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 May 2, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker reported to the WCB on November 20, 2017, that she injured her right shoulder at work on November 8, 2017. In a discussion with the WCB on November 27, 2017, the worker advised that she had completed two of her job duties back to back that involved manual filing and shaping and that she normally does not perform two of these particular duties back to back. She noted that she had a burning sensation in her shoulder but did not tell anyone about the pain in her shoulder as she "…often gets pains from working and she considers it normal."

On November 14, 2017, the worker attended at her family physician's office for an assessment. The physician noted her subjective complaints of pain and being unable to elevate or move her right arm back. The objective findings by the physician were limited elevation in her range of motion and positive impingement. The worker was diagnosed with a sprain versus a rotator cuff strain of her right shoulder. At a follow-up appointment on November 20, 2017, the treating physician noted that there was no change from the previous assessment and referred the worker for an MRI study.

A December 4, 2017 follow-up appointment noted that the worker was having difficulties with her activities of daily life and the treating family physician recommended the worker remain off work for two weeks. A referral to physiotherapy was also recommended.

A WCB medical advisor reviewed the worker's file and on December 5, 2017 provided:

The Dec 4 2017 progress report from the physician does not provide a specific diagnosis but notes decreased shoulder range of motion and positive impingement testing. A Dec 4 2017 opioid report indicates a diagnosis of RSS (repetitive strain injury?) vs sprain of right shoulder. [The worker's] reported understanding is that the diagnosis is some type of rotator cuff injury…

Rotator cuff injuries typically arise either from traumatic incidents (fall on the arm or shoulder) or on a cumulative/chronic basis in relation to impingement. Impingement is typically worsened by sustained or repetitive use of the arm at or above shoulder level, particularly with a component of internal rotation.

The development of a rotator cuff injury would not be accounted for by performance of the reported work duties.

On December 12, 2017, the worker was advised by the WCB that her claim was not acceptable. The WCB advised that the medical evidence indicates she was suffering from impingement in her right rotator cuff and that rotator cuff injuries typically arise from a traumatic event such as a fall or are cumulative/chronic. Her reported job duties could not be related to the development of a rotator cuff injury.

The worker requested reconsideration of the WCB's decision to Review Office on December 18, 2017. The worker noted that her family physician and physiotherapist both supported that she suffered a rotator cuff injury due to her job duties.

Review Office determined on January 26, 2018 that the worker's claim was not acceptable. Review Office was unable to find sufficient evidence to support that the worker's right shoulder complaints were caused by her job duties performed on November 8, 2017.

The worker submitted a further medical report from her treating physician and on March 9, 2018 requested that Review Office reconsider its decision to deny her claim.

On April 6, 2018, Review Office advised the worker that they reviewed her claim but had determined that her claim was not acceptable. Review Office could not find sufficient evidence to support that the worker suffered a right shoulder injury on November 8, 2017. Review Office considered that the worker delayed seeking medical attention until six days after the workplace accident and found that the delay made it difficult to support the clinical evidence of her treating physician's report from that date. It was further noted that the delay in reporting also made it difficult for the Review Office to establish a relationship between the worker's job duties and her shoulder complaints. Review Office also found the information provided by the worker regarding reporting her injury to be inconsistent and as such, on a balance of probabilities, Review Office found that the worker did not suffer a workplace accident on November 8, 2017.

The worker's representative filed an appeal with the Appeal Commission. 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 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 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, provides:

Under The Workers Compensation Act, benefits and services are available to workers who suffer a compensable workplace injury or illness. To be compensable, it must have been the result of an accident arising out of and in the course of the worker’s employment.

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 is appealing the WCB Review Office decision that the claim was not acceptable. The worker attended an oral hearing on May 2, 2019 and provided details of the workplace activities leading up to the onset of right shoulder issues. The worker responded to questions from the panel.

The worker's position was that the accident occurred in the course of employment on November 8, 2017 and that the claim should be accepted.

The worker described the work duties performed on the date of the accident and indicated that performing the various tasks of that day involved the use of her right arm and shoulder more extensively than usual. The worker advised that in addition to various employment tasks, a particular procedure that she performed normally once per week was performed twice on November 8, 2017 in back to back sessions.

The worker explained the dates of reporting the incident and the delay in seeking medical treatment were driven by hopes that the problem would go away.

The worker provided the panel with the results of an MRI that was obtained after Review Office had made its decision. The report indicated that there was no evidence of a rotator cuff tear.

Employer's Position

The employer did not participate in the hearing.

Analysis

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 employment. The panel finds that the claim is acceptable.

In coming to this conclusion, the panel accepts the physiotherapist's diagnosis of tendonopathy/strain. The confirmation that the rotator cuff is not torn also supports the diagnosis of a strain injury, as indicated in the MRI exam that took place on May 8, 2018.

The panel also placed weight on the worker's physician’s opinion that the injury was "most likely an inflammation of two or more tendons". This was further supported by the physiotherapist who provided an opinion of "plausibility to have sustained a rotator cuff tendonopathy/strain" as a result of the work activities described by the worker. The panel also notes that the worker's overall job duties were physically demanding and that her tasks on the date of injury were different than her regular routine. The specific movements demonstrated by the worker were consistent with the development of these diagnoses.

The panel accepts the delay in seeking treatment based on the testimony of the worker who expected the problem to correct itself.

The panel finds that the worker's job duties on the date of the accident were different and strenuous enough to cause the strain injury.

The worker's appeal is accepted.

Panel Members

B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of June, 2019