The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to medical aid benefits. A hearing was held on November 8, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to medical aid benefits.

Decision

The worker is entitled to medical aid benefits.

Background

On August 24, 2017, the employer reported that the worker injured his left shoulder on July 29, 2017 in an incident described as:

At the station, while checking gear on [equipment] an injury to the L (left) shoulder occurred attempting to lower self to the ground.

The worker attended for an initial physiotherapy appointment on August 21, 2017. He reported to the physiotherapist that he hurt his left shoulder after holding on to a bar while getting off a piece of equipment and felt an instant pain in his left shoulder. He was diagnosed with a left partial rotator cuff tear. It was recommended by the physiotherapist that the worker should have restrictions of avoiding lifting overhead with his left shoulder and have caution with any weight out of body envelope using his left shoulder.

At his initial appointment with his family doctor on August 23, 2017, the worker reported a traction injury to his left shoulder that occurred at the "end of July." It was further noted that the

worker had a previous left shoulder injury. The worker's family doctor diagnosed the worker with a "Subacromial impingement vs cuff tear."

On September 29, 2017, the WCB advised the worker that his claim for a workplace accident that occurred on July 29, 2017 was accepted but no responsibility would be accepted for medical aid benefits related to his left shoulder injury. The WCB advised that, as there was no medical evidence until approximately three weeks after the workplace accident, a causal relationship between the worker's left shoulder difficulties and the workplace accident could not be established.

The WCB received a telephone message from the worker's treating physiotherapist on October 4, 2017 confirming that the worker first contacted her office on August 8, 2017 to book an appointment but due to holidays, she could not see him until August 24, 2017. She further advised that the worker chose to continue receiving treatment from her as she was familiar with his prior shoulder injury.

The worker's representative requested reconsideration of the WCB's decision to Review Office on December 19, 2017. The worker's representative noted disagreement with Compensation Services' focus on the worker delaying to seek treatment. The worker's representative advised that the worker felt he could treat the injury on his own but once he felt it was not improving, he sought medical treatment. The employer submitted a response on February 9, 2018, which the worker's representative responded to on February 13, 2018. Copies of each submission were shared with the parties.

On February 15, 2018, Review Office determined that the worker was not entitled to medical aid benefits. Review Office found that the worker's delay in seeking treatment impeded their ability to establish a relationship between the worker's reported left shoulder issues and the workplace accident on July 29, 2017. Review Office also could not accept the diagnosis of a possible rotator cuff tear as it was felt most people who had that type of injury would experience pain and loss of function and would seek medical attention soon after the accident.

The worker's representative filed an appeal with the Appeal Commission on March 15, 2018. An oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

The worker has an accepted claim for an injury arising from a July 29, 2017 accident. He is seeking coverage for medical aid benefits.

Worker's Position

The worker was represented by a worker advisor.

The worker's representative noted that the WCB accepted his claim for an accident that occurred on July 29, 2017 but denied entitlement to medical aid benefits, because the injury was not significant enough to seek health care treatment. She said that it is the worker's position that he had a work-related left shoulder injury and the WCB is responsible for payment of medical treatments.

The worker's representative also stated that the WCB denied benefits because the worker did not report his ongoing difficulties to anyone at work. She submitted that there is no requirement under the Act that a worker must report ongoing difficulties to coworkers or his employer. The worker's representative noted that this is a no-time-loss claim. She submitted that there is no need to report ongoing difficulties unless a worker is unable to perform his duties. In this case, the worker was able to perform his duties.

She noted that the WCB also denied responsibility because the worker did not seek medical attention until August 21, 2017, which it considered to be a delay in seeking treatment. The worker's representative commented that three weeks is not a significant delay and the worker offered a reasonable explanation for waiting to receive treatment.

Regarding the timeliness of reporting, the worker's representative noted the employer’s report confirmed the date of accident as July 29, 2017, and noted the worker reported he injured his left shoulder when he was attempting to lower himself down to the ground from a truck. She said that the employer report also confirmed the worker reported the incident to an employer representative as a sprain/strain. An employer’s human resource clerk confirmed that the accident was reported on July 30, 2017.

In reply to a question about the accident, the worker advised that:

There’s a sidebar at the side of the [truck] that you hold onto, and I’ve done it many times before, but this particular time was no different than any other. And I had stepped down and tweaked my shoulder, that’s what it felt liked (sic), or strained it. And it hurt, so I had a concern with it, then I went, put some ice on it, and I ended up making a report. It was quite painful and it felt in the exact same spot as the previous injury.

He said that after the accident his shoulder became inflamed, and he applied an ice pack and had some Tylenol. He said that he sat down in the chair for a while, and tried to decrease the amount of pain.

The worker explained that he had been dealing with problems with the shoulder for a while and thought it was just another little setback, so he continued on with the previous physio recommendations, ice, anti-inflammatories and rest, hoping that it would get better. He advised that he contacted his physiotherapist and made an appointment, but she was not available due to personal issues. He preferred to deal with her as she had treated him in the past.

In reply to a question from the panel, the worker explained that in his current positon, he is not subject to the same physical demands he would have in his previous positon, but he still wears full gear and attends calls.

The worker confirmed that he has another job that he does in his off hours, but that he had not performed that job since the accident.

In reply to a question about the pain from the injury being in the same location as his 2014 injury, the worker stated:

The pain was in the exact same spot…

If you had something inflamed or sore, or a damaged ankle, and you come along, and you have, your muscles are strong enough, you initially step off the curb and it hurts a little bit. You’re able to take care of that yourself, aren’t you, as opposed to breaking your ankle? A year later you come down off the curb, you strain it, you think, well, this is just a reoccurrence of what happened before.

On the issue of whether the injury is a recurrence, the worker's representative commented this is a specific new incident. She stated that whether it aggravated or enhanced a previous condition, the injury is still related to this particular new incident.

The worker advised that he is still receiving physiotherapy treatments.

Employer's Position

The employer was represented by its Compensation Specialist. The employer representative advised that the employer supports the WCB decision.

The employer representative stated that:

As indicated, no one is questioning whether there was an accident here. It’s a matter of, given the circumstances, can the panel make the decision based on the weight of evidence that there is a relationship between that reported accident, and the injury that’s reported through the medical information submitted to the claim?

He commented that it is common to deny claims with a substantive delay in attending healthcare after an accident, where the employee continues to work regular duties in the interim from the date of accident until first seeking healthcare, and where there are no reports of difficulties or observations in the interim period in the workplace. The employer representative stated that the employer considers a 3 week delay in receiving treatment to be a substantial delay.

The employer representative raised other issues which he suggested that the panel consider, including:

• the employee initially reported that the injury was also related to a prior injury in 2014. The employer representative noted that the 2014 claim is currently closed.

• an inconsistency in the date of the accident: the July 29 reported date versus August 21 date as reported in the employee’s report of injury. As well the physiotherapist report of August 21 refers to an incident at work "last week."

• issues surrounding when the worker called physiotherapist’s office.

The employer representative stated that to accept the claim, the Appeal Commission:

…would be saying that based on a balance of probabilities, you’ve determined that the explanations effectively reconcile what I would see as undeniable factual evidence, which resulted in entitlement being declined.

Analysis

The worker has an accepted claim for a workplace injury, however, the WCB has declined to pay medical expenses that the worker believes are related to his accepted injury. For the worker's appeal to be approved, the panel must find that the medical expenses claimed by the worker are related to his compensable injury. For the reasons that follow, the panel was able to make this finding.

The panel confirms that the worker sustained an injury to his left shoulder while in the course of his employment on July 29, 2017 and finds that the worker is entitled to medical expenses in relation to his compensable injury. In support of this decision the panel notes:

• the worker reported the injury to an employer representative on July 30, 2017. This was confirmed on the Employer Report dated August 23, 2017. The report indicates that the worker was injured at 6:00 PM on July 29, 2017 and reported on July 30, 2017 at 7:00 AM.

• the description of the injury, a sprain/strain of the shoulder, noted on the Employer report is consistent with the mechanism of injury reported by the worker, specifically climbing down off a vehicle.

• the worker sought medical treatment within a reasonable period of time. The panel notes that the worker had a previous injury to this area and attempted to deal with the injury by himself before contacting a physiotherapist on August 8, 2017.

The employer expressed concern regarding the delay in seeking medical treatment. As noted above, the panel found the worker sought medical attention within a reasonable period of time. In making this assessment the panel notes that the worker had a similar injury several years earlier for which he received both professional treatment and self-treatment. The panel finds that given the worker's prior injury to the same anatomical area and his medical training, it was reasonable for him to attempt self-treatment, and notes that in any case, the worker sought treatment from a medical professional as soon as he found that self-treatment was not effectively treating his injury.

The panel notes that the treating physiotherapist was not immediately available. The panel finds that it was reasonable for the worker to wait the short period to obtain treatment from someone who is familiar with his medical history.

The employer representative also expressed concern regarding issues surrounding the date of the accident when the worker called physiotherapist’s office. The panel is satisfied that the accident occurred as reported by the worker on July 29, 2017. This is supported by the Employer's Report.

The panel finds on a balance of probabilities that the worker is entitled to medical aid benefits for treatment of his sprain/strain type injury.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of November, 2018