The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 14, 2001, at the request of an advocate, acting on behalf of the claimant.  The Panel discussed this appeal on February 14th and 15th, 2001 and April 6, 2001.

Issue

Whether or not the worker's left shoulder problems are considered to be related to the incident occurring on October 26, 1994.

Decision

That the worker's left shoulder problems are considered to be related to the incident occurring on October 26, 1994;

Background

This case was previously the subject of an Appeal Panel hearing which took place at the Appeal Commission on June 18, 1997. For a complete background surrounding the details of this case, please refer to Appeal Panel Decision No. 173/97 dated July 31, 1997.

In brief, the claimant incurred a work related injury to his left shoulder on October 26, 1994, when a plank dislodged from a plastering scaffold, hitting him on his head and shoulder. The accident was reported immediately to the employer and the claimant continued working up until December 1994 when he was laid off due to a seasonal shutdown.

In June 1995, the claimant sought medical treatment in connection with his left shoulder difficulties. Initial medical information showed that the claimant was diagnosed with bilateral tendonitis. Subsequent examination by an orthopaedic surgeon diagnosed the claimant with cervical spondylosis and chronic left shoulder impingement.

On February 23, 1996, it was determined by primary adjudication that no further benefits were payable to the claimant as it was determined that there was a lack of medical information to confirm that the claimant's present complaints were in any way related to the original injury.

In March 1996, file information revealed that the claimant underwent surgery for left shoulder impingement tendinitis.

On October 18, 1996, the case was considered by Review Office and it was confirmed that the claimant's left shoulder problems were not related to the October 26, 1994 incident. On July 31, 1997, this decision was upheld by an Appeal Panel who determined, on a balance of probabilities, that the claimant's left shoulder problems were not causally related to the October 26, 1994, compensable injury.

In a letter dated March 2, 2000 a solicitor, representing the claimant, requested reconsideration of Appeal Panel decision 173/97 pursuant to the provisions of Section 60.91 of the Workers Compensation Act (the Act). In support of his submission, the solicitor submitted two medical reports dated December 22, 1999 and February 10, 2000 for consideration. On May 10, 2000, the solicitor's request for reconsideration was granted by the Appeal Commission and an oral hearing took place on February 14, 2001.

Following the February 14th hearing and discussion of the case, the Panel requested that additional information be obtained prior to discussing the case further. Specifically, the Panel requested additional medical information be obtained from a physical medicine and rehabilitation specialist as well as a report from a physiotherapy clinic where the claimant attended for treatments commencing June 1995. On March 21, 2001, all interested parties were provided with a report that was received from the claimant's treating physician dated February 26, 2001 and from a physiotherapy clinic dated March 20, 2001. On April 6th and April 17, 2001, the Panel met further to discuss the case and render its final decision.

Reasons

This is the case of a plasterer whose shoulder was injured when a scaffold platform fell onto his head and shoulder while at work, on October 26, 1994. His hardhat prevented any injury to his head, but he did suffer an injury to his shoulder. Although he did report the incident to his employer, at that time, he did not file a WCB claim, did not seek medical attention and continued to work until December, at which time he was laid-off due to a seasonal shutdown.

He did not begin to receive treatment for the shoulder problem until June 1995, although he maintains that he did mention it to his doctor during visits earlier in 1995. It was not until October 1995 that he filed a WCB claim. This claim was accepted as a no-time-loss compensable accident by the Board. However, a causal link could not be established between the claimant's shoulder problems, for which treatment was sought in June 1995, and the accident of October 1994.

This case was the subject of a previous decision of The Appeal Commission, which upheld the decisions of Primary Adjudication and the Review Office, that there was no causal link established between the reported accident and the claimant's problems with his shoulder. A request for reconsideration, pursuant to section 60.91 of The Workers Compensation Act, was granted, based on new medical evidence submitted by the claimant.

Under the rules of procedure of The Appeal Commission, all hearings are de novo, which allows, in this case, for all of the evidence and facts to be considered, not just the new evidence. So, the issue we were to deal with was the initial one: whether or not the worker's left shoulder problems are considered to be related to the incident occurring on October 26, 1994.

Claim acceptability is covered by section 4(1) of the Act which provides for the payment of wage loss benefits where the worker suffers "personal injury by accident arising out of and in the course of the employment."

For the claimant to be successful in this appeal, it was necessary for the panel to determine, on a balance of probabilities, that the accident which occurred in the workplace caused the medical problems suffered by the claimant.

We have concluded that this has been established. In coming to this decision we relied, not on the new medical evidence, but on evidence in respect of the original incident which was not made available to the Board or to the earlier Appeal Panel.

This panel had the benefit of a presentation by the claimant's advocate, testimony from the claimant and testimony from four witnesses, who were all former co-workers of the claimant. We found the testimony of the witnesses to be particularly persuasive. While we recognize that a number of years have passed since the incident and that memories fade over time, we found their testimony to be honest and unbiased.

One witness had been working with the worker at the time, saw the incident and reported it just as the claimant had. Two others were not witnesses to the incident itself, but in subsequent days and weeks became aware that the claimant had shoulder problems and assisted him in areas of his work particularly affected by his shoulder pain. The fourth witness was the claimant's supervisor at the time and testified that the claimant had reported the incident to him shortly after it occurred. He was also aware that, for the next few weeks, the claimant worked in some pain.

We are also of the view that the medical evidence, over the 18 months following the accident, support the premise that the claimant suffered the type of injury one would logically expect from the nature of the accident.

Therefore, based on the testimony before the panel and the medical evidence on file we are of the view that, on a balance of probabilities, the claimant's medical problems with his left shoulder are related to the compensable incident of October 26, 1994. Accordingly, he is entitled to wage loss benefits and medical treatment, in particular, but not limited to, the operation performed on his shoulder in March 1996, and the subsequent recovery period.

We were asked by the claimant's advocate to find that the claimant had a complete loss of earning capacity for a number of years after December 1994 and that he continues to have a partial loss of earning capacity. We are not prepared to come to such a conclusion.

We note that the claimant had other non-compensable medical issues which played a not-insignificant role in his ability to return to work and which continue to present significant barriers to this date. We also note that the claimant did not seek active medical treatment for his shoulder for about eight months after the accident, which may well have contributed to his delayed recovery. This would also indicate that there was not a total loss of earning capacity at that time.

In accepting this appeal, the Panel refers it back to Primary Adjudication to determine the parameters of the loss of earning capacity. From the medical evidence presented to us, particularly noting the reports of his progress while receiving physiotherapeutic treatment, it is our opinion that the Board's responsibility for wage loss benefits and medical treatment should have concluded on May 7, 1996.

In respect of the new medical evidence, we note that the claimant has recently been diagnosed with myofascial pain syndrome. However, the Panel is of the view that the evidence does not establish - to the civil standard of a balance of probabilities - that this current condition is causally linked to the workplace accident. We note that while one doctor, who treated him recently, does attribute the current problems to the accident, another specialist in physical medicine is unable to make that causal conclusion and points to other possible reasons for the condition to be present. Both of these doctors first examined the claimant several years after the compensable injury.

In summary, we have come to the following conclusions:

• The worker's left shoulder problems are related to the compensable injury of October 26, 1994;
• This injury was an aggravation of a pre-existing condition with his shoulder;
• The operation on his shoulder in March 1996 was justified and related to the compensable injury and should be covered by the Board;
• The matter is referred back to the Board to determine the degree of and length of the period of loss of earning capacity due to the accident.

Accordingly, the appeal is allowed as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of May, 2001