The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on December 18, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the worker's claim is not acceptable for an accident occurring on March 24, 2017. That the worker's claim is acceptable for a left shoulder rotator cuff sprain/tendinitis injury occurring on April 17, 2017.

Background

On April 20, 2017, the worker, a paramedic, reported to the WCB that she injured her left shoulder as a result of two incidents at work. The worker advised that on March 24, 2017, while taking out a piece of equipment to clean underneath it, she felt a pull in her left shoulder. The worker noted that after the incident, she had a hard time lifting her arm up to a certain height and grabbing her seatbelt to buckle it. She self-treated the injury and continued to work. She reported that she had also injured her shoulder in a second incident, on April 17, 2017, while lifting and pushing a patient into an ambulance and later unloading the patient. The worker reported these incidents to her employer on April 19, 2017.

On April 7, 2017, while accompanying her spouse to his doctor's appointment, the worker complained of pain in her left shoulder and her spouse's physician ordered an x-ray. The results of the April 7, 2017 x-ray showed: "The left glenohumeral joint is congruent. There is no evidence of calcific tendinosis. No significant bone or articular abnormality is identified." The worker's clinical history was noted on the x-ray report as "Pain and stiffness. No trauma."

The worker saw a physiotherapist on April 19, 2017, who queried bursitis, an acromioclavicular joint injury or tendinitis, and noted that the worker was too acute to diagnose accurately.

On May 3, 2017, the WCB spoke to the co-worker who had been partnered with the worker on April 17, 2017. The co-worker recalled the worker complaining of shoulder pain but could not remember if or when a specific injury occurred.

By letter dated May 3, 2017, the WCB advised the worker that her claim was not acceptable. The WCB stated that after considering all of the information on file, they could not establish that an injury occurred on March 24, 2017 or was aggravated by a further incident on April 17, 2017, and were therefore unable to accept responsibility for her claim.

On May 9, 2017, the worker was seen by a sports medicine physician, who diagnosed her with frozen shoulder.

On August 1, 2017, the worker's union representative submitted further medical and other evidence and requested that the WCB reconsider their May 3, 2017 decision. The medical evidence included April 20, 2017 chart notes from the worker's treating physician, where it was noted that the worker had reported injuring her left shoulder on March 24, 2017 and reinjuring it on April 18, 2017. The treating physician had diagnosed the worker with a left shoulder injury, likely a rotator cuff sprain/tendinitis and had referred her to the sports medicine physician whose report was already on file. The additional evidence also included a written statement from the co-worker setting out her further recollection of the April 17, 2017 accident.

On October 19, 2017, the WCB advised the worker that there was no change to the earlier decision. The WCB noted that the physiotherapist's April 19, 2017 diagnoses of bursitis and tendinitis were more typical of an ongoing condition and the sports medicine physician's May 9, 2017 diagnosis of frozen shoulder indicated a pre-existing condition. The WCB advised that based on their review of the information submitted and on file, they were unable to relate the worker's current difficulties to the workplace or to establish workplace accidents on either March 24 or April 17, 2017.

On October 25, 2017, the worker's union representative requested that Review Office reconsider the WCB's May 3 and October 19, 2017 decisions. The worker's representative submitted that the evidence supported that the worker had a workplace accident and suffered a minor injury on March 24, 2017 which did not require medical attention or time off work, then had a second workplace accident on April 17, 2017 which resulted in a more significant injury which required prompt medical assessment, treatment, reporting to her employer, time off work, and a claim with the WCB.

On December 12, 2017, Review Office determined that the worker's claim was not acceptable. Review Office found that given the lack of reporting of an accident on March 24, 2017, and the available medical evidence on April 7, 2017, including the x-ray which indicated "no trauma", they were unable to conclude that a compensable accident or acute injury occurred on March 24. Review Office further found it was unlikely the worker sustained a material injury on April 17, 2017. Review Office noted they would have expected the worker to attend for immediate medical attention and for her co-worker to have recalled the incident without prompting if the worker had suffered an acute injury on that date. Review Office accepted the sports medicine physician's diagnosis of frozen shoulder, and noted the idiopathic nature of that condition. Review Office was unable to conclude that a workplace accident as defined in The Workers Compensation Act (the "Act") occurred on either March 24 or April 17, 2017.

On July 3, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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.

"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.

Worker's Position

The worker was represented by her union representative.

The worker's position was that her claim should be accepted because the evidence supports that she sustained an injury to her left shoulder as a direct result of two specific accidents at work.

With respect to the first accident, the worker's union representative submitted that the worker experienced a distinct pull in her left shoulder while reaching and lifting a piece of equipment on March 24, 2017. She continued to work her regular duties, and only experienced difficulty with certain specific arm movements. She did not report the incident to her employer or the WCB because she was not in extreme pain, and she felt she could manage her symptoms herself and the symptoms would resolve with time.

It was submitted that the worker was still having difficulties with her shoulder when she hurt it again doing a patient transfer on April 17, 2017. The worker reported the incident to her employer and sought medical treatment the next day. The worker's co-worker corroborated her account of the incident and shoulder pain. The worker's shoulder got progressively worse. She continued to limit the use of her shoulder even further, and was subsequently diagnosed with frozen shoulder.

The representative submitted that the available evidence supported that the worker's current shoulder condition developed as a consequence of these two injuries at work. With reference to a June 27, 2018 opinion and medical literature provided by a community medicine physician, the representative submitted that while frozen shoulder (adhesive capsulitis) is often seen as an idiopathic condition, this is not always the case. He noted the community medicine physician had argued that secondary stiff shoulder was a more precise diagnosis, which can be used when there is a known cause for the condition. It was submitted that the community medicine physician had diagnosed the worker with secondary stiff shoulder, based on his assessment of her, and opined that this was caused by her two distinct, yet related accidents. The physician has also reported findings indicative of myofascial pain.

The worker's representative submitted that regardless of the diagnosis, there is sufficient evidence to conclude that the worker sustained an injury to her left shoulder as a direct result of the workplace accidents and her claim should be accepted. The evidence the worker provided supported that her current and resolving shoulder condition is attributable to one, if not both specific incidents.

The worker's representative submitted that the primary focus should be on whether or not there is an accident and whether or not there was a resulting injury. The claim should be accepted on the basis that there was a muscular or soft tissue injury initially which led to a secondary condition of adhesive capsulitis. He submitted that the evidence indicated that the worker had restricted range of motion, not just after April 19, but back to March 24. The evidence further showed the worker was limiting use of her shoulder for several months prior to the clinical diagnosis of adhesive capsulitis, and this was sufficient to demonstrate there was a further injury that was caused by the initial workplace incidents.

In conclusion, the worker's representative submitted that the evidence supported that the worker had two specific accidents, which resulted in some sort of muscular injury, likely a rotator cuff strain, and that adhesive capsulitis was an unfortunate consequence of that injury.

Employer's Position

The employer was represented by its Disability Case Coordinator and its Manager of Occupational Health and Safety.

The employer's position was that worker's ongoing medical challenges did not arise out of or in the course of her employment as required under the Act, and her claim is not acceptable.

In her submission, the employer's representative expressed agreement with the Review Office decision, and provided additional information and argument in support of that decision and in response to the written submission which the worker's union representative had filed in advance of the hearing.

The employer's representative noted the worker's delay in reporting, and submitted that delay is not determined solely on the basis of time passed but also in relation to what else occurred during that time period. The representative submitted that it was understandable that the WCB and Review Office found it difficult to confirm that a workplace injury occurred on March 24, 2017 as the worker did not indicate to the WCB, her employer or a care provider between March 24 and April 19, 2017 that she had experienced a workplace accident, and she continued to work her regular duties, without restrictions, throughout that period of time.

The representative submitted that there were again delays in the worker reporting difficulties with a patient transfer on April 17, 2017, which were inconsistent with the injury that was felt to be occurring when the worker was assessed by the physiotherapist on April 19, 2017.

The employer's representative noted that the medical information on file attributed the worker's ongoing challenges to adhesive capsulitis or frozen shoulder in her left shoulder, which was first diagnosed on May 9, 2017 and later confirmed by MRI on September 15, 2017. The representative submitted that based on the evidence, the adhesive capsulitis could not be attributed to the two incidents which the worker had identified as having occurred on March 24 and April 17, 2017.

The representative submitted that the evidence shows the worker only began to restrict her shoulder motion after April 17, 2017, and her symptoms of reduced range of motion were already evident in her physiotherapy assessment on April 19, 2017. Given this time frame, it was submitted that the worker's period of immobility was actually a result of the existence of idiopathic frozen shoulder symptoms and not a precipitating cause of those symptoms. The representative further submitted that given the results of the worker's MRI which showed an intact rotator cuff with no lesions or tears, it could not be said that the onset of the worker's frozen shoulder was related to a trauma to that area.

In conclusion, the employer's representative submitted that the decision that the worker's claim is not acceptable should be upheld.

Analysis

The issue before the panel is claim acceptability. In order for the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of her employment.

Based on our review of all of the evidence which is before us, the panel is unable to make that finding with respect to an accident occurring on March 24, 2017, but is able to do so with respect to an accident on April 17, 2017. More specifically, the panel finds that the worker suffered a left shoulder rotator cuff sprain/tendinitis injury on April 17, 2017.

The worker described the March 24, 2017 incident in further detail at the hearing. The panel accepts that the mechanism of injury of reaching and lifting a piece of relatively heavy equipment in a confined space, as described by the worker, is potentially capable of resulting in a left shoulder injury. The panel finds, however, that the evidence does not support that the worker suffered an injury on that date.

The worker indicated at the hearing that she did not report the incident at the time as she had often bent or done something where she hurt herself and not reported it. She said that the only reason she ended up at the doctor's after that was because she accompanied her husband to his appointment on April 7, 2017. The worker continued working following the incident and worked her normal shifts after that.

The panel notes that on a report from her spouse's physician in respect of that attendance, it is indicated that "this visit was not related to WCB injury." The x-ray which the physician ordered further indicated "no trauma." The worker acknowledged that the physician had asked her if something had happened. She said she did not say anything because she knew that if she did it would be WCB-related again and she did not want to have that conversation.

Based on the foregoing, the panel is unable to find that the worker suffered an injury by accident arising out of and in the course of her employment on March 24, 2017.

With respect to the incident on April 17, 2017, the panel accepts that the mechanism of injury, as further described by the worker at the hearing, would have caused an acute injury to her left shoulder. The panel accepts the co-worker's May 29, 2017 statement as to her recollection of the events that date.

The worker arranged to see her physiotherapist on April 19, 2017, who queried different diagnoses and noted that the worker was too acute to diagnose accurately. She attended her family physician on April 20, 2017, who diagnosed her with a left shoulder injury "Most likely Rotator cuff sprain/tendinitis." The panel accepts that the worker suffered a rotator cuff sprain/tendonitis injury on April 17, 2017, as diagnosed by her family physician. Given the absence of findings on later diagnostic imaging, the panel further finds that the injury which the worker suffered was relatively minor in nature.

The panel is unable to find that the worker's adhesive capsulitis is causally related to her April 17, 2017 injury. The panel finds that the onset of the worker's frozen shoulder is far too close in time to her April 17, 2017 injury to be causally related to that injury. The panel also notes that there is an absence of evidence to indicate that the worker was guarding her shoulder or not moving her shoulder before April 17. Rather, the evidence indicates that up until April 17, the worker was continuing to perform her regular work duties. The panel is satisfied that symptoms of frozen shoulder were present when the worker attended for physiotherapy on April 19, only two days after her April 17 injury. A definitive diagnosis of frozen shoulder was provided by the treating sports medicine on May 9, 2017, approximately three weeks later.

Given our finding that the worker's April 17, 2017 injury was relatively minor, the panel is further unable to find that the worker suffered a secondary stiffness injury due to trauma from that injury.

In summary, based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury to her left shoulder as a result of a workplace accident on March 24, 2017. The panel further finds, on a balance of probabilities, that the worker suffered a left shoulder rotator cuff sprain/tendinitis injury on April 17, 2017.

The worker's appeal is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of February, 2019