The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits after September 24, 2018. A hearing was held on February 20, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after September 24, 2018.

Decision

The worker is not entitled to benefits after September 24, 2018.

Background

In a Worker Incident Report filed March 15, 2018, the worker reported that she injured her right elbow, knee, hip, neck and lower back on March 7, 2018, when she slipped on ice in the parking lot as she was leaving work and fell to the ground. The worker noted that she reported the accident to her employer that same day. She said she was on vacation from March 12 to 15 and was scheduled to return to work on March 16, 2018. She visited a walk-in clinic on March 14, 2018, where the attending physician recommended she remain off work until March 26, 2018.

In a Doctor's First Report from March 14, 2018, the attending physician noted that the worker reported she slipped on ice and fell in the parking lot, landing on her right elbow, knee and shoulder. The physician reported that the worker had limited range of motion in her right shoulder and provided a diagnosis of right shoulder/neck pain. The physician referred the worker for an x-ray and physiotherapy and recommended a sling for her shoulder. The report of the right shoulder x-ray taken March 14, 2018 indicated that no fractures were identified.

On March 22, 2018, the worker saw a sports medicine physician, who diagnosed her with a right shoulder strain and queried a tear if the symptoms did not settle. A second right shoulder x-ray taken that same day showed normal findings.

In a discussion with a WCB adjudicator on March 23, 2018, the worker confirmed that she slipped on ice and fell in the parking lot at work and reported the incident to her supervisor. She advised that she initially hurt her right elbow, shoulder, hip, knee and back, but currently only her right shoulder was an issue. She indicated her arm was in a sling and she was unable to drive.

At an initial physiotherapy assessment on March 29, 2018, the worker reported right shoulder pain, with difficulty moving her right arm due to pain, and episodes of numbness into her right thumb and the tips of her second and third fingers. The physiotherapist noted the worker had pain with all resisted shoulder movements and queried a right rotator cuff tear.

At an April 13, 2018 follow-up appointment with her treating sports medicine physician, the worker reported her right shoulder was "about 50% better…" but she still had limited range of motion and pain. The worker was referred for an MRI, and it was recommended she remain off work and continue physiotherapy.

In a Discharge Report dated June 19, 2018, the treating physiotherapist noted that the worker "continues to complain of medial right knee pain, which she states she has complained of since initial assessment, but got set aside secondary to severity of shoulder pain."

On July 6, 2018, the worker attended a call-in examination with a WCB medical advisor. The medical advisor did not provide a diagnosis for the worker's right shoulder, but noted that further testing was pending, and recommended restrictions of avoiding lifting more than five pounds with the right upper extremity and avoiding overhead work or work outside the body envelope with the right upper extremity, pending such testing. The medical advisor further opined that the worker's right knee complaints were not medically accounted for in relation to her workplace accident.

On July 30, 2018, the worker was seen by a neurologist and underwent a nerve conduction study, following which the attending neurologist opined that "…there is no evidence on neurological exam or EMG/NCS to suggest a significant neurological lesion involving the right-sided cervical nerve roots, brachial plexus, or ulnar or median nerves…"

On July 30, 2018, the worker also attended a further follow-up examination with the sports medicine physician, who noted that the worker reported burning, but not constant, pain and spasms in her right arm, and slightly improved range of motion.

On August 18, 2018, the worker underwent an MRI of her right shoulder which showed that the "cause for the [worker's] symptoms is not identified on the current examination, specifically, there is no evidence of a rotator cuff tear." On August 24, 2018, after noting no change in the worker's shoulder and reviewing the results from the MRI, the treating sports medicine physician provided a new diagnosis of "Frozen shoudler (sic) but is acute from injury," and referred the worker to a second sports medicine physician for a second opinion. On August 29, 2018, the worker saw the second sports medicine physician, who provided a diagnosis of "post-traumatic adhesive capsulitis / myofascial" and administered an injection to the worker's right shoulder.

On September 11, 2018, the WCB medical advisor again reviewed the worker's file, including the recent test results, and opined that based on the file information, the worker's current difficulties could not be medically accounted for in relation to the March 7, 2018 workplace accident. The medical advisor stated that had the worker significantly injured her right shoulder as a result of the workplace accident, she would have been expected to experience immediate right shoulder symptoms. However, none were noted in the worker's or the employer's reports, which suggested at most that the worker sustained a mild right shoulder strain in relation to the workplace accident.

The WCB medical advisor further noted that no significant abnormal neurological findings in the worker's upper extremities were documented at the time of the July 30, 2018 neurological examination, and the nerve conduction study and August 18, 2018 MRI were unremarkable. The WCB medical advisor opined, with respect to the new diagnosis of adhesive capsulitis, that adhesive capsulitis generally develops slowly over a number of weeks and months, not suddenly within one week of an accident, and that the clinical history did not support such a diagnosis.

On September 17, 2018, the WCB's Compensation Services advised the worker that they had determined she had recovered from the March 7, 2018 workplace accident and no longer required restrictions or medical treatment as a result of her right shoulder injury. Accordingly, her entitlement to wage loss and medical aid benefits would end on September 24, 2018.

On May 10, 2019, the worker's union representative submitted further medical documentation and requested that Compensation Services reconsider their decision to end the worker's benefits. The representative noted that the worker continued to suffer effects of her work-related fall after September 24, 2018 and did not begin a graduated return to work with modified duties until October 2018. The representative submitted that the worker was entitled to reimbursement for sick time used during this time and further medical aid for treatment which was required to fully resolve her right shoulder injury.

The worker's representative submitted that the worker was also entitled to benefits in relation to her right knee condition which was caused by her fall. The representative noted that due to persistent knee symptoms, the worker had arthroscopic knee surgery on March 22, 2019, and asked that the WCB accept responsibility for that treatment as related to her March 7, 2018 workplace accident.

The additional medical information was reviewed by the WCB medical advisor on June 17, 2019, and on July 5, 2019, Compensation Services advised the worker that there was no change to the September 17, 2018 decision.

On July 11, 2019, the worker's union representative requested that Review Office reconsider Compensation Services' decision and provided further medical documentation in support of their request. On September 6, 2019, the employer provided a submission in support of Compensation Services' decision.

On October 1, 2019, Review Office determined the worker was not entitled to benefits after September 24, 2018. Review Office accepted and placed weight on the June 17, 2019 opinion of the WCB medical advisor. Review Office accepted that the worker's right knee condition was related to a "chronic degenerative process" and found that the evidence did not support that her right knee condition was causally related to her compensable accident. Review Office further found that the evidence did not support an ongoing causal relationship between the worker's ongoing right shoulder problems and her workplace accident. Review Office noted that the worker had experienced a strain, her symptoms occurred basically all at once and did not improve with treatment, and diagnostic testing had not revealed any adhesions. Review Office noted that the diagnoses which her treating doctors had offered were known to be idiopathic and were not typical in relation to the compensable accident or initial injury.

On October 4, 2019, the worker's union representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 2, 2020, the appeal panel met to discuss the case further and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 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.

Subsection 4(2) provides that 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.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy"), the stated purpose of which is identified, in part, as follows:

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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides that:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was represented by her union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from her representative and from the panel.

The worker's position was that she is entitled to benefits beyond September 24, 2018 as the evidence supports, on a balance of probabilities, that she had not recovered and continued to suffer symptoms and restrictions as at that date as a result of the shoulder and knee injuries she sustained on March 7, 2018.

The worker's representative submitted that the evidence supports, on a balance of probabilities, that the worker developed adhesive capsulitis as a direct result, or unfortunate consequence, of the workplace accident. The representative submitted that the file evidence confirmed that the worker experienced significant pain and immobility of her right shoulder after the accident, which preceded and precipitated the development of adhesive capsulitis. The injury followed the expected course of adhesive capsulitis described in the literature, with initially increasing pain and progressive loss of range of motion, followed by improved pain yet persistently stiff shoulder.

It was noted that the treating sports medicine physician acknowledged the worker's presentation was not that of classic frozen shoulder, but was of the view that the worker's symptoms were best explained by that diagnosis. The representative noted that while the onset was not typical, three treating physicians endorsed that diagnosis despite the absence of a significant precipitating structural injury. The representative submitted that the WCB ended responsibility for the worker's right shoulder injury prematurely, based on the overly strict perspective of the WCB medical advisor.

The worker's representative submitted that the worker is also entitled to benefits in relation to her right knee condition. The representative submitted that the mechanics of the accident were capable of causing a meniscal tear, and the evidence supports, on a balance of probabilities, that the worker injured her knee as a result of her fall. The employer's report to the WCB confirmed that she reported she injured her right knee when she fell, and the Doctor's First Report stated that she landed on her right elbow, shoulder and knee. The representative submitted that the worker reported she continued to have issues with her right knee, but she and her healthcare providers were focused on her persistent shoulder injury and paid less attention to issues with her knee. It was submitted that the worker never stated that her knee issue had resolved, and the lack of a specific reference to her knee in two or three notes on file does not negate the existence of an ongoing issue.

The worker's representative further submitted that in the event the panel agreed with the WCB medical advisor's opinion that the MRI showed a degenerative process in the right knee, the worker was entitled to benefits under the Further Injuries Policy, as the evidence supports that her fall, in concert with such a pre-existing condition was, on a balance of probabilities, responsible for the persistent knee symptoms that followed her accident and subsequently required surgical treatment.

Employer's Position

The employer was represented by its Disability Specialist.

The employer's representative submitted that the worker had been fairly and adequately compensated to September 24, 2018 for her workplace accident and is not entitled to benefits beyond that date.

The employer's representative noted that the employer acknowledged the worker injured herself in a slip and fall accident on March 7, 2018, but submitted that her injuries were relatively minor in relation to the mechanism of injury.

With respect to the worker's right shoulder injury, the employer's representative submitted that there is no evidence of any structural damage to the right shoulder and the most probable diagnosis is right shoulder strain which should have resolved in a matter of weeks. The representative noted that the initial pain was reported to be to the elbow and it was not until several hours later on the day of the accident that soreness of the right shoulder became evident. The WCB medical advisor commented that no bruising was ever noted, and it appeared that the injury did not prevent the worker undertaking other activities she had planned for the balance of the week following her fall.

The employer's representative noted that the first mention of the new diagnosis of frozen shoulder, acute from injury, was not until the treating sports medicine physician's physical examination of the worker on August 24, 2018. The representative submitted that the medical information was provided to the WCB medical advisor, who conducted a call-in examination and opined on September 11, 2018 that there was no evidence of a traumatic and acute capsulitis, given the normal MRI of the shoulder and no reported findings suggestive of adhesive capsulitis.

With respect to the worker's right knee, the employer's representative noted that the first reference to knee pain is in the sports medicine physician's June 6, 2018 report, where it is also reported that the worker had full range of motion of her knee. The representative submitted that the absence of a report of right knee pain until almost three months after her fall was significant, and regardless of the intensity of other pains, the information would have been documented by the treating medical professionals and more medical examination would have occurred if the worker had complained of a knee injury or pain. The representative submitted that the best explanation as to why the worker's knee pain was not specifically documented earlier was that her knee pain was minor, and with a full range of motion, there was no reason to believe that there was a significant injury to her right knee.

The employer's representative noted that the MRI of the worker's right knee showed pre-existing and degenerative changes. The representative submitted that based on the information on file, there is no responsibility for degenerative changes to the right knee as a sequela of the March 7 workplace injury, and no evidence of an aggravation or enhancement of the underlying and pre-existing degenerative process of her knee.

The employer's representative submitted that the WCB medical advisor's reviews of the medical information on file, her call-in examination on July 6, 2018 and the continuity of her medical opinions regarding the worker's right shoulder and right knee should be given significant weight. The representative submitted that there is no new medical or other evidence to support a change in the decision that compensation was not payable beyond September 24, 2018.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after September 24, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required benefits beyond September 24, 2018 as a result of her March 7, 2018 workplace incident. The panel is unable to make that finding.

Based on our review of all of the information which is before us, on file, as presented at the hearing, and as provided in response to requests from the panel following the hearing, the panel is not satisfied that the worker continued to suffer the effects of her workplace injury beyond September 24, 2018.

The panel finds that the evidence supports, on a balance of probabilities, that the worker sustained a relatively minor injury as a result of her March 7, 2018 workplace accident. The worker's claim was accepted for a right shoulder or rotator cuff sprain/strain injury as originally diagnosed by her treating sports medicine physician on March 22, 2018. While a tear was queried, the August 18, 2018 MRI of the worker's right shoulder showed that there was no evidence of a rotator cuff tear and did not identify a cause for the worker's symptoms.

After reviewing the MRI on August 24, 2018, the treating sports medicine physician provided a new diagnosis of "frozen shoulder but is acute from injury." In a subsequent letter to the worker's union representative on November 8, 2018, the physician provided that this "…appears to be related to the fall as there is no other injury as she had no symptoms prior to the fall." The physician further noted that this was not "classic for frozen shoulder," but "still appeared to be frozen shoulder."

In a March 19, 2020 response to a request from the panel for further clarification, the treating sports medicine physician wrote that:

With the normal MRI and persistent limitaiton (sic) and loss to range of motion the diagnosis was revised to a frozen shoulder. This had come on acutely or rapidly following her injury as she had lost the range of motion at the beginning when I seen (sic) her…

There can be various causes for frozen shoulder such as trauma, poor diabetic control, or no cuase (sic) known. Unlike [the worker's] case, frozen shoulder symptoms often can be a more graduated presentation where they get pain and then lose motion. For her it was more a sudden/acute frozen shoulder due to the trauma where she had limitation from the beginning…

It is the panel's understanding that the cause of adhesive capsulitis is generally or often unknown (idiopathic). Given this, our finding that the worker's injury was relatively minor in nature, and the absence of an identified cause for the worker's symptoms or any structural problem of the shoulder on testing, the panel is unable to find that the worker's adhesive capsulitis is causally related to her March 7, 2018 injury. In arriving at this conclusion, the panel is also satisfied that the onset of the worker's frozen shoulder is far too close in time to her March 7, 2018 injury to be causally related to that injury.

The panel further notes that we do not accept the submission by the worker's representative that the worker's case followed the expected course of adhesive capsulitis. Rather, the evidence indicates that the worker's symptoms came on almost immediately then remained fairly constant, despite treatment. As indicated above, the panel is not satisfied that the worker would have developed frozen shoulder over a period of one week or so.

While the worker's representative noted that three physicians had diagnosed the worker with adhesive capsulitis, the panel finds that the evidence as to this condition, and in particular the cause of the worker's symptoms, is at best inconclusive.

Based on the foregoing, the panel is further unable to find that the condition of adhesive capsulitis developed as a sequela or secondary injury. In the circumstances, while it is possible that the condition is adhesive capsulitis, the panel is of the view that this condition would be idiopathic and not likely related to the workplace injury.

With respect to the worker's right knee, while the worker noted in her initial Report to the WCB that she injured her right knee on March 7, 2018, there is an absence of complaints with respect to right knee symptoms after that date. File information shows that the next documentation of problems with the worker's right knee was in a conversation between the worker and Compensation Services on May 11, 2018, and the first documentation of right knee complaints was in the treating physiotherapist's chart notes on June 19, 2018. The panel acknowledges that the worker had indicated she complained of right knee problems, but also notes that she indicated she was not concerned or was less concerned with her knee at the time.

The worker later underwent an MRI of her right knee of September 22, 2018. The WCB medical advisor reviewed the report of that MRI on June 17, 2019, and opined that the findings from that MRI of chondromalacia and right medial meniscal root tear and fraying were in keeping with a chronic degenerative process. The panel accepts the opinion of the medical advisor in this regard, as being consistent with our understanding of such findings.

Given the lack of documented complaints with respect to right knee issues for a considerable period of time following the workplace accident and the findings of the September 22 2018 MRI which are consistent with a chronic degenerative process, the panel is satisfied that the worker's right knee complaints were not causally related to, or aggravated or enhanced by her March 7, 2018 workplace injury.

The panel is further satisfied that a medial meniscal tear is not consistent with the mechanism of injury on file and as described by the worker at the hearing.

In conclusion, the panel finds, on a balance of probabilities, that as at September 24, 2018, the worker's right shoulder and right knee difficulties were not related to her March 7, 2018 accident and compensable injury. The panel recognizes that the worker had ongoing pain complaints and difficulties as at that date, but is unable to relate those complaints and issues to her March 7, 2018 workplace accident based on our review and consideration of the evidence before us.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require benefits beyond September 24, 2018 as a result of her March 7, 2018 workplace incident. The worker is therefore not entitled to benefits after that date.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of July, 2020