the treating family physician who noted the worker required a functional assessment and that physiotherapy was helping the worker prepare for an attempt at return to work on September 8, 2021. At physiotherapy on September 8, 2021, the worker reported pain and stiffness in their right shoulder, difficulty with the activities of daily living and increased pain when sleeping on their right side. The physiotherapist noted decreased function and range of motion after examining the worker and provided a diagnosis of right rotator cuff strain, with restrictions of avoid lifting, push/pull greater than 15 pounds; avoid lifting greater than 5 pounds at shoulder level with the right side; and avoid above shoulder activity with right side.

When the WCB contacted the worker on September 21, 2021 to discuss the claim, the worker advised their symptoms first began at the end of June 2021 and they sought treatment on July 2, 2021, with constant pain in their right shoulder and sharp, shooting pain with movement. The worker noted the pain improved with the medications prescribed by their physician. The worker described their job duties and advised that they noticed the pain in their right shoulder mostly when driving and turning the steering wheel. The worker further advised they had been with the employer since January 2021 but had worked similar job duties with a different employer in the previous 7 years. The worker confirmed there had been no change in their job duties before the injury and that they had returned to work on modified duties on September 13, 2021.

On September 23, 2021, a WCB medical advisor reviewed the worker’s file and concluded the worker’s diagnosis was “…rotator cuff syndrome, a term encompassing conditions attributed in some manner to pathology involving the rotator cuff including subacromial impingement, symptomatic rotator cuff tendinopathy, and strains of the rotator cuff muscles.” The WCB medical advisor stated that “Rotator cuff tendinopathy is typically reflective of progressive age-related degeneration” and noted that an episode of acute symptomatic impingement would typically recover over a period of a few days to a few weeks.

On October 1, 2021, the WCB advised the worker their claim was not acceptable as it could not establish a relationship between their symptoms and an accident arising out of or in the course of their employment.

The WCB received a report from the worker’s treating physician on October 12, 2021. The physician provided the worker did not have an “obvious” acute injury but noted their belief the worker’s pain was “…either exacerbated or caused by the type of job…” the worker did. The treating physician noted the worker was being treated with medication, attending physiotherapy and was performing light duties at work and recommended further physiotherapy and for the worker to continue on light duties for a further two weeks.

The WCB requested a medical advisor review the new information provided by the worker’s treating physician and on October 15, 2021, the medical advisor noted the information did not change their September 23, 2021 opinion. The medical advisor noted the treating physician described the worker performing their job duties with their shoulders “…lifted all the time due to the size of the steering wheel…” and concluded “Presumably the physician is proposing that [the worker] is required to have his arms elevated to shoulder level (or above) for sustained periods to handle the steering wheel of his truck. It seems unlikely that any vehicle would be designed in such a manner to require such awkward arm positioning…”. Further, the medical advisor noted the worker had been performing the same job duties since January 2021 and had been performing the same duties for the previous 7 years and found it unclear why the worker’s symptoms worsened in June 2021. The advisor further opined that for the worker to develop a shoulder impingement, the worker would have been required to maintain their arms in an elevated position, described as at or above the shoulder level, on a repetitive or sustained basis.

When the WCB contacted the worker on October 26, 2021 for further information, the worker advised they were assigned to a different truck every day and on June 30, 2021, the steering wheel of the truck they were assigned was too high and they started feeling pain in their shoulder. The worker confirmed they only drove that truck for one day. The WCB medical advisor again reviewed the worker’s file on October 26, 2021 and confirmed their previous opinion was not changed by the further information the worker provided. On October 27, 2021, the WCB advised the worker there would be no change to the earlier decisions and the claim remained unacceptable.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office to January 12, 2022. The representative submitted the worker was required to have their arms elevated to shoulder level for sustained periods of time to handle the steering wheels of the vehicles they were driving and noticed their shoulder pain shortly after starting employment with the employer. The representative stated the worker drove with their arms in an awkward position elevated above shoulder level for several months before adjusting the height of their seat, and submitted there was a causal relationship between the worker’s symptoms and their job duties. The representative’s submission included a letter in support of the worker’s appeal from the treating physiotherapist, noting the worker was improving with treatment and light duty work and would benefit from continued physiotherapy. The representative also submitted a letter in support of the worker from a former coworker who reported their observation that the steering wheel of the vehicle the worker was driving was high and that the worker’s hands were always above his shoulders when they were driving. On March 8, 2022, the employer indicated their support for the WCB’s decision not to accept the worker’s claim.

Review Office determined on March 10, 2022 that the worker’s claim was not acceptable. Review Office noted the worker’s previous experience of performing similar job duties for approximately 7 years and as such, found the worker should have been aware of how to adjust their seat and the steering wheel for a more comfortable position. Further, Review Office found had there been a causal association between the worker turning the steering wheel while driving, the symptoms would have affected both the worker’s shoulders similarly. Review Office concluded the evidence did not support the worker sustained an accident as defined by the Act or policies.

The worker’s representative filed an appeal with the Appeal Commission on July 6, 2022 and a 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. The provisions of the Act in effect on the date of the accident apply.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Section 4(5) of the Act sets out the presumption that an accident that arises out of employment occurred in the course of employment unless the contrary is proven, and that an accident that occurs in the course of employment arose of the employment, unless the contrary is proven. The term “accident” is defined in s 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 it 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.

Occupational disease is also defined in s 1(1) of the Act, as “a disease arising out of and in the course of employment and resulting from causes or conditions” that are peculiar to or characteristic of a particular trade or occupation, or to particular employment or that trigger post-traumatic stress disorder but does not include an “ordinary disease of life” or “stress, other than an acute reaction to a traumatic event”.

WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Policy”) provides general information on the meaning of the phrase "arising out of and in the course of employment," and states, in part, that:

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.

The WCB has also established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

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 Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as 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 and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition. The Policy goes on to provide 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 WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission on behalf of the worker. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the claim is acceptable because the evidence indicates that while, and as a result of carrying out their usual work duties, the worker sustained injury to their right rotator cuff or, in the alternative, caused aggravation to a pre-existing rotator cuff injury. The worker advisor submitted that many of the worker’s job duties could cause rotator cuff tendinopathy in that many of those duties would place more force on the worker’s right dominant hand. Further, and in the alternative, if the panel determines that the evidence supports a finding that the worker had a pre-existing right rotator cuff condition, then the evidence supports the conclusion that the worker's job duties aggravated that condition and made it symptomatic.

The worker advisor outlined the worker’s recent work history which included 6 years working in a similar position with another employer prior to starting work with this employer in January 2021. Immediately prior to beginning this job, the worker had been away from work due to a pandemic-related layoff for 6 months. The worker described working 5 days per week initially on 10-hour shifts, and that a sixth day was available from time to time. The worker noted that their job duties include driving a vehicle with a load and that the vehicle is one of two models which are somewhat different in terms of the steering wheel positioning.

The worker advisor noted that the worker found certain job duties caused pain in their shoulder, including steering, especially making left turns, pushing and pulling the loading ramp into position, shovelling and scraping out the cargo area, closing the cargo gate against the pressure of the load. The worker described the cargo area as multi-leveled, such that the worker can stand upright or stooped at some levels, but must work from a kneeling position on other levels.

The worker advisor reviewed the medical evidence supporting the worker’s position, noting that when the worker first sought medical attention, the physician provided a diagnosis of non-specific shoulder strain, with positive findings on the Job’s and Neer’s tests and unclear findings on the Hawkins test. The physician ordered an x-ray and referred the worker for physiotherapy and prescribed pain relief. The right shoulder x-ray taken July 2, 2021 revealed mild AC joint arthrosis. The worker continued working and was assessed for physiotherapy on August 9, 2021. The physiotherapist diagnosed rotator cuff strain, noting positive findings on the Job’s, Neer’s and Hawkins tests. The treating physician was of the view that the worker’s tendinopathy likely related to their job duties of “prolonged driving and loading and unloading…”.

The worker advisor noted that the treating medical professionals offered diagnoses of both rotator cuff sprain strain and rotator cuff tendinopathy with impingement and submitted that both conditions can be caused by muscle or tendon overuse, including movement of a push or sustained positioning of the hands at or above shoulder level. With respect to the findings of mild AC joint arthrosis, the worker advisor stated that the worker was not previously aware of this condition and further, that pre-existing conditions make it more likely that injury occurs with less force than required for someone without a pre-existing condition.

The worker advisor noted that the WCB stated the worker was not at first certain of the cause of their symptoms and did not attribute it to their work duties until after the treating physician suggested this link, but also noted that the WCB failed to consider that the worker’s first language is not English when interpreting the information provided by the worker in response to questioning.

The worker testified in response to questions posed by members of the appeal panel that they believed their shoulder pain was caused by using a steering wheel positioned too high, noting that it was especially painful on making left turns. The worker confirmed that there was no specific incident on June 30, 2021 but that their symptoms increased little by little over time. On June 30, 2021 the worker felt more pain and noted the high placement of their steering wheel. The worker confirmed that after seeing their doctor they returned to work, relying on the medication prescribed for pain relief, but when the pain continued, they again went to see their doctor.

The worker described their loading and unloading duties in further detail, noting the different postures required in each different level of the cargo area. They noted using a shovel or their hands or feet, to spread and remove materials lining the cargo area, depending on the height of the area they are working in. When the cargo is loaded into each area, the worker must close the compartment gate before loading the next area. The worker noted that loading takes one to one and a half hours, and that they mostly take one load per day, although occasionally they will take two loads. The worker also described the process of unloading and noted that cleaning out the cargo area takes about one hour, but that sometimes they have help from site-based staff with this process.

The worker also confirmed that they did not take part in any activities outside of work that would or could cause injury to their shoulder, noting that during the time leading up to their injury there was little else to do other than work because of pandemic restrictions.

In sum, the worker’s position is that the evidence establishes that the worker’s job duties could have caused rotator cuff tendinopathy. The worker suffered gradual onset of shoulder pain after starting a new position following a period of sedentary, isolated lifestyle resulting from the pandemic restrictions. The worker had no personal activities that could have led to rotator cuff tendinopathy. The worker’s treating physician believes it was the worker’s job duties that caused the issue. Further, if the worker had pre-existing asymptomatic tendinopathy, then the job duties more likely than not aggravated and made the condition symptomatic. As such, the worker’s claim should be acceptable.

Employer’s Position

The employer was represented in the hearing by its senior manager of human resources and an occupational health nurse. The employer’s representatives provided information and made a submission on behalf of the employer.

The employer’s position is that the decision of the Review Office was correct and that the claim is not acceptable.

The employer’s representative confirmed that the employer was not aware of any injury to the worker until August 2021 when the worker was removed from work by the treating physician. The employer’s representative provided information as to the worker’s hours of work over the period leading up to the injury claim as well as confirming the dates of the worker’s injury-related absence from work from August 23, 2021 – September 10, 2021, their gradual return to modified work beginning on September 13, 2021, and ultimately, the return to full regular duties on October 26, 2021.

The employer’s representative clarified to the panel that the worker would be assisted in the scraping and cleaning responsibilities in relation to the cargo area by other site-based employees after a load is emptied. The employer’s representative also noted that the employer has a robust return to work program and is able to provide modified duties when advised of injury.

Analysis

The question for the panel to determine is whether the worker’s claim is acceptable. For the worker’s appeal to succeed the panel would have to determine that the worker sustained an injury as a result of an accident as defined by the Act. For the reasons that follow, the panel was able to make such a determination and therefore the worker’s appeal is granted.

The panel first considered the nature of the injury claimed by the worker. We note that the x-ray findings from July 2, 2021 indicate mild AC joint arthrosis, and that the WCB medical advisor noted these findings to be consistent with the degree of age related degeneration that would be expected of a person of the worker’s age. We note that the clinical findings from July 2, 2021 supported the treating physician’s diagnosis of a right shoulder sprain/strain type injury to be treated with pain relief medication and physiotherapy. The physiotherapist on August 23, 2021 relied on their clinical findings to provide a diagnosis of a right rotator cuff strain, with recommendation for stretching and range of motion exercises. The physician provided a further diagnosis on August 23, 2021 of “likely tendinopathy” and the WCB medical advisor interpreted the findings as support of a diagnosis of rotator cuff syndrome, which they described as “a term encompassing conditions attributed in some manner to pathology involving the rotator cuff including subacromial impingement, symptomatic rotator cuff tendinopathy, and strains of the rotator cuff muscles.”

The panel noted there is no evidence of any more sinister findings and agree with the submission of the worker advisor that these various diagnoses are all generally related to inflammation of soft tissues in the worker’s right shoulder. We accept the opinions offered by the treating physician and the WCB medical advisor that the worker’s symptomatic presentation was consistent with AC tendinopathy. We further rely upon the opinion offered by the WCB medical advisor as to how such injuries can develop, noting that “activities that involve repetitive or sustained use of the arm at or above shoulder level, or with the arm internally rotated at the shoulder are associated with increased incidence of rotator cuff tendinosis and hastened degeneration of the tendons (tendinosis).”

The panel noted that the worker’s claim to the WCB in September 2021 did not note a specific event or incident resulting in injury to the worker; rather, the worker stated, “There wasn’t a specific incident that happened” and noted the gradual development of symptoms in their right shoulder. The worker confirmed in their testimony that this was the case, but that their symptoms increased to a point by the end of June 2021 that they sought medical care. The panel further noted that the worker reported to the treating physician on July 2, 2021 that there was no pop or tear in their shoulder, and that they use their shoulders lots in their work to move the steering wheel, which they believed to be the source of their pain. The worker continued to relate their pain to their driving activities in August 2021 when they were assessed for physiotherapy in relation to their right shoulder symptoms. In the hearing, the worker also focused on the driving activities as the likely cause of their right shoulder condition.

The panel’s review of the claim file suggested that the WCB had some concern as to the development of the worker’s story over time; however, the panel does not share that concern. We noted that this worker had some difficulty in expressing themself in English but that with additional and patient questioning the worker was ultimately able to do so. We are satisfied, on the basis of the worker’s testimony in the hearing, that where there are any inconsistencies in the information provided by the worker to the WCB and the treating practitioners, this is more likely than not reflective of the worker’s language difficulties rather than any issue with memory or truthfulness.

While the initial reporting suggested that the worker’s claim was based upon a specific incident, the panel is satisfied upon questioning the worker and hearing from their representative that this claim is rather in relation to a cumulative injury based upon the worker’s ongoing participation in a range of work activities over a period of months and that there was a gradual onset of symptoms that ultimately increased to the point where the worker went to seek medical attention. We note that the treating family physician’s chart notes from August 23, 2021 indicate the physician’s belief at that time that the tendinopathy “…related to the patient’s job of prolonged driving and loading and unloading a truck”.

The worker noted on numerous occasions throughout the claim, in speaking with the WCB and with their treatment providers, as well as in their testimony in the hearing, their belief that they sustained injury to their right shoulder through steering their work vehicle with the wheel positioned too high in relation to the worker’s body. The panel does not accept that this activity, in itself, would have been sufficient to cause the injury to the worker’s right shoulder. In this regard, we note the worker’s testimony that most of their time spent driving takes place on highway, such that turning the wheel is not an ongoing or frequent activity. Further, we noted the worker’s testimony that they experienced symptoms in their right shoulder only when driving certain, but not all vehicles. Further, this is consistent with the opinion of the WCB medical advisor that for the worker to develop a shoulder impingement from this activity, the worker would have been required to maintain their arms in an elevated position, described as at or above the shoulder level, on a repetitive or sustained basis. The evidence does not support such a finding.

The panel notes and accepts the worker’s testimony that they experienced right shoulder pain when steering certain work vehicles, but an increase in shoulder symptoms when undertaking certain activities does not necessarily mean that the activity is causing injury; rather, the activity or some aspect of it may cause the onset of symptoms. In this case, the worker’s symptoms are reported to have been brought on by the worker maintaining their arms in an elevated position, as the worker described.

As noted by the WCB medical advisor, activities that were more sustained and repetitive would have been required for the worker to develop rotator cuff tendinosis. The panel therefore also considered the range of other job duties described by the worker in their testimony and whether those duties could have caused the worker to develop tendinopathy. Those duties, as set out above, required the worker to use greater effort and force, relying on their dominant right arm, in cutting wrap and breaking up bales of straw, securing gates after loading the various sections of the trailer, scraping and shoveling out waste from the trailer after delivery. While the medical advisor did not come to the conclusion that this was the case for the worker, we note that the medical advisor did not have opportunity to consider the full range of the worker’s job duties and was relying only upon the limited information obtained by the WCB in the claim investigation.

With the benefit of hearing directly from the worker as to the range and scope of their daily job duties and taking into account that although the worker had done this sort of work previously, they had not been working for some six months prior to beginning this position and may have been deconditioned as a result, the panel is satisfied that the worker’s job duties over the course of the months leading up to the development of significant symptoms by July 2021 could have caused the development of those symptoms. Further, we note the evidence that the worker’s right shoulder difficulties were fully resolved by late October, 2021, approximately 8 weeks after the worker was taken off work and began physiotherapy. This is consistent with the information as to the treatment and anticipated recovery periods for rotator cuff tendinopathy as set out by the WCB medical advisor in their September 23, 2021 opinion. Given the evidence of the nature of the worker’s job duties, the panel finds that the worker’s right shoulder tendinopathy was caused by their participation in their ongoing job duties and that there is no evidence that the pre-existing mild degeneration evident in the worker’s right shoulder was aggravated or enhanced.

The panel is satisfied, on the basis of the totality of the evidence before us and on the standard of a balance of probabilities that the worker sustained injury to their right shoulder arising out of and in the course of their employment. The worker’s claim is therefore acceptable, and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of January, 2023