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 compensation was not acceptable. A hearing was held on September 29, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On September 23, 2014, the worker filed a claim with the WCB for a sharp pain in his right shoulder that occurred on January 25, 2014 when assisting to unload a heavy patient on a stretcher from a high opening. The worker stated that he continued to work and the pain in his shoulder had worsened. The worker said he had a tear in his shoulder from the accident and would have to undergo surgery.

On September 25, 2014, a WCB adjudicator spoke with the worker to discuss his claim. The worker reported that he was lifting a heavy patient with several co-workers. The worker did not feel a pop or snap at the time, but had a sore shoulder after the call. His symptoms included issues with range of motion and strength. He had more pain with certain exercises, and when lifting in front and upwards of his body. The worker reported that he had a partial separation of his right shoulder about three years prior while playing hockey, but it had fully healed. When asked why he did not file a claim with the WCB sooner, the worker said he reported the initial injury to his employer and was not sure why they did not file a report. He did not suffer any time loss or have other expenses, and therefore did not feel that he needed to contact the WCB. He said he had limited experience with the WCB.

Medical reports were obtained from the treating physicians with respect to the worker's right shoulder condition.

On October 16, 2014, a WCB medical advisor was asked to review the file and the reported mechanism of injury, and provide an opinion as to the compensable diagnosis. On October 27, 2014, the medical advisor opined that the diagnosis was subacromial impingement, chronic, based on the reported symptoms, examination findings and MRI results. When asked whether the findings on file supported a relationship between the initial injury and the worker's ongoing symptoms, the medical advisor responded as follows:

On balance, no. The referral to the sports medicine physician of Feb 4 14, occurred after the reported ci [compensable injury], yet there was no mention of a work injury, only of chronic shoulder pain, prior hockey injuries, and symptoms experienced "when trying to pull straps of…equipment."…The sports physician further noted in his Feb 25 14 report that "The right (shoulder) has given him significant problems for a year," yet the ci occurred only one month prior to this report. A significant injury to the rotator cuff would be expected to be associated with pain and functional impairment. It is noted that [the worker] continued to perform his regular duties and to exercise at the gym, though with some modifications. The conditions which the OS is proposing to treat surgically (subacromial bursitis, biceps tenosynovitis, biceps tendinopathy/tearing) are largely chronic/degenerative in nature and unlikely to have been materially altered other than transiently by the ci of nine months ago. A May 27 14 report from the sports physician noted an excellent response to an initial subacromial injection noting "feels resolved." The claim with WCB appears to have been lodged once the proposal for surgery was made and relates to chronic/pre-existing conditions.

On November 12, 2014, the worker was advised that his claim for compensation was disallowed, as an injury related to the accident had not been established. The decision was based on findings that the worker did not mention the workplace accident to his treating healthcare providers, his history of ongoing right shoulder difficulties, and the WCB medical advisor's opinion.

Additional medical reports were placed on file in 2015, including an operative report dated March 18, 2015. The post-operative diagnosis was a right shoulder SLAP tear with extension into the posterior labrum.

On July 15, 2015, a WCB orthopedic consultant opined that the mechanism of injury related to the workplace injury of January 25, 2014 was not consistent with a labral tear, but was consistent with a sprain of the right shoulder; the natural history of a strain would be resolution within three months; and the need for surgery was not related to the workplace injury. He further stated there was a remote injury of the AC joint, which did not appear to be clinically significant.

On July 15, 2015, the worker was advised that the new information had been reviewed and the WCB could not establish a relationship between his workplace accident and the difficulties that led to surgical repair. On February 8, 2016, the worker appealed the July 15, 2015 decision to Review Office.

On April 4, 2016, Review Office determined that the worker's claim was not acceptable.

Review Office noted that the worker felt his right shoulder injury was the result of a lifting maneuver on the date of accident. Seven months prior to reporting to the WCB, however, he reported a different mechanism of injury to his doctor.

Review Office placed weight on the reporting most proximal to when the worker first sought medical treatment for his right shoulder following the reported incident at work. This evidence supported chronic long-term problems and injuries related to past recreational activities and not a workplace injury due to a lift on January 25, 2014. On August 13, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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 WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

WCB Policy 44.10.20.10 (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The following definitions are set out in the Policy:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented at the hearing. The worker made a presentation and responded to questions from the panel.

The worker described the January 25, 2014 workplace incident, where they were lifting a heavy patient. He noted that this was not something they did regularly. The patient was being unloaded on a stretcher, down a ramp. There were little blocks on the ramp about 2 inches high, and they had to lift the stretcher up and over the blocks so it could continue down the ramp. The worker was stationed at the higher end of the ramp, which was at about chest height on him. He had to reach forward, with outstretched arms, to lift the patient. The motion "was a bit of a jerk and lift", and he felt a sharp pain. He said it is common in his job to go through pulled muscles and aches and pains, but he did express to his supervisor and coworkers at the time that he might have hurt his shoulder, and they encouraged him to fill out an injury form. He filled out an in-house injury form that same shift, but did not know what happened to it or realize he had to do anything further.

The worker referred to a letter from a coworker which was submitted in advance of the hearing. The worker noted that the coworker was a witness to the injury, and she described in her letter how the worker worked in pain from that point on, and how she assisted him with some of his duties.

The worker said that he still had a strong left arm and was able to work after the injury, but there were specific things which he had trouble doing or would make him wince in pain, including lifting objects heavier than 20 or 30 pounds straight out in front of him. He said that after the incident, his coworker would always come over and help him, by lifting their bag and putting it in the truck and doing small things like that.

The worker said he tried to attend at a medical clinic on January 26 or 27, 2014, but they were fully booked that day and did not take appointments. He then made an appointment to see his family doctor on February 4. The worker said he mentioned and demonstrated the lift for his doctor, even though it was not referred to in the doctor's report. The worker said that the only pre-existing problem he had with his right shoulder was some range of motion issues. He said that throwing a ball overhand was very difficult for him, not in terms of pain, but range of motion, and that this problem went back decades. He noted he had not pitched baseball since his early teens and had never pitched at a high level. The worker said that even though he had range of motion issues prior to January 25, 2014, he did not have pain until after that date.

Employer's Position

The employer did not participate at the hearing of the appeal. The employer's position, as set out in an email dated August 22, 2016, was that they supported the Review Office decision and the appeal should be dismissed.

Analysis

The issue before the panel is claim acceptability. In order for the worker's appeal to succeed, the panel must find that the worker's right shoulder injury was causally related to his employment. For the reasons that follow, the panel finds that the worker's injury was related to his employment as an enhancement of a pre-existing condition.

The panel finds that the worker was very forthright and consistent in his evidence. The worker described the January 25, 2014 incident and surrounding circumstances in detail. The evidence shows that he immediately reported the incident to his supervisor and coworkers, and completed an internal injury report that same day. He also attempted to get a medical appointment within a day or two of the incident.

The evidence further shows that the worker did not take time off work following the incident, but had difficulty or pain doing specific things, including lifting heavier objects straight out in front of him. As further examples, the worker indicated that opening push-bar doors after January 25 caused him quite a bit of pain, and pulling on the straps of his equipment (which he described as being similar to putting on a backpack) and putting on his seatbelt were both awkward and painful.

The worker's evidence with respect to the January 25 incident and its effect on the worker was corroborated by his coworker, who wrote that she was on the same call with the worker when he was injured. The coworker described the circumstances of the call, and stated that:

[The worker] expressed to me immediately upon returning to our truck that he had hurt himself in the course of lifting the patient. [The worker] continued to work and did not take any time off. His injury was noticeable in his day to day activities...As an example, not one to often ask for help in completing physical tasks, [the worker] needed assistance with the simple task of lifting equipment up into the truck…

The evidence shows that the worker continued going to the gym, which he said was very important to him, but had to modify his exercises and regimen. In response to questions from the panel, he described exercises which he could not do after the January 25 incident, and how he "went lighter and higher repetitions just to guard against pain and hurting [his shoulder]." The worker stated that since his right shoulder surgery, he has progressed to the point where he is able to do the same things he could do before the incident and his entire body regimen is back on track.

It is the panel's understanding that the mechanics of the incident as described by the worker would not necessarily cause a labral tear. The panel further understands that the worker's long-standing range of motion issues were consistent with a labral tear. The panel accepts the WCB medical advisor's opinion that the tear of the worker's right glenoid labrum was a pre-existing condition.

The panel is also of the view, however, that there is sufficient evidence to show, on a balance of probabilities, that the worker's pre-existing right shoulder condition changed as a result of the January 25, 2014 incident. The worker went from having no pain as a result of his range of motion issues, to experiencing significant and ongoing pain in his right shoulder and difficulties performing, or an inability to perform, various tasks and movements following the incident.

As the change in the worker's right shoulder condition made surgery necessary, the panel finds that the January 25, 2014 incident resulted in an enhancement of the worker's pre-existing condition, which is compensable.

In light of the foregoing, the panel finds, on a balance of probabilities, that the worker's right shoulder condition and labral tear were enhanced by, and therefore causally related to, the January 25, 2014 workplace incident. Accordingly, the claim is acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2016