The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he had recovered from the effects of his August 26, 2014 shoulder injuriesand was entitled to medical aid benefits. A hearing was held on June 18, 2015 to consider the worker'sappeal.  

Issue

Whether or not the worker is entitled to medical aidbenefits in relation to the two accidents occurring on August 26, 2014.  

Decision

That the worker is entitled to medical aid benefits inrelation to the right shoulder injury occurring on August 26, 2014.  

Decision: Unanimous

Background

On September 5, 2014, the worker filed a claim with the WCB for injuries he sustained to both shoulders during the course of his employment as an owner operator. The accident date was listed as August 26, 2014. The worker reported:

I unloaded my trailer. I had to put on a ramp to drive down from the 2nd level of the trailer. The ramp was very heavy to move. I was using my left shoulder to put this together and putting it in the right position. I felt pain in my left shoulder. My left shoulder was still bothering me so I am going to see the doctor September 5.

I had injured my right shoulder just a few hours earlier when driving out between the 1st and 2nd level of the trailer. I got stuck between 2 pieces of metal with my right arm.

In a doctor first report dated September 5, 2014, the treating physician reported that the worker had bilateral shoulder pain since August 26, 2014 after being trapped between 2 levels in his trailer. The pain started on the right shoulder and then spread to the left. After examining both

shoulders, the treating physician stated: "Bony palpation is normal. Rotator cuff: soft tissue palpation abnormal, tender. No redness, Not swollen. Not warm, Symmetric. No deformities present. No effusion. Joint stable. Good ROM (range of motion)." The worker was assessed with a bilateral shoulder sprain and anti-inflammatory medication was prescribed.

On September 5, 2014, the worker spoke with a WCB case manager, assisted by an interpreter. The worker described the accidents of August 26, 2014 that led to his shoulder injuries. The worker said his right shoulder felt bruised and his left shoulder had a muscular strain feeling. The worker said his right shoulder was worse than the left. He did not miss work due to his injuries. The worker said he took his time when unloading trailers as he was worried that he would do further damage. That was why he was going to see a doctor. The WCB case manager advised the worker that two compensation claims would be filed as the worker suffered two separate injuries at two separate times.

On October 10, 2014, the worker advised the WCB that his left shoulder was better and his right shoulder still bothered him. The worker stated that he did not have an opportunity to see a doctor due to his work schedule and that his job was difficult because he had to offload machines off of the trailer. The WCB advised the worker that his file would be closed as he was doing his regular work and there was no medical treatment.

A Doctor First Report showed that the worker was seen on November 24, 2014 for pain in both shoulders. The physician’s report noted the worker: "Has not tried physio. Right › Left. No trauma. Works as truck driver with lots of heavy lifting." He diagnosed a rotator cuff sprain.

On December 1, 2014, the worker first sought treatment from a physiotherapist.

On December 9, 2014, the worker advised the WCB that he saw a doctor a few weeks ago and was told to see a physiotherapist for his shoulders. The worker said his right shoulder was worse than his left, and advised that he continued his regular duties, but had asked his employer for lighter work. The worker stated he could not afford to take time off work.

In a note to file dated January 5, 2015, the WCB adjudicator documented that the employer did not have a record of the worker making any ongoing complaints with respect to his injury or that he requested lighter loads or declined any specific tasks.

In a decision dated January 7, 2015, WCB advised the worker that it would not accept responsibility for his current shoulder issues as being a recurrence of his August 26, 2014 workplace injury. The WCB case manager stated that to accept a claim for recurrence, continuity of symptoms dating back to the original injury must be established. It was noted that the worker was cleared to return to full duties on September 5, 2014 by a medical doctor and there was no additional medical information after this date until December 1, 2014 when he saw

a physiotherapist. His employer was not able to confirm that they were aware that he was having continued issues with his shoulders. In the opinion of Compensation Services, continuity of the injury had not been established.

On February 24 and 27, 2015, a worker advisor requested Review Office to reconsider the January 7, 2015 decision. The worker advisor referred to file information to support that the worker's compensable bilateral shoulder injuries progressively became worse while he continued to perform his regular duties and therefore he should be entitled to medical expenses.

In a decision dated April 21, 2015, Review Office determined that the worker was not eligible for further medical aid benefits.

The worker, through the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

In considering this appeal, the panel is 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(2) of the Act provides that wage loss benefits will be paid until the loss of earning ends. Subsection 27(1) provides that medial aid will be paid by WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s Position

The worker, represented by a worker advisor, took the position that he requires medical aid to cure and provide relief from the compensable injuries arising out of the accidents of August 26, 2014. The worker indicated that medical aid was required for treatment of the compensable right shoulder injury, but was not currently required for treatment of the compensable left shoulder injury.

The worker argued that there is no issue as there is continuity between the injuries of August 2014 and the current claim for medical aid. Despite his injuries, the worker noted that he continued with his regular work duties, although self-modified as required to address his ongoing symptoms. The worker explained that due to the nature of his job and a change in his residence, it was difficult to obtain and attend for medical and physiotherapy treatments, although his symptoms continued to progress through September and October 2014. The worker’s physician, in late November 2014, assessed the injury as a rotator cuff strain and referred him to

physiotherapy. The physiotherapist subsequently confirmed the diagnosis early in December 2014. Throughout this period, the worker remained in communication with the WCB as to the ongoing effects of the injury and the impact on his work.

The worker advisor stated that the evidence demonstrates continuity from the original injuries in August 2014 through to the request for medical aid and that the clinical findings of both the worker’s physician and physiotherapist provide sufficient support for the medical aid claimed. The claim should therefore be allowed.

Employer's Position

The employer did not participate in the appeal.

Analysis and Decision

The issue for determination is whether or not the worker is entitled to medical aid benefits in relation to the two accidents occurring on August 26, 2014. In order to find that the worker is entitled to medical aid benefits, the panel must find that the worker requires medical aid to cure and provide relief from the injury caused by a compensable accident.

The worker carefully described to the panel the circumstances leading to the injury of his right shoulder, and then later the same day, to his left shoulder, while making deliveries in the course of his employment. The WCB accepted responsibility for both of these injuries as the result of accidents arising out of and in the course of employment.

The worker first sought medical attention on September 5, 2014 and was diagnosed at that time with bilateral shoulder sprain. He was advised to treat with anti-inflammatory medication and to follow up with his family physician.

The worker’s evidence was that he had continued his regular duties after that date and that the nature of his work schedule, coupled with the fact of a change of residence during this period, made it particularly challenging to obtain follow-up medical care.

He next sought medical attention on November 24, 2014 at which time he was diagnosed with a rotator cuff sprain. At that time, the physician noted pain to both shoulders, but more on the right than on the left. The treatment prescribed was RICE, anti-inflammatory medication and physiotherapy.

Soon after, the worker sought and obtained physiotherapy with the initial assessment on December 1, 2014. At that time, the physiotherapist assessed a strain/impingement, right and left

shoulders. The physiotherapist recommended treatment for 6-8 weeks and provided a home program of strengthening and stabilization exercises.

The worker subsequently obtained further physiotherapy and eventually chiropractic treatments to address the ongoing pain and mobility restrictions in his right shoulder.

Throughout, the worker continued to work at his regular duties, although he noted he has self-modified how he carries out certain tasks. For example, he stated that he lifts only below shoulder level with his right arm, where possible. He seeks out assistance with unloading as required and he has increased use of his left hand and arm.

As noted, the WCB accepted the right shoulder diagnosis of rotator cuff strain based on a traumatic injury to that shoulder as described by the worker. The panel finds that the mechanism of injury of a blow to the front of his right shoulder as described is consistent with diagnosis by both physician and physiotherapist of rotator cuff strain.

We note that symptoms of the injuries to both shoulders were evident immediately and that the worker promptly advised his employer of the accident.

The ongoing clinical findings and evidence of the worker regarding continuing symptoms and self-modification of his job duties, lead us to conclude, on a balance of probabilities that the worker’s claim for medical aid benefits with respect to his right shoulder injury should be granted.

With respect to the left shoulder injury claim, the WCB accepted the claim as a compensable injury. The worker’s evidence before the panel was that he has functional use of the left shoulder, although he experiences occasional pain with overuse. The worker noted, through his worker advisor, that he is not advancing a claim for medical aid for the left shoulder at this time. The panel therefore has made no determination in respect to his left should claim.