The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to wage loss and medical aid benefits after November 29, 2017. A hearing was held on October 25, 2018 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after November 29, 2017.

Decision

The worker is entitled to wage loss and medical aid benefits after November 29, 2017.

Background

The worker reported to the WCB on August 17, 2017, suffering multiple injuries in a workplace accident that occurred on August 3, 2017 that he described as:

I was delivering a load of furniture. The sofas were standing on end. I was using a 2-wheeler and I tripped on one of the boxes. I was trying to hold the sofa up and I fell down. This was inside the trailer. The floor of the trailer was a ribbed metal floor. When I landed, I was on my butt and my right hand was still holding on to the cardboard on the couch. My left hand automatically shot out to keep it from crushing my face. It all landed on me.

The worker attended for an initial doctor's appointment on August 11, 2017. X-rays were taken and the worker was diagnosed with bilateral shoulder strains along with a low back and left hip strain.

On August 24, 2017, the WCB accepted the worker's claim and the payment of wage loss and other benefits started.

The worker was seen by a sports medicine specialist on August 25, 2017. The sports medicine specialist reviewed the x-rays taken previously and diagnosed the worker with shoulder strains/tendonitis and back and hip strain. At a follow-up appointment with his family doctor on August 30, 2017, the worker was referred for MRI studies and a bone scan.

At an initial physiotherapy appointment on September 3, 2017, the worker reported constant right and left shoulder pain, sharp pain in the left side of his neck and head, and the sensation of instability when moving his arms. He was diagnosed with bilateral shoulder sprain/strain, with the physiotherapist questioning whether he had a left subluxation, and a low back and hip strain contusion.

The worker had an MRI conducted on his left shoulder on September 21, 2017, where a 21 x 9 mm full-thickness tear affecting the supraspinatus and infraspinatus tendon and mild acromioclavicular joint osteoarthritis were noted. An MRI conducted on September 25, 2017 on the worker's lower spine and left hip noted degenerative changes in the lumbar spine and a "Suspected focal tear of the left acetabular labrum, likely degenerative. No other significant abnormality of the left hip." A further MRI conducted on October 16, 2017 of the worker's right shoulder noted:

1. Full-thickness, full width tear of the supraspinatus tendon.

 2. Low grade, partial thickness, intrasubstance tearing of the infraspinatus tendon.

3. Osteoarthritis of the acromioclavicular joint, inferior directed ostephytes suspicious for external impingement.

4. Tendinosis of the long head biceps tendon.

 5. Mild osteoarthritis of the glenohumeral compartment.

The worker was examined by a WCB orthopedic consultant at a November 8, 2017 call-in examination. The WCB orthopedic consultant opined that the worker's diagnosis at the time of the workplace accident was "multiple contusions and sprain/strain injuries involving the chest, both shoulders, low back and left hip." The WCB orthopedic consultant further opined that the worker's diagnosis at the time of the call-in examination was of rotator cuff tears in both shoulders but this "probably pre-existed the workplace injury." It was further provided that the worker's low back pain was caused by "degenerative lumbar disc disease and facet arthropathy" and that the worker's posterior hip pain was "more likely to be of spinal origin rather than hip joint origin." The WCB orthopedic consultant further advised that the worker likely had a degenerative tear of the left hip labrum, as noted on the MRI study, which was more likely to be a degenerative injury rather than traumatic. The WCB orthopedic consultant noted the worker's pre-existing conditions as:

a) Degenerative rotator cuff tears to both shoulders.

b) Osteoarthritis of both AC joint (sic), probably not contributing to current symptoms,

c) Multilevel degenerative lumbar disc disease,

d) Degenerative tear of the labrum of the left hip joint.

It was further opined by the WCB orthopedic consultant that "All of these conditions with the exceptions of the osteoarthritis of the AC joints would be expected to prolong recovery following the workplace injury."

The WCB advised the worker on November 22, 2017, that a review of his claim had been conducted and it was determined that he had recovered from his workplace accident and that he would not be entitled to wage loss and other benefits after November 29, 2017.

On November 27, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The worker provided clarification on a few of the issues listed in the WCB's November 22, 2017 letter and argued the opinion of the WCB orthopedic consultant that he had a pre-existing condition. He noted that he had been employed in his employment area for over 37 years and had not had any issues prior to his workplace accident.

Review Office determined on March 7, 2018 that the worker was entitled to further benefits after November 29, 2017. Review Office found that the medical evidence supported a causal relationship between the worker's difficulties after November 29, 2017 and the workplace accident and that the worker had not yet recovered.

The employer filed an appeal with the Appeal Commission on March 7, 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 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) of the Act states 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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

The employer is appealing a WCB decision that the worker is entitled to wage loss and medical aid benefits after November 29, 2017.

Employer's Position

The employer was represented by its Safety and Compliance Officer. The employer representative advised that the employer's appeal is based on the medical information on file which indicates that the worker's condition is a pre-existing condition.

In reply to questions from the panel, the employer representative provided information on the operation of the employer's business, including the number of trucks and trailers which the employer operates. She advised that typically a driver is assigned to a truck, and the trailers will vary based on where the load is going. She confirmed that on the day of the accident, the worker was hauling furniture.

Regarding the date on which the employer thought the worker had recovered from the compensable injury and should be back to work, the employer representative advised that the employer was relying on the original report where it said he should have been recovered and back to work in November 2017.

The employer representative acknowledged that the worker attempted to return to work in April 2017 but stayed for only one day and did not return after this date. The employer representative advised that the employer contacted the worker after this date.

Worker's Position

The worker was represented by a worker advisor who provided a written and oral presentation.

The worker's representative submitted that:

 It is our position that the Review Office has rightly ruled on March 7, 2018 that there is an entitlement to wage loss and medical aid benefits after November 29, 2017. It is our position that benefits are payable when the evidence supports that there is an ongoing relationship between the workplace accident and a worker's ongoing compensable symptomatic areas of injury.

…

This first medical report confirms the workplace accident occurred when moving a sofa. He fell backwards, and the sofa fell on top of him. This report confirms by physical examination injuries being to the bilateral shoulders, lower back, left buttock and left hip. The WCB continued to accept these areas of injury as compensable until Compensation Services provided a decision dated November 22, 2017, which stated that based on their interpretation of the call-in examination notes by [WCB orthopedic advisor] on November 8, 2017, it was their position that there was no further entitlement to benefits beyond November 29, 2017.

…

The Review Office reversed Compensation Services' decision based on their review of [WCB Orthopedic Advisor's] examination notes of [worker] on November 8, 2017. In their opinion, the evidence supports [worker] had not recovered from the effects of the workplace accident.

 …

It is our position that based on this examination [worker] had not recovered from the workplace accident, as the workplace restrictions prevent a return to pre-accident duties. It also is our position that the medical information continued to support an entitlement to further benefits beyond November 29, 2017, as the medical information continued to support non-recovery.

The worker's representative submitted that the mechanism of injury, being a trip backwards and a very heavy sofa falling on top of the worker, supports that the mechanism of injury continues to be responsible for the worker's injuries. She noted that subsection 39(2) of the Act states that there is entitlement to wage loss benefits so long as a loss of earning capacity exists. The worker's representative asked that, if the panel upholds the Review Office decision, the panel not provide an end date to benefits because there is a new WCB decision in May 1, 2018, which denies wage loss benefits from April 23, 2018. This issue is under appeal before the Review Office.

Regarding his attempt to return to work, the worker advised that:

I'm a working guy, you know, they offer you stuff to do, so you try to do it, you know, and I was just injuring myself. Woke up the next day, I couldn't move, my arms were just burning, killing me, shoulders were killing me.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after November 29, 2017. For the employer's appeal to be successful, the panel must find that the worker did not suffer a loss of earning capacity and/or required medical aid after November 29, 2017 as a result of his August 3, 2017 workplace accident. The panel is unable to make this finding, for the reasons that follow.

The employer submitted that the WCB orthopedic consultant's examination on November 8, 2017 and resulting opinion, found that the worker's inability to return to work was due to his pre-existing condition and not the accepted workplace accident.

The panel has considered the WCB orthopedic consultant's examination notes from the November 8, 2017 call-in examination. In the panel's opinion, the examination notes do not support a finding that the worker had recovered from his August 3, 2017 workplace accident and that his ongoing inability to work was due to his pre-existing medical condition. The WCB orthopedic consultant noted that the pre-existing conditions, other than the osteoarthritis of the AC joints, would be expected to prolong recovery following the workplace injury. He recommended restrictions which were to be reviewed in three months. The panel concludes that the WCB orthopedic consultant did not find that this worker had recovered.

The panel further finds, on a balance of probabilities, that the worker had not recovered from his workplace injury as of November 29, 2017.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of November, 2018