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 was not acceptable. A hearing was held on March 14, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker, a finishing carpenter, reported injuring his right shoulder on October 26, 2015. The worker described the incident as follows:

I was lifting drywall about 15 sheets with a coworker. I also lifted a hot tub with 3 other coworkers to a dolly and then onto a trailer.

At the worker's initial doctor's appointment on October 29, 2015, the physician examined the worker and diagnosed him with "Rotator Cuff Syndrome" and recommended that the worker be off work.

The worker attended a physiotherapy appointment on November 2, 2015 where he was diagnosed with "pectoralis strain, superior bicep tendon strain" and modified duties of "no lifting <5lbs, no arm above shoulder height, no push/pull" was recommended.

The employer contacted the WCB on November 3, 2015 to advise that the worker had been terminated from his position with the company on October 28, 2015.

On November 4, 2015, the WCB advised the worker that based on their review of his claim, the WCB would accept that a workplace accident occurred on October 26, 2015 but would not accept his claim for wage loss or medical aid benefits. The worker advised the WCB that he worked for part of the day on October 27, 2015 due to a shortage of work and while on his way to work on October 28, 2015, his employment was terminated.

The worker was examined by another physician on November 6, 2015 who diagnosed "R (right) RC (rotator cuff) and bicep tendonitis" and provided the worker with a medical note indicating the following modified duties:

Please excuse from lifting greater than 10lbs or over shoulder level activity with R (right) arm for the next 2 weeks for medical reasons.

On November 9, 2015, the employer advised the WCB that they would have been able to accommodate the worker within his restrictions if he hadn't been terminated.

The WCB advised the worker on November 16, 2015 that they accepted his claim for his right shoulder injury that occurred on October 25, 2015 and applicable medical treatment expenses but they would not accept responsibility for any wage loss benefits. The WCB advised the worker that there was no loss of earning capacity as he demonstrated he was able to work on October 27, 2015 and October 28, 2015. The WCB noted he delayed in seeking medical treatment and that the worker's employer indicated they would have accommodated his restrictions.

The worker requested reconsideration of the WCB decision to the Review Office on November 23, 2015. On December 3, 2015, the employer requested reconsideration by the Review Office of the WCB's decision that the worker's claim was accepted.

On February 12, 2016, Review Office determined that the worker's claim was not accepted and accordingly, the worker was not entitled to any benefits. Review Office found that on the reported date of the workplace accident, there was nothing out of the ordinary happening with his work duties. The worker reported to his employer seven hours after his shift on October 26, 2015 that his right shoulder was sore and that he assumed it was related to work. Review Office found that if the worker had suffered a workplace accident on that day, he would have reported shoulder discomfort or pain to his co-workers or employer. Review Office also determined that it took the worker another three days and being terminated from his position before he reported the workplace accident to the WCB and to seek medical attention. Review Office also noted that the worker was working a second job at the time the workplace accident was reported.

The worker filed an application to the Appeal Commission on September 20, 2017. An oral hearing was arranged for March 14, 2018.

Reasons

Applicable Legislation

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:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows: 

"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 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 worker is appealing the WCB Review Office decision that his claim is not acceptable.

Worker's Position

The worker was self-represented at the hearing. He stated that:

On October 26, 2015, I hurt my right shoulder at work, it was during my shift, towards the end of my shift. I did several hours of drywall work that day, followed by a few more hours lifting a hot tub.

The worker said that during the drive home he told the owner that he injured his shoulder. He said that night the owner messaged him and he replied the next morning at 8:19 a.m. regarding his right shoulder.

He said that on October 29th he saw a doctor who said he couldn't work. He noted there is a supporting medical document on file. He said he was told his shoulder was ripped. He saw this doctor again on November 2nd and she advised that he could perform modified work. The worker said that he was fired by the employer by this point.

The worker advised that he tried various jobs after the accident but when he tried to work more than four days, he would be off work for two weeks because he could not move his right arm. He advised that since 2015, he hasn't been able to work more than two days at a time. He said that he can't do construction work, because he can't hold his arm above his head.

The worker advised that he requires surgery to his shoulder. He was told there is a four-year waiting list for shoulder surgery.

In answer to a question, the worker advised that:

I'd like to say there was no pre-existing condition before I hurt it because I worked a full year for them without injury, without complaint and without a problem.

In reply to a question, the worker provided a copy of invoices he sent out with respect to a side job that he was performing on October 27, tiling a bathroom. He said that he could not use his shoulder and required assistance with this job.

The worker described the current state of his shoulder, he said:

My shoulder, specifically this part right here, what got ripped and torn out of the socket, has not changed, but the muscles around it, my back muscles, my pec muscles have all deteriorated, because my shoulder is not in its right position.

When asked what he currently does to occupy his time, the worker advised:

Well, last January I started a company, so every day I work 10 hours at my desk at whatever it is I need to do, order things and do all my things.

In closing the worker submitted that there was no evidence to support the employer's claim that he was working at other jobs or skateboarding. He also stated:

I, on the other hand, as soon as I got hurt I told my boss. The next morning I told all three of them, and my story hasn't changed since. I'm not trying to scam them or you out of any sort of money, I really don't care. I just want some legitimacy to my claims here. My shoulder has been hurt going on three years and nothing has made it better. That's all I’ve got to say.

Employer's Position

The employer was represented the Vice President Administration. The owner also attended. The employer representative acknowledged that:

• the worker worked for the employer on Monday October 26th 

• on that day he was carrying and installing drywall with a co-worker. 

• he also helped to move a hot tub after the drywall work. 

• later that evening he texted that he had hurt his right shoulder, in a group text to his supervisor, the owner and the representative. 

• the next morning the worker sent a text message indicating that his shoulder was better, but sore, and that he needed to "take it easy today." 

• the co-worker advised the employer that on Tuesday the worker was able to install drywall. 

• the worker worked for two and a half hours that morning, from 9:00 until 11:30, and then worked on the side job, tiling a bathroom for one of his own clients.

The employer representative agreed that the worker worked from 9:00 AM to 7:00 PM on October 26th.

The employer representative advised that on Wednesday, the worker and employer had a disagreement because the worker wanted to work on his own project while the employer needed him to work for them. This led to a dispute and the employer decided to terminate the worker. He has not worked for the employer since this date.

The employer's representative advised that the employer did not know the worker's shoulder was still bothering him given that he had worked for them on Tuesday morning and worked on his own project later that day.

The employer representative suggested that the worker's problems may be due to a new accident or skateboarding. She agreed that this suggestion was speculation. She noted that the worker had a prior problem with his shoulder as a result of a sports accident. She acknowledged that she was referring to a 2013 clinic note referring to an AC joint separation.

Analysis

The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel was able to make this finding. The panel finds that the worker sustained an accident while working on October 26.

In reaching this decision, the panel attaches significant weight to the following evidence:

• on Monday October 26, 2015 the worker worked from 9:00 AM to 7:00 PM and performed the following duties for the employer: 

o moved drywall at a project 

o loaded a hot tub on to a trailer with 3 co-workers, finished working between 6:30 and 7:00 PM

• on Monday October 26, 2015 at about 11:03 PM the worker sent a group text indicating "FYI I really messed up my right shoulder today, its out of place or something from the drywall or hot tub lifting, it hurts, hopefully it will be better in the morning"

• on October 27, 2015, in reply to a text from his employer regarding his shoulder the worker replied: "Its better but sore I will take it easy today, thanks."

• on November 2, 2015 the worker attended a physiotherapist who diagnosed the worker with a pectoralis strain, superior bicep tendon strain. The physiotherapist recommended restriction of no lifting > 5 lbs, no arm above shoulder height, no push/pull, to be in place for 2 weeks.

• on December 1, 2015, the physiotherapist completed a Discharge Assessment which indicted that worker's status was functional and that he had not attended since November 24, 2015. She checked the box indicating that recovery was satisfactory.

Regarding the worker's injury, the panel attaches significant weight on the opinion of the treating physiotherapist as to the medical diagnosis. The panel finds that the worker sustained a pectoralis strain, superior bicep tendon strain based on the examination findings of the treating physiotherapist.

The panel considered the duties which the worker performed on October 26, 2015. It was generally agreed by the parties at the hearing that the worker assisted with carrying drywall at a residence and assisted in lifting a hot tub onto a trailer. The panel finds that this work activity did not involve overhead lifting, but rather carrying below the shoulder level resulting in significant traction on the right shoulder. The panel finds that the diagnosed strain injury is consistent with the job duties and mechanism of injury provided by the worker, specifically carrying drywall and lifting a hot tub.

The worker confirmed that since he was discharged by the treating physician on November 27, 2015, he has only seen his family physician and has not been to any clinic or specialists. While the worker discussed his current status and ongoing entitlements to benefits, the panel has only dealt with the issue of claim acceptability which was the issue before us, and makes no findings regarding ongoing entitlements.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of April, 2018