The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right shoulder difficulties should not be accepted as being a consequence of the March 10, 2017 accident; that he is not entitled to wage loss benefits from March 13, 2017 to March 20, 2017; and, that he is not entitled to wage loss benefits from March 29, 2017 to April 11, 2017. 

A hearing was held on October 10, 2018 to consider the worker's appeal.

Issue

Whether or not the worker's right shoulder difficulties should be accepted as being a consequence of the March 10, 2017 accident; 

Whether or not the worker is entitled to wage loss benefits from March 13, 2017 to March 20, 2017; and, 

Whether or not the worker is entitled to wage loss benefits from March 29, 2017 to April 11, 2017.

Decision

The worker's right shoulder difficulties are not accepted as being a consequence of the March 10, 2017 accident; 

The worker is entitled to wage loss benefits from March 13, 2017 to March 20, 2017; and, 

The worker is not entitled to wage loss benefits from March 29, 2017 to April 11, 2017.

Background

The worker reported injury to his lower left back and upper right back on March 10, 2017 in an incident he described as:

We work on composite parts.  Sometimes it requires lifting, bending, twisting.  Repetitive strain injury.  I got severe pain when I was lifted (sic) the silicone pad which weighs approx 25-50 lbs or 35 lbs.  I was lifting it from the part I was working on & put it on the table.  I felt severe pain in my lower left back & upper right back.

On March 13, 2017, the worker was seen for an initial appointment with the chiropractor who noted the worker's description of the incident as "Injured lower back and right shoulder while lifting silicone pad and putting it on work table."  The worker's chiropractor diagnosed the worker with L5 vertebral subluxation complex, right rhomboid strain and right supraspinatus strain and recommended the worker remain off work until March 16, 2017.  It was further recommended that the worker return to modified duties starting on March 17, 2017.  An Occupational Health Assessment Form (OHAF) completed by the chiropractor indicated that the worker should be off work March 13 to 17, 2017 inclusive, to be reassessed for further restrictions on March 17, 2017.

In a discussion with the WCB on March 14, 2017, the worker confirmed the mechanism of injury as described on his Worker Accident Report.  He advised the WCB that his employer had modified duties available to him but when he discussed returning to work with modified duties to his doctor, he was advised to remain off work. 

The WCB discussed the claim with the employer on March 14, 2017.  The employer advised the WCB that they had attempted to discuss modified duties with the worker but that the worker advised them he was not returning to work until his chiropractor told him he could.

On March 21, 2017, the WCB advised the worker that his claim for a low back sprain/strain had been accepted.  The worker's claim for his right shoulder or right rhomboid difficulties was not accepted. In addition, neither was his claim for wage loss benefits from March 13 to March 17, 2017. 

The WCB advised the worker that their investigation had shown the equipment the worker was working with on the date of the accident was not very heavy and that due to his chronic right shoulder pain he was not lifting any items overhead.  Therefore, a causal relationship between his job duties and a new injury to his right shoulder could not be established.  As well, the WCB advised the worker that since his employer had contacted him to discuss modified duties and to bring in his OHAF but he had declined, his loss of earning capacity for March 13, 2017 to  March 17, 2017 was due to the worker's failure to mitigate the consequences of his workplace injury.

On March 30, 2017, the worker requested reconsideration of the WCB's decision to the Review Office.  The worker noted his disagreement with the weight of the equipment he was using at the time of the workplace incident.  As well, he further noted that while he believed he should follow his doctor's recommendation to remain off work, when he did return to work, acceptable modified duties were not available to him.  On April 3, 2017, Review Office returned the worker's claim file to the WCB for further investigation.

The WCB conducted a further investigation into the worker's claim including a worksite visit, received an opinion from the WCB chiropractor consultant that "the medical information does not support total work disability" and reviewed the April 14, 2017 report from the worker's chiropractor noting that the worker was capable of working with the restrictions of no lifting greater than twenty pounds and no standing or walking for more than four hours without breaks.  As well, a further report from the worker's chiropractor dated May 5, 2017 noted that the worker was capable of returning to his full duties as of May 22, 2017.

On May 12, 2017, the WCB advised the worker that after a full review of his claim, it was determined that responsibility would not be accepted for any ongoing low back difficulties.  The WCB also advised that the evidence on the worker's file supported that the worker had recovered from the compensable injury and any ongoing restrictions of his job duties would not be as a result of the workplace incident.  It was further noted that wage loss and medical aid benefits and/or treatment costs would not be paid beyond May 18, 2017.

The worker's representative requested reconsideration of the WCB's decisions to Review Office on October 27, 2017.  The worker's representative argued that the worker's right shoulder injury should be compensable as the worker's right shoulder was specifically noted in the employer's report to the WCB; the weight of the equipment that the worker was using at the time of the workplace incident was heavier than reported by the employer; and the worker was not provided the opportunity during the WCB's worksite visit to advise whether the job duties demonstrated were the job duties he performed. 

The worker's representative also disagreed with the WCB's decision to deny the worker wage loss benefits for March 13 to March 20, 2017, as the worker did not have medical authorization to participate in any type of return to work program.  The worker's representative also provided that the same information applies for the period of March 29, 2017 to April 11, 2017, and that the worker was following his healthcare practitioner's recommendation to remain off work, despite being aware of the modified duties available to the worker. 

On December 20, 2017, Review Office determined that the worker's right shoulder difficulties were not compensable, there was no entitlement to wage loss benefits from March 13 to March 20, 2017 and from March 29 to April 11, 2017.  Review Office placed weight on the April 11, 2017 opinion from the WCB chiropractor advisor that the medical information reviewed did not support total disability.  It was determined that the worker's right shoulder had been clearly identified to have several pre-existing issues which were not aggravated or enhanced by the workplace incident and, as such, the worker's right shoulder difficulties were found not to be related to the workplace incident. 

Review Office further found that through past WCB claims, it was reasonable to expect that the worker was aware of the employer's return to work process.  It was further determined that the employer's offer of modified duties on March 13, 2017 would have reasonably been within the worker's capabilities and that the employer would have been aware of their responsibility to accommodate the worker. 

Review Office again relied on the opinion of the WCB chiropractic advisor that the worker was not totally disabled from work and therefore determined that the worker was not entitled to wage loss benefits for March 13 to March 20, 2017. With respect to the issue of the worker's entitlement to wage loss benefits from March 29 to April 11, 2017, Review Office found that this issue did not relate to the accepted compensable upper and lower back strain injuries.  A medical report provided on August 28, 2017 related the time loss to issues with the worker's right shoulder and chest, with the worker's representative suggesting there was an aggravation of the worker's right shoulder due to the workplace injury.  However, Review Office noted earlier that the worker's right shoulder had not been aggravated or enhanced by the workplace incident as it could not be determined that the mechanism of injury was substantial enough to cause an injury.  Accordingly, Review Office found the worker was not entitled to wage loss benefits in relation to his right shoulder from March 29 to April 11, 2017.

The worker's representative filed an appeal with the Appeal Commission on February 12, 2018.  An oral hearing was arranged.

Following the hearing, the panel requested additional medical information prior to discussing the case further.  The requested information was received and was forwarded to the interested parties for comment.  On April 2, 2019, the appeal panel met further to discuss the case.  The panel again requested additional medical information which was subsequently shared with the parties for comment and met again on June 25, 2019 to discuss the case and render its final decision on the issues under appeal.

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB. To have an acceptable claim, the worker must have suffered an injury by accident that arose out of and in the course of employment.

Subsection 27(1) of the Act provides 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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

Worker’s Position

The worker was represented by a worker advisor. The worker answered questions from his representative and the panel.

Issue No. 1:     Whether or not the worker’s right shoulder difficulties should be accepted as being a consequence of the March 10, 2017 accident.

At the hearing on October 10, 2018, the worker requested that the panel find that his right shoulder injury was a consequence of his workplace injury on account of the following:

• The worker reported the accident to his manager the day it happened and the employer’s WCB accident report includes that the right shoulder was affected;
• When speaking with an adjudicator for the first time, the worker reported he did not experience right shoulder pain upon attending work on March 10, but felt pain after moving silicone pads at work;
•  From the worker’s perspective, the described injury mechanism of lifting a heavy item holding it at shoulder height with arms outstretched from the body and placing it on a table, are movements that could affect the shoulder area, particularly when in a compromised state;
• The employer reported that the worker had been performing his regular job duties for about 8 months prior to the March 10, 2017 incident;
• The chiropractor who first examined the worker on March 13, 2017 observed a right shoulder injury, diagnosed as a supraspinatus strain;
•  A physician wrote a letter on August 28, 2017 stating the workplace accident aggravated the worker’s pre-existing right shoulder condition; and,
• Review Office’s opinion about the right shoulder was not medically supported.  In that regard, the presence of a longstanding pre-existing condition does not shield workers from sustaining compensable injuries.  Rather, such conditions heighten susceptibility for new injuries and/or aggravation or enhancements.

It was submitted that all of these points supported the worker’s position that he injured his right shoulder on March 10, 2017.

Following receipt of the additional medical chart notes as requested by the panel, the worker’s representative provided written submissions on March 4, 2019 where it was submitted that the additional information supported the worker’s position.  That is, the pre-accident notes mention shoulder pain. However, as there were no clinical findings, it was submitted that this supported a conclusion that the worker’s shoulder was stable in the months prior to the March 10, 2017 incident. 

Further, the pre-accident history was followed by a chiropractor’s March 13, 2017 assessment that included the identification of acute right shoulder diagnosis (supraspinatus strain) accompanied by clinical findings.  It was therefore submitted that with an injury mechanism capable of causing damage to an already compromised limb, the panel ought to find that the worker sustained a right shoulder injury arising out of, and in the course of, his employment.

Issue No. 2:     Whether or not the worker is entitled to wage loss benefits from March 13, 2017 to March 20, 2017.

The worker’s position was that Review Office wrongly assumed that because the worker had prior WCB claims and had been accommodated, that he was aware, or ought to have known, that his employer could properly accommodate him again. 

However, the worker’s representative submitted that it was reasonable for the worker to follow the advice of his chiropractor who instructed him to remain off work at least until the March 17, 2017 reassessment. 

In addition, it was submitted that unlike Review Office who relied in part on a WCB chiropractic consultant’s opinion provided approximately one month after the initial wage loss period, the worker did not have access on March 13, 2017 to a second medical opinion when the employer contacted him to discuss accommodation. 

It was also submitted that Review Office wrongly assumed that the worker knew, or ought to have known, what his physical capabilities were and that the employer’s offer to accommodate him on March 13, 2017 was reasonable to accept.  In that regard, it was suggested that simply because an employer has a return to work program and immediately offers to accommodate a worker, does not mean that an injured worker must accept that offer. Rather, the worker followed the advice of his attending healthcare provider and thereafter returned to work, with medical clearance, on March 20, 2017. 

With respect to the additional medical chart notes information, again in the March 4, 2019 written submissions, the worker advisor indicated that there were no additional comments to be made with respect to the wage loss period of March 13 to 20, 2017.

Issue No. 3:     Whether or not the worker is entitled to wage loss benefits from March 29, 2017 to April 11, 2017.

With respect to period of March 29, 2017 to April 11, 2017 the worker submitted that a physician recommended he discontinue working for a two-week period in view of the clinical findings that were observed on March 29, 2017 that the March 10, 2017 incident aggravated his chronic shoulder injury. After a two-week period of convalescence, the worker returned to modified work with approval of his physician. 

The worker had provided further evidence at the hearing noting that his work shifts entailed 4 to 5 kilometers of walking to different work areas, as well as to and from the workplace cafeteria.   With regard to the walking distance related to the worker’s cigarette smoking, it was submitted that the worker has a half pack a day habit for at least 25 years and described this as an addiction that he was unable to stop simply because he experienced a workplace accident. 

Again, in the March 4, 2019 written submissions, it was submitted that the attending physician’s notes of March 29, 2017 aligned with those of a March 30, 2017 claim memo insofar as both made reference to problems with excessive walking.  It was submitted that the panel should not discount the impact that this walking during his first week of a return to work had on the worker’s lower back injury.

Employer’s Position

The employer was present at the hearing. 

Issue No. 1:  Whether or not the worker’s right shoulder difficulties should be accepted as being a consequence of the March 10, 2017 accident.

The employer advised the panel that prior to March 10, 2017 workplace incident, the worker was seeing his chiropractor for a pre-existing shoulder issue.  According to the employer, the worker had approached the employer in January 2016 advising that he had the need for permanent restrictions on account of his shoulder and he provided medical information and a document that was given to the worker to fill out.  Based on the documents which were returned to the employer, as of 2016, the worker had been accommodated with the result being that he was not able to work over his shoulder and or reach away from his torso. 

Issue No. 2:     Whether or not the worker is entitled to wage loss benefits from March 13, 2017 to March 20, 2017.

The employer’s position was that it was reasonable to expect that the worker was aware of the employer’s return to work process. Further, the employer’s offer of modified duties on March 13, 2017 would have reasonably been within the worker’s capabilities and that the employer was aware of its responsibility to accommodate the worker.

Issue No. 3:     Whether or not the worker is entitled to wage loss benefits from March 29, 2017 to April 11, 2017.

The employer submitted that the March 10, 2017 incident had nothing to do with the worker’s pre-existing shoulder issues. In addition, the employer submitted that the worker is not required to perform excessive walking in his assigned job functions, neither is excessive waking a job requirement. On March 21, 2017 the worker did meet with his manager along with a union representative asking for modified duties. As well, the employer did receive a report from the worker’s chiropractor which had some restrictions. However, there were no restrictions on sitting, standing or walking.

The employer submitted that the worker was given modified duties, but it was the worker who chose on a regular basis to take a break to smoke. In that regard, there is only one area to smoke which is a fair distance from the majority of work stations. However, given that the worker did not have any restrictions with respect to walking, the employer submitted that the worker’s appeal of this issue ought to be denied.

Analysis

This appeal deals with three issues.

Issue No. 1:     Whether or not the worker’s right shoulder difficulties should be accepted as being a consequence of the March 10, 2017 accident.

For the worker’s appeal of this issue to be approved, the panel must find on a balance of probabilities that the circumstances of the March 10, 2017 incident resulted in an injury to his right shoulder. The panel was unable to make that finding.

In arriving at its conclusion that the worker’s right shoulder difficulties should not be accepted as being a consequence of the March 10, 2017 incident, the panel accepts that the medical evidence on file does not support that a shoulder injury occurred on the date of the incident. In this regard, the panel notes that the worker did not identify a right shoulder injury at the outset.  As well the panel's review of the mechanism of injury does not suggest an injury to the right shoulder. The panel also finds that there was no evidence on file suggesting that the worker’s right shoulder difficulties was a work-related exacerbation or enhancement of a prior right shoulder condition.   

Rather, the panel finds that the medical evidence on file indicates that the worker had a pre-existing right shoulder condition. In coming to its finding, the panel relies on Board policy 44.10.20.10, Pre-Existing Conditions, which states that the WCB will not provide benefits for disablement resulting from the effects of a worker’s pre-existing condition as a pre-existing condition is not a “personal injury by accident arising out of and in the course of the employment”. 

The worker’s appeal on this issue is dismissed.

Issue No. 2:     Whether or not the worker is entitled to wage loss benefits from March 13, 2017 to March 20, 2017.

For the worker’s appeal of this issue to be approved, the panel must find, on a balance of probabilities that the worker continued to sustain a loss of earning capacity during the time frame at issue.  The panel was able to make that finding.

In arriving at its conclusion that the worker is entitled to wage loss benefits from March 13, 2017 to March 20, 2017, the panel accepts the worker’s description of the events that while a return to work process was discussed with his employer, the details were not finalized before the worker’s chiropractor had confirmed he could return to work on modified duties.  Specifically, conversations were taking place between the WCB case manager and the chiropractor regarding the modified return to work, but the panel finds that these discussions were not completed.  The panel finds that it was reasonable for the worker to assume that while the parties were engaged in a return to work process, it was not completed at that time and the worker returned to work on the following Monday when he obtained medical clearance.

The worker’s appeal on this issue is approved.

Issue No. 3:     Whether or not the worker is entitled to wage loss benefits from March 29, 2017 to April 11, 2017.

For the worker’s appeal on this issue to be approved, the panel must find on a balance of probabilities that the worker continued to sustain a loss of earning capacity during the time frame at issue.  The panel was unable to make that finding.

In arriving at its conclusion that the worker is not entitled to wage loss benefits from March 29, 2017 to April 11, 2017, the panel finds that the medical evidence on the file identifies that any of the problems claimed by the worker with respect to this particular time frame are on account of ongoing problems of a pre-existing nature as described earlier in this decision.  The panel also notes the absence of objective medical findings to support that the accepted compensable lower left back and upper right back injuries were still in play at this point in time. Therefore, the medical evidence does not support a finding that the worker required time off work beyond March 20, 2017. 

As previously noted, the panel finds that the worker’s right shoulder difficulties are a pre-existing condition rather than a work-related exacerbation or enhancement.  While the worker relates these right shoulder difficulties to the March 10, 2017 incident, the panel is not able to relate these symptoms to that incident.

Finally, with respect to the worker’s submission with respect to excessive walking on account of his smoking habit, the panel finds that the medical evidence on the file does not support any such limitations.

Therefore, the panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits from March 29, 2017 to April 11, 2017.

The worker’s appeal of this issue is dismissed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of August, 2019