The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for a right shoulder injury was not acceptable. The WCB denied the claim on the basis that it was unable to establish that a work-related accident occurred as defined in The Workers Compensation Act (the "Act'). A hearing was held on December 16, 2013 to consider the matter and the hearing reconvened on March 24 and June 25, 2014.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a Worker Injury Report that was received by the WCB on October 9, 2012. It stipulated that he had injured his right shoulder on September 13, 2012 and that he had reported the injury to a named manager of the employer on September 21, 2012. The Report stated he saw two physicians on September 13, 2012, and saw one of them again on October 5, 2012 (i.e. the “treating physician”).

In the accompanying Worker Incident Report, the worker advised that he believed the cause of his injury was that he lifted “boxes that weigh 50-100 lbs all day long.” He stated that he first noticed his symptoms at work two months earlier and that “it started off as a pain and then progressively got worse over time.” In response to the question of when he had reported the injury, he stated that “I told the dispatcher about this a few weeks [ago].” He stated that he reported that “my shoulder is painful.”

The Worker Incident Report stated that x-rays were taken, and medication was prescribed, "no physio at the time but will be making an apt soon. No chiro."

The Employer’s Accident Report stated that the worker had reported his injury to the employer’s Branch Manager on September 25, 2012. The accident was stated to have occurred on September 13, 2012. Under the section asking for a description of the accident, the Report stated:

NO EVENT. [The worker] advises that he started to experience pain in his shoulder in May. He has no idea of what he may have done to trigger the pain. Pain progressed & he sought medical attention on September 13^th and received xrays. [The worker] has been performing courier work since July 2011. No changes to his job or work assignments. To date he has not missed time from work. We have agreed to assign him lighter duties (up to 10 lbs) until we have been advised otherwise.

A Physical Demands Analysis was submitted regarding the worker's courier job duties.

A Doctor's First Report dated September 13, 2012 indicated that the worker had right shoulder tendonitis related to a repetitive type injury and overhead movements.

On October 4, 2012, the worker informed his WCB adjudicator that he originally noticed pain in his shoulder about two to three months ago. He said he told the employer's dispatcher that he needed a few days off in July because he hurt his shoulder and that he was going to get an x-ray. He did not say how he injured his shoulder. The worker said he took three to four days off and did not supply a medical note to his employer as he thought his shoulder would get better. He continued working between July and September and was using A535 and medication but his shoulder condition was not getting better.

On October 16, 2012, the worker told the WCB that he does not do overhead work but sometimes had to lift packages from the dock which was about 4 feet off the ground. Sometimes he had to carry packages up stairs when there was no elevator.

In a decision dated November 5, 2012, the worker was advised that his claim for compensation had been denied. The adjudicator noted that the medical report of September 13, 2012 indicated a diagnosis of right shoulder tendinitis caused by repetitive overhead use but the doctor was unable to provide a date of accident as it was classified as a repetitive strain injury. The adjudicator indicated that she was unable to confirm the worker’s later advice that he had first received treatment from another physician in July of 2012, for that physician did not submit a medical report as requested by WCB. The adjudicator further stated:

…an accident has not been established. There was no specific event identified to account for the onset of your symptoms. You reported to your employer your pain began in May of 2012; however there is no record of a report of accident or injury from May. Attendance records from the month of July do not support there were any days missed from July when you stated you missed several days due to your injury. The medical

information on file provides a cause of injury as being from a repetitive strain from overhead shoulder use. Both your employer and yourself confirmed you do not do overhead work. Therefore we cannot provide a causal connection between your work activities and the onset of your right shoulder injury. As such the WCB will not accept responsibility for your claim, including time loss and medical treatment.

On November 29, 2012, the worker's advocate appealed the adjudicator's decision to Review Office. On December 4, 2012, Review Office referred the worker's case back to primary adjudication to conduct a further investigation and to review its prior decision.

Primary adjudication obtained additional medical information which consisted of x-ray and MRI results pertaining to the worker's right shoulder. The x-rays of May 24, 2012 showed a small amount of sclerosis involving the greater tuberosity which was degenerative in etiology. The

November 4, 2012 MRI revealed a partial thickness tear of the supraspinatus tendon.

During the course of assessing his claim, the worker advised the WCB that he had seen another physician for his right shoulder complaints between May and September 2012. That physician did not however respond to the WCB’s request for medical information.

In a narrative report dated February 26, 2013, the treating physician stated that the worker had reported that he suffered significant pain and decreased movement of his right shoulder in May 2012 which he attributed to the loading and handling of heavy items at his work and lots of overhead movements. The report noted that the worker had initially been seen by the treating physician several times beginning in the fall of 2012 for a very sore shoulder with reduced movements. A follow up WCB request for chart notes revealed that the worker had not attended the treating physician for treatment from November 28, 2011 to September 13, 2012.

The treating physician provided the WCB with copies of reports from a specialist dated November 20, 2012 and December 14, 2012. Those reports diagnosed the worker as having a partial tear of the supraspinatus tendon and an adhesive capsulitis. The treating physician stated that “from history it appears that [the worker] may have initially torn his rotator cuff from heavy lifting and overhead movements and had developed a secondary adhesive capsulitis.”

On March 1, 2013, the WCB adjudicator documented a phone call she had with the treating physician. The treating physician stated that the worker had not been treated prior to September 13, 2012 for a shoulder injury. The reference to May 24, 2012 was based on information that the worker told him. The physician said he asked the worker several times how he hurt his shoulder and the worker could not tell him what happened or could not provide clear details as to how he injured himself.

On March 12, 2013, the worker was advised that the new medical information does not change the original decision of November 5, 2012. The adjudicator noted that the medical information provided a cause of injury as being from a repetitive strain from overhead shoulder use. There was no information that he was required to do overhead work. Therefore the WCB could not establish a causal connection between his work activities and the onset of his right shoulder injury. On March 22, 2013, the worker's advocate appealed the adjudicator's decision to Review Office.

In a note to file dated May 23, 2013 the Review Officer stated:

I spoke to a WCB orthopedic consultant today to obtain general information regarding the diagnoses on this claim. It was noted that a partial thickness tear of the supraspinatus can be caused by an action(s) involving resisted abduction of the arm/shoulder, repetitive activity/stress above shoulder height and a fall on an outstretched hand. Adhesive capsulitis can occur following a rotator cuff injury and arthroscopic surgery (due to immobilization) or idiopathically.

On May 23, 2013, Review Office confirmed that the worker's claim was not acceptable as it was unable to establish an accident occurred as defined in the Act. Review Office noted that the worker contended that his right shoulder condition developed due to his work duties as a courier and that he sought medical attention as early as May 2012. The worker reported that a specific incident did not occur.

Review Office stated that it placed significant weight on the following information when making its decision that the claim was not acceptable:

• Although the x-ray report of May 24, 2012 showed that the worker had sought medical attention at that time, the worker delayed in reporting his difficulties to his employer and the WCB for approximately four months. The branch manager and the dispatcher were not aware of the worker's right shoulder difficulties or injury.
• The evidence did not support that the May 24, 2012 x-ray findings were caused, aggravated or enhanced by the worker's job duties.
• The worker's right arm/shoulder use at work did not demonstrate the type of activity which would cause his right shoulder conditions. There was minimal work above shoulder height and there were no repetitive actions with resisted abduction of the shoulder joint. The evidence, on a balance of probabilities, did not support a causal relationship between the worker's employment activities and his right shoulder condition.

On September 11, 2013, the worker's advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was held on December 16, 2013 and it reconvened on March 24 and June 25, 2014.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, its regulations and the policies of the WCB's 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(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity resulting from the accident ends.

The Worker’s Position

The worker was represented by an advocate at the hearing. The services of an interpreter were provided. The position advanced on behalf of the worker was that the pain that he experienced in his right shoulder was attributable to the work that he had been performing on behalf of the employer.

It was submitted that the WCB’s decision should be overturned for the following reasons:

1. The decision made by the Review Office was arbitrary. It did not give weight to the medical opinions and facts reported by the worker.

2. The decision failed to apply the provisions of The Manitoba Human Rights Code.

Further submissions that the advocate made regarding legal issues affecting the claim are addressed in the Analysis section under the heading “Preliminary Matters”.

The Employer’s Position

The employer did not challenge that the worker was suffering from a shoulder injury. However, it contended there was no evidence to establish a relationship between the worker’s right shoulder injury and his work on behalf of the employer. It stated that:

The employer did not challenge that the worker was suffering from a shoulder injury. However, it contended there was no evidence to establish a relationship between the worker’s right shoulder injury and his work on behalf of the employer. It stated that:

There has been no specific event to cause the onset of the symptoms; there is no repetitive injury from overhead shoulder use; there have been no changes to the physical requirements of his work from his hire date. The absence of a direct cause or relationship between the work and the injury cannot simply be disregarded. In fact, it is the very essence of a WCB claim.

Analysis

Preliminary Matters

As part of the worker’s appeal, the worker’s advocate introduced two legal issues for the panel’s consideration. The first deals with the requirement for the Appeal Commission to interpret and abide by the Canadian Charter of Rights and Freedoms (the “Charter”). The second purports to deal with the standard of proof to be used by the Appeal Commission in making decisions.

Jurisdiction re Charter Issues

The worker’s advocate submitted that the Supreme Court of Canada decision in Andrews v. Law Society of British Columbia [1989] 1 S.C.C. 143 had established equality under the Charter. He referenced that portion of the case headnote that read:

I believe also that it is important to note that the range of insular and discrete minorities has changed and will continue to change with changing political and social circumstances …It can be anticipated that the discrete and insular minorities of tomorrow will include groups not referenced as such today. It is consistent with the constitutional status of s. 15 that it be interpreted with sufficient flexibility to ensure the “unremitting protection” of equality rights in the years to come.

…As my colleagues have pointed out, the onus of justifying [an] infringement rests upon those seeking to uphold the legislation …

The worker’s advocate also submitted a portion of a November 29, 2012 law firm newsletter, where the author concluded that a subsequent decision of the Supreme Court of Canada, in R. v. Conway, [2010] 1 S.C.R. 765 established that “there was no reason why an administrative tribunal should not be considered a “court of competent jurisdiction” to grant Charter remedies, provided this does not offend its enabling statute.”

The worker’s advocate, in his letter of May 14, 2013 to the Review Office, commented that the employer’s position, as set forth in its letter of May 8, 2013, to the Review Office, amounted to a censoring of the employee and his advocate for asserting rights as set forth in The Human Rights Code (Manitoba). The letter of May 14, 2013 stated, in part:

…the reply and response of [the Employer] is tainted because of their views about [the worker’s] human rights. The company representative is openly critical. In my view this person does not have the jurisdiction under the WCB Act to dismiss the appeal of [the worker]. She is acting beyond her authority as a manager of the company and is influenced by her personal bias and subjective criteria.

…[the worker] is an East Indian Canadian and he feels he has been treated with different standards by the Adjudicator which is supported by the Company [the Employer].

There is evidence that both the adjudicator and the Company consider [the worker] is lying, which is calling into question [the worker’s] personal integrity and challenging his self-worth as a human being.

The onus now shifts on the adjudicator to prove that [the worker] is lying. If the adjudicator and the Company cannot meet this onus, we will request, with due regards, the review office should overturn the decision of the adjudicator and provide [the worker] with retroactive benefits …

In an earlier decision of June 17, 2014 (Decision No. 77/14), a panel of the Appeal Commission accepted that it does have jurisdiction to decide questions of law arising under The Workers Compensation Act and that it is required to conduct itself in a fair and just manner which does not contravene any of the protected rights under the Charter. That panel stated:

The panel accepts that it has the jurisdiction to decide questions of law arising under the Act. The question then turns to whether we also have the concomitant jurisdiction to decide the constitutional validity of that provision. In this regard, we note that s. 60 (2.2) of the Act provides that: “The board and the appeal commission do not have jurisdiction over constitutional questions.” It is the panel’s view that that the presumptive jurisdiction to decide the constitutionality of any provision of the Act has been clearly rebutted in the exact manner contemplated by the Supreme Court of Canada. The Manitoba Legislature has expressed in clear language, in an amendment introduced into the Act in 2007, that the Appeal Commission does not have jurisdiction over constitutional questions which we view as including a Charter challenge to the Act. As noted at the outset of these reasons, the panel is bound by the Act and the policies of the Board of Directors. Accordingly, the panel cannot entertain a Charter challenge of any provision of the Act or Board policy. It remains open for the worker to have any charter issues dealt with in other forums that might allow for same.

With respect to the question of whether or not the Appeal Commission is subject to acting in compliance with the equality provisions of the Charter, there is no question that the Appeal Commission is absolutely required to conduct itself in a fair and just manner which does not contravene any of the protected rights under the Charter.

The panel, in decision No. 77/14, then drew a distinction between Charter obligations and the issue that it was being called upon to decide:

The issue in this case, however, deals with causation and whether or not the worker’s current right shoulder difficulties can be causally linked back to the injury she suffered in the workplace accident of December 15, 1992. This will be a finding of fact to be made by the panel, and has nothing to do with the differential treatment and discrimination issues [considered by the Supreme Court of Canada in Nova Scotia (Workers Compensation Board) v. Martin [2003] SCC 54]. We are of the view that the Martin case is of no application to the present appeal. We believe that the worker’s advocate is confusing the issues and we reject the proposition that a determination that the worker is not entitled to benefits is automatically a violation of her equality rights. Whether or not the worker is entitled to further benefits is solely a question of fact, and does not involve any Charter challenge to the provisions of the Act.

This panel adopts that approach. The issue that we are to decide is whether the worker’s claim is acceptable. The decisions in Andrews v. Law Society of British Columbia, R. v. Conway, and the Martin case have no application to the present appeal, for the worker’s entitlement to benefits is solely a question of fact and does not involve any Charter challenge to the provisions of the Act.

The panel, in Decision No. 77/14, also commented:

With respect to the allegations that the worker was discriminated against on the basis of her ethnic origin as noted above, the panel acknowledges that it must comply with the Charter and treat all individuals equally before the law and without discrimination. To the extent that the worker’s advocate is seeking redress for alleged discrimination (of which parenthetically, the panel sees no evidence) the Appeal Commission is not the proper forum in which to seek this relief. Our jurisdiction is limited to determining entitlement under the Act.

This panel adopts that comment, and it also notes, parenthetically, that this panel saw no evidence of alleged discrimination against this worker.

The Standard of Proof

The worker’s advocate suggested that the Supreme Court of Canada had, in Andrews v. Law Society of British Columbia, established that the issue of onus, as it applied to matters of this kind, was to be borne by an employer who is seeking to uphold an infringement of the Charter. That characterization has no application in this case. It deals with section 24(2) of the Charter which places the onus on the party applying to have evidence excluded to establish that its admission could bring the administration of justice into disrepute.

The Supreme Court of Canada, in its 2008 decision in F.H. v. McDougall, [2008] 3 S.C.R. 41, clarified the standard of proof required in a civil proceeding:

I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof.

…Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the adjudicator that its version of events, more likely than not, represents the truth of what has been alleged.

The burden of proof generally has little practical application unless the facts are so equally balanced as to call it into play. As stated in Purolator Courier Ltd. (2001), 98 L.A.C. (4^th) 104 (Veniot):

Where the standard of proof is a balance of probabilities, and where both parties call evidence on a disputed state of affairs, the question of who has the burden of proof really ceases to have much practical meaning. For the decision maker, it becomes simply a matter of determining, on the whole of the evidence, what facts are proven to the required standard. One succinct judicial expression of this is found in the case of Robins v. National Trust Co., [1927] 2 D.L.R. (7 P.C.), where Viscount Dunedin put the matter as follows at p. 101:

But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.

As the panel, in Decision No. 77/14 has stated, “in the case of the Appeal Commission, the panel views our standard of proof as being based on a balance of probabilities, after our completion of an inquiry-based process.”

The Issue

The issue before this panel is whether or not the claim is acceptable. The panel has determined that it is not. In order for the worker’s claim to be successful, the evidence must establish that the worker sustained an accident as defined in the Act. An accident is defined as follows:

1(1) In this Act, “accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured.

The key issue to be determined by the panel is whether the worker’s shoulder condition arose out of and in the course of his employment with the employer. For the appeal to be successful, the panel must be satisfied that the worker’s medical condition was caused by his work duties. The panel has been unable to find that there was a causal connection between the development of his shoulder injury and his employment.

The worker was unable to identify any specific incident that may have caused his condition. In addition, the evidence given by the worker did not identify any type of repetitive motion that would normally be associated with a repetitive injury to the shoulder area. Although the worker had alleged that he was continually lifting boxes weighing between 100-150 pounds over his shoulder, his testimony established that this weight was the total weight of several discrete items that were part of the same delivery. His testimony also established that he rarely lifted items above his shoulder, for most of his deliveries involved transferring items from his delivery van to loading docks that were roughly of the same height. These factors were consistent with the Physical Demands Analysis that had been prepared by the employer.

The worker failed to report an injury to the employer until several months after he first experienced pain in his shoulder. After the concern was raised with the employer, the employer immediately advised the worker that he would not be assigned deliveries of more than 10 pounds until the employer was advised otherwise. While the worker testified that deliveries of greater weight than 10 pounds were occasionally assigned, he also acknowledged that it was his responsibility to advise the dispatcher that he could not handle such delivery. He confirmed that when he did so, the delivery was re-assigned. He also confirmed that the employer never took issue with his doing so.

The worker also advised that his condition did not improve following his resignation from his position with the employer some two months after having filed his Worker Injury Report.

As noted in the decision of the Review Office:

Given the worker’s condition has been diagnosed as a partial thickness tear of the suprapinatus and adhesive capsulitis, the Review Office must consider the mechanism of injury that would lead to the development of these diagnoses. The Review Office spoke to a WCB orthopedic consultant who advised that a partial thickness tear of the supraspinatus can be caused by actions involving resisted abduction of the arm/shoulder, repetitive activity/stress above shoulder height and a fall on an outstretched hand. Adhesive capsulitis can occur following a rotator cuff injury and arthroscopic surgery (due to immobilization) or idiopathically

The panel finds no evidence that such mechanisms of injury were present in this case.

For the foregoing reasons, the panel is unable to find that the worker’s medical condition was caused by his work duties. The panel therefore finds, on a balance of probabilities, that the worker’s shoulder injury did not arise from a workplace accident.

The worker’s appeal is dismissed.

Panel Members

D. Kells, Presiding Officer
B. Simoneau, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 21st day of August, 2014