The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:

Date of Accident - February 23, 2017:

The worker is not entitled to medical aid benefits for his right shoulder difficulties as being a consequence of the February 23, 2017 accident;

Date of Accident - February 16, 2018:

The worker is not entitled to benefits after April 16, 2018.

A hearing was held on November 28, 2019 to consider the worker's appeal.

Issue

Date of Accident - February 23, 2017:

Whether or not the worker is entitled to medical aid benefits for his right shoulder difficulties as being a consequence of the February 23, 2017 accident;

Date of Accident - February 16, 2018:

Whether or not the worker is entitled to benefits after April 16, 2018.

Decision

Date of Accident - February 23, 2017:

The worker is not entitled to medical aid benefits for his right shoulder difficulties as being a consequence of the February 23, 2017 accident;

Date of Accident February 16, 2018:

The worker is not entitled to benefits after April 16, 2018.

Background

Date of Accident - February 23, 2017

On February 23, 2017, the employer provided the WCB with an Employer's Accident Report indicating the worker injured his left hand, left wrist and left hip in the employer's parking lot when he "slipped and fell on light snow…" on his way into work that day. The WCB wrote to the worker on February 24, 2017 and advised him that his claim was accepted. It was noted in the correspondence that the worker had not missed any time from work and requested that he contact the WCB if he does miss time from work, has any associated medical expenses, experiences ongoing symptoms, or has any further medical appointments.

The worker was seen by a physiotherapist for an initial assessment on April 12, 2017. The physiotherapist noted the worker's area of injury as being his right shoulder, which the worker reported he injured after he "Slipped on ice and put arms back to brace the fall". The worker's complaints were noted to be pain and difficulty moving his arm behind him, occasional shooting down his right tricep and soreness in the morning. The physiotherapist noted that the worker had limited range of motion and painful flexion and abduction. It was noted that the worker was working his regular duties.

On April 25, 2017, the worker was advised by the WCB that due to the delay in seeking treatment, a relationship between his ongoing difficulties and the February 23, 2017 workplace accident could not be established and he was not entitled to medical aid benefits for his right shoulder.

In a discussion with his WCB adjudicator on April 27, 2017, the worker advised he did not initially seek treatment for his injuries as he thought they would resolve on their own. He further advised that his symptoms worsened when he had a second incident of slipping on ice at home approximately one week after his initial workplace accident and he jarred his shoulder while catching himself from falling. When asked by the WCB adjudicator, the worker indicated that he could not recall if he made any ongoing complaints with his employer.

The employer's representative requested reconsideration of the WCB's decision to Review Office on June 12, 2017. The employer supported the worker's claim, noting that the worker did seek medical attention and was referred for physiotherapy treatment. The representative stated that the physiotherapist initially treated the worker's left hand, wrist, shoulder and hip then as the worker continued to have difficulties with his right shoulder, began treatment for that injury as well. Review Office spoke to the worker on July 25, 2017 and requested information from the worker regarding the medical treatment he sought, as indicated in the employer's representative's submission. The worker could not provide a date but provided Review Office with the name of his treating family physician along with the names of three co-workers who were aware of his difficulties. The worker's family physician advised Review Office on August 31, 2017 that he reviewed the worker's file and discussed it with his physician's assistant and the worker had not mentioned a right shoulder injury.

On September 20, 2017, the worker was advised that he was not entitled to medical aid benefits for his right shoulder. Review Office placed weight on the information provided closest to the time of the workplace accident being the Employer's Accident Report which noted that the worker injured his left hand, wrist and hip with no information provided to support that the worker injured his right shoulder or fell with both his arms outstretched. Review Office noted that there was no medical evidence to support that the worker developed right shoulder difficulties as a consequence of the workplace accident, only a physiotherapy assessment seven weeks after the accident. Review Office also accepted and placed significant weight on the worker's family physician's response that no mention was made of a right shoulder injury or any difficulties until several weeks after the accident.

On November 1, 2018, the worker's representative submitted further information, including the worker's description of the accident, further medical reports and information from the employer indicating that the worker advised them "…within a few days of the accident…" that his right shoulder was also injured, and asked Review Office to reconsider the September 20, 2017 decision. On December 14, 2018, Review Office advised the worker that the additional information submitted had been reviewed but the September 20, 2017 decision remained unchanged.

The worker's representative filed an appeal with the Appeal Commission on January 28, 2019.

Date of Accident - February 16, 2018

An Employer's Accident Report was filed with the WCB on February 16, 2018 indicating that the worker injured his right hand and right and left shoulders in an accident at work when the back of the chair the worker was sitting in broke and he fell backwards. It was noted that the worker had a small cut on his right hand and both his shoulders and the right side of his abdomen were sore.

The WCB contacted the worker on February 21, 2018 to advise that his claim was accepted. The worker advised the WCB that he had attended at a local hospital the day previous. The WCB requested and received a copy of the hospital report dated February 20, 2018 for the worker and it was noted that the worker was diagnosed with bilateral rotator cuff tendinopathy and cervical spine degenerative disc disease and was given a cortisone injection. The sports medicine specialist who administered the injection also requested an x-ray for the worker's cervical spine, which was conducted on January 23, 2018 and noted "Mild moderately advanced degenerative spondyloarthropathy". The worker also underwent MRI studies on both his left and right shoulders on March 28, 2018 that noted partial tears along with acromioclavicular osteoarthritis in both shoulders.

On April 16, 2018, the worker was advised by the WCB that his claim was accepted for an accident occurring on February 16, 2018. However, he was not entitled to benefits after April 16, 2018. It was noted that the medical evidence did not support that the worker's ongoing difficulties were related to the February 16, 2018 accident.

A Physiotherapy Initial Assessment dated April 16, 2018 was received by the WCB. The area of injury was noted as being the worker's shoulders and lower back that were injured when a "Chair broke and fell back, bracing with arms." The physiotherapist noted the worker's complaints of lower back and right leg pain, constant numbness in his right foot, back pain that was worse when standing, and shoulder pain when reaching back. The worker was diagnosed with lower back facet sprain/strain and bilateral shoulder strain/tear.

The worker requested reconsideration of the WCB's decision to Review Office on May 1, 2018, noting disagreement with the April 16, 2018 decision. The worker provided in his submission that after the February 16, 2018 accident he was "…getting greater discomfort in my lower back and finally down the back of my leg…" and he did not have those symptoms prior to the accident.

On May 25, 2018, Review Office determined the worker was not entitled to benefits after April 16, 2018. Review Office could not causally relate the worker's ongoing difficulties to the February 16, 2018 workplace accident. Review Office found the cervical spine x-ray noted a pre-existing condition of degenerative spondyloarthropathy, the MRI studies found pre-existing acromioclavicular osteoarthritis in both the worker's shoulders and the February 20, 2018 hospital report regarding the worker's cortisone injection noted his diagnosis of bilateral shoulder rotator cuff tendinopathy and cervical spine degenerative disc disease but did not note a workplace accident. Further, Review Office noted that the worker continued to perform his regular job duties and did not seek treatment between February and April 2018, which indicated to Review Office that the workplace injuries were relatively minor with recovery within a short duration. As such, the worker was not entitled to benefits after April 16, 2018.

The worker's representative submitted the worker's description for the February 16, 2018 workplace accident and further medical reports from the worker's treating sports medicine specialist and family physician on November 1, 2018 and requested Review Office reconsider the May 25, 2018 decision. The representative submitted the medical reports supported that the worker injured both of his shoulders as a result of his workplace accident(s), and required ongoing treatment and medical aid benefits for those difficulties. On December 19, 2018, Review Office advised the worker that the material submitted had been reviewed but there was no change to the May 25, 2018 decision.

On January 28, 2019, the worker's representative filed an appeal with the Appeal Commission.

Both claims

An oral hearing was arranged for both claims.

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 Board of the Directors.

"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.

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."

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") which deals with issues involving pre-existing conditions.

The following definitions are set out in the Policy:

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.

Worker's Position

The worker was represented by a worker advisor who provided the panel with information regarding rotator cuff tears prior to the hearing. At the hearing, the worker advisor outlined the worker's position on each claim and both the worker advisor and the worker answered questions posed by the panel.

Date of Accident - February 23, 2017

On behalf of the worker, the worker advisor stated that, on a balance of probabilities, the worker's right shoulder difficulties arose as a result of the February 23, 2017 accident.

The worker described how he slipped on ice in the parking lot of his workplace. He stated he fell on his tailbone and used both his arms outstretched backwards to try and break his fall.

The worker advisor stated that the worker had reported his right shoulder symptoms to his employer shortly after the time of the accident and this was supported by the employer's human resource manager who confirmed to the WCB that within a few days of the accident the worker had reported right shoulder discomfort to her.

The worker advisor submitted that there was no other cause for the onset of the worker's right shoulder difficulties.

When asked about the second incident that occurred at his home approximately one week after the workplace injury, the worker stated that the information contained in the April 27, 2017 WCB file note was incorrect. While the notes referred to the worker having a second fall at home whereby the worker "jarred shoulder when he caught himself from falling," the worker stated that was not the case. He stated to the panel that he had lost his balance while walking in his backyard and his arms went out to help him keep his balance. The sudden lifting of his arm caused him to have pain. He stated that he did not fall or jar his shoulder as described in the WCB file note.

Further, the worker advisor submitted that, since the worker's job duties were sedentary and he thought his right shoulder difficulty would resolve on its own, he did not seek immediate medical attention. The worker also had a standing medical appointment with his treating physician every three months so he waited until that appointment on April 11, 2017 to have his shoulder examined. The worker stated:

…that I don't like wasting people's time. We have a medical system that is overcrowded already, so, I do have a standing appointment every three months with my doctor, so that was six weeks away, and I just kept waiting to, because that time was actually getting closer and closer, said, well, I'll talk to (treating physician) and go see him.

The worker advisor also stated that the medical information on the file confirms a relationship between the February 23, 2017 accident and the worker's ongoing right shoulder difficulties.

The worker advisor referenced the worker's family physician's referral note dated April 11, 2017 and the physician's clinical note that confirm the need for physiotherapy is related to the right shoulder work injury being rotator cuff dysfunction.

The worker advisor also directed the panel to the April 12, 2017 physiotherapy report which included objective examination findings and a diagnosis of a right shoulder sprain/strain as a result of slipping on ice and putting arms back to brace the fall.

The worker advisor noted that, although the employer did not wish to participate in the worker's appeal, their previous submissions to the WCB regarding this claim clearly supported that they were of the opinion that the worker's right shoulder difficulties arose from the February 23, 2017 accident.

In summary, the worker advisor submitted that the information supported a WCB responsibility for the worker's right shoulder injury as the symptoms and disability were caused by the workplace accident. Therefore, the worker was entitled to medical aid benefits for his right shoulder difficulties as a result of that injury.

Date of Accident - February 16, 2018

On behalf of the worker, the worker's advocate stated that it was their position that the worker was entitled to benefits after April 16, 2018, as the evidence supported that the worker continued to suffer the consequences of his February 16, 2018 workplace accident.

The worker described how, when he leaned back on an office chair at a workplace meeting, the back of the chair broke which resulted in him being injured. The worker was seen by his family physician on November 20, 2016 when bilateral shoulder difficulties were diagnosed, mainly in the right shoulder, based on testing performed at that time. The worker advisor stated that the worker was advised to return for a follow-up appointment in two months' time.

While the WCB initially accepted injuries to his right hand as well as both his shoulders, the WCB considered the injuries to be minor and noted they did not prevent the worker from performing his regular duties.

MRIs were performed on both the worker's shoulders on March 28, 2018 which confirmed tendinosis with a small partial intra tendinous tear and mild AC osteoarthritis in the left shoulder and a small degenerative cyst at the supraspinatus insertion as well as an adjacent intra tendinous partial tear with mild to moderate AC osteoarthritis present in the right shoulder.

The worker advisor stated that the WCB did not accept responsibility for the bilateral intra tendinous tears that were discovered on the MRIs as well as a related lower back injury that the worker was also diagnosed with partly because he did not seek any further medical attention after February 20, 2018 for two months. The worker advisor stated that the worker's treating physician told the worker at the February 20, 2018 appointment to return in two months, which is why there was a two month lapse in medical reporting.

At the hearing, the worker also described that immediately after the accident he had experienced onset of pain into his back that gradually increased over the next week or two. When asked why he did not report his back problems earlier, he stated:

In my mind, I was visualizing this as a hip/joint issue, because the pain is actually right in my butt, in the back, and I thought, oh, that's my hip and really. I didn't even really relate it as a back injury in my mind, so, that's how my doctor said, no, that's your back. Your hip joint is on the front here, so that's where that socket is. So that's one of the main reasons.

The worker advisor further stated that benefits were also denied by the WCB after April 16, 2018 because the worker was able to continue to perform his regular duties between February and April 2018 and the workplace injuries were minor. The worker advisor stated that such a rationale was an unfair assessment on which to deny benefits as it penalizes a worker for continuing to work. Further, the worker advisor submitted that even if the injury was not significant enough to result in a claim for wage loss, the worker was still entitled to medical aid benefits as he had not recovered from his injury.

The worker advisor referred the panel to the report from the worker's specialist dated June 27, 2018 in which he confirms that the described mechanism of injury could have been the reason for the bilateral rotator cuff partial tears as well as an aggravation to the worker's lower back degenerative disc disease.

The worker advisor noted that the worker's treating physician also provided a report dated July 16, 2018 in which he confirms that, based on the imaging reports and the description of the reported two workplace falls (in 2017 and 2018), the bilateral shoulder tears and lumbar spine difficulties can be directly related to the workplace injuries.

In summary, the worker advisor stated that the worker had two substantial falls that consisted of bracing with both arms, which placed force up into the shoulders, and are responsible for his bilateral shoulder tears. The worker advisor also submitted that falling on arms outstretched to brace yourself is well known to cause rotator cuff tears. The worker advisor further stated that, if the panel was unable to support that the shoulder tears are a direct result of the workplace accident, it is the worker's position that the injuries caused an enhancement to the pre-existing conditions for which there would still be WCB entitlement, particularly given that the worker did not have any prior shoulder difficulties until his workplace accidents.

As a result, the worker advisor submitted that the worker was entitled to benefits after April 16, 2018.

Employer's Position

The employer did not participate in the hearing (although they had advised the WCB they were in support of the 2017 claim)

Analysis

Date of Accident - February 23, 2017

In order for the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker is entitled to medical aid benefits for his right shoulder difficulties as being a consequence of the February 23, 2017 accident. The panel is unable to make that finding for the reasons that follow.

The panel accepts that it was probable that the worker injured both his shoulders in the fall as he described it. Further, the employer confirmed to the WCB that the worker did mention that he had "discomfort" in his right shoulder within a few days of the accident. However, the panel is unable to accept that he is entitled to medical aid benefits for his right shoulder as a consequence of that injury as it is the panel's finding that the worker's workplace injury was a minor injury (sprain/strain) that would have substantially resolved within the seven weeks between the date of the injury and the worker first being treated by a physiotherapist, on April 12, 2017.

After the employer submitted an Employer's Accident Report, the WCB sent the worker correspondence dated February 24, 2017 that confirmed an accident claim had been accepted. The correspondence also stated, in part:

Please contact me at the number below if you have missed time from work (apart from the date of the injury), have associated medical expenses, are experiencing ongoing symptoms, or if you have any further medical appointments.

When asked at the hearing why he did not contact the WCB as requested when his symptoms continued, the worker acknowledged receiving the correspondence but said that he did not read it any farther than the statement that the claim had been accepted.

The fact that the worker did not perceive his injury to be significant enough to seek more immediate medical attention and chose to wait until his April 11, 2017 pre-scheduled medical appointment for an unrelated matter to raise the issue suggests to the panel that the injury was of a minor nature.

The panel also considered the second injury that occurred at the worker's home approximately one week after the workplace injury. The file note dated April 27, 2017 not only described the incident at home but also the result. The file note states:

He confirmed the injury wasn't too bad initially however it worsened with second incident approximately a week later when he slipped on ice at home. He did not fall to the ground but jarred shoulder when he caught himself from falling. It continued to bother him and he eventually went to doctor.

The worker disputed the description of the incident at home. However, regardless of the exact mechanism of the second incident, the panel is satisfied that the file information further supports that the worker's initial workplace injury on February 23, 2017 was minor in nature, and that the second incident made the worker's symptoms worse. Any change in the worker's right shoulder difficulties resulting from the worker's second injury at home would not be the responsibility of the WCB.

The worker's treating physician provided a report dated July 16, 2018 whereby he opined that the worker's bilateral shoulder rotator cuff injuries as well as his lumbar spine degenerative disc disease can be directly related to his two workplace injuries (2017 injury and 2018 injury). However, the physician does not provide any rationale for his comments and does not appear to be aware of the incident at the worker's home that the worker stated worsened his symptoms. Further the panel notes that the information contained on this claim does not make mention of low back difficulties related to this injury. Therefore the panel places little weight on this report.

Based on the information provided, the panel does not accept, on a balance of probabilities, that the worker is entitled to medical aid benefits for his right shoulder difficulties as being a consequence of the February 23, 2017 accident.

Date of Accident - February 16, 2018

In order for the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker is entitled to benefits after April 16, 2018. The panel is unable to make that finding for the reasons that follow.

At the hearing the panel reviewed the events on February 16, 2018 with the worker, where the back of the chair he was sitting on broke.

The panel notes that the worker did not submit a Worker's Accident Report regarding the February 16, 2018 accident. The claim was initiated as a result of an Employer's Accident Report being submitted. When the WCB first contacted the worker on February 21, 2018, the worker did not report any injuries and, according to the file notes, he was more focused on discussing his 2017 claim.

The worker first sought medical treatment after this accident on February 20, 2018 from a sports medicine specialist. The panel notes that the medical reporting of that examination identifies a diagnosis of bilateral shoulder RC (rotator cuff) tendinopathy as well as cervical spine DDD (degenerative disc disease). The worker also confirmed at the hearing that the February 20, 2018 appointment with the sports medicine specialist was a previously scheduled follow-up appointment for the above noted conditions and was not scheduled as a result of the workplace accident. The treating physician administered a cortisone injection.

The February 20, 2018 report does not refer to a workplace injury occurring and indicates that Manitoba Health would be responsible for payment, not the WCB. When it was put to the worker that there is no reference to a workplace accident in the specialist's report and it did not look like he had mentioned the chair fall, the worker stated:

There, again, I can't control what he writes down. I know we talked about it, because it's four days after, so I know I'm going to see him. So I had mentioned it to him that I also fell again. So whether or not he wrote it down, I don't know, you would have to ask for his notes.

However, in the panel's view, the report not only does not refer to a workplace accident, it also provides information that supports that the worker's medical conditions were not work related by indicating that the appointment was under Manitoba Health and not the WCB.

The lack of documentation on the report relating these symptoms to the worker's workplace injury a few days earlier (and the inclusion of information to the contrary) as well as the fact the medical exam had been scheduled prior to the workplace injury, further supports a conclusion that the treating physician was not attributing his medical conditions as being caused by a workplace accident.

The worker had MRIs performed on both shoulders on March 28, 2018. The MRIs identified tendinosis with a small partial intra tendinous tear and mild AC osteoarthritis in the left shoulder and a small degenerative cyst at the supraspinatus insertion as well as an adjacent intra tendinous partial tear with mild to moderate AC osteoarthritis present in the right shoulder. The panel notes that both the intra tendinous tears in each of the worker's shoulders are "less than 7 mm in size". The panel does not accept that the worker's injury, as it was described at the hearing, would have resulted in the identical bilateral tears that are identified in the MRIs and instead concludes that these tears are more likely the result of the pre-existing degenerative changes identified in both the worker's shoulders. The panel's position is supported by the findings on each MRI of "AC osteoarthritis with cuff changes as described".

Although it was submitted that there was no absence of symptoms and the worker's condition worsened, or least did not improve between February and April 2018, the worker acknowledged he had no further contact with the WCB until April 10, 2018 when he contacted his case manager to advise that he had seen one of his treating physicians that same day and he was now seeking coverage for physiotherapy as well as some medications.

In the circumstances, the panel accepts that the worker sustained minor shoulder sprain/strain types of injuries to both his shoulders as a result of the February 16, 2018 incident that occurred within degenerative environments. The panel is satisfied, however, that those injuries would have resolved by April 16, 2018 when the worker first attended for physiotherapy and is unable to accept that the worker's ongoing shoulder difficulties as of that date were causally related to the February 16, 2018 incident.

The worker advisor also argued that the worker sustained a low back injury as a result of the February 16, 2018 fall, which aggravated or enhanced his lower back degenerative disc disease. The panel does not accept that argument based on the following:

• There was no report of a low back injury in the Employer's Accident Report submitted on the day of the accident February 16, 2018. 

• The February 20, 2018 medical report does not refer to a low back injury and instead refers to the worker having cervical spine degenerative disc disease. 

• At the hearing, the worker explained that the reason he did not report a back injury occurring at the time of the accident was that he thought it was a hip/joint injury. However, the worker did not advise either the WCB or his treating physician about a hip/joint injury either. 

• There is an absence of information in the file of low back symptomology being reported by the worker to the WCB until his May 1, 2018 submission to the Review Office when the worker stated "… I might add that after my fall I was getting greater discomfort in my lower back and finally down the back of my leg and making my u/s of my foot numb."

As mentioned previously, the worker advisor referred the panel to two letters from his sports medicine specialist as well as his treating physician dated June 27, 2018 and July 16, 2018, respectively, that the worker stated supported his assertion that his claim for benefits after April 16, 2018 should be accepted. Each of these documents states that, in the respective physician's opinion, the worker's ongoing shoulder and back problems could be related, at least in part, to the worker's workplace accidents. However the panel finds that neither document provides clinical findings to support such an assertion or a rationale as to how the workplace injuries caused or contributed to his ongoing conditions or the degenerative changes identified in the worker's shoulders and lumbar spine.

In conclusion, based on the information provided, the panel does not accept, on a balance of probabilities, that the worker is entitled to benefits after April 16, 2018.

As a result, both the worker's appeals are denied

Panel Members

M.L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of January, 2020