The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was no longer suffering from the effects of his February 22, 2012 workplace injury beyond July 5, 2012. A hearing was held on February 14, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after July 5, 2012.

Decision

That the worker is not entitled to wage loss benefits after July 5, 2012.

Decision: Unanimous

Background

On February 24, 2012, the worker filed a claim with the WCB for right shoulder difficulties that he related to his employment as a journeyman plumber that involved working with hot water tanks and heavy lifting. The worker reported that his symptoms began a week and a half earlier and that he was able to see his doctor for treatment on February 23, 2012. The worker reported that the employer's health and safety officer was aware of his shoulder difficulties.

A report submitted by the treating physician showed that the worker was seen on February 23, 2012 complaining of back pains and shoulder pains for two weeks. The worker had a past trauma to his right shoulder. The physician noted that the worker continuously used a vibrating hand machine during the last six months. The diagnosis was muscle strain of both shoulders.

On March 2, 2012, the worker advised a WCB adjudicator that he is returning to work on Monday, March 5, 2012. He explained he really injured himself on Wednesday when he was pulling on a pipe wrench while working on a gas line and had pain in his shoulder.

On March 13, 2012, the worker called the WCB to say he was off work again as his shoulder was hurting. He said he returned to work on February 27, 2012 at his doctor's advice, however, he had not fully recovered from his shoulder injury. He made ongoing complaints every day about his shoulder and legs. He complained to two co-workers and the health and safety representative. He said his left shoulder was also hurting and he believed it was caused from trying to protect his right arm.

The employer's health and safety representative advised the WCB on March 14, 2012 that the worker remained at work until March 2, 2012 without any complaints and then left in the afternoon to catch a flight as he was going on holidays. When the worker returned to work after his holiday on March 12, 2012, he mentioned to a co-worker that he was having shoulder and leg difficulties. The representative thought it was holiday-related. On March 13, 2012, the worker called in to say that he would not be at work for one week.

On March 20, 2012, the worker advised the adjudicator that he did nothing on holidays to injure his shoulder. He spent 90% of his time lounging in the sun.

On March 21, 2012, the adjudicator advised the worker that he was not entitled to wage loss benefits from March 13, 2012 based on the information obtained from the employer that he made no ongoing complaints prior to his leaving on holidays and that he was performing his regular duties. Based on this evidence, the WCB was unable to establish a relationship between his current difficulties and the February 22, 2012 workplace incident.

On March 30, 2012, a physiotherapist reported that the worker was seen for an initial assessment on March 27, 2012. The worker's description of injury was "pulling pipe wrenches repeatedly." The worker complained of sharp pain in the anterior part of his right shoulder that radiated down his arm to the elbow. The diagnosis rendered was a rotator cuff strain/tendinopathy.

On April 17, 2012, the worker appealed the March 21, 2012 adjudicative decision to Review Office. The worker indicated after his doctor sent him back to work on February 24 and the following week, he complained to his boss, the health and safety office and the secretary about his shoulder pain on a daily basis. He said he was in discomfort and pain the whole week he was away on holidays. The earliest doctor's appointment he could get was on March 13, 2012.

On April 19, 2012, Review Office returned the worker's case to initial adjudication to conduct a further investigation into the claim. The worker advised the WCB that he was pulling on a pipe wrench and felt pain in his shoulder on February 22, 2012. The worker said the claim was for his right shoulder although the pain went right across his neck into his left shoulder but it was his right shoulder that he could not use. The worker was not sure why his left arm was now sore but it could be because when he returned to work he used the left arm more to protect his right shoulder.

The adjudicator spoke with the employer's secretary on May 17, 2012. It was confirmed that the worker made ongoing complaints that his right shoulder was bothering him as far back as January 2012 and before he left on holidays.

On May 17, 2012, the worker was advised by the WCB that he was entitled to 8 weeks of wage loss benefits. The worker was advised that the medical reports on file mentioned other areas of difficulties such as his left shoulder, back, knees and both wrists, however, his claim was accepted for a right shoulder strain/sprain only. The worker was advised that once the MRI results were available and if it showed other diagnoses for his right shoulder, a new decision would have to be made regarding ongoing benefits.

The adjudicator spoke with the worker again on May 30, 2012. The worker indicated that after returning to work from his holidays on March 12, 2012, he was asked to do a hot water tank job and when he was removing the tank he felt something pop in his shoulder. The worker said he reported it to his employer and to his doctor on March 13, 2012. Subsequently, the worker called the adjudicator back stating that he was mistaken about the date of the hot water tank job and explained that the hot water tank removal was before he left for his holidays.

On June 21, 2012, an MRI assessment showed mild tendinosis of the supraspinatus tendon and osteoarthritis of the worker's acromioclavicular joint.

A progress report from the treating physician dated June 28, 2012 indicated that the worker had abduction only to 90 degrees, limited range of motion to his back and anterior flexion was about 110 degrees. The physician was not sure why the worker's condition was not healing and he recommended a rehabilitation program for the worker.

On July 6, 2012, the adjudicator spoke with the treating physician and was advised that the worker complained about a number of things but mentioned that he hurt his shoulder lifting something at work.

In a decision dated July 10, 2012, the worker was advised that the WCB was reversing the decision to accept his claim. The adjudicator concluded that based on the different explanations that were offered to the WCB and to his physician on how his right shoulder was injured, the WCB was unable to establish a relationship between his right shoulder difficulties and his work activities. On July 31, 2012, the worker appealed the decision to Review Office.

A physiotherapy discharge report dated August 29, 2012 noted that the worker complained of sharp pain in his shoulder and that his condition was not improving.

On October 11, 2012, Review Office determined that the claim was acceptable, however, there was no entitlement to wage loss benefits beyond July 5, 2012. Review Office found that the evidence on file established that the worker suffered personal injury by an accident arising out of and in the course of his employment on February 22, 2012 and that he was entitled to wage loss benefits from February 22, 2012 up until the time when the MRI report was received.

Review Office noted that the June 21, 2012 MRI report (received on June 28, 2012) did not provide findings to support an ongoing diagnosis related to the February 22, 2012 workplace injury and therefore it was considered that the worker was no longer suffering from the effects of the workplace injury. Based on WCB Policy 44.30.60 - Notice of Change in Benefits or Services, Review Office determined that the worker was entitled to wage loss benefits to July 5, 2012 inclusive. On November 6, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on February 13, 2013.

Following the hearing and discussion of the case, the appeal panel requested medical information from the worker's treating physician and two physiotherapists, prior to rendering a decision on the issue under appeal. The medical reports were later received and forwarded to the worker for comment. On April 24, 2013, the panel met further to discuss the case and render its decision.

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.

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 resulting from the accident ends.

The worker’s position:

The worker was self represented at the hearing. His evidence was that the problems with his right shoulder started on February 23, 2012. He was working as a plumber when he felt "a little break in my shoulder." He went to the doctor who could not find anything wrong. Then on March 13, 2012, it happened again. He was working on a gas line with pipe wrenches when he felt a kink in his right shoulder as he was tightening a pipe. The worker stated that he had not had any difficulty with his shoulder prior to February 23, 2013.

With respect to the end date of July 5, 2012, the worker's evidence was that he remained unable to work as a plumber as this required him to lift heavy tools and frequently work over his head. He felt that he could not perform those duties any more. On his doctor's advice, he had attended physiotherapy but there was hardly any change to his condition. The only diagnoses he was aware of for his shoulder were tendonitis and osteoarthritis.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss benefits after July 5, 2012. In order for the worker’s appeal to be successful, the panel must find that the injuries the worker sustained at work in February 2012 caused him to suffer a loss of earning capacity beyond July 5, 2012. On a balance of probabilities, we are not able to make that finding.

At the hearing, the worker was asked when he last worked. His response was that March 13, 2012 was his last day at work and that he had not been back to work since. His days were spent at home doing very light housekeeping (washing dishes or dusting), watching television, or playing games on the computer (approximately one hour maximum as his shoulder would start to hurt if he remained on the computer any longer). He would occasionally go out for coffee, but that was not very often. He would go to church weekly and attend monthly meetings. From this description, the panel finds that since stopping work, the worker has not engaged in much activity and the physical demands on his shoulder have been minimal. Nevertheless, his right shoulder remains weakened and painful, and his left shoulder has now developed similar symptomatology.

The panel has reviewed medical charts from the worker's attending physician and treating physiotherapists. Despite two courses of physiotherapy aimed at treating tendonopathy, he has not experienced much improvement in his condition. In January 2013, the chart notes of the worker's attending physician started to record identical symptoms in his left shoulder. This is despite the fact that the worker has been away from the workplace since March 2012 in a relatively sedentary lifestyle.

After reviewing the evidence as a whole, the panel is unable to conclude that the worker continues to suffer an ongoing loss of earning capacity which can be related to his workplace activities in February and March, 2012. We find that the evidence simply does not support a continued work relatedness beyond July 5, 2012. The fact that the condition of his shoulders has deteriorated rather than improved since being removed from the physical duties of his role as a plumber, suggests that something other than his work activity is responsible for his ongoing symptoms. As such, we are unable to conclude that the worker is entitled to further wage loss benefits after July 5, 2012. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of June, 2013