Decision #45/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his left shoulder difficulties were not related to the workplace injury of March 7, 2012 but were related to an incident involving his dogs on May 16, 2012. A hearing was held on February 5, 2013 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after March 7, 2012.Decision
That the worker is entitled to wage loss and medical benefits after March 7, 2012.Decision: Unanimous
Background
On May 23, 2012, the worker filed a claim with the WCB for a left shoulder/rotator cuff injury that occurred on March 7, 2013. The worker reported that he was playing soccer with clients which was part of his regular job duties. When he dove to stop the ball, his hands hit the floor and he crumbled onto his left shoulder. He said he re-aggravated his shoulder on May 16, 2012 while walking his dogs.
The worker spoke with a WCB adjudicator on May 30, 2012. The worker said that he mentioned the accident to a co-worker on March 7, 2012. He made no ongoing complaints to other co-workers. The worker reported that he did things to compensate for his left arm. He did not raise his arm above shoulder height; sleep on his left side and did not use it to get in or out of bed. The worker noted that while walking his dogs he re-aggravated his left shoulder. The incident was described as: "While walking with his two dogs on his left, a fairly big dog ran from his right side and darted off towards the left, he had to pull up to stop his dogs and pulled his left elbow to shoulder and then back at shoulder height." He had avoided this type of action since his injury on March 7, 2012.
On May 31, 2012, the adjudicator contacted the witness who confirmed that the worker's injury occurred on the date of accident. The witness said he had two conversations with the worker. One was a while ago when the worker explained why he was not coming to the gym to work with his clients. The worker said his shoulder was still sore due to the workplace injury. The second conversation was more recently when the worker had his shoulder wrapped and under his shirt. The worker said he had aggravated his shoulder while walking his dogs.
In a decision dated May 31, 2012, the adjudicator advised the worker that his claim for compensation was accepted for a workplace incident occurring on March 7, 2012; however, no responsibility would be accepted for any lost wages or medical care beyond the date of accident. It was felt that the worker's disability was the result of an accident which did not arise out of and in the course of his employment. His symptoms coincided with an increase in non-work-related activity (ie walking his dogs). At that time, the workplace injuries had begun to resolve and were unlikely to cause any time loss from work without further aggravation. In the opinion of the WCB, the aggravation was not work-related. On July 4, 2012, the worker appealed the decision to Review Office.
On August 28, 2012, Review Office determined that the worker was not entitled to wage loss or medical aid benefits after March 7, 2012. Review Office noted that the worker did not seek medical attention or file his claim for benefits for a left shoulder problem until 11 weeks post injury. The worker only did so after an incident while walking his dogs caused him to experience left shoulder discomfort.
Review Office further stated that it was not able to make a connection between the worker's current left shoulder pain and the initial workplace injury. It was unable to find any information, medical or otherwise, to establish on a balance of probabilities, that the worker's current left shoulder pain was "arising out of and in the course of employment." As the worker did not seek medical attention until May 22, 2012 or make ongoing complaint of injury until May 18, 2012, it was much more probable that his left shoulder issues were the result of the incident involving his dogs on May 16, 2012. On December 4, 2012, the worker 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.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
Worker’s Position
The worker was self-represented at the hearing. The worker's position was that he ought to be entitled to wage loss and medical aid benefits for his workplace injury. On March 7, 2012, he injured his shoulder while at work and had to cease working the part of his job that affected his shoulder injury. When he was walking his dogs on May 16, 2012, he re-injured his shoulder which had not yet healed from the original workplace accident.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss or medical aid benefits after March 7, 2012. In order for the appeal to succeed, the panel must find that the effects of the worker's compensable injury caused him to suffer a loss of earning capacity and/or required medical aid beyond March 7, 2012. On a balance of probabilities, we are able to make that finding.
The worker's evidence was that in his job as a counselor, one of his duties was to connect with his clients in different settings, including the gym. His regular schedule was to spend Wednesday afternoons in the gym. On March 7, 2012, he was in the gym playing soccer with his clients when he dove to stop a ball and suffered an injury to his shoulder. He felt like his shoulder crumpled and it "hurt a fair bit." For the first couple of weeks following the accident, he had difficulty sleeping and had trouble with any kind of motion where his hand was away from his body. As a result, he modified the way he did things. For example, when closing a car door, he would reach across and use his right arm rather than his left. When walking his dogs (who were trained to walk on the left), he would hold the leashes in his right hand.
With respect to the question as to why he did not make a WCB claim at that point, the worker stated that he did not think of it. His job was not a physical position and aside from spending time in the gym with clients, there was not much physical demand. He had never filed a WCB claim before and was not claims minded. He used to spend time on a farm with horses and said he was accustomed to having bumps and bruises which "you just tough it out."
By May 16, 2012, his left shoulder was getting better but was still not healed. He had still not resumed his Wednesdays in the gym, but he had switched back to holding his dogs' leashes in his left hand. He had walked past another dog owner whose large dog darted out towards his smaller ones. Instinctively, the worker pulled up and back on his dogs' leashes, causing his elbow to bend back and up above the height of his shoulder. As a result of this motion, the symptoms in his shoulder became aggravated. That night, the muscles in his shoulder tightened up and got worse over the next few days. By two days later, he was unable to move his left arm away from his body.
The worker stated that the motion of pulling back on the leashes was not one which was difficult for him or which would normally cause him any kind of pain or discomfort. It was only because of the original injury which had not yet healed that he suffered the problems afterward. The worker felt that the second injury was an extension of the first injury to his shoulder.
After the second injury, the worker started attending physiotherapy. By mid September, the physiotherapist told the worker that his condition had healed.
The worker's evidence was that during the two months between the workplace injury on March 7, 2012 and the dog walking incident on May 16, 2012, he did not at any time resume his Wednesdays in the gym. He also continued to modify the way he did things at work. For example, when getting his mail from his mail slot, he would not use his left hand as he had to reach up to get the mail. He guarded his left side when walking down the hallways and used care when answering his phone, which was located on the left side of his desk.
After reviewing the evidence as a whole, the panel finds that the worker's original workplace injury had not yet healed and that the intervening incident of walking the dogs on May 16, 2012 caused the worker to suffer a recurrence of the original workplace injury. The panel found the worker to be very credible and we accept his evidence that he had not resumed his regular duties in the gym and that he was continuing to modify the way he did things at work so as to limit the use of his left shoulder. We note that the letters from the co-workers and the employee relations advisor corroborate the worker's evidence. The panel also accepts that the motion of pulling on the dogs' leashes was minor and would not have caused the worker any difficulty but for his unresolved compensable injury.
The panel has considered WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, but we find that this Policy is not applicable since this is a recurrence of the original compensable injury and not a separate injury.
The panel therefore finds that the worker is entitled to wage loss and medical aid benefits after March 7, 2012. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 22nd day of March, 2013