The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An advocate acting on behalf of the employer is appealing the decisions reached by Review Office of the Workers Compensation Board ("WCB") which determined that the worker was entitled to wage loss and other benefits in relation to a right shoulder injury that occurred on April 25, 2007. A hearing was held on May 18, 2011 to consider the matters.

Issue

Whether or not the worker is entitled to wage loss benefits effective May 1, 2007;

Whether or not the worker is entitled to wage loss benefits as a result of her surgery on January 17, 2008; and

Whether or not the worker is entitled to a 2.5% permanent partial impairment rating.

Decision

That the worker is entitled to wage loss benefits effective May 1, 2007;

That the worker is entitled to wage loss benefits as a result of her surgery on January 17, 2008; and

That the worker is entitled to a 2.5% permanent partial impairment rating.

Decision: Unanimous

Background

The worker reported that she injured her right leg/arm on April 25, 2007 during the course of her employment as a welder. The worker described the accident as follows to the WCB:

I had just finished welding an auger coil and my end was hooked up. Coworker (name?) lowered his end, which unhooked my end. I tried to re-hook my end but as I caught it, it slipped out of my hands and struck my right leg and arm.

The Employer's Accident Report indicated that the worker injured her right leg on April 25, 2007 from handling an auger, which slipped and fell on her leg. The employer also reported that the worker fell off a horse the night before - she fell onto the same leg and onto a concrete pad.

On May 9, 2007, a WCB adjudicator spoke with the worker regarding her claim. The adjudicator indicated that the employer's description of the incident did not mention anything about an arm injury. The worker indicated that when the part slipped out of her hands she tried to regain her grip. The part weighed about 300 lbs. and when she tried to grab it, she pulled muscles in her right arm. The worker also confirmed that she fell off a horse the day before the accident but was not hurt in the fall. She had fallen onto the right side of her body.

The worker advised the adjudicator that she had set up an appointment with a chiropractor two weeks prior as she was getting treatment because of an automobile accident. The worker indicated that the car accident happened in November and she suffered from whiplash.

Medical information showed that the worker attended a hospital facility on April 26, 2007. The report noted: "lg wt. strain fell on her auger - mechanism of injury not explained well - here with compensation form - c/o [complained of] pain, no SOB [shortness of breath]". On examination, the worker had lacerations/tenderness to palpation of the right PIP joint, right knee and right lateral posterior malleolus. Neurovascular was intact throughout.

A chiropractor's first report showed that the worker attended for treatment on May 1, 2007. The worker's description of accident was that a 300 lb. auger fell off a table and she tried to catch it, wrenching her right arm/neck/shoulder. The auger coil then rolled/slid down her right leg to the floor. The worker was diagnosed with a strain to the right rotator cuff, deltoid and bicep. The chiropractor indicated that the worker was disabled from work.

A doctor's first report dated May 8, 2007 noted that an auger fell on the worker's shoulder - hit by a piece of metal in the middle of the arm. The diagnosis was a right shoulder rotator cuff/impingement.

The worker's claim for compensation was accepted based on the diagnosis of a rotator cuff impingement and wage loss benefits were paid to the worker commencing May 1, 2007.

On May 28, 2007, the treating chiropractor reported that the worker was capable of a graduated return to work. In a further report dated June 12, 2007, the chiropractor reported that the worker found the graduated return to work difficult with respect to shoulder pain and that he decreased her hours back to 4 hour shifts. He said the worker could return to her regular duties by June 27, 2007.

On July 19, 2007, the employer advised the WCB that the worker gave her notice and her last day at work was July 20, 2007. The worker accepted a new job as a trail guide starting July 23 in Banff. The employer also advised that on July 12 to 14, the worker competed in "many horse competitions in barrel racing, pole stage, etc…I asked her about her claim now that she was competing so much - and she said that she was feeling fine…"

A right shoulder sonogram was performed on August 4, 2007. The report indicated that the tendons about the shoulder had been evaluated and no tear was documented.

On August 9, 2007, the treating physician reported that the worker could not move her shoulder properly and a referral to an orthopaedic specialist was arranged.

On August 10, 2007, the worker advised the WCB that she was still in a lot of pain and had been since the onset of her claim. She indicated that sometimes her shoulder felt fine but the majority of time the pain averaged 7 out of 10. She experienced pain when she lifted a pail of nails at work. She asked for lighter duties but was never accommodated, and she was forced to lift heavy items. She had to quit her job because of this. On August 16, 2007, the worker advised the WCB that she did not move to Alberta as she had planned and was not working anywhere at the time.

In a progress report dated August 16, 2007, the treating chiropractor reported that the worker was discharged from treatment as of July 23, 2007. He reported that the worker was doing well but her arm and shoulder gave her trouble with heavy work.

On September 12, 2007 a WCB medical advisor reviewed the file at the request of primary adjudication. He outlined the opinion that there was a probable ongoing cause/effect relationship between the reported workplace injury and the worker's current symptoms.

On October 7, 2007, an MRI of the right shoulder revealed no rotator cuff tendon tear but there was a suspected minimal short segment tearing inferior aspect posterior labrum.

A Doctor's First Report dated October 29, 2007 noted right median neuropathy. The diagnosis was a right C5 root injury.

A WCB orthopaedic consultant reviewed the file information on December 20, 2007 at the request of primary adjudication. The consultant opined that the current compensable diagnosis appeared to refer exclusively to a right shoulder injury with a possible diagnosis of a labral tear. He opined that a relationship between the current diagnosis and the mechanism of injury was unclear. He noted that the worker initially had symptoms in almost the entire right side of the body, upper and lower limb, but in the absence of any other documented injury, it would have to be accepted that there was a continuing cause and effect relationship between the workplace injury and her current status. The consultant authorized the proposed shoulder arthroscopy.

On January 8, 2008, the worker was advised by her adjudicator that she was entitled to wage loss benefits commencing the date of her shoulder surgery and she would not receive back pay as she left her employment even though her employer had offered her modified duties.

On January 17, 2008, the worker underwent surgery to her right shoulder.

A WCB orthopaedic consultant reviewed the file information on February 27, 2008. He noted that the surgery authorization was for arthroscopy and assessment of a possible labral tear and treatment. He stated: "The treatment was based on the results of the diagnostic arthroscopy, and although there appears to have been some discrepancy between the clinical evidence of instability and the arthroscopic findings, it should be accepted that the injury was a heavy traction loading mechanism, which could well be responsible for capsular and other stretching and mild instability." The consultant noted that there did not appear to be a pre-existing condition.

In a letter dated May 22, 2008, primary adjudication advised the worker that she would receive wage loss benefits until May 29, 2008 as it was considered that she was capable of performing one handed duties and that her loss of earning capacity now related to her voluntary resignation from the accident employer.

On May 28, 2009, primary adjudication advised the worker that based on the results of a WCB physical examination, she was entitled to a Permanent Partial Impairment ("PPI") rating of 2.50% in relation to her right shoulder.

On January 6, 2010, an advocate for the employer appealed the decisions made by primary adjudication relating to the payment of wage loss benefits after April 25, 2007, the compensability of the right shoulder surgery and entitlement to a PPI award. On March 9, 2010, Review Office returned the file back to primary adjudication to obtain specific information from the treating chiropractor, and statements from the worker and co-workers.

In a decision dated July 9, 2010, primary adjudication advised the employer that the decision to accept the worker's claim remained unchanged.

On September 24, 2010, Review Office made the following decisions:

That the worker was entitled to wage loss benefits effective May 1, 2007.

Review Office outlined the position that the worker injured her right upper extremity, including her right shoulder, during the workplace accident on April 25, 2007, when she attempted to grab onto the part when it slipped. Review Office indicated that it did not find evidence to support that the worker had a pre-existing condition which affected her ability to perform her regular duties on or after April 25, 2007. It noted that the worker was receiving chiropractic treatment before the workplace accident and it did not involve the right shoulder. It was unable to find that the worker sustained a right shoulder injury while horse riding on April 24, 2007. Review Office indicated that it did not place weight on the co-worker's statement which claimed the worker was bucked off a horse two days after April 25, 2007 which caused her shoulder to become sore. It noted that the worker was declared unfit to perform any work duties effective May 1, 2007 by her chiropractor which was also supported by a physician on May 8, 2007.

That the worker is entitled to wage loss benefits effective January 17, 2008.

Review Office agreed with the opinion expressed by the WCB orthopaedic consultant dated February 27, 2008 and accepted that the worker's surgery on January 17, 2008 was directly related to her compensable injury. Review Office was of the opinion that the medical findings remained fairly consistent with no changes to the worker's diagnosis, even during the time she participated in a horse riding competition in July 2007. It noted that the worker's treating practitioners did not place specific restrictions on the worker's ability to handle horses.

That the worker is entitled to a PPI award of 2.5%.

As Review Office accepted that the worker's right shoulder injury and subsequent surgery was compensable, it found that the worker was entitled to the 2.5% PPI rating in regard to her right shoulder.

On December 14, 2010, the employer's advocate appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury. Section 37 provides that where as a result of an accident a worker sustains an impairment, compensation in the form of an impairment award is payable.

There are three matters on appeal before the panel. The central issue to all three appeals is causation and in particular whether or not the worker’s difficulties with her right upper extremity were caused by an accident arising out of and in the course of employment.

The employer’s position:

The employer was represented by its environmental health and safety supervisor and the production manager. The Appeal of Claims Decision form submitted by the employer indicated the following:

It is our belief that (the worker's) shoulder difficulties and subsequent surgery resulted from an accident outside of work and not a compensable injury. Several facts including a witness and the initial mechanism of injury support our claim.

The production manager's evidence was that the employer became aware of the injury at about 4:00 p.m. on the day of the incident. There are reporting procedures in place, but the worker did not file a report of injury. The employer found out about the accident through the other employees. The information the employer received was that the worker was working on a large auger (weighing approximately 250 to 300 pounds) when it slipped off its hook and fell and hit the worker's knee. The production manager's notes from the time indicated that the worker advised that she tried to catch the auger and the auger hit her knee. She was not able to catch it and it slipped to the floor. The next day, the worker showed up in the morning and she had her knee on ice to bring down the swelling. She continued to work, and was offered work in a different position where she could sit down and work at her own pace. The production manager spoke with the worker in his office and she explained that she had had a rough week as the day before the accident (April 24) she had fallen off her horse onto a cement pad and landed on her right side (arm and leg). The worker was encouraged by the employer to have her physician fill out a physical capabilities analysis (PCA) form to set out any restrictions. The next day the worker brought in the completed form and the employer accommodated the worker by putting her in a lighter duty position where she could sit down and feed parts.

On May 2, 2007, the employer received a new chiropractic report which said that the worker had an injury to her rotator cuff and that she might be off work for a longer period. The production manager was surprised because in their conversations, the injury had always been for the leg only and not the arm.

The employer's position was that there was a knee injury only, and they worked with the worker to accommodate this injury. She came in limping the next day which the employer admitted confirmed the injury to that area. The worker did not, however, complain of shoulder problems until several days later when she brought in the chiropractic note. That, coupled with the information about falling off her horse, supported the employer's position that the upper extremity difficulties were not related to the workplace accident.

At the hearing, a co-worker was present as a witness and provided testimony, with the aid of an interpreter. The co-worker testified that he did not witness the accident, but only heard about it later that day. When asked about his knowledge of the incident involving the horse, the co-worker's evidence was as follows:

The worker’s position:

The worker appeared at the hearing accompanied by her fiancé. Although she was not present at the commencement of the hearing, she arrived later and was available to answer questions from the panel. The worker's evidence was that she deals with horses every day and falling off a horse was a common occurrence for her. At the present time, she could not remember whether or not she had fallen off a horse before or after the workplace accident, but acknowledged that she probably did fall off.

With respect to the accident, the worker described what occurred. She was standing at the end of the work table and the auger was being lifted by an overhead hoist. The hook holding the auger at her end came loose and the auger detached and started to roll off the table. The worker tried to stop the auger from rolling off the table by grabbing it with her right hand, but she could not hold the weight of it so she had to let go. As her right arm was fully extended, the auger fell onto her knee, and then rolled off the rest of her leg. The first point of contact between the falling auger and the worker's body was her knee. The worker recalled that after the accident, both her shoulder and her knee were sore. She did not, however, have a very good recollection of the events which occurred after the injury.

Analysis:

In order for this appeal to be successful, the panel must find that the worker’s difficulties with her right upper extremity did not arise out of and in the course of her employment. On the basis of the evidence before us, we find that there was a causal connection between the worker’s right upper extremity problems and her employment.

The primary issue raised by the employer is whether the shoulder problems were caused by the work accident or whether the worker sustained the injury by falling off a horse.

The co-worker who testified at the hearing said that the worker told him she fell off the horse two days after the work accident. He said that this conversation took place when they were standing opposite each other at the work table. The panel has concerns about the reliability of this information for a number of reasons. First, the co-worker believed that the conversation took place at the work table. The evidence from the employer, however, is that when the worker reported for work the next day, she was moved to another area with lighter duties. She therefore never returned to performing duties at the work table with the co-worker. Second, the co-worker said the fall was two days after the work accident. The work accident occurred on a Wednesday, so two days after would mean the conversation took place the following day on a Saturday. The worker and co-worker did not work on Saturdays. Finally, the panel notes that the written witness statement provided by the co-worker (which was on the WCB file) is dated October 23, 2009. This was over two years after the work incident and the panel feels that the separation of time may have affected the accuracy of the co-worker's recollections as to the timing of the conversation he had with the worker about falling off a horse, and in particular whether it was before or after the auger incident.

The notes taken by the production manager at the time of the accident recorded that the worker told him she had fallen off her horse on April 24, the day before the accident. As noted earlier, at the hearing, the worker could not recall a specific incident where she fell off her horse, but acknowledged that this was quite possible as it was not an uncommon occurrence. Based on this evidence, the panel finds that the worker did fall off her horse and that this incident occurred prior to the workplace accident.

The question then becomes whether the worker's upper extremity difficulties were caused by the fall off the horse, or by the workplace accident. In the panel's opinion, it is more likely that the workplace accident was the cause of the shoulder problems. In coming to this conclusion, we rely on the following:

• The mechanism of injury described by the worker at the hearing is consistent with the upper extremity symptoms the worker was experiencing, in particular her evidence that she had tried to catch the auger, following which it had rolled onto her leg. The WCB orthopedic medical advisor confirmed that injury by a heavy traction loading mechanism could well be responsible for capsular and other stretching and mild instability, as was found by the orthopedic surgeon in the worker's shoulder. There was no discussion in the medical reports of an impact-type injury, which would have been expected from a fall off a horse;
• Although the initial hospital report of April 26, 2007 does not specifically identify a shoulder injury, it also does not document other findings, such as bruising to the knee, which the employer acknowledges was present. The hospital report also indicates that the mechanism of injury was not well explained. The panel accepts that with an unclear explanation of what had occurred, the focus at the hospital may have been on the acute injury to the knee and leg, and that the muscular injury to the shoulder was not investigated at the time;
• The panel considered whether the injury to the shoulder may have already been sustained before the workplace accident. In our opinion, it is more likely that there was no previous injury. The worker was able to perform all of her regular duties that day, and she is right hand dominant, which means that she was holding her welding tool with her right arm. Further, the fact that she tried to grab the falling auger with her right hand suggests that she was not favoring her right side at the time of the accident and that it was not previously injured.

Based on the foregoing, the panel concludes that in addition to suffering an injury to her knee and leg where the auger struck her, the worker also suffered a muscular, traction-type injury to her shoulder as she tried to catch the falling auger. We therefore find that the worker’s difficulties with her right upper extremity were caused by an accident arising out of and in the course of employment. She is therefore entitled to wage loss benefits effective May 1, 2007, wage loss benefits as a result of her surgery on January 17, 2008 and a 2.5% permanent partial impairment rating. The employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of July, 2011