Decision #118/19 - Type: Workers Compensation
The worker is appealing decisions made by the Workers Compensation Board ("WCB"):
Date of Accident: August 9, 2012:
The worker is not entitled to wage loss and medical aid benefits commencing January 6, 2017;
Date of Accident: November 19, 2016:
The claim was not acceptable.
A hearing was held on August 22, 2019 to consider the worker's appeals.
Date of Accident: August 9, 2012:
Whether or not the worker is entitled to wage loss and medical aid benefits commencing January 6, 2017.
Date of Accident: November 19, 2016:
Whether or not the claim is acceptable.
Date of Accident: August 9, 2012:
The worker is not entitled to wage loss and medical aid benefits commencing January 6, 2017.
Date of Accident: November 19, 2016:
The claim is acceptable.
On August 9, 2012, the worker suffered injuries to her head, back, jaw and pelvis when she was thrown from her feet and landed on her back and head as a result of an accident in the course of her employment.
The worker was initially treated for soft tissue injuries and discharged. Several days later, the worker's treating chiropractor noted post-concussive head symptoms as well as injury to the worker's neck and spine. Her family physician diagnosed the worker with musculoskeletal injuries, including possible sciatic impingement as well as suspected concussion.
The WCB accepted the worker's claim on August 16, 2012.
Based on the worker's symptoms, the WCB psychological advisor referred her to a neuropsychologist for an assessment. After a call-in examination with a WCB medical advisor on September 20, 2012, the worker was referred to a neurologist for medical management of her reported headaches and to a neuropsychologist for an assessment related to the reported loss of consciousness and reported anxiety.
The neuropsychologist set out in a report dated October 16, 2012, that the worker's symptoms were consistent with post-concussion syndrome. On November 27, 2012, the treating neurologist diagnosed post-concussion syndrome and referred the worker for a CT scan which was conducted on December 9, 2012.
The worker continued to obtain treatment and attended for a call-in examination with a WCB psychological advisor on April 3, 2013. On April 12, 2013, the treating neuropsychologist recommended temporary restrictions for the worker's return to work. A second call-in examination with the WCB psychological advisor took place on August 14, 2013 at which time the WCB psychological advisor agreed with the treating neuropsychologist that a course of assertive desensitization followed by a graduated return to work was appropriate.
The worker underwent a lengthy desensitization program and on May 12, 2015, began a graduated return to work program. Due to ongoing anxiety symptoms, the worker was then referred to a psychiatrist who, on January 31, 2016, offered a diagnosis of "Other Specified Trauma and Stressor-Related Disorder (PTSD-like)".
On March 23, 2016, the worker's treating neuropsychologist recommended that the worker's temporary restrictions be lifted. On April 13, 2016, the worker's treating psychiatrist agreed with the recommendation and the worker returned to her regular full-time duties on June 1, 2016.
On January 16, 2017, the worker saw an orthopedic specialist with respect to an injury to her right shoulder. She was diagnosed with rotator cuff impingement, referred for physiotherapy and prescribed anti-inflammatory medication.
The WCB contacted the worker on January 19, 2017 for an update of information to determine her eligibility for a permanent partial impairment award and the worker followed up on January 23, 2017. At that time she advised her symptoms had increased and she would see her family physician on February 2, 2017. The worker also reported that she injured her right arm while at work and would be starting physiotherapy. She stated that she was off work for the previous shift and inquired as to what she should do about income. The case manager noted that WCB would require updated medical information but did not note any specific instructions regarding making a new claim and did not inquire further about the arm injury.
On February 2, 2017, the worker's family physician noted that the worker's mood had decreased and her anxiety increased. The physician noted that the worker had injured her right shoulder while at work but this had improved with rest, although the worker's anxiety became more heightened in anticipation of returning to work. The physician diagnosed the worker with anxiety and referred her to her psychiatrist.
On February 15, 2017, the worker saw her psychiatrist and reported that she had not worked since January 5, 2017 due to an increase in symptoms of depression and anxiety. The worker also noted that she had injured her arm in November 2016 when she was asked to "strip" her workspace, which was later determined to have been unnecessary. She reported that her position had become a part-time, seasonal position and she worked in a different role in the off season. The worker reported that initially she worked with understanding and accommodating co-workers but more recently had been moved to a different crew she described as "toxic". The psychiatrist recommended an adjustment to the worker's medication and a trial return to work.
On February 22, 2017 the worker called WCB for an update and noted that she had not worked since January 5, 2017 and had injured her arm. At that time, the worker was advised she would need to file a new claim as this injury was the result of a new accident.
The WCB psychological advisor reviewed the worker's file on March 26, 2017 and stated that based upon the psychiatrist's report of March 13, 2017, it appeared that the worker's increased symptoms were related to her toxic work situation and to hurting her arm in November 2016. The psychological advisor noted the worker likely had pre-existing vulnerability due to previous depression and work related anxiety.
On April 6, 2017, the worker filed a claim with WCB in respect of injury to her right shoulder and upper arm sustained while working out of province on November 19, 2016. She described the injury as being sustained when she had to "strip" her work space of all contents and supplies at the end of a shift. She indicated that she went to report the injury and told the manager that she would ice it and then finished the shift. The worker indicated that she treated the injury with pain medication. Two and a half days later, on returning to work after a break, the worker learned that the stripping had been unnecessary and she then had to restock her work space with little help. When she completed that task, her arm felt like it "was about to fall off" but she continued to work over the next two days. The worker stated that she delayed seeking medical treatment because she "thought it would get better" and that she self-treated with pain medication and stretches.
The employer's advocate contacted WCB on April 13, 2017 and indicated concerns about claim acceptance, delay in reporting and seeking medical attention and the worker's failure to inform her supervisor of ongoing difficulties. The employer's advocate at that time indicated the belief that the newer claim was about the worker's job dissatisfaction and pointed to the worker's pre-existing depression as a factor.
In a discussion with the WCB on April 18, 2017, the worker advised that she had mentioned the injury of her arm to co-workers and provided the WCB with their names. She confirmed she first sought medical treatment for the arm injury on January 16, 2017 and that before this, she treated the injury with rest, ice and use of a sling. She indicated to the WCB she would subsequently attend physiotherapy for treatment of the injury. At that time the worker indicated that her arm was not improving and that she had sharp pain in the rotator cuff with some movement.
The WCB spoke to several of the worker's co-workers in April and May 2017 to inquire whether they were aware of the worker's injury. The service manager recalled a conversation about three months earlier in which the worker commented to the effect that she hoped she wouldn't have to strip the work space and get hurt. He noted that the last time he saw her work she showed no sign of injury. A co-worker confirmed that they were aware of the worker's right arm/shoulder difficulties in January 2017 related to stripping her work space in November 2016. The worker's manager indicated that in January 2017 she spoke with the worker by telephone and was told the worker was going off work due to right shoulder difficulties that she related to two instances of stripping the workspace in November 2016. At that time the worker told her that the service manager was aware of her difficulties. The worker's manager in the location where the injury occurred confirmed a conversation in which the worker told her she had to strip the workspace and wondered if it would be like the previous time when she felt stiff and sore afterwards. The manager could not recall when this conversation occurred or if the worker mentioned injury to a specific body part.
Date of Accident: August 9, 2012:
On April 19, 2017, the worker was advised that the WCB could not relate her current symptoms to the August 9, 2012 workplace incident and as such, she was not entitled to wage loss and medical aid benefits commencing January 6, 2017.
On May 4, 2017, the worker requested reconsideration of the WCB's decision to Review Office, noting in her submission that the injury to her arm triggered her pre-existing psychological vulnerability to depression and anxiety disorder, which was caused by the workplace accident of August 9, 2012.
Review Office determined on July 20, 2017 that the worker was not entitled to wage loss and medical treatment benefits commencing January 6, 2017.
Date of Accident: November 19, 2016:
On May 15, 2017, the WCB advised the worker that her claim was not acceptable as it could not be established that a workplace accident occurred on November 19, 2016 due to the delay in seeking medical treatment and reporting the accident to her employer.
On December 12, 2017, the worker's representative requested reconsideration of the WCB's May 15, 2017 decision that the worker's November 19, 2016 claim was not acceptable, as well as Review Office's July 20, 2017 decision that the worker was not entitled to wage loss and medical treatment commencing January 6, 2017 in relation to her August 9, 2012 claim.
Review Office determined on March 1, 2018 that there was no entitlement to wage loss and medical treatment benefits commencing January 6, 2017 for the worker's August 9, 2012 workplace accident and that the worker's November 19, 2016 claim was not acceptable.
On January 7, 2019, the worker's representative filed an appeal for both claims with the Appeal Commission. An oral hearing was arranged and took place on August 20, 2019.
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.
Section 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.
Under s 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. Section 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Section 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."
WCB Policy 22.214.171.124, Pre-Existing Conditions addresses the issue of pre-existing conditions when administering benefits. This policy states that:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, WCB Policy 126.96.36.199 states, in part that:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The following definitions are set out in Policy 188.8.131.52:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
WCB Policy 184.108.40.206.10, Recurring Effects of Injuries and Illness sets out that when a worker has returned to work following a compensable injury or illness, and subsequently suffers a further loss of earning capacity as a result of that same injury or illness, the WCB will award compensation benefits to the worker during the current loss of earning capacity. In determining benefits for accidents occurring on or after January 1, 1992, this policy sets out the following process:
ACCIDENTS ON OR AFTER JANUARY 1, 1992
1. Prior to determining the type and amount of compensation benefits payable, the WCB must first determine whether the worker’s current loss of earning capacity is the result of a new and separate accident or a recurrence. The distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current loss of earning capacity is a consequence of the original compensable injury or illness or an intervening incident event, or exposure that contributed to the injury.
2. New Accident
The WCB will consider that the current loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to a previous injury or illness. The current loss of earning capacity has no relationship to a previous injury or illness if the same body part or anatomical site as the original injury or illness is not injured or the worker's condition is not consistent with the details of the accident and the diagnosis as established in the original claim.
If there was an intervening incident, event, or exposure deemed capable of either causing the injury, or aggravating a previous susceptibility to injury, the WCB will also consider the current loss of earning capacity the result of a new and separate accident.
If the WCB determines that the current loss of earning capacity is not the result of a new and separate accident, then the current loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness.
A recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity….
The worker was represented in the hearing by legal counsel. The worker provided oral testimony in response to questions from counsel as well as members of the panel. The worker's primary care physician appeared as a witness and provided oral testimony in response to questions from her counsel as well as members of the panel. A representative of the worker's union appeared via teleconference as a witness and provided oral testimony in response to questions from her counsel as well as members of the panel.
Counsel for the worker confirmed the worker's position that she is entitled to wage loss and medical aid benefits commencing January 6, 2017 arising out of the accident of August 9, 2012. Counsel stated that the psychological symptoms of panic, depression and anxiety the worker experienced after January 6, 2017 were a recurrence of the effects of the 2012 accident, whether ongoing or triggered by the injury to the worker's right shoulder in late November 2016 and January 2017.
Counsel relied upon a report from the worker's treating psychiatrist dated November 2, 2018 to assert that as of February 15, 2017 when last assessed, the worker's psychological condition met the criteria for a diagnosis of Post-Traumatic Stress Disorder. The treating psychiatrist was of the view that all of the worker's active psychological diagnoses at that time were the result of the injury arising out of the accident of August 9, 2012.
With respect to the acceptability of the claim arising out of an accident on November 19, 2016, counsel for the worker argued that the evidence supports the position that the worker was injured as a result of an accident in the workplace. As a result of this injury, counsel argued, the worker's psychological symptoms again manifested, complicating the recovery from this injury.
Counsel stated that the worker's explanation for late reporting provided in the initial Worker Incident Report is very plausible. Initially, the injury was not thought to be serious and the worker determined that she would use her planned vacation time to rest and recover. It was upon her return to work duties after vacation at the end of December 2016 and into early January 2017 that the symptoms of the injury worsened and as soon as possible thereafter, the worker sought medical attention for the injury and spoke with her manager about it. Counsel relied on the worker's testimony that after she saw the doctor in mid-January 2017, she told WCB about the injury and was advised to "piggy back" her claim on the existing, still open claim arising out of the accident of August 9, 2012. It was not until sometime later that the worker was advised to file a new claim, which she did on April 6, 2017.
Counsel for the employer noted that the medical findings with respect to the worker's right shoulder injury support the mechanism of injury that the worker identified and that there is no evidence of any other potential mechanism of injury to account for the shoulder injury.
In summary, the worker's counsel urged the panel to find that the worker experienced a loss of earning capacity and required medical aid as of January 6, 2017 as a recurrence of the effects of the injury arising out of the accident of August 9, 2012 and that as a result, the worker is entitled to wage loss and medical aid as of January 6, 2017. Further, the worker's counsel urged the panel to find that the worker was injured as a result of the accident of November 19, 2016 arising out of and in the course of her employment, and that the claim should therefore be accepted.
The employer was represented in the hearing by an advocate. A representative of the employer appeared via teleconference and provided oral testimony in response to questions from their advocate as well as members of the panel.
The advocate for the employer stated the employer's position that the worker is not entitled to wage loss benefits and medical aid as of January 6, 2017 arising out of the accident of August 9, 2012. The employer's position is that the worker has a pre-existing history of major depression, panic attacks, anxiety and agoraphobia, which her treating psychiatrist noted in 2005 had gone into remission at that time. The employer's advocate suggested that the worker's current difficulties are a continuation of the pre-existing psychological diagnoses which reappeared in December 2016.
The employer's advocate pointed the panel to consider the evidence relating to the worker's recovery from the injuries resulting from the accident of August 9, 2012 which shows that the worker had largely recovered in early 2016, including the opinion of the WCB psychological advisor of March 10, 2016 that suggested the remaining and continuing anxiety issues were unrelated to the injury, and of the treating neuropsychologist dated March 22, 2016, recommending the lifting of work restrictions. The work restrictions were therefore lifted in April 2016 and the worker resumed her full duties as of June 1, 2016.
The employer's advocate posited that rather than recurrence of the worker's psychological diagnoses resulting from the accident of August 9, 2012, the worker did not return to work after January 6, 2017 as a result of her pre-existing major depression and anxiety disorder. The worker's psychological condition may have been triggered by job stress or dissatisfaction or hurting her shoulder but cannot be directly related to the 2012 injury as required by WCB Policy 220.127.116.11.10.
Further and with respect to the question of acceptability of the claim arising out of the accident of November 19, 2016, the employer's advocate stated that the evidence does not establish that an injury occurred nor that it occurred at work. In support of this position the employer's advocate directed the panel to consider the lack of corroboration by other staff or supervisors at or near the time of the alleged injury. The worker's union representative testified that she did not hear about it until sometime later. The service manager was not aware of the injury and did not take an incident report. The worker did not report the incident to her supervisor on her return to Winnipeg. Further, the worker's own evidence is that she continued to work after the injury and then self-treated but did not make a claim until nearly 5 months later despite her familiarity with the claims process.
The advocate for the employer stated that the evidence shows that the worker had a prior history of shoulder injury. The orthopedic specialist the worker saw on January 15, 2017 noted in his report that the worker reported injuring her shoulder in summer 2016. Further, the employer's advocate suggested that a rotator cuff injury can arise from multiple causes, including age related degeneration or repetitive overhead lifting. Here there are no objective medical findings regarding the onset of the shoulder injury until nearly two months after the worker alleges she was hurt.
For these reasons, the employer's advocate stated the panel should not accept the claim arising out of the accident of November 19, 2016 as the evidence does not establish on a balance of probabilities that the worker injured her shoulder arising out of and in the course of her employment at that time.
In summary, the employer urged the panel to uphold the decision of the Review Office that the worker is not entitled to wage loss and medical aid benefits arising out of the accident of August 9, 2012 and that the claim relating to the accident of November 19, 2016 is not acceptable.
Accident of August 9, 2012
The issue for determination in respect of the accident of August 9, 2012, is whether or not the worker is entitled to wage loss and medical aid benefits commencing January 6, 2017. In order for the worker's appeal on this issue to succeed, the panel must determine that on January 6, 2017, the worker was experiencing a loss of earning capacity resulting from the accident of August 9, 2012 or required medical aid to cure and provide relief from an injury resulting from the accident of August 9, 2012.
The panel is not able to make that finding.
The medical evidence on file and most proximal to January 6, 2017 is the report from the worker's visit to the orthopedic specialist on January 16, 2017. The panel notes the worker testified that when she returned from the work trip on January 5, 2017, she sought an appointment with an orthopedic specialist rather than contacting any of the medical professionals who were or had been treating her for the various injuries resulting from the 2012 accident.
Furthermore, when she attended for treatment on January 16, 2017, the subjective complaints noted in the Doctor First Report of the same date, relate to injury of her right shoulder. The panel noted that the report does not include any subjective complaints with respect to any of the body parts injured or injuries otherwise resulting from the accident of August 2012 and, further, does not include any comment on whether or not the worker is disabled from work.
When the worker spoke with the WCB case manager on January 23, 2017, she reported that she injured her right arm while at work and was seeking physiotherapy for that injury. She stated she was off work for the last shift and was going back to work later that week. At that time, the worker also noted being in a major depression, difficulty getting out of bed to go to work, limitations with short term memory and consistent headaches and panic attacks and that she had scheduled an appointment with her physician on February 2, 2017.
The Doctor's First Report from the worker's visit to her family physician on February 2, 2017 references an injury to the worker's right shoulder/upper arm on November 19, 2016 and indicates subjective complaints of "ongoing right shoulder pain since accident, unable to take down all her Christmas decorations (in February) due to persistent pain." The physician noted objective findings of decreased range of motion, ability to scratch back to right buttock only, limited anterior elevation to 120 degrees, discomfort at 120 degrees straight arm elevation. The physician stated there was no pre-existing injury to the worker's right shoulder and highlighted that since the injury, the worker has also experienced worsening of her anxiety. The physician stated that the worker was not capable of alternate or modified work as of that date, as a result of her injury.
The worker again saw her family physician on February 15, 2017 who reported:
"Decreased mood with increasing anxiety since Christmas relating to mounting dread of returning to work [at site]. Patient had sustained an injury to right shoulder while at work…prior to Christmas; ongoing, job related duties made injury worse. Improved with rest but return to work anticipatory anxiety has become heightened."
Looking backward at the period of time from when the worker returned to full time work in June 2016 through to January 6, 2017, the information on file as to the worker's condition is limited to the following:
• On August 12, 2016, the worker contacted the WCB indicating she would be making appointments with her treating physician and treating psychiatrist. At that time, her primary concerns were with respect to headaches and hair loss. She indicated that she was loving her job and the people she worked with. She had concern about continuing in the same or related work when her summer duties ended at the end of October. The worker noted that the hair loss and uncertainty about her job duties were causing her some stress.
• On August 26, 2016, the worker communicated with the WCB to confirm she booked an appointment with her psychiatrist and to request assistance in addressing the upcoming change in her duties, indicating that the uncertainty is a source of anxiety for her.
• The September 8, 2016 report from the worker's psychiatrist confirmed that the worker felt her medication was working well without any apparent side effects. The psychiatrist noted the worker had developed migraine headaches that arise when at higher altitudes and further that the worker expressed interest in continuing full time work of the same kind when her summer duties would discontinue in October. The treating psychiatrist recommended no change to the worker's prescriptions for the following 12 months.
There are no other medical reports during this period. The worker's treating physician, in her testimony, stated that after the worker returned to full-time work in June 2016, she was doing very well and noted that the worker was on an expected trajectory to continued improvement. During the period before the reported injury in November 2016, there was clear progress in terms of the worker's mood and ability to perform her duties.
In sum, in the period from June 2016 to January 2017, the evidence suggests that the worker's condition was relatively stable with occasional specific stressors identified but no significant concerns about the worker's mental or physical health. The reports on file from this period of time support that the worker was recovered from the injuries arising out of the accident of August 9, 2012.
The evidence suggests, however, that after the worker returned from the late-December through early January work trip there was a change in her physical condition. It was at this point in time that the worker sought and obtained medical attention for a shoulder injury that she related to an incident in her work in November 2016.
While the worker's counsel suggests that the worker was unable to work and required medical aid on January 6, 2017 as a result of the injury incurred in the compensable accident of August 16, 2012, the panel finds that the medical findings and worker's own reports to WCB do not support this position. Likewise, the panel finds that the medical reports and evidence on file also do not support the employer's position that the worker was unable to return to work and required medical aid after January 5, 2017 as a result of her pre-existing major depression and anxiety disorder. The evidence before the panel is that the worker did not begin to report increasing symptoms relating to anxiety and depressed mood, first to the WCB and then to her own physician and treating psychiatrist until later.
The worker's physician noted in her chart notes of February 2, 2017 that "It appears patient became injured in the work place and that this injury was aggravated again in the work place", referring to the right shoulder rotator cuff injury.
The worker's counsel also urged the panel to find that the worker's loss of earning capacity on January 6, 2017 was the result of a recurrence of the injury arising out of the accident of August 9, 2012. The worker's counsel pointed the panel to WCB Policy 18.104.22.168.10 which sets out that the WCB will award compensation benefits to the worker during the current loss of earning capacity when a worker has returned to work following a compensable injury or illness, and subsequently suffers a further loss of earning capacity as a result of that same injury or illness.
The panel notes, however, that WCB Policy 22.214.171.124.10 applies only where the worker suffers a further loss of earning capacity as a result of the same injury or illness.
Having considered the evidence presented in the hearing, and available on the worker's WCB files, the panel finds on a balance of probabilities, that on January 6, 2017, the worker was suffering from an injury to her right rotator cuff. There is no evidence before the panel to link the rotator cuff injury to the accident of August 9, 2012.
The panel therefore concludes that any loss of earning capacity and/or medical aid required by the worker on January 6, 2017, was the result of this new injury, rather than a result of a recurrence of the worker's injury arising out of the accident of August 9, 2012.
Therefore, the worker is not entitled to wage loss and medical aid benefits commencing January 6, 2017 in respect of the accident of August 9, 2012.
Accident of November 19, 2016
The issue for determination in respect of the accident of November 19, 2016 is whether or not the claim is acceptable. In order for the worker to succeed the panel must determine that there was an accident in the course of the worker's employment on November 19, 2016 and that as a result of the accident the worker suffered personal injury.
The panel is able to make that finding.
The worker, through her testimony and in answer to questions from panel members, provided a thorough description of the duties she was performing which resulted, she stated, in the injury to her shoulder. The worker described to the panel in substantial detail how in the course of her employment on or about November 19, 2016, she was required to strip her work space of all supplies and equipment at the end of her shift. She indicated that she requested the onsite manager provide another employee to assist her in this task but was told no one was available. The worker therefore proceeded to do as asked.
When she completed the job, the workplace had emptied for the day so that there was no one available to report to. She stated that she hurt her right arm in completing that work, with pain at the shoulder radiating down her arm to her thumb. The worker confirmed that her workplace training includes first aid so she obtained the necessary ice and pain relievers before going to sleep that night. She rested the next two days, self-treating her arm with ice and pain medication.
Upon returning to work three days later, the worker learned that the task had been completed in error and that the workspace now needed to be reloaded and restocked. She was again told that there was no standby help available to support her in this task. The worker indicated she told the service manager at that time that her shoulder hurt, but without support available, the worker took pain relief medication so that she could do the task as required.
The worker stated that when she completed work several days later, she spoke with her manager and advised that she had hurt her arm. When the manager asked if a report had been written, the worker indicated it had not been, because the service manager didn't like to do paper work. The worker stated that the manager asked if they should write it at that time, but the worker declined because she was tired, in pain and wanted to go home. The worker indicated she planned to use her scheduled leave and vacation time for the following weeks to recover.
The worker told the panel that over the course of the following month, the shoulder injury improved and swelling went down, so that she felt able to return to work as scheduled on December 29, 2016.
Two days later, she was asked to again unload and strip the work space of supplies and equipment. She indicated that she told the onsite manager that she could not do this alone and she had already hurt herself doing the same thing in November. The worker stated that the onsite manager told her she had to do it but sent another employee to assist. The worker noted that the supporting employee was on light duty restrictions and was therefore of limited assistance to her.
The worker confirmed that at the end of this shift, her right shoulder was dropping and she was in a great deal of pain. She took pain medication and rested for the next two days. Upon her return to work, she learned that she would have to restock and resupply the work space again. She told the panel that on learning this she started to cry and called her husband. She went to ask for help and was told that there was no staff available to assist her. She did the job alone and with pain. When she left work on January 5, 2017, the worker again went home for a period of scheduled leave. The next morning, she called the sport medicine clinic to arrange an appointment to address the shoulder pain.
The employer's representative pointed to the delay in reporting of this claim in arguing that the claim should not be accepted noting that the employer did not have notice of the claim until some five months later.
Panel members questioned the worker on the reason for her delay in reporting and the worker provided the panel with an explanation for why she did not initially make a claim after returning from the November trip where the injury first occurred. The worker explained that she used her first aid training to administer appropriate self-care to manage the injury. The worker's physician, when asked by the panel if any further treatment would have been indicated for such an injury, suggested that rest and ice and pain relief medication was appropriate.
As noted above, the worker recalled a conversation with her manager at the end of that shift in which she outlined the nature and cause of the injury. She indicated to her manager that an incident report had not been made and declined to do so at that time. The evidence of the manager provided to the WCB in May 2017 confirms her recollection that a conversation did take place with the worker in January 2017 by telephone in which the worker advised of the injury to her shoulder arising out of her work and confirmed that she did not complete a report with the service manager.
Upon completing that shift, the worker took her scheduled week of leave followed by several weeks of vacation. The worker told the panel that while on leave and then on vacation, she continued to rest the shoulder, so that the injury was no longer troubling her when she started the next shift at the end of December. It was not until after the next shift was completed on January 5, 2017, when the worker again had to strip and reload the work space a few days apart, that the worker sought medical attention for the injury to her right shoulder that she related to her work duties, as noted in the Doctor First Report provided by the orthopedic specialist. That appointment took place on January 16, 2017.
The employer's representative, in her submission, pointed out that the physician seen by the worker at that time noted that the worker related the injury to a workplace event but did not see fit to report the injury to WCB at that time and further noted in the report that the symptoms first occurred in summer 2016. There is no obvious explanation for the discrepancy in the history the worker indicated she provided and that which the physician noted. The worker was not able to explain it. The employer suggested that this confirms that the injury occurred sooner, but the panel noted that there is no other corroborating support for the employer's suggestion.
The panel noted as well that that the worker's first contact with this physician was in January 2017. Otherwise, she was under the care of her longtime primary care physician, who confirmed she did not have any knowledge of a prior injury to the worker's right shoulder. Whether the noted history is in error or whether the worker in fact did relay that information to the physician, the panel noted that the orthopedic specialist did specifically relate the injury to an event that occurred in the course of the worker's employment.
Further, the panel noted that WCB file notes confirm the worker mentioned the injury to her right arm as arising out of her work in a telephone conversation with the WCB case manager on January 23, 2017. The worker told the panel that she understood that this injury would "piggy back" on the 2012 claim file which was not yet closed. It was only when she followed up with the WCB on this on February 22, 2017 that she was told that she would need to make a new accident report, as confirmed in the file note of that date.
When the worker saw her own physician on February 2, 2017, she again related the injury to her right shoulder to the workplace tasks undertaken in November, December and January. The worker's physician noted the details of the initial injury in November and aggravation of that injury in December in the chart notes from that visit. The physician specifically notes that in follow up that she will complete the WCB form for first report regarding right shoulder.
The panel noted that the employer did not dispute that the worker was required to strip supplies and then reload supplies without assistance or support in November when the worker alleged she was injured in the course of doing so. Nor does the employer dispute that the worker was again required to do so in late December, this time with some support from another worker on reloading. In fact, when questioned by the WCB, both the manager and service manager recalled conversations with the worker relating to this task, although neither could recall exactly when these had occurred.
On considering all the evidence on file and provided to the panel in the hearing, the panel is satisfied that the worker took appropriate steps to report to her employer, treating physicians and the WCB both the nature and cause of her injury in the month following the end of her shift on January 5, 2017.
It is unclear whether the worker was told or simply misunderstood that the shoulder injury could be dealt with as part of her August 9, 2012 claim file, but the evidence supports that she did report an injury arising out of her work to the WCB on January 23, 2017. It is unclear when the worker had a conversation with her manager about the injury, but the evidence does support that the worker did inform her employer at some point after the injury occurred. It is unclear why the treating physicians did not submit their Doctor's First Reports until April 2017, but the reports confirm that the worker reported injury to her right shoulder arising out of her employment.
The panel is therefore satisfied that the evidence establishes, on a balance of probabilities that the worker's right shoulder was injured as a result of events arising out of and in the course of her employment on or about November 19, 2016 and again in or about the period of late December 2016 - January 5, 2017.
The claim is therefore acceptable in relation to the accident of November 19, 2016.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of September, 2019