Decision #95/24 - Type: Workers Compensation
Preamble
The worker appeals from the decision of the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on October 1, 2024 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 June 1, 2023, reporting injury to both their shoulders, noting the date of incident as January 8, 2022 and report of the incident reported to the employer on January 15, 2022; however, the worker noted those dates were approximate, based on when they first sought medical treatment for their injury. The worker outlined their belief their bilateral shoulder condition was the result of overhead work they perform as part of their job duties, which the worker described as “Pulling cables, heavy lifting, lots of ladder work. We’re always up on ladders running conduits, running cables, and using your body for overhead work all the time….” The worker reported noticing symptoms approximately 3 years earlier while at work. They described a specific incident on December 24, 2021 in which they and others helped push a vehicle out of snow and noted that four days later, they went to a sports medicine clinic to have their shoulders checked, as after this incident, their shoulder symptoms increased and progressively worsened. At the time, the left shoulder symptoms were worse than the right shoulder symptoms. The worker explained in the report that they did not report their injury at the time as they thought it was a degenerative condition. The worker stated their coworkers were aware of their shoulder difficulties and noted they self-modified their job duties to avoid lifting anything heavy or above their head more than five pounds in weight. The worker outlined the medical treatment received to date and confirmed they had no time loss due to their shoulder difficulties.
In the Doctor First Report provided to the WCB for the worker’s January 8, 2022 assessment, the physician recorded the worker’s report of bilateral shoulder pain after pushing a stuck vehicle, with no obvious pain at the time but a “pop” in their right shoulder four days later when putting their vehicle into gear, and soon thereafter, a “pop” in their left shoulder when lifting a ladder. The treating physician found no tenderness to palpitation, mild pain on the left with resisted extension, a mild positive Hawking’s test on the left and a mild positive Speed’s test on the right. Findings from an x-ray taken that day included cystic changes to the humeral head on the right. The treating physician queried mild glenohumeral space narrowing and diagnosed likely rotator cuff tendinitis, to be treated with physiotherapy.
The WCB received a report relating to the worker’s January 7, 2023 visit to the sports medicine clinic, in which the treating physician recorded the worker’s report of pain in their shoulders for one year, with no history of trauma. The physician noted the worker’s pain was located over the lateral aspect of their shoulders and did not radiate down their arms and worsened with reaching overhead or behind the back. The physician noted normal range of motion and no weakness in the shoulders but occasional numbness in the worker’s fingers. Clinical findings reported included a positive Hawking’s test on the right, positive Speed’s test bilaterally but no pain over the bicep tendon nor tenderness over the acromioclavicular (“AC”) joint. The physician diagnosed bilateral rotator cuff tears and noted a prior referral to an orthopedic surgeon.
On June 13, 2023, the WCB received a Notice of Injury relating to an incident on January 19, 2022, in which the worker reported slipping on a concrete floor and breaking their fall with their left arm, injuring/spraining their shoulder. The worker noted their left arm was sore and it was difficult to lift anything the next day.
When the WCB contacted the worker on June 28, 2023, the worker confirmed the information already provided and attributed their shoulder difficulties to the job duties with the employer, performed for 15 years. The worker also confirmed they had no prior injuries to their shoulders. The worker described an incident in December 2021. They confirmed seeking treatment, including physiotherapy, and that their symptoms got significantly worse. The worker noted that when they pick up or move something, they feel a sharp jolt in their shoulder, increasing in pain for about 30 seconds then subsiding. The worker described their job duties as “A lot of lifting and carrying overhead, pulling, twisting. Overhead lifting could be 10 seconds to 2 minutes.” When asked, the worker said that out of an 8 hour day, 2 hours of that could be overhead work. The worker detailed the treatment already provided and that surgery was scheduled for July 25, 2023. The worker described that their left shoulder was feeling “okay” as they had received an injection in May 2023, but because of the pending right shoulder surgery, they did not receive an injection in that shoulder. The worker again confirmed they had not missed time from work due to their difficulties.
The orthopedic surgeon’s report of May 11, 2023 indicated the worker’s reporting of bilateral shoulder pain, with no specific injury, and the worker’s belief their difficulties were related to their repetitive overhead job duties. MRI studies of the worker’s shoulders indicated a 2 x 2 cm supraspinatus tear on the right and a 1 x 1.5 cm supraspinatus tear on the left. The surgeon recommended conservative treatment, but the worker chose to proceed with surgical repair of the right shoulder.
On July 6, 2023, the WCB contacted the employer for further information about the worker’s job duties. The employer confirmed the information provided by the worker and those duties varied from day to day but would involve a lot of overhead work.
On July 7, 2023, the WCB wrote to the worker, advising that the claim was not acceptable as it could not establish a relationship between their bilateral shoulder difficulties and their job duties. On August 23, 2023, the worker requested Review Office reconsider the WCB’s decision. On September 19, 2023, Review Office determined the worker’s claim was not acceptable.
The worker’s representative filed an appeal with the Appeal Commission on June 26, 2024 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.
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. The Act defines accident in s 1 as follows:
"accident", subject to subsection (1.1), includes
(a) a chance event occasioned by a physical or natural cause,
(b) a wilful and intentional act that is not the act of the worker, or
(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,
that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;
WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Policy”) sets out 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.
WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-X Policy”) outlines that the WCB will not provide benefits for disablement resulting solely from the effect of a worker’s pre-existing condition as such a condition does not fall within the definition of personal injury by accident arising out of and in the course of employment.
Worker’s Position
The worker was represented in the hearing by a worker advisor. The worker advisor provided an oral submission in support of the worker’s appeals, and the worker offered 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 should be accepted as the evidence supports a finding that the cumulative effect of the worker’s physically demanding job duties, which require the worker to sustain overhead positions with weight and resistance, caused injury to the worker’s shoulders, as confirmed by the medical reporting and diagnostic imaging. As such, the claim should be accepted as an injury arising out of and in the course of the worker’s employment.
The worker confirmed the nature of their job duties, which they have undertaken for more than 30 years and that while they had intermittent shoulder discomfort in the past, it would typically dispel with rest and pain relief medication; however, the worker noted an increase in symptoms in December 2021 which led them to seek medical treatment in January 2022 and physiotherapy thereafter. The worker confirmed they experienced a worsening of symptoms despite treatment. The worker also testified to working on a specific project beginning in October 2021 which required an increase in their job duties after that date.
The worker advisor submitted that the worker’s prior right shoulder injuries in 2006 and 2008 made the worker more vulnerable to further injury of that shoulder, and also noted the worker experienced a fall onto an outstretched left limb in January 2022 as noted in the physiotherapy reporting, which increased the symptoms the worker was already experiencing.
Employer’s Position
The employer did not participate in the appeal.
Analysis
This appeal arises from the WCB’s decision that the worker’s claim of a cumulative bilateral shoulder injury arising out of and in the course of their work is not acceptable. For the worker’s appeal to succeed, the panel would have to determine that their bilateral shoulder condition is the result of an accident as defined in the Act. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.
While there are a number of incidents outlined in the evidence that caused the worker to experience symptoms in their shoulders, including pushing a car in the snow in December 2021 and a fall onto the worker’s outstretched left arm in January 2022, the worker’s position is that these events were not the cause of their symptoms nor the basis for their claim to the WCB. Rather, the worker’s position is that their bilateral shoulder injuries are the cumulative result of the worker’s ongoing job duties over the course of many years, and as such the panel should consider the definition of “accident” as an “event or condition, or a combination of events or conditions, related to the worker's work or workplace” resulting in injury in determining this appeal. The worker’s position is that these subsequent events may have contributed to a worsening of the worker’s symptoms but that the symptoms are primarily attributable to the worker’s job duties over the course of many years. The evidence here confirms that the incident in December 2021 was not related to work, although the fall in January 2022 did occur at work but after the worker had already sought treatment in relation to their bilateral shoulder symptoms. As such, the panel considered whether the worker sustained a cumulative injury as a result of events or conditions related to the worker’s work or workplace.
The panel considered the worker’s testimony and previous evidence in the context of the supporting evidence of their supervisor, dated February 22, 2024, which was submitted in support of the appeal. We noted the supervisor confirmed the worker continued with daily manual labour tasks after taking on a foreman role 15 years earlier, and that the worker’s job duties are physical and have been consistently through the worker’s years of employment with the employer. Further, the supervisor’s description of those duties is consistent with the worker’s testimony. As such, we accept and rely upon this evidence as to the nature and physical requirements of the worker’s job duties.
In addition to the medical information in the WCB claim file, the panel also reviewed the treating sport medicine physician’s report of March 8, 2024 submitted in support of the worker’s appeal. We noted that the physician described the worker’s job duties in some detail, and that the description of those duties is consistent with the worker’s testimony and evidence. The physician noted they treated the worker since early 2022 and that they “…firmly believe that [the worker’s] rotator cuff tears are a direct result of [the worker's] work-related activities” noting as well that the worker’s job duties require maintaining “…sustained position of abduction and flexion above shoulder height which is a known predisposition to rotator cuff tendinopathy.” The physician also clarified that when the worker sought medical attention early in January 2022, they reported an increase in shoulder symptoms, not onset of such symptoms, after pushing a car in the snow. The physician noted that following a course of physiotherapy, the worker’s symptoms persisted, prompting further investigation including the March 2022 MRI studies, which indicated bilateral full-thickness tears of the supraspinatus tendons. The panel also noted there are no contrary medical opinions in relation to the cause of the worker’s bilateral shoulder injuries. We accept and rely upon the treating sport medicine physician’s opinion that “…it is highly likely that [the worker’s] job requirements contributed significantly to the development of [their] rotator cuff tears.”
The panel also considered the undated report from the treating physiotherapist provided in support of the worker’s appeal and noted the physiotherapist concluded that it is “highly probable” the worker’s rotator cuff tears are due to the nature of the worker’s long-term job duties as “It is well established in the medical literature that repetitive or sustained compressive loads to tendons, as can occur during near end range shoulder flexion and abduction positions, can lead to chronic tendon degeneration.” The panel noted that the physiotherapist’s opinion further supports the conclusions reached by the treating sport medicine physician.
The panel further noted there is no evidence of any specific incident resulting in an acute injury to the worker’s shoulders, neither at work nor out of work.
Based on the evidence, and on the standard of a balance of probabilities, the panel is satisfied that the worker sustained bilateral shoulder injuries arising out of and in the course of their employment, and as such, the claim should be accepted. The worker’s appeal is granted.
Panel Members
K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of October, 2024