The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after November 6, 2018. The employer is appealing the decision made by the WCB that the claim is acceptable. A teleconference hearing was held on April 15, 2020 to consider both appeals.

Issue

Employer Appeal:

Whether or not the claim is acceptable.

Worker Appeal:

Whether or not the worker is entitled to benefits after November 6, 2018.

Decision

Employer Appeal:

The claim is acceptable.

Worker Appeal:

The worker is entitled to benefits after November 6, 2018.

Background

On July 9, 2018, the worker filed a Worker Incident Report with the WCB claiming he injured his left arm in an incident at work on July 6, 2018. The worker described that his left arm was pulled upward while using a hoist on the roof of a jobsite. He described the incident as follows: "I grabbed it with my left hand and the garbage bag with my right hand. The operator went up when it should have went down." The worker noted he did not at first report his injury as it happened at the end of his shift and he thought the injury would resolve.

When the worker sought medical treatment at the local emergency room on July 9, 2018, he advised the treating physician "…he was trying to hook waste bag to overhead hook line when the wind…caused it to swing and smack into his shoulder area". The physician found tenderness over the worker's shoulder and soft tissue swelling. Results of an x-ray were normal and the worker was diagnosed with a soft tissue injury.

The WCB discussed the claim with the worker on July 10, 2018 and confirmed that the workplace accident occurred at the end of his shift on July 6, 2018. The morning of July 7, 2018, the worker contacted his supervisor to advise that his shoulder was swollen and sore and he would not be at work that day.

The WCB also discussed the claim with the employer on July 10, 2018. The employer noted concerns with the worker's claim. On July 11, 2018, the WCB spoke with a coworker present at the time the incident occurred. The coworker advised he had a clear view of the worker and "…did not see anything happen."

The worker attended an appointment with a sports medicine physician on July 13, 2018. Based on clinical testing, the physician diagnosed a left shoulder rotator cuff injury and recommended modified duties of no lifting, no overhead activities and no repetitive activities for a period of four weeks.

The WCB accepted the worker's claim on July 16, 2018. At his initial physiotherapy assessment on July 23, 2018, the worker reported a "Ripping/needle sensation" over the lateral portion of his left shoulder, intermittent numbness in his arm and forearm, weakness and loss of range of motion and a sense of instability in his left shoulder. The physiotherapist diagnosed a shoulder strain and recommended modified duties of avoid lifting and reaching, avoid over chest level lifting and no lifting greater than twenty pounds. Due to ongoing complaints, at a follow-up appointment with the treating sports medicine physician on August 13, 2018, the worker was referred for an MRI study. The MRI conducted on September 17, 2018 indicated "Tearing of the posterior labrum with associated paralabral cyst."

On September 28, 2018, a WCB medical advisor reviewed the worker's file and determined the medical findings supported the diagnosis of a left shoulder strain with a typical recovery period of 4 to 8 weeks. The medical advisor was of the view the posterior labral tear indicated on the MRI study was not accounted for by the mechanism of the worker's injury, noting the worker would have had "…immediate pain provocation with the onset of a labral tear". Further, the medical advisor commented that the upward traction mechanism of injury is not normally associated with a posterior labral lesion and that the treating sports medicine physician, on July 13, 2018 reported negative O'Brien's and modified O'Brien's testing. Restrictions were recommended, to be reviewed in 3-4 weeks, and were provided to the employer on October 3, 2018.

On October 29, 2018, a WCB medical advisor again reviewed the worker's file and concluded the worker's current difficulties were not related to the July 6, 2018 workplace injury. The WCB advised the worker on October 31, 2018 that it determined he had recovered from the workplace accident and was not entitled to benefits after November 6, 2018.

The worker requested reconsideration of the WCB's decision to Review Office on December 13, 2018, noting he continued to suffer the effects of the workplace injury and was therefore entitled to benefits beyond November 6, 2018. The employer’s representative submitted a response on February 5, 2019. The response was shared with the worker, and the worker submitted additional medical information from a March 15, 2019 follow-up appointment with the treating sports medicine physician, as well as a medical article. On March 26, 2019, the worker's spouse provided a letter in support of the worker's request.

On March 29, 2019, Review Office determined the worker was not entitled to benefits after November 6, 2018. Review Office noted the inconsistent reporting of the mechanism of injury but accepted that the evidence supported the worker suffered a left shoulder strain from the workplace accident. Further, Review Office found that by November 6, 2018, four months after the workplace accident, the worker's ongoing left shoulder difficulties were no longer related to the compensable strain injury.

The worker's representative submitted narrative reports from the worker's treating sports medicine physician dated July 5, 2019 and treating physiotherapist, dated June 6, 2019, in support of a request for reconsideration. On August 19, 2019, the employer's representative advised they would participate in reconsideration request and also appealed the determination that the worker's claim was acceptable. The employer submitted photographs of the equipment used by the worker on the day of the workplace accident and copies of the worker's training certificates. The WCB shared these with the worker's representative on August 20, 2019. On August 27, 2019, the worker's representative provided a response to the employer's representative's submission.

Review Office determined on September 3, 2019 that the worker's claim was acceptable but he was not entitled to benefits after November 6, 2018. Review Office accepted that the worker sustained a left shoulder strain and found that his claim was acceptable; however, Review Office also found the new evidence submitted by the worker was not relevant and did not change the March 29, 2019 decision.

The worker's representative filed an appeal with the Appeal Commission on September 10, 2019 and the employer's representative filed an appeal with the Appeal Commission on September 16, 2019. An oral hearing was arranged for both appeals and a teleconference hearing was arranged for April 15, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and provided to the parties for comment. Both the worker’s representative and the employer’s representative provided further written submissions for the panel’s consideration. On June 23, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), 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 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….

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to compensation under s 4(1) of the Act. That compensation includes wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Entitlement to wage loss benefits is addressed in s 4(2) of the Act which provides that wage loss benefits are payable for loss of earning capacity resulting from an accident. Section 39(2) of the Act sets out 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 the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."

The WCB has established Policy 44.10.20.10, Pre-existing Conditions (the “Policy”) to outline its approach in terms of addressing eligibility for compensation benefits under the Act where a worker has a pre-existing condition. The Policy sets out that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. When it is determined that a worker’s inability to work is a result of a compensable injury and evidence suggests, on a balance of probabilities, that the compensable injury, or the compensable injury in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

Worker’s Position

The worker participated in the teleconference hearing represented by a worker advisor. The worker’s spouse was also present as an observer. The worker advisor made a submission on behalf of the worker. The worker provided direct evidence to the panel through questioning by the worker advisor as well as by members of the panel. After the conclusion of the oral hearing and upon reviewing the additional information requested by the panel, the worker advisor provided a further written submission in response to the new material.

The worker advisor presented the worker’s position on the issues under appeal. Firstly, with respect to the employer’s appeal of claim acceptability, the worker advisor stated that the claim should be accepted because the evidence supports that the worker experienced injury to his left arm and shoulder as a result of and in the course of completing his work duties on July 6, 2018. At the time of injury, the worker, who was engaged in unfamiliar duties, injured himself as he reached for a hoist that went up unexpectedly after he grabbed hold of it, pulling on his left arm and shoulder. The incident occurred near the end of his shift, and although the worker did not report immediate onset of pain, by the time he arrived home after work (approximately two hours after the incident) he was feeling tightness in his shoulder. He sought medical attention the next day and made a WCB claim soon thereafter. The worker advisor stated that the claim should be accepted because the evidence supports that the worker’s injury occurred as a result of the workplace accident.

With respect to the issue of entitlement to benefits beyond November 6, 2018, the worker advisor outlined the worker’s position that he had not recovered from the workplace injury at that time and continued to exhibit associated symptoms, including soreness and a burning sensation in his left shoulder beyond that time. The worker advisor pointed out that although the Review Office accepted the claim as a shoulder sprain injury, the MRI findings support that the actual injury resulting from the accident and causing the ongoing symptoms is a posterior labral tear. The worker advisor noted that there has been a continuity of symptomatic reporting and clinical findings to support the worker’s position that the labral tear resulted from the workplace injury. Because there is no evidence that the worker had actually recovered from the effects of the workplace injury when benefits were discontinued by the WCB on November 6, 2018, the worker should be entitled to benefits beyond that date.

The worker advisor, in the written submission of June 4, 2020 noted that the subsequent medical information obtained by the panel further supports the position that the worker’s ongoing disability is directly related to his workplace accident.

The worker’s position, in sum, is that the evidence supports a finding that the worker injured his left shoulder arising out of and in the course of his work duties on July 6, 2018 and that the worker had not fully recovered from the effects of that injury as of November 6, 2018. Therefore the claim should be acceptable and the worker should be entitled to benefits after November 6, 2018.

Employer’s Position

The employer was represented in the hearing by an advocate, and by its Safety Supervisor. The advocate made oral submissions on behalf of the employer, and both the advocate and the Safety Supervisor provided answers to questions posed by panel members. Following the oral hearing and upon reviewing the additional information requested by the panel, the advocate provided a further written submission in response to the new material.

The advocate outlined the employer’s position on the question of claim acceptability. The employer states that the claim should not be accepted as the evidence does not support that the worker was injured as a result of an accident arising out of and in the course of his work duties. The evidence of the worker’s colleague is that he did not witness the worker reaching for and being lifted by the hoist, as the worker described. Further, when the worker notified the employer on July 7, 2018 that he was not coming in to work that day, the worker did not make mention of a work-related injury or the circumstances under which it arose. The employer’s advocate also noted the variations in the mechanism of injury reported, as evidenced by medical reports from the time of the injury, as well as inconsistencies in the medical findings with respect to stability of the worker’s shoulder in the weeks following the reported injury. The advocate noted as well that the employer did not accept the conclusion of the Review Office that the worker suffered a strain injury based on overuse as the evidence does not support that finding.

The employer’s position with respect to the question of entitlement to benefits beyond November 6, 2018, is that if the worker was injured as a result of the workplace incident, there is no evidence to support a finding that his condition as of November 6, 2018 was causally linked to or the result of the compensable event. The employer does not dispute the medical findings with respect to the condition of the worker’s shoulder at that time, but disputes that there is any evidence that the worker’s condition was linked to or the result of the workplace injury.

In sum, the employer’s position is that the worker’s claim is not acceptable as the evidence does not establish that an accident occurred arising out of and in the course of the worker’s employment on July 6, 2018, and that if the worker was injured at that time, the evidence does not support that the worker’s left shoulder condition as of November 6, 2018 was the result of the accident. Therefore, the claim should not be accepted and the worker should not be entitled to benefits beyond November 6, 2018.

Analysis

The issues on appeal are whether the claim is acceptable and if it is, whether or not the worker is entitled to benefits beyond November 6, 2018. The panel considered each question in turn.

Is the claim acceptable? 

In order to find that the claim is acceptable, the panel must determine that the worker was injured as a result of an accident arising out of and in the course of his employment. For the reasons that follow, the panel was able to make that finding.

The definition of accident under the Act requires that there be evidence of a chance event, including an event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment. Additionally, the definition requires that the worker be injured as a result of such an event. Where an accident resulting in injury has occurred arising out of and in the course of employment, the claim is acceptable.

In determining whether an accident occurred resulting in a compensable injury, the panel must consider whether the evidence supports a finding that the incident described in the worker’s claim occurred. This is made more challenging in this case by the variations in the descriptions of the events from around the time of the incident, as highlighted by the employer. In reviewing the worker’s testimony, the panel found the worker to be a poor historian of his own life and prone to wandering off from the topic at hand. Indeed, the worker admitted to the panel that he has such a difficulty, particularly when he is feeling anxious or under some stress and this was demonstrated in the hearing. This does not mean that the worker’s evidence is not credible, but did require the panel to sift through the information provided by the worker and others so as to ascertain the relevant facts.

The worker’s claim is that on July 6, 2018 he was injured when he reached for a hoist with his left arm to attach to a waste bag held in his right arm. In doing so, he felt a pull in his left shoulder and may have also been slightly lifted off the ground. The panel noted that the worker’s colleague working nearest to the worker did not recall this event, but finds that the early reporting of the incident supports this description of events, although there are, as noted by the employer’s advocate and outlined above, some discrepancies in the specific details noted in those reports.

The medical reporting from the weeks immediately following the incident also supports that worker’s left shoulder was injured as a result. The panel noted that on attending the Emergency Department of the local hospital on July 9, 2018, the worker was noted to have tenderness all over his left shoulder and soft tissue swelling, and was diagnosed with a soft tissue injury. The treating general practitioner, on July 12, 2018, found the worker had reduced range of motion in his left shoulder and queried whether there was a rotator cuff injury, referring the worker to a sport medicine clinic for further assessment. When the worker was assessed at a sport medicine clinic on July 13, 2018, he was noted to exhibit pain to his left anterior shoulder, with tenderness in the AC joint and deltoid area, increasing pain with motion, and associated numbness and tingling in his left arm. Based on clinical findings, the diagnosis was a left shoulder rotator cuff injury. A physiotherapy assessment on July 23, 2018 determined the worker experienced shoulder strain and queried whether there was also a shoulder capsule injury.

The employer’s advocate argued that the evidence does not support the conclusion reached by the Review Office that the worker suffered a strain injury due to overuse and that the Review Office placed too much reliance on the contents of the letter written by the worker’s spouse. The panel agrees with this position. The worker’s own testimony is that he was accustomed to physical labour and had previously worked at similar jobs. Further, the worker had just recently started the job when the incident occurred. The panel does not find that the evidence supports the Review Office finding that the worker injured himself as a result of overuse of his shoulder.

The medical reporting supports a finding that the worker suffered a soft tissue injury to his left shoulder, but also that the injury was more significant than a strain. As noted in the file, the worker’s left shoulder injury did not heal within the time frame expected of a strain or soft tissue injury, and subsequent investigations revealed that the worker also had tearing in the posterior labrum with an associated paralabral cyst.

The worker’s position is that the accident either caused or aggravated this tear in the worker’s right posterior labrum. The WCB medical advisor opinion of September 28, 2018 suggested that the tear is “not likely accounted for” on the basis of the reported mechanism of injury and notes that the tear “…is of indeterminable onset, except to say that there is an element of chronicity of the lesion in light of the associated para-labral cyst at the site of the tear.” The medical advisor goes on to note that if the tear were pre-existing, the evidence would not support that it “…materially altered the posterior labral tear either symptomatically or structurally.”

The worker’s treating sport medicine physician disagreed with the conclusion of the WCB medical advisor as to the possibility that the reported mechanism of injury could have caused or impacted the labral tear, if pre-existing. In the July 5, 2019 report, the sport medicine physician stated that the mechanism of injury “…could certainly cause a posterior labrum tear and it is not a typical….If we consider the labral tear was pre-existing, the injury could have aggravated the symptoms by contributing in weakening of rotator cuff muscles.”

The panel is not able to determine on the evidence available whether the diagnosed left posterior labral tear was caused by the accident or was pre-existing and aggravated by the accident as there was no imaging of the worker’s left shoulder prior to the accident; however, the panel is satisfied that if it was a pre-existing condition, the mechanism of injury described by the worker could have aggravated the condition. The panel accepts the opinion of the worker’s treating sport medicine physician on this question.

Having heard the evidence of the worker, and considered the accident reports and information provided to the treating medical professionals, as well as the medical opinions on file, the panel is satisfied on the standard of a balance of probabilities that the worker did injure his left shoulder when he reached for the hoist and it retracted when he expected it to release, and that his injury arose out of and in the course of employment. The worker’s claim should therefore be accepted.

The employer’s appeal on this question is dismissed.

Is the worker entitled to benefits after November 6, 2018? 

In order to find the worker is entitled to further benefits, the panel must find that the worker continued to experience a loss of earning capacity as a result of a compensable injury, or that he required medical aid to cure and provide relief from the compensable injury beyond November 6, 2018. On the basis of the evidence before us, the panel was able to make such a finding for the reasons that follow.

The WCB determined that the worker should have recovered from the effects of a left shoulder strain injury within a period of 4-8 weeks. The WCB medical advisor, in the October 29, 2018 opinion stated that the worker’s current presentation “…on a probable basis” could not be accounted for in relation to the accepted compensable left shoulder strain injury. Based on this conclusion, the WCB determined that that worker had recovered and benefits were terminated on 7 days notice, as required, as of November 6, 2018.

The panel notes however that there is no evidence that the worker had actually recovered from the effects of the compensable workplace injury by November 6, 2018. Chart notes obtained from the worker’s treating physician indicate that on October 19, 2018, the worker continued to exhibit tenderness on shoulder movement in all directions, although no deformity, swelling or joint effusion was noted. There was also tenderness in the anterior aspect of the glenohumeral and AC joint. The physician diagnosed trauma to the left shoulder and noted the MRI findings of a posterior labral tear and associated paralabral cyst. The physiotherapy progress report of October 23, 2018 described the worker’s recovery as “[v]ery slow and lacking improvements” and noted the worker remained unable to do any work with movements above shoulder level or lifting with his left arm. Nearly five months later, on March 15, 2019, the sport medicine physician noted that the worker continued to exhibit symptoms and signs that would match the diagnosis of a posterior labral tear and concluded again that the tear was “…most likely due to the July 6, 2018 injury.”

Having considered the medical findings and giving particular weight to those of the worker’s treating medical practitioners, the panel is satisfied on a balance of probabilities that the worker had not recovered from the effects of the compensable workplace injury by November 6, 2018 such that he continued to require treatment for the injury to his left shoulder and was unable to work without restrictions. The worker is therefore entitled to benefits beyond November 6, 2018.

The worker’s appeal on this issue is allowed.

Panel Members

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 24th day of July, 2020