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 is not acceptable. A hearing was held on January 10, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker reported to WCB on April 22, 2015 that he had injured his left shoulder and arm after playing baseball on April 17, 2015 while employed as an educational assistant. The worker further noted "I didn't feel anything until later. A lot of discomfort in my shoulder and my arm over the weekend. It has hampered my ability to do things."

On April 22, 2015, the worker attended an appointment with his family physician. He reported to his physician:

painful left shoulder and arm after playing baseball at school 

unable to abduct his left shoulder 

no numbness or weakness 

shoulder feels heavy 

unable to lie on his shoulder 

went to work shoulder-needs to swim and lift weights for work

The worker was diagnosed with tendinitis of the shoulder and a rotator cuff tear was queried. He was referred for physiotherapy and it was recommended he remain off work until May 10, 2015.

On April 25, 2015, the worker was seen for an initial physiotherapy appointment. After examination, the physiotherapist diagnosed the worker with tendonitis and recommended that he could return to work with restrictions. Those restrictions were no lifting greater than ten pounds, no overhead activity, no pushing or pulling with his arms and no restraining. The worker returned to work, with restrictions on April 29, 2015 and resumed his regular duties on May 20, 2015.

A Physiotherapy Discharge Assessment, completed by the worker's physiotherapist on June 24, 2015 noted that the worker had no complaints of pain and that the injury to his left shoulder had resolved. An MRI of the worker's left shoulder conducted on July 25, 2016 indicated "Normal MRI of the shoulder."

The worker contacted the WCB on May 3, 2017 to advise that his shoulder injury had not recovered and that he was continuing to experience problems. The WCB collected further medical information from the worker's healthcare providers and on June 28, 2017, the worker's file was reviewed by a WCB medical advisor. In response to the question of whether the worker's current diagnosis was related to the initial compensable injury from the workplace accident on April 17, 2015, the WCB medical advisor opined:

Unlikely. As noted from the physiotherapy reports during late spring 2015, there was documentation of steady improvements in terms of objective findings and symptoms, with material resolution of the worker's shoulder complaints and dysfunction by June 24, 2015.

As per the recent information from 2017, the worker and his treating healthcare practitioners document ongoing rotator cuff based complaints, however this is based upon subjective complaints mostly, as shoulder ROM, rotator cuff strength and integrity (as per the normal 2016 MRI of the left shoulder) shows normal shoulder structure with no accompanying material objective findings on clinical examination.

Therefore, the writer would opine that the effects of the 2015 workplace shoulder injury had materially resolved by June of 2015.

On June 20, 2017, the worker was advised by the WCB that responsibility would not be accepted for his ongoing left upper extremity difficulties.

The worker requested reconsideration of the WCB's decision to Review Office on July 26, 2017. The worker presented the argument that as a result of his continued ongoing effects of the workplace injury, his employer had placed him in a modified position at a lower salary and requested that he be compensated for the difference.

Review Office returned the worker's file to the WCB on September 15, 2017. Review Office requested that the WCB conduct a further investigation regarding the initial acceptance of the worker's claim. The WCB requested and received chart notes from the worker's healthcare providers. The chart notes were reviewed by a WCB medical advisor who opined, on December 7, 2017:

Additional information reviewed. Of note, all three documented assessments from [healthcare provider] are after the June 2015 time period in which the writer opined that the worker had material resolution of his left shoulder workplace condition. Within these notes, all document 'improved' or 'much improved shoulder', with terms including 'full ROM (range of motion)', 'CNS (central nervous system) normal', and 'normal exam' listed in terms of objective findings.

Overall, these documents don (sp) not materially alter the writer's previous opinion on this matter.

A further opinion on the relationship between the mechanism of the original workplace injury and the diagnosis of tendonitis by the WCB medical advisor was received by the WCB on January 11, 2018. The WCB medical advisor opined, in part, that the worker's symptoms from April to June 2015 would be medically accounted for, on a probable basis, to the workplace activities described by the worker.

On January 15, 2018, the worker was advised by the WCB that a further review of his file was conducted, including the further medical evidence received from his family physician and treating sports medicine doctor; however, the June 30, 2017 decision remained unchanged and responsibility would not be accepted for his ongoing left upper extremity difficulties.

The worker's representative requested reconsideration of the WCB's decision to Review Office on March 5, 2018. The worker noted that both of his treating healthcare providers were of the opinion that his ongoing difficulties were related to his original workplace injury of April 17, 2015. It was further noted that due to his ongoing difficulties requiring modified duties, the worker was placed in a lower classification of his position with lower pay.

Review Office acknowledged receipt of the worker's request for reconsideration on March 13, 2018 and advised the worker that the scope of the review of his claim would be expanded to include initial claim acceptance.

On April 6, 2018, Review Office determined that the worker's claim was not acceptable. Review Office noted that the worker's file had been reviewed by a WCB medical advisor who opined that playing baseball and/or swinging a bat repetitively could induce tendonitis; however, the

WCB medical advisor did not address the mechanism of injury reported by the worker who stated he swung the bat a few times, but not repetitively. The WCB medical advisor did note that tendonitis may slowly increase in symptoms for a few days after an injury. Review Office further noted that the worker reported no symptoms for the first two days following the accident and found that the delay in the onset of symptoms was not explained by swinging a bat two and a half days prior. Review Office was unable to establish that the worker's left shoulder injury was causally connected to his job duties given the non-repetitive nature of the mechanism of injury and the two and a half day delay in the onset of symptoms. As such, Review Office concluded that an accident did not occur on April 17, 2015 and the worker's claim was not acceptable.

The worker's representative filed an appeal with the Appeal Commission on July 23, 2018. 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful 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 the 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.

WCB Policy 44.05, Arising Out of and in the Course of Employment, addresses the interpretation of the phrase "arising out of, and in the course of, employment," and states, in part, as follows: Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

Worker's Position

The worker was represented by his father who provided an oral and a written submission. The worker and his representative answered questions from the panel.

At the commencement of the hearing, the worker's representative confirmed that the issue to be addressed at the hearing was whether the worker's claim is acceptable.

The worker's representative reviewed the worker's file at the hearing. He provided information on the worker's employment and the changes in the worker's medical condition. He also provided an assessment of the medical information, including the opinions of the worker's treating physician and the WCB medical advisor. He advised the panel of the worker's struggles with his injury and related employment issues. He reviewed the actions and decisions of the WCB. He advanced the position that the worker's employment caused the worker's shoulder injury, that the injury was more serious and disabling than initially thought, and the worker was entitled to further benefits.

With respect to the decision which is under appeal, the worker's representative submitted that decision should be overturned. He stated:

We asked that the review of the claim be based on its merit, which can only be established by looking at the available medical evidence. None of this evidence was reviewed by [Review Officer] on April 6th, because he conveniently rejected the original claim, stating that in his view, the injury could not have been caused by swinging a baseball bat.

The worker's representative noted that the Review Office decision is contrary to the original decision made by the WCB which found that a workplace accident occurred and that the worker sustained a shoulder injury while performing his employment duties. The worker's representative submitted that:

All the evidence by [worker's] medical practitioners has been ignored. In this latest decision we see a lot of speculation, insinuations, and frivolous arguments, which should have no basis in a competent and efficient public service.

The worker's representative reviewed the medical information on the file pertaining to the cause of the injury. He noted the June 21, 2018 opinion of the sport medicine specialist who opined:

The review office opines [worker] would not have a rotator cuff tendonopathy by swinging a bat "a dozen times." The review office opined this would not constitute a "repetitive" activity. It noted rotator cuff tendonopathy is not exclusively caused by repetitive activity. A single incident can induce rotation cuff tendonopathy. Dismissing [worker] diagnosis due to a definition "of repetitive" activity would not take into account the multiple causes of rotator cuff tendonopathy. Dismissing [worker] diagnosis due to definition of "repetitive" activity would not take into account the multiple causes of rotator cuff tendonopathy. Defining repetitive activity in a particular case would be speculative rather than based on evidence. An individual may swing a bat 100 times and not have symptomatic rotator cuff tendonapathy. Another individual may swing a bat once and cause symptomatic rotator cuff tendonopathy

With respect to the delayed onset of symptoms, the sports medicine specialist commented that:

The injury occurred on a Friday. [Worker] began to feel more symptoms on Sunday. It is noted [worker] was not performing any aspects of his job on Saturday or Sunday that was aggravate the condition. This does preclude the injury did not happen.

The worker's representative submitted that:

[Worker] experienced discomfort throughout the weekend. It's just that he felt that that was normal, because these type of things were always normal to him, and then they go away after a day or two.

He submitted that the panel should accept this evidence over the position of the Review Office.

The worker's representative also noted the opinion of the WCB medical officer who opined that playing baseball and/or swinging a bat repetitively could induce tendonitis in the shoulder joint.

The worker's representative also noted the January 11, 2018 opinion of the WCB medical advisor who opined:

1.) Question: Given the mechanism of injury and the delay in the onset of symptoms is the diagnosis of tendonitis medically accounted for in relation to the identified mechanism of injury?

Answer: Review of the MOI noted that the worker was playing baseball (April 2015) in which he had subsequently increasing left shoulder symptoms over the next few days culminating in a medical assessment within one week's time.

Medical assessment at that time was consistent with a left rotator cuff based tendinopathy/tendonitis, with the activity of playing baseball as a plausible MOI, to induce rotator cuff based pain/symptoms.

The delay/gradual nature of symptoms onset is not uncommon for many tendinopathies/tendonitis, including those involving the rotator cuff.

Overall, the worker's rotator cuff tendinopathy/tendonitis from April to June 2015 would be accounted for medically, on a probable basis, to the workplace activities as described above within a reasonable degree of medical certainty.

The worker's representative emphasized the reference to "certainty" as opposed to "balance of probabilities."

The worker's representative noted the reference to lifting in the Review Office decision and disputed that there was any evidence of a lifting type injury. Regarding the August 16, 2018 opinion of the worker's family physician which noted that the worker "lifts weights for work", the worker's representative stated that the doctor was talking about lifting heavy students.

The worker's representative submitted, in part, that:

The case worker's conclusion to reverse the original decision of the WCB on the basis that the injury is not considered repetitive, and because of the delay in the onset of symptoms, these two reasons are not supported by the medical evidence of three medical practitioners…

…

Here today, we have an employee doing the same job for over 18 years in total, two, three years in a permanent position, in work situations less than ideal, involving daily stresses and strains in supervising students during Physical Education classes, and in restraining students when required, he gets injured in the performance of an approved school activity.

He did all the right things. He told his supervisor the following working day, first thing on Monday morning. He went to see his doctor as early as he could, when he realized his pain wasn't going away. He did not know he should file a WCB claim, because he never had to file one before. And when he learned about the need to do so a couple of days later, on Wednesday, he filled out the module to the best of his ability, and to the best of his recollection.

Of course he felt stiff and discomfort on his shoulder the next day, which was a Saturday. That would have been normal for him to feel this way. This is the way he always felt when he did strenuous activities with students in his care, and when he had to restrain heavy students. But these normal symptoms would not persist and would go away after a day or so. This time it was different. The pain did not go away on his left shoulder, and as the days progressed, it got acutely worse. This is what made [name] seek help. The WCB approved his claim. He has been under doctor's care for this injury ever since without disruption. Except for the five days of compensable leave that was approved initially, he has not missed work as a result of the physical injury.

In reply to questions from the panel, the worker denied involvement in any other activity which would cause a left sided shoulder injury. Regarding references to weight training/lifting. The worker explained that the reference in the submission to weight training was regarding weight training for the students. He said:

Weight training would be like, in the YMCA. You're just observing them lifting very low weights so they can get physically fit. Not for us.

In reply to a question about weight lifting being part of his duties, the worker replied:

No, it's lifting heavy, heavy students, heavy weight students, and it's misconstrued…

The panel noted that the family physician referred to "needs to swim and lift weights for work" and the sports medicine physician referred to "returning to weight training" and "discussed workout regime."

The worker denied that these were references to his involvement in weight training.

Analysis

As noted in the background and in the worker's submission, the WCB had accepted the worker's claim for a workplace injury that occurred on April 17, 2015. The worker received medical treatment and was paid benefits. In March 2017, almost 23 months after the incident, the worker contacted the WCB and advised that he had never recovered from his workplace injury. He advised that he was continuing to receive medical treatment and as a result was working at a lower paying job. He was seeking further WCB benefits. The WCB gathered additional information regarding the injury but denied further benefits. Upon appeal, the Review Office determined that the worker's initial claim did not arise from a workplace accident and was not acceptable. As a consequence of the Review Office decision, the worker was not eligible for any WCB benefits.

Given the above background, the issue before the panel is limited to claim acceptability. The panel is not adjudicating whether the worker is entitled to ongoing benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of his employment. In other words, the panel must find that the worker sustained an injury to his left shoulder while in the course of his employment on April 17, 2015. The panel is not able to make this finding, for the reasons that follow.

The panel notes that the claim was accepted on the basis of an employer report, worker report, and reports from healthcare providers. Initially there was no investigation of the events surrounding the incident.

The panel carefully reviewed the Worker Incident Report dated April 22, 2015.

• In the incident report, dated April 22, 2015, the worker described the incident as follows:

Playing baseball with the kids and teacher. I batted a couple times. I didn’t feel anything until later. A lot of discomfort in my shoulder and my arm over the weekend. It has hampered my ability to do things.

• In reply to the question "What do you believe to be that cause of your injury?" the worker replied:

I think it was swinging the bat playing baseball with the kids.

• In reply to the question "When did you first notice your symptoms? the worker replied:

Sunday, April 19 and throughout the night.

• In reply to the question "How did your symptoms progress and develop from the time they started?" The worker replied:

A lot of pain in my shoulder and arm. I can't raise my shoulder over my head. Loss of range of motion. A little numbness and tingling in my arm. My arm is very tight.

At the hearing the worker was asked about playing baseball with the students on the day of the accident. He advised that:

• he was in a basic MOB (sic) position 

• he probably swung the bat "three to four, five times. I'm not completely sure…" 

• he is a right handed batter and he throws the ball with right hand

The worker was also asked whether the cause of the injury was swinging a baseball bat. The worker stated:

Well, for sure, yes, it was. And I swung it several times. I don't know exactly how many times it was, but I swung it several times

The panel notes that the worker is a right handed batter, throws with his right arm, and that the injury was to his left arm. As well, the panel notes that playing baseball with the students was not an unusual activity. The panel finds it unlikely that a left shoulder injury would result from the circumstances described by the worker.

The panel accepts the medical opinion that the condition can result from just one swing of the baseball bat, but expects that such a swing would be noticeable and that the worker would know immediately, through pain or an awkward feeling, that that the swing was different than others.

The evidence does not establish that the swings or any single swing of the baseball bat were noteworthy. The evidence was that he did not have any immediate symptoms, other than his usual end of day feeling. In the Incident Report the worker indicated that he first noted his symptoms occurred on Sunday and throughout Sunday night. The panel finds that the lack of symptoms near the time of the incident is important because the worker cannot say that the incident happened at that time. It is the panel's position that the worker is speculating at what caused the symptoms he experienced two days later.

The panel finds that there is no evidence directly linking the injury to the performance of the worker's duties. The worker's positon is not based on a cause which has been established on a balance of probabilities but rather on the belief that it must have been caused by swinging the baseball bat because no other cause has been identified. This is not the basis for accepting a claim, as it does not meet the balance of probabilities.

In conclusion, the panel does not find that the reported mechanism of injury caused the worker's injury. The panel notes there was a delay and no gradual onset of symptoms indicated in the initial reports.

Based on the foregoing, the panel finds, on a balance of probabilities, that the evidence does not establish that the cause of the worker's injury is his swinging a bat on April 17, 2015. The panel accordingly finds that the worker did not sustain an injury by accident arising out of and in the course of his employment on April 17, 2015.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of February, 2019