Decision #60/20 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:
1. Accident of June 4, 2017: He is not entitled to benefits after January 25, 2019; 2. Accident of May 8, 2019: He is not entitled to benefits after August 20, 2019.
A hearing was held on April 8, 2020 to consider the worker's appeal.
1. Accident of June 4, 2017: Whether or not the worker is entitled to benefits after January 25, 2019;
2. Accident of May 8, 2019: Whether or not the worker is entitled to benefits after August 20, 2019.
1. Accident of June 4, 2017: The worker is not entitled to benefits after January 25, 2019;
2. Accident of May 8, 2019: The worker is not entitled to benefits after August 20, 2019.
Accident of June 4, 2017
The worker reported to the WCB on June 8, 2017 that he injured his right shoulder at work on June 4, 2017 when he was lifting a heavy object with a coworker. The worker attended for medical treatment on June 5, 2017. The treating family physician noted pain and tenderness in the worker’s right anterior shoulder and diagnosed a right rotator cuff injury. The physician administered an injection and recommended the worker remain off work. At a follow-up appointment on June 8, 2017, the worker was referred to an orthopedic surgeon and for physiotherapy.
On June 9, 2017, the worker discussed his claim with a WCB adjudicator and confirmed the mechanism of injury. He advised the adjudicator that after seeing the physician on June 5, 2017, he returned to work on June 7, 2017 and attempted some of his job duties but could not complete them. He spoke to his employer who advised there were no modified duties available for him and he went home. The WCB accepted the worker’s claim on June 14, 2017.
An MRI study of his right shoulder dated June 30, 2017 indicated tendinosis of the supraspinatus, infraspinatus and subscapularis tendons, as well as low grade, partial thickness, bursal-sided tearing of the anterior fibers of the infraspinatus tendon, and suspected posterior labral tearing. His family physician recommended on July 3, 2017 that the worker undergo a nerve conduction test due to his reports of numbness in his right forearm.
On August 1, 2017, the worker’s treating family physician updated his diagnosis to a rotator cuff tear and referred the worker for surgery. On August 2, 2017, a WCB medical advisor reviewed the worker’s file and provided an opinion that the worker’s “…right rotator cuff complaints are medically accounted for on a probable basis to the workplace injury from June 4, 2017…”. The nerve conduction study performed on August 8, 2017 found “…a slight slowing of right ulnar nerve across the elbow and a slight delay of right median sensory responses distally but overall, electrographically they were not significant and the paresthesia and numbness is beyond the distribution of right median and ulnar nerves.”
The worker saw an orthopedic surgeon on September 26, 2017. The surgeon noted that the worker had “…diffuse pain around the right shoulder” but could not identify its origin. The surgeon recommended a further injection and physiotherapy, with surgery recommended if conservative treatment failed. At a follow-up on November 9, 2017, the surgeon reported that the injections had not worked and a diagnostic arthroscopy was scheduled. The worker underwent a right shoulder arthroscopic bursectomy on November 25, 2017. The surgical report indicated no injury found to the worker’s rotator cuff, but evidence of osteoarthritis with degenerative changes to the labrum.
Following surgery, the worker attended physiotherapy treatment and saw the orthopedic surgeon for a follow-up appointment on February 21, 2018. The treating surgeon noted that the worker continued to report pain in the periscapular area, radiating down the outer side of his shoulder with numbness into his arm and hand. The surgeon stated his opinion that given the worker did not respond to the pain injections and had a negative arthroscopy, his difficulties were not related to his shoulder and that the worker “…would not benefit from any further investigation or intervention regarding the shoulder.”
Due to the worker’s report of ongoing symptoms, the WCB arranged a call-in examination with a WCB medical advisor for March 21, 2018. The WCB medical advisor was of the view that the worker’s initial diagnosis related to the June 4, 2017 workplace injury was a rotator cuff-type injury and that his current diagnosis was right shoulder chronic pain. The medical advisor recommended the worker continue with physiotherapy, with increased activities at home before returning to work.
The worker continued to seek treatment from various healthcare providers including a neurologist for further nerve conduction studies. An October 22, 2018 MRI of his right shoulder indicated no new rotator cuff injury since the previous MRI of June 30, 2017.
On November 22, 2018, the worker attended a call-in examination with a WCB physiotherapy consultant. The WCB physiotherapy consultant concluded on December 18, 2018 that, based on the call-in examination and a review of the medical information on the worker’s file, “…a current probable structural pain generator stemming from the June 4, 2017 workplace accident…” could not be found and as such, the worker’s current right shoulder girdle/right upper extremity/neck symptoms were not medically accounted for in relation to the workplace accident. As there was no indication of structural pathology resulting from the workplace accident, the worker did not require any workplace restrictions relating to that injury.
On January 21, 2019, the WCB advised the worker that his entitlement to benefits would end as of January 25, 2019 as it had determined he was functionally recovered from the effects of the June 4, 2017 workplace accident.
A progress report received from the worker’s treating family physician on January 24, 2019 was reviewed by the WCB at the request of the worker. On January 25, 2019, the WCB advised the worker there would be no change to the earlier decision.
The WCB received additional medical information, including a July 21, 2019 MRI study and medical information related to a subsequent workplace injury the worker sustained on May 8, 2019. A WCB medical advisor reviewed the further information on October 1, 2019 and was of the view it did not support a diagnosis beyond non-specific right shoulder pain, and further, did not support total disability. On October 4, 2019, the WCB advised the worker that his current difficulties were not related to his workplace accident of June 4, 2017 and there would be no change to the earlier decisions.
On October 21, 2019, the worker requested reconsideration of the WCB’s decisions on both of his claims. In his submission, he noted he disagreed with the termination of benefits and noted that his healthcare providers continued to investigate the source of his symptoms.
Review Office determined on December 6, 2019 that the worker was not entitled to benefits after January 25, 2019. Review Office relied upon the opinions of the WCB physiotherapy consultant and WCB medical advisor who both opined that the worker’s current difficulties were not accounted for in relation to the June 4, 2017 workplace accident. Review Office found the medical evidence did not support a relationship between the worker’s current right shoulder difficulties and the workplace accident.
Accident of May 8, 2019
The employer filed an Employer’s Accident Report with the WCB on May 10, 2019 reporting that the worker injured his upper back and back of his head on May 8, 2019 when he tripped over some cables and fell backwards, hitting the back of his head and his back. The worker’s report, filed with the WCB on May 15, 2019 notes that he lost consciousness and an ambulance was called for him but he was checked by the paramedics on site and was not taken to the hospital.
On May 9, 2019, the worker saw his family physician for treatment. He reported having a headache and neck pain with the physician noting that the worker was “neurologically normal” and provided the worker with a note to be off work from May 9, 2019 to May 12, 2019. In discussion with the WCB on May 17, 2019, the worker confirmed the mechanism of injury and reported that his previous shoulder injury was aggravated by the workplace accident.
The worker returned to work on May 14, 2019 but advised the WCB on May 24, 2019, that his back pain was severe and he would not be able to work. At an initial physiotherapy assessment on May 21, 2019, the physiotherapist diagnosed the worker with widespread pain issues, likely soft tissue injury related, and recommended he remain off work. The worker saw his family physician on May 27, 2019 and was advised to remain off work pending the results of an upcoming MRI study.
The worker continued with physiotherapy but as he was not progressing, the WCB requested a call-in examination on July 16, 2019. The WCB medical advisor provided an opinion that the worker’s compensable diagnosis included a concussion and noted that, at the call-in examination 6-weeks post-injury, the worker had minimal reports of post-concussive symptoms. The WCB medical advisor further stated that the worker also “…likely suffered a degree of soft tissue injuries (ie [sic] strain/sprain) involving the neck and upper back…” with a typical history of gradual recovery over a few days to a few weeks. In discussion with the worker on August 13, 2019, the WCB advised that he would not be entitled to benefits after August 20, 2019 as it had been determined he was functionally recovered from the workplace injury.
On October 21, 2019, the worker requested reconsideration of the WCB’s decisions on both claims, noting his disagreement with benefits ending and that investigations by his healthcare providers were still ongoing as to the sources of his symptoms.
Review Office determined on November 28, 2019 that the worker was not entitled to benefits after August 20, 2019 as the medical evidence supported a finding that the worker’s concussion and soft tissue injuries to his upper back and neck area from the workplace accident of May 8, 2019 had resolved by August 20, 2019. Therefore, he was no longer entitled to benefits.
The worker filed an appeal with the Appeal Commission on December 19, 2019. An oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), the regulations under that Act and the policies established by the WCB's Board of Directors.
The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.
When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury, as set out in s 39 of the Act, or medical aid as required to cure and provide relief from injury arising out of a compensable accident, provided under s 27 of the Act.
The worker appeared at the hearing on his own behalf. He made an oral submission with respect to the issues under appeal, and answered questions put to him by members of the panel.
The worker’s position is that the injury to his shoulder arising out of the accident of June 4, 2017 healed and then was reinjured as a result of the accident of May 8, 2019. He noted that when exercising, he continues to experience sharp pain in his shoulder as well as numbness in his right hand and arm. He stated that he regularly sleeps with ice on his back and shoulder. He indicated he lives with pain, managed by medication.
The worker stated that the effects of the May 8, 2019 injury are also ongoing. In the course of that accident, he stated, he hurt not only his head and back, but also his knees when the heavy item he was carrying at the time he tripped hit his legs as he fell. The worker outlined that the MRI evidence on file confirms the damage to his right knee. Further, as noted above, the worker stated he believes his right shoulder was re-injured as a result.
In response to questions from members of the panel, the worker outlined the circumstances of each accident in some detail. He noted that his return to work in January 2019, after the accident of June 4, 2017 was “not too bad” and he was able to increase his capabilities quickly and worked at his usual duties. At first he took frequent breaks and was unable to work the night shift due to his medications, but he was able to work until the accident of May 8, 2019.
When questioned further by the panel as to his appeal of the decision relating to the accident of June 4, 2017, the worker advised that he has no issue with that decision, but appealed it because he understood that WCB’s position was that his subsequent injury was related back to the 2017 injury.
The worker explained that there is no mention in the incident report of injury to his knee because the WCB ignored that information when he provided it. He stated that it was not until he tried to return to work after the accident of May 8, 2019 that he realized his leg was still bothering him. Currently, and as a result of the ongoing symptoms in his right knee, he stated that he still is not able to walk enough to do his job. The worker confirmed that there are no light duties available in his workplace.
The worker stated that his arm has been sore and numb since the May 8, 2019 injury. He indicated that he has ulnar nerve damage that he believes is causing the numbness in his hands. The worker noted that he received a cortisone injection from his treating physician in late summer 2019 that provided him with pain relief in his shoulder, but that was short-lived as soon thereafter he experienced sharp pain in his shoulder when lifting weights. The worker confirmed to the panel that he believes his right shoulder was re-injured, or injured again as a result of the May 8, 2019 workplace accident.
In sum, the worker’s position is that, with respect to the accident of June 4, 2017, he had fully recovered as of January 25, 2019 when he returned to full-time work and he did not require further benefits until after, and as a result of the further accident of May 8, 2019. With respect to the accident of May 8, 2019, the worker’s position is that his injuries were more extensive than was accepted by the WCB and that, as a result of the injuries to his shoulder, back and knee, he remains unable to return to work. As a result, the worker believes he should be entitled to benefits after August 20, 2019.
The employer did not participate in the hearing.
Accident of June 4, 2017
The issue on appeal is whether or not the worker is entitled to benefits after January 25, 2019. In order to find that he is, the panel would have to find that as a result of the accident of June 4, 2017 the worker continued to experience a loss of earning capacity or to require medical aid to cure and provide relief from the injury sustained. The panel was not able to make such a finding.
The worker confirmed in his evidence that when he returned to work on January 28, 2019, he was able to work within the restrictions that were outlined for him. He testified that the return to work was going “pretty good” until the accident of May 8, 2019. He had not returned to night shifts initially because of issues related to his medications but was thinking about returning to that shift until the May incident occurred.
The medical evidence on file supports a finding that the worker had recovered from the compensable injury of June 4, 2017 and was capable to return to work without restrictions. The WCB physiotherapy consultant who assessed the worker on November 22, 2018 and reviewed the file, stated his conclusions that:
“In the absence of a current probable structural pain generator stemming from the June 4, 2017 workplace accident, [the worker’s] current right shoulder girdle/right upper extremity/neck symptoms are not medically accounted for in relation to the June 4, 2017 shoulder injury.”
Further, the WCB physiotherapy consultant concluded that there was no indication of “…structural pathology at the cervical spine or right shoulder stemming from the June 4, 2017 accident on which to impose restrictions on [the worker’s] right upper extremity function.” The physiotherapy consultant also confirmed in this report the absence of any relationship between the worker’s ulnar neuropathy and the mechanism of injury on June 4, 2017.
The worker’s treating physician agreed on January 24, 2019 that the worker was capable of returning to full-time work but should avoid the overnight shift due to sleep issues. As early as September 18, 2018 the treating physician was supportive of the worker’s gradual return to alternate or modified work, with restrictions related only to lifting. The employer, however, was unable to accommodate the suggested restrictions and the worker did not return to work until January 28, 2019.
On the basis of the medical evidence reviewed and the worker’s testimony that he was capable of the return to work after January 25, 2019 and that his return to full-time work was successful, the panel determines, on a balance of probabilities that the worker did not have any loss of earning capacity or need for medical aid beyond January 25, 2019.
The worker therefore is not entitled to benefits beyond January 25, 2019 and the appeal is dismissed.
Accident of May 8, 2019
The issue on appeal is whether or not the worker is entitled to benefits after August 20, 2019. In order to find that he is, the panel would have to find that as a result of the accident of May 8, 2019, the worker continued to experience a loss of earning capacity or to require medical aid to cure and provide relief from the injury sustained. The panel was not able to make such a finding.
The initial injury as reported by the worker in the Incident Report filed with the WCB on May 15, 2019 was to his upper back and head. When he spoke with the WCB adjudicator on May 17, 2019, the worker indicated he was sore on his head and upper back, and that the accident aggravated a prior shoulder injury. He was experiencing, at that time, headaches, a sore back and balance issues.
When the worker met with his WCB case manager on June 11, 2019, he advised he was having back difficulties, which had first arisen some time before the workplace accident of May 8, 2019. He described shooting pain in his upper, middle back that was relieved with acupuncture treatment, medication and applying ice to his back. He also reported a headache that would not go away, and that he only had relief from the headache when he was able to sleep a few hours.
In determining the issue before us, the panel gave consideration to the medical findings and reports on file.
The August 9, 2019 report from the July 16, 2019 call-in examination with the WCB medical advisor notes the worker’s past medical history as including right shoulder pain and chronic back pain. Upper back pain was already being investigated at the time of the workplace accident, and was reported as early as August 2017. The medical findings indicate that at nearly 6-weeks post injury, the worker reported minimal post-concussive symptoms and there was no basis for referral to the concussion clinic. The likely diagnosis, in addition to concussion was determined to be soft tissue injury involving the neck and upper back. The medical advisor stated that the typical “…natural history of soft tissue injuries is for gradual recovery over a period of a few days to a few weeks.” In the worker’s case, it was noted that the soft tissue injuries occurred in the context of pre-existing chronic headache, chronic neck and upper back pain and shoulder pain. The medical advisor concluded that the pre-existing conditions were “…not likely materially affected by the May 8, 2019 injury” and that the worker’s current presentation and limitations were no longer accounted for in relation to the compensable injuries.
Subsequent to the WCB call-in examination, there were two MRI studies completed, on the worker’s right shoulder, and spine and brain. The MRI study of the worker’s right shoulder of July 21, 2019 indicates findings consistent with the prior MRI studies of his shoulder, taken in 2017 and 2018 as referenced above. The MRI imaging report of the worker’s spine and brain, also dated July 21, 2019 also is compared to prior studies in 2017 and early 2019. The cervical spine imaging revealed multilevel degenerative changes, unchanged from the prior study. There were no changes from the prior study noted in the thoracic spine imaging, which also revealed multilevel degenerative disc changes. Brain and spinal cord imaging also did not reveal any changes from prior studies.
The worker’s treating physician reported on August 15, 2019 as to the worker’s subjective complaints of July 31, 2019 of neck, upper back and right shoulder pain, with objective findings of reduced abduction in the worker’s right shoulder and increased tenderness. In examination on August 15, 2019, the treating physician noted the recent MRI findings and reported the worker’s right shoulder and neck pain remained the same. At that time, the physician suggested orthopedic reassessment and referral to the pain clinic.
In a follow-up conversation with the WCB case manager on August 19, 2019, the treating physician confirmed that the worker’s right shoulder difficulties were ongoing and could not be connected to the May 8, 2019 workplace accident. The physician also advised he could not state that the worker’s shoulder difficulties were aggravated following that accident.
The WCB medical advisor, upon reviewing the worker’s file again after the MRI studies were received, stated on September 30, 2019 that:
“Symptoms reported at the right shoulder…would not account for total disability. Total disability was not apparent at the recent call in exam of July 16, 2019…To the extent that current reported symptoms and tolerance of same might limit [the worker’s] current capabilities, any such symptoms are unaccounted for in relation to effect of either the incidents of June 4, 2017 or May 8, 2019.”
The only injuries accepted by the WCB as compensable in relation to the accident of May 8, 2019 are soft tissue injury to the worker’s upper back and shoulder, and concussion. The panel is satisfied by the medical reporting from the worker’s treating physician and the WCB medical advisor who assessed the worker on July 16, 2019, that by August 20, 2019 the injuries arising out of and related to the accident of May 8, 2019 were resolved.
The panel finds that the worker’s ongoing shoulder and upper back complaints are not related to the workplace injury sustained on May 8, 2019. Although the worker believes he re-injured his shoulder as a result of this accident, the panel notes that the findings of the MRI study of July 21, 2019 do not support that belief. There is no indication of any new or different findings than were evident pre-accident. Furthermore, there is no medical evidence of an acute injury to the worker’s shoulder arising out of the accident of May 8, 2019.
While the worker, in his submission to the panel also raised concerns with respect to his ulnar nerve damage, the panel noted that the medical reporting confirms this diagnosis pre-dates the accident of May 8, 2019. Although an ongoing concern for the worker, there is no evidence to support that this injury is related to the compensable workplace accident.
The worker also raised concerns with the panel as to injury to his right knee arising out of the accident of May 8, 2019. The panel noted that the WCB has not accepted such an injury as related to this accident nor does any notation of such an injury appear in the accident or medical reporting related to the accident. Absent any prior adjudication related to a knee injury, the panel is not able to address or deal with it in this appeal.
On the basis of the evidence before us, the panel finds on a balance of probabilities that by August 20, 2019 the worker had recovered from the compensable injuries sustained in the workplace accident of May 8, 2019. Therefore, any functional limitations of the worker, or requirement for medical aid by the worker are not related to the accident beyond that date.
The worker is not entitled to benefits beyond August 20, 2019. The appeal is dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of June, 2020