The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to her compensation claim. A hearing was held on October 20, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is entitled to further benefits.

Background

On June 11, 2015, the worker felt a pop in her left shoulder when helping a co-worker place a client back into her chair.

On July 23, 2015, a WCB adjudicator spoke with the worker to discuss her claim. The worker indicated that she had the resident by the legs, and felt a pop in her left shoulder when she went to turn her. The worker said a physician unofficially looked at her shoulder and said she should rest it for a few days. The worker advised that she was on vacation from June 12 to June 30, and did not have any new incidents or accidents. Between July 1 and 10, 2015, she worked full duties, but had difficulty doing so and made ongoing complaints to the charge nurse.

A Doctor First Report dated July 13, 2015 noted that the worker complained of left shoulder pain for the past week, mostly with lifting. Her symptoms started after she was trying to lift a resident's legs and felt a popping sound. She was off work after that. Her symptoms had come back since working again from June 30 onward. The diagnosis was left shoulder injury NYD (not yet diagnosed.)

On July 13, 2015, x-rays of the worker's left shoulder showed findings of degenerative osteophytes arising along the superior inferior margin of the acromion-clavicular joint. The glenohumeral joint appeared unremarkable.

On July 23, 2015, a WCB medical advisor reviewed the file information and stated, in part:

In order to provide an accurate [diagnosis] at the time of the accident, review of medical information from around that time would be required. Since she didn't attend for medical attention, that is not available. Based only on the mechanism of injury, a serious structural injury would not be expected. This is further supported by her lack of seeking medical attention initially and her ability to perform her regular duties up to July 10.

The [diagnosis] in relation to the [mechanism of injury] would be a non-specific shoulder injury, the clinical equivalent to a strain.

By letter dated August 12, 2015, Compensation Services advised the worker that her claim was accepted as a left shoulder strain injury, but she was not entitled to any wage loss benefits. The decision was based on the findings that a definite diagnosis pertaining to her left shoulder had not been established and a strain injury would heal within a matter of weeks. Given that she continued to work her regular duties and her symptoms worsened 4½ weeks after the injury, the WCB was unable to medically account for her ongoing shoulder difficulties in relation to the injury. Wage loss and ongoing medical were therefore denied.

On September 29, 2015, a worker advisor submitted to Review Office that the file evidence supported a causal relationship between the June 11, 2015 incident and the worker's ongoing left shoulder condition. The worker advisor noted that the worker's left shoulder diagnosis was unknown but her symptoms of pain had persisted since the June 11 injury. The action of hanging onto the legs of a resisting patient resulted in a pop in her left shoulder and the onset of symptoms. Therefore, the weight of evidence supported an association and the worker should be entitled to coverage for wage loss benefits.

On November 26, 2015, Review Office noted that they were returning the file to Compensation Services to conduct a further investigation into the worker's claim.

On February 19, 2016, Compensation Services advised the worker that the decision to disallow wage loss benefits was confirmed. The decision was based on the findings that a typical strain injury would begin to recover within days of the injury and be fully healed within a matter of weeks. The removal from work came 4½ weeks post injury, which was not consistent with the natural history of a shoulder strain. The worker suffered from a degenerative condition and symptoms arising from this would not be a compensable injury. Wage loss benefits were therefore denied, as the accepted diagnosis was well beyond the normal recovery, and no further entitlements were due.

On April 25, 2016, the worker advisor submitted a report from an orthopedic surgeon dated April 7, 2016 which provided a diagnosis of impingement of the worker's left shoulder. The worker advisor contended that the medical information and diagnosis supported a relationship between the worker's ongoing left shoulder difficulties and the June 11, 2015 injury.

On May 17, 2016, the WCB medical advisor was asked to review the file and provide an opinion as to whether the new diagnosis was medically accounted for in relation to the mechanism of injury on June 11, 2015. On May 19, 2016, the medical advisor stated, in part:

…The worker now presents with impingement symptoms and findings. None were provided initially (positive impingement tests, pain with rotator cuff resistance, painful arc, subacromial tenderness - none of which were documented on that initial exam) so the [diagnosis] cannot be medically accounted for in relation to the [compensable injury].

In a decision dated May 20, 2016, Compensation Services determined that a causal relationship between the original injury on June 11, 2015 and the new diagnosis of left shoulder impingement could not be established. Therefore, no change would be made to the decision to disallow wage loss benefits.

On June 3, 2016, the worker advisor appealed the decision to Review Office. By letter dated June 22, 2016, the employer's representative stated they had no objections to the claim, as they felt the worker's ongoing complaints were substantiated.

On July 29, 2016, Review Office determined there was no entitlement to benefits in relation to the diagnosis of left shoulder impingement and there was no entitlement to wage loss benefits on the claim.

Based on its review of the file evidence, Review Office confirmed the compensable diagnosis was a strain injury. It stated that the "pop" which the worker described was not considered to be evidence of a significant injury, given that MRI findings failed to show any tearing of the shoulder musculature, including the rotator cuff. Review Office noted that the worker reported to her doctor that she was pain free in the days and weeks that followed the initial injury, and did not seek or require medical attention during that period. Review Office therefore concluded that the worker had materially recovered prior to her return to work on June 30, 2015. Review Office also concluded that the impingement in the worker's shoulder was not related to the compensable injury.

On August 10, 2016, the worker advisor 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.

Subsection 4(2) provides that 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.

Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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 ends, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), addresses the issue of pre-existing conditions when administering benefits. With respect to wage loss eligibility, the Policy states:

(a) 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.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The Policy also provides definitions of pre-existing condition, aggravation and enhancement.

Worker's Position

The worker was assisted at the hearing by a worker advisor, who made a presentation on her behalf. The worker advisor provided a written copy of her presentation, as well as an operative report dated September 13, 2016. The worker responded to questions from the worker advisor and the panel.

The worker's position was that her diagnosis of left shoulder impingement was associated with her June 11, 2015 workplace accident, and she should be compensated.

The worker advisor submitted that there was no evidence that the worker recovered from her workplace injury. She went on holidays after the incident, and did nothing at that time to aggravate her injury. Her condition became progressively worse during the course of her employment between July 1 and 10, and resulted in her loss of earning capacity. It was submitted that medical information shows that her left shoulder condition became aggravated and progressively worse once she returned to performing her regular duties after July 1, 2015.

The worker advisor asked the panel to also consider the application of WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury. She submitted that the worker's left shoulder condition was made more susceptible to further injury when she returned to work on July 1, and that performing her regular duties resulted in an impingement injury to her left shoulder which was predominantly attributable to the June 11, 2015 incident and ultimately required surgery.

Employer's Position

By letter dated August 17, 2016, the employer's representative advised that the employer would not be actively participating in the appeal. Having said that, the representative added that the employer had no objections to the worker's appeal, as noted in their June 22, 2016 correspondence with Review Office.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required further medical aid benefits as a result of her June 11, 2015 workplace accident. The panel is able to make that finding.

The worker has an accepted claim for a sprain/strain injury to her left shoulder as a result of her June 11, 2015 workplace accident.

Based on our review of the evidence on file and at the hearing, the panel finds, on a balance of probabilities, that the worker's left shoulder injury and pain had not resolved by July 13, 2015, when she sought further medical attention from the treating doctor and was advised that she should be off work. In arriving at this conclusion, the panel notes that:

• The worker stated that she sought medical advice on the morning of the accident from the doctor who was doing rounds in the building. He did some range of motion testing, said he thought she had a soft tissue injury, and told her to rest her shoulder;
• In a February 4, 2016 report to the WCB, the doctor confirmed that he saw the worker on June 11, 2015 while doing his rounds. He reported that his diagnosis on that date was left shoulder pain - muscle strain, that there were no red flags, and that he advised the worker to use painkillers and to see him in his clinic if the symptoms persisted or worsened;
• The worker was on vacation for the three weeks following the accident. The worker's evidence at the hearing was that she was very inactive for those three weeks. She did not do any lifting or anything physical during that time, and assumed her shoulder would heal with rest. They drove out of province, but she did not do any of the driving. She had difficulties and pain with certain movements, notably when reaching behind her into the back seat of the vehicle. She took pain medication during that entire three week period, as well as muscle relaxants at night. The panel accepts and places significant weight on the worker's evidence in this regard.
• The worker's evidence at the hearing was that she was still having trouble reaching up or behind her when she started back to work. She was doing her regular duties in early July 2015, but certain activities were particularly difficult and painful, including positioning and turning residents. She said her symptoms bothered her from the first day back to work. She continued taking the pain medication and muscle relaxants, but her symptoms got progressively worse every day until the end of the week, when she could no longer continue working. She went back to see the doctor in his clinic on Monday, July 13, and was taken off work. The panel accepts the worker's evidence in this regard.

The panel also placed weight on the July 13, 2015 report of the treating physician, who examined the worker on that date and provided the diagnosis of left shoulder injury NYD. The panel is of the view that the worker's returning to seek medical attention from the attending physician when her symptoms worsened, as directed by the physician, provides evidence of medical continuity between the workplace injury and her ongoing condition. The physician reported medical findings which included painful external rotation, painful arc, and a positive Hawkins test, which the panel understands to be a test for impingement.

The treating physician ordered an x-ray on July 13, 2015, which showed that the worker had degenerative osteophytes arising along the inferior margin of the acromion-clavicular joint. These findings were supported by the December 13, 2015 MRI, which found that the worker had considerable ACJ OA (acromioclavicular joint osteoarthritis), and by the April 7, 2016 report from the orthopedic surgeon, and were confirmed by the surgery which was performed on September 13, 2016. The operative report of that surgery refers to the indication for that procedure as being that the worker had ongoing shoulder pain since a workplace incident the previous June, with impingement symptoms and an MRI showing AC joint arthrosis with osteophytes in the region of the AC joint.

Based on the medical and other information before us, the panel finds, on a balance of probabilities, that the injury which the worker suffered as a result of her June 11 workplace accident was a left shoulder sprain/strain in the environment of a significantly impinged acromion. The worker's evidence at the hearing was that she did not have any problems with her left shoulder prior to June 11, 2015. Based on all of the evidence, the panel is satisfied, on a balance of probabilities, that the workplace injury caused the worker's pre-existing degenerative condition to become symptomatic, and the interaction between her job duties, her unresolved muscle strain and her pre-existing condition made her unable to work after July 13, 2015 and ultimately led to the need for surgery on September 13, 2016. The panel is satisfied, based on the evidence before us, that the worker's pain never resolved, and she had not returned to her baseline or pre-accident status by the time of her September 13, 2016 surgery.

In conclusion, the panel finds that the worker sustained a loss of earning capacity and required further medical aid as a result of her June 11, 2015 workplace accident, and is therefore entitled to further benefits as indicated above.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 15th day of December, 2016