The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing decisions made by the Workers Compensation Board ("WCB") to accept the worker's left shoulder injury as being compensable and to deny cost relief to the employer. A hearing via teleconference was held on August 26, 2014 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's left shoulder injury as a consequence of the August 7, 2010 compensable injury; and

Whether or not the employer is entitled to cost relief.

Decision

That responsibility should be accepted for the worker's left shoulder injury as a consequence of the August 7, 2010 compensable injury; and

That the employer is not entitled to cost relief.

Decision: Unanimous

Background

The worker filed a claim with the WCB on August 10, 2010 in relation to a work-related middle and low back injury that occurred on August 7, 2010. The worker advised the WCB that he was assisting a co-worker place a patio door back in its position. The worker lifted the door and the co-worker pushed it in. This caused the worker to injure his back. In a later telephone conversation with WCB staff on September 1, 2010, the worker stated he was continuing with physiotherapy and that his back was still sore, affecting his left shoulder and neck. He had no prior back, neck, or left shoulder injuries.

A doctor's first report dated August 9, 2010 indicated that the worker was lifting at work and moved a door when he felt sudden pain in his back. The diagnosis was a sprain to the subscapular muscles. In a progress report dated August 15, 2010, it was reported that the worker still had pain and weakness in his left upper back and shoulder.

On August 18, 2010, the worker attended a physiotherapist who reported that the worker was lifting a patio door with sudden left scapular, upper back, shoulder and neck pain. The diagnosis was left shoulder/scapular and cervical sprain/strain.

On September 14, 2010, the worker was recorded as having advised the WCB that: "he was still going to physiotherapy and he was there yesterday. After he left his left shoulder pain was horrible. He couldn't sleep all night due to the pain and it's still very painful. He says he doesn't know why it's sore." The worker expressed concerns that his condition was getting worse and not better. He said his current left shoulder was the main problem and that the pain went up to his neck.

A physiotherapy progress report dated September 15, 2010 indicated that the worker reported exacerbation of symptoms with increased symptoms in his left scapula/back.

On October 6, 2010 the treating physician reported that the worker had decreased range of motion in his neck and shoulder girdle. Trigger point needling was carried out.

On October 12, 2010, the worker reported that he saw his doctor on October 6 and he received cortisone shots. The worker said he felt better until he tried to lift anything such as a grocery bag or laundry basket. The worker said he was no longer going to physiotherapy as they told him that they could not do anything more for him.

Doctor progress reports in November 2010 indicated that the worker had neck pain radiating to his left arm and that he was being referred to an orthopedic surgeon.

On December 1, 2010, the physiotherapist indicated that the worker had attended six therapy sessions and had not returned for any treatments since September 15, 2010. The therapist queried whether the worker had returned to work.

In a memo dated December 3, 2010, a WCB case manager documented a phone conversation she had with the worker regarding his claim. The case manager advised the worker that his claim had been accepted as a mid and low back strain/sprain only and the natural history for this diagnosis was approximately 8 to 12 weeks. His claim was now 18 weeks post injury. The case manager also advised the worker that his left shoulder condition was not accepted as a compensable diagnosis.

By letter dated December 3, 2010, the worker was advised that he was not entitled to further compensation benefits as it was felt that he had recovered from the effects of his compensable

injury diagnosed as soft tissue strain/sprain injury to his mid and low back and that he was capable of resuming his full work activities by December 1, 2010. The case manager also indicated that the worker's left shoulder issues were not related to his claim based on his Workers Report of Injury.

On September 10, 2012, the accident employer was advised by the WCB that the worker's file had been reviewed for cost relief and it was determined that cost relief was denied, as the file did not meet the criteria outlined under the WCB's cost relief policy.

On January 9, 2013, the employer told the WCB it was following up on its correspondence dated September 20, 2012 wherein the employer advised that it wished to appeal the September 10, 2012 decision to deny cost relief. A copy of the claim file was requested.

On April 30, 2013, the employer submitted to Review Office that the worker had suffered further injury from his September 13, 2010 physiotherapy treatments. The employer noted that in a WCB memo of December 3, 2010, the case manager stated that the normal recovery period for a back strain was 8 to 12 weeks and the worker was already 18 weeks post injury. If not for his elbow and shoulder injuries, the worker would have fully recovered from his back injury within the normal recovery period. The employer requested cost relief for all costs related to the delayed recovery caused by the worker's left elbow and left shoulder injury.

On July 8, 2013, Review Office determined that the employer was not entitled to cost relief as defined in Schedule C of WCB Policy 31.05.10. It also found from review of the file evidence that a further injury as a result of treatment related to the compensable injury had not been established. Review Office stated:

• the file evidence supported the diagnosis of a left shoulder/scapular and cervical strain/sprain in relation to the August 7, 2010 compensable injury.

• on August 18, 2010, the treating physiotherapist identified the area of injury to be the worker's left shoulder and arm.

• after attending physiotherapy treatment on September 14, 2010, the worker reported an increase in his symptoms to his left shoulder. The physiotherapist noted that the worker experienced an exacerbation of left scapular/back pain. An exacerbation as a result of treatment is not considered a new injury.

• on November 1, 2010, the worker explained that he had attended his doctor on October 20, 2010 for all his difficulties and noted that his left arm had been giving him problems since the date of injury. Review Office felt that the worker's left arm symptoms were consistent and related to the compensable diagnosis.

On July 15, 2013, the employer appealed Review Office's decision to deny cost relief and to accept the worker's left shoulder problems as being related to his compensable injury.

Reasons

Applicable legislation and Policy

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

WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”) describes certain specific circumstances when a claim cost may be transferred from an accident employer to a shared cost pool. This process is called “cost relief."

Subsection 3(a)(iii) of the Policy provides that cost relief is available to eligible employers: “When a subsequent compensable injury occurs outside the workplace while the worker is already receiving benefits and the second accident extends the period of time loss. The cost relief criteria and method of cost allocation are described in (Schedule C).”

The cost relief criteria are described in Schedule "C" as follows:

When a worker is receiving benefits and the duration of benefits is extended due to a further separate injury which is compensable under Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, the additional costs attributable to the further injury may be eligible for cost relief in the following circumstances:

(i) When the further injury arises out of a situation over which the WCB exercises direct specific control; or

(ii) When the further injury arises out of the delivery of treatment for the original compensable injury.

Relieved costs will be charged to the Cost Apportionment Fund and allocated to the class of the accident employer.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

Employer’s Position

The employer was represented by an advocate in this appeal. The advocate expressed confusion regarding the manner in which the claim was adjudicated by the WCB. Initially, the claim was for a back injury only. It was submitted that in the first days after the accident, there was no reference to problems with the worker's shoulder or arm. In subsequent conversations, it was revealed that the worker believed that his shoulder was injured in physiotherapy. The date when the shoulder was injured was not clear because the worker made reference to it a number of times, but during a specific phone conversation in September, the worker stated that he injured his shoulder while in physiotherapy.

It was submitted that the medical information supported that the worker injured his shoulder during physiotherapy and WCB policy provides that if a worker is injured while taking treatment for a compensable injury, then that new injury in turn becomes a compensable injury. The medical information indicated that the worker continued to have problems with his elbow and shoulder, even though his back had essentially healed. The employer was requesting cost relief on the basis that if not for the shoulder and elbow injury, the worker would have returned to work much earlier.

Overall, the employer's position was that the shoulder injury should only have been accepted as a further subsequent injury, for which the employer was entitled to cost relief.

Worker's Position:

Unfortunately, the worker could not be located and therefore the appeal was heard without the participation of the worker.

Analysis:

The issues before the panel are whether or not responsibility should be accepted for the worker's left shoulder injury as a consequence of the August 7, 2010 compensable injury and whether or not the employer is entitled to cost relief. It would appear that the confusion regarding the WCB's rationale referred to by the advocate arises from the fact that in the December 3, 2010 adjudicative decision, the compensable diagnosis was referred to as: "a soft tissue sprain/strain type of injury to the middle and lower back. " Further, the case manager's memorandum to file noted that on December 6, 2010, the worker was advised that:

• The file was accepted as a mid and low back strain sprain only;
• The shoulder was not the accepted compensable diagnosis on the file; and
• a medical referral for the shoulder was not felt to be related to the compensable injury as the claim was only accepted for the middle and lower back as being due to the mechanism of injury.
  

In contrast, the Review Office decision of July 8, 2013 found that: "the file evidence supports the diagnosis of a left shoulder/scapular and cervical strain/sprain in relation to the compensable injury sustained on August 7, 2010." While not explicitly stated, it would appear that Review Office changed the finding of fact regarding the compensable diagnosis, which, as a reviewing body, it was entitled to do.

The panel feels that the crux of the issue concerns the compensable diagnosis. The question is whether the workplace accident of August 7, 2010 caused the worker to suffer an injury to his middle and lower back only, or whether the injury included a strain to the left shoulder/scapular and cervical area. If the injury was confined to the middle and lower back, then the employer's appeal must succeed as the left shoulder/scapular and cervical symptoms would constitute a further compensable injury for which cost relief is available under subsection 3(a)(iii) of the Policy. If, however, the original compensable diagnosis included injury to the shoulder/scapular and cervical areas, the employer's appeal must fail as the worsening of symptoms reported in mid-September 2010 would be an exacerbation of the compensable injury, for which cost relief is not available.

After carefully reviewing the medical reports on file, the panel finds on a balance of probabilities that the original compensable diagnosis included injury to the left shoulder/scapular and cervical areas and as such, the employer is not entitled to cost relief and its appeal must fail.

In the Worker Incident Report created on August 10, 2010, the worker reported injuring his back. The areas of injury identified in the Worker Incident Report are the middle and lower back. It would appear, however, that the worker's choice of words (i.e. reference to his "middle and lower back") does not accord with the examination findings reported by his physicians. On August 9, 2010, while the worker's family physician reported an injury to the "back," the diagnosis referred to "a sprain to the left subscapular muscle." The next report of August 23 refers to "sprain weakness L upper back and shoulder". Both of these examinations occurred prior to the worker's first physiotherapy appointment on August 18, 2010, so it is clear that the symptoms pre-dated any physiotherapy treatment.

In the Physiotherapy Initial Assessment form, the physiotherapist reported the area of injury as the left shoulder, arm and low back. The worker's description of the injury was recorded as: "was lifting a patio door with sudden L scapular, upper back, shoulder, neck and LBP (low back pain)." The therapist's diagnosis on completion of assessment was: "L shoulder/scapular and cervical sprain/strain."

In the panel's opinion, there is ample medical evidence to support that the original compensable diagnosis included injury to the left shoulder and neck area. The panel finds that the mechanism of injury of lifting a patio door is consistent with sustaining not only a strain to the lower back, but also to the left shoulder/scapular and cervical areas.

With respect to the September 14, 2010 notes of a telephone conversation with the worker, the panel does not agree with the interpretation proposed by the employer. The notes simply state that: "The worker said he was still going to physio and he was there yesterday. After he left his left shoulder pain was horrible." We do not read these notes as necessarily indicating that a new injury occurred on September 13, 2010 while the worker was undergoing physiotherapy treatment. The notes could equally be construed as referring to a worsening of the original compensable diagnosis. In our view, the conversation notes are equivocal.

On a balance of probabilities, the panel therefore finds that responsibility should be accepted for the worker's left shoulder injury as a direct and original consequence of the August 7, 2010 compensable injury and that the employer is not entitled to cost relief. 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 15th day of October, 2014