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 wage loss and medical aid benefits after January 29, 2016. A hearing was held on March 11, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after January 29, 2016.

Decision

The worker is entitled to wage loss and medical aid benefits after January 29, 2016.

Background

On June 26, 2017, the worker filed a Worker Incident Report with the WCB in which he reported injury to his right shoulder that occurred April 25, 2016 when he exited a tram and was struck on the shoulder by its door. In discussing the incident with the WCB on June 28, 2017, the worker confirmed the mechanism of injury and that the door, weighing approximately 250-350 pounds, hit him on the front and side of his shoulder. The worker advised that he continued to work but self-modified how he did so due to reduced range of motion and “throbbing pain.” The worker further advised that he reported the injury to his supervisor on the date it happened. Because he was already being treating for a non-compensable medical condition, he delayed seeking treatment for his shoulder until a scheduled appointment in May 2016, when he was referred for an MRI. The worker also reported that in month prior to this conversation, he felt he aggravated his shoulder injury by doing overhead work.

The WCB obtained a copy of the October 5, 2016 MRI study conducted on the worker’s right shoulder. The report indicated the MRI was compared to a previous MRI conducted on November 8, 2005 and indicated a partial low grade intrasubstance tear of the infraspinatus tendon, moderate tendinosis of the subscapularis tendon, and moderate osteoarthritis of the acromioclavicular joint. The treating orthopedic surgeon recommended a shoulder arthroscopy to the worker after his June 29, 2017 appointment. The surgeon noted the worker’s report of right shoulder pain that started more than one year previous when a large door slammed into his shoulder, aggravated by repetitive overhead work, and that the worker received physiotherapy and pain injections that were not effective.

On July 25, 2017, the WCB received a report from the worker’s pain management clinic physician. The physician indicated that during an appointment on March 1, 2016, the worker reported his right shoulder being more painful and that the pain in his shoulder had been bad since his last appointment in November 2015 and that he had reduced his duties at work as a result. The pain management clinic physician noted the findings of the October 5, 2016 MRI and referred the worker to an orthopedic surgeon for a surgical opinion.

The WCB spoke with the worker’s supervisor on July 31, 2017 who advised he believed the worker reported the incident of the door of the machine hitting the worker to him approximately 1.5 years ago but declined to complete a “blue form” or report for the incident. He further advised that he could not confirm whether the worker made ongoing complaints regarding his shoulder but could confirm the worker continued to work his regular duties.

The WCB advised the worker on August 18, 2017 that his claim was not acceptable as it could not be established that his right shoulder difficulties resulted from an accident at work.

On October 2, 2017, the worker requested reconsideration of the WCB’s decision that his claim was not acceptable to Review Office. The worker provided further information to Review Office on October 16, 2017. On October 17, 2017, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. The WCB contacted the employer and the worker to gather further information. The employer confirmed that the worker was off work on January 27, 2016 and January 28, 2016 and the worker confirmed his belief that the workplace accident occurred on January 29, 2016, which was established as the accident date.

On January 9, 2018, the worker’s treating pain management clinic physician provided a chronology of his treatment of the worker since 2010, noting that he had seen the worker on November 10, 2015 then again on March 1, 2016. The physician confirmed that the worker did not report any issues with his right shoulder or rotator cuff prior to that appointment, but after that date, the worker reported pain in his right shoulder, in addition to the chronic neck pain he was previously treated for. The physician further reported that since the worker’s September 29, 2017 surgery, he was only receiving treatment for his chronic neck pain.

The worker’s file was reviewed by a WCB medical advisor on February 1, 2018. The medical advisor opined there was no medical evidence on file to relate the worker’s rotator cuff/bicep tear to the workplace accident on January 29, 2016 but noted that the workplace accident “…may have caused a shoulder contusion” which would have resolved without specific treatment within a few days to a couple of weeks and the worker’s pre-existing myofascial pain in his shoulder would not have affected recovery from a contusion.

On February 5, 2018, the WCB advised the worker that his claim was accepted for an accident occurring on January 29, 2016 but he was not entitled to wage loss or medical aid benefits as the evidence did not establish a relationship between his right shoulder difficulties and need for ongoing medical treatment and the workplace accident.

The worker’s representative requested the WCB reconsider its decision on April 25, 2018, providing a submission in support. On April 27, 2018, the WCB advised the worker there was no change to the earlier decision. The WCB noted the employer had stated the worker performed job duties similar to those on May 19, 2017 previously but on that date, the duties were limited as the task was not completed, and that the employer indicated the worker did not report an injury on that date.

The worker requested reconsideration of the WCB’s decisions to Review Office on May 23, 2018. In his submission, he noted his belief that the decisions were made “…based on incorrectly interpreted information.” On June 27, 2018, the employer provided a submission in support of the WCB’s decision, shared with the worker on June 28, 2018. The worker provided further information to Review Office on September 11, 2018 and October 22, 2018.

On November 1, 2018, Review Office determined the worker was not entitled to wage loss and medical aid benefits after January 29, 2016. Review Office found the evidence on file did not support a finding that the worker’s ongoing difficulties with his right shoulder were related to the January 29, 2016 workplace accident as the worker did not report any difficulties to his supervisor immediately after the incident occurred and continued to work his regular duties until his appointment with the pain management clinic physician on March 1, 2016. Further, Review Office noted that although the worker reported an increase in symptoms of his right shoulder injury on May 19, 2017 and that he did not work the next day and was given modified duties on May 21, 2017, the employer confirmed he did not report an injury on May 19, 2017 and could not confirm that worker was assigned modified duties on May 21, 2017. Review Office also noted the worker did not seek medical treatment for the increase in his symptoms and only reported the aggravation at an appointment with his orthopedic surgeon on June 29, 2017. As such, Review Office found the evidence did not support the worker sustained an aggravation of his shoulder on May 19, 2017.

The worker’s representative filed an appeal with the Appeal Commission on October 28, 2019 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 August 19, 2020, the appeal panel met further to discuss the case 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 provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

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 Policy 44.10.20.10, Pre-existing Conditions (the “Policy”) was established to address eligibility for compensation benefits under the Act in circumstances 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 is responsible so long as the loss of earning capacity continues.

Worker’s Position

The worker was represented in the hearing by a worker advisor who made an oral submission on behalf of the worker and posed questions to the worker. The worker provided oral testimony through answers to the questions posed by the worker advisor and members of the panel.

The worker’s position, as outlined by the worker advisor, is that as a result of the compensable workplace accident of January 29, 2016, the worker sustained injury to his right shoulder that caused a loss of earning capacity and created a requirement for medical aid beyond that date. The worker should therefore be entitled to wage loss benefits and medical aid beyond January 29, 2016.

The worker advisor reviewed for the panel the medical findings that support the worker’s position that the rotator cuff tear revealed by the October 2016 MRI study was caused by the accident of January 29, 2016. The worker advisor noted the pain clinic physician’s January 2018 report outlined that prior to January 29, 2016 the worker was treated for myofascial pain arising out of a non-compensable injury sustained in 2004. The physician confirmed in this report that prior to the March 1, 2016 assessment of the worker, rotator cuff pathology and presentation was not noted and after that visit, it was evident the worker had an additional and new cause of pain. The worker advisor also pointed the panel to consider the opinions of the WCB medical advisor who confirmed that the mechanism of injury here could have produced the worker’s injury.

The worker advisor stated that although the evidence shows the work had pre-existing conditions, both in his cervical spine and right shoulder, these are distinct from the injury to the worker’s rotator cuff sustained on January 29, 2016. Further, the worker advisor noted that pre-existing conditions do not shield the worker from sustaining a new acute injury; rather, the pre-existing condition causes the worker to be more susceptible to injury with less force than would be required if he did not have such a condition.

With respect to the delay in seeking medical treatment, the worker advisor noted that the delay was approximately 1 month and that this should be understood in the context that the worker, who had prior emergency medical training, believed it was a simple contusion injury based upon his self-assessment. Further, the worker was at the time of injury working in a remote location and had already arranged an appointment with his treating specialist to take place on March 1, 2016. The worker advisor also noted that the worker was already treating his myofascial pain with strong medication that may have partially masked the rotator cuff symptoms, and further that the worker was able to continue working, with self-modification in the interim.

The worker advisor also outlined the worker’s position that the rotator cuff injury was aggravated as a result of the work duties he undertook on May 19, 2017. It was after that incident he was no longer able continue in his regular duties, even with modifications, until after recovery from the surgical repair that took place in September 2017.

The worker outlined in his testimony to the panel how the injury occurred and how it impacted him beyond the date of the accident. He described slipping on the ground as he exited the tram and then being struck on his shoulder by the heavy door. He described what happened next as follows:

“The pain was so severe I almost went to my knees. There was (sic) tears coming out of my eyes. All I could do was stand there, hang my arm and sort of wiggle it like this, try and –

Like, the pain was, I don’t know, to give, how to give an accurate statement, but I would honestly have to say that was one of the most excruciating things I have ever felt.”

He noted that his supervisor soon appeared to assist him and that he was able to continue working with a number of self-modifications so as to favour his right arm and shoulder and with use of pain medication.

The worker described to the panel as well the incident in May 2017 that he says exacerbated his symptoms arising out of the rotator cuff tear, and as a result of which he was no longer able to continue in his regular duties. He noted that the employer moved him into a light duty job at that point, although without any impact on his income, and he worked that job until September 27, 2017. After his surgery on September 29, 2017, he was in recovery and off work until February 2018. The worker confirmed that his shoulder is fully recovered to its pre-accident status.

In sum, the worker’s position is that the appeal should be allowed because he sustained a loss of earning capacity and required medical aid as a direct result of the compensable workplace accident of January 29, 2016.

Employer’s Position

The employer did not participate in the hearing, but provided a written submission in advance of the hearing date, for consideration by the panel.

The employer’s position, as outlined in the written submission is that the worker is not entitled to wage loss or medical aid benefits beyond January 29, 2016 as the evidence does not establish a causal connection between the January 29, 2016 workplace accident and the March 2016 clinical findings and worker self-report of injury to his physician. Further, the employer stated that the evidence also does not establish that the worker aggravated his shoulder condition in the course of work on May 19, 2017, given the worker’s delay in seeking treatment and reporting of further injury or worsening of his symptoms.

In sum, the employer’s position is that on the standard of a balance of probabilities, the worker cannot establish that the cause of his ongoing right shoulder condition was either the January 29, 2016 incident or the work he did on May 19, 2017. Therefore, the worker should not be entitled to wage loss or medical aid benefits beyond January 29, 2016.

Analysis

The issue before us arose as a result of the WCB’s February 5, 2018 decision to accept the worker’s claim but to deny the worker entitlement to benefits beyond the date of the accident. In order for the worker's appeal to succeed, the panel must find that as a result of the compensable injury, the worker experienced a loss of earning capacity and required medical aid to cure and provide relief from that injury beyond January 29, 2016. On the basis of the evidence before us and for the reasons that follow, the panel was able to make such findings.

In considering whether or not the worker is entitled to benefits beyond January 29, 2016, the panel reviewed the medical opinions and reports on the WCB file for the period leading up to and subsequent to the date of the accident. In his last medical appointment prior to the accident, on November 10, 2015, the treating pain clinic physician noted the worker’s report of right neck pain and intermittent right shoulder pain, which was absent that day. The physician administered trigger point injections to the worker’s neck and right trapezius areas. As outlined in the pain clinic physician’s report of January 9, 2018, he had been treating the worker since early 2010 for right-sided neck and shoulder pain described as myofascial in nature. The medical records on file confirm that from 2010 to 2017 treatment focused on the worker’s neck and shoulder area in an attempt to decrease muscle tightness in his right trapezius and rhomboid muscles.

After the accident, when the worker saw his treating pain clinic physician on March 1, 2016, the physician noted difficulty with right shoulder flexion and abduction, and reported significant pain in that area. On examination, there were clinical signs of right rotator cuff impingement. As a result the physician referred the worker for an MRI and surgical treatment if the MRI revealed signs of tearing or impingement. The worker received trigger point injections to his neck, trapezius and rhomboid areas that day. The physician stated in his January 9, 2018 narrative report to the WCB that “[a]t no time prior to the March 1, 2016, appointment did I note rotator cuff pathology” and that the worker’s presentation prior to that date appeared to be solely myofascial.

Subsequently, the worker continued to see the pain clinic physician for assessment and trigger point injections approximately each 6-8 weeks. Beginning June 14, 2016, the physician also administered trigger point injections in the worker’s right infraspinatus and deltoid muscles, in addition to the trapezius and neck injections. Chart notes during this period indicate the worker found the injections helpful in loosening his shoulder, although he continued to report significant pain in the right shoulder.

The MRI study conducted on October 5, 2016 revealed a partial “low grade intrasubstance tear of the infraspinatus tendon at the humeral footprint” as well as moderate osteoarthritis of the acromioclavicular (“AC”) joint and moderate tendinosis of the and subscapularis tendon.

The WCB medical advisor’s opinion of February 1, 2018 set out that the mechanism of injury:

“...could potentially injure the cuff and biceps, [but] the pathology could also be related to degeneration. In order to say that the cuff and biceps pathology are medically related to the [compensable injury], there would have to be clinical evidence of cuff and biceps symptoms and findings in close proximity to the January accident.”

The medical advisor went on to comment that the medical findings in March 2016 would not be considered to be in “close proximity” to the date of injury, noting that “If the cuff and biceps are torn acutely there are immediate and severe symptoms, clinical findings, and loss of function. Most patients would seek medical attention right away or within days at most.”

The worker advisor addressed the worker’s pre-existing shoulder condition, noting the 2016 MRI study revealed degenerative changes that are non-compensable and pre-existing. The worker advisor went on to suggest that in an environment of pre-existing degenerative changes the worker’s shoulder may have been more vulnerable to injury. The worker advisor also suggested that the accident may have aggravated a prior injury, but the WCB medical advisor stated on December 7, 2017 that the medical information “...does not support that the workplace accident caused a material change to the worker’s pre-[existing] shoulder issues.” The panel also noted the prior MRI study reviewed by the medical advisor, from 2005 did not reveal any tears in the worker’s rotator cuff and the findings of that study are described as “normal”. The worker’s treating pain clinic physician described a noticeable change in the worker’s presentation after the accident, in the narrative report of October 2, 2018:

“...I followed you for many years in the clinic after [physician’s name] referral in January of 2010 and saw you consistently for the treatment of myofascial pain in your right shoulder girdle area. When I saw you on March 1, 2016, there was a change in your presentation suggestive of rotator cuff impingement and possible tear leading me to request an MRI and surgical opinion for your shoulder pain. When I last saw you prior to that on November 10, 2015, your symptoms did not appear to be related to rotator cuff pathology.

You note that the only change in your symptoms came after a work-related injury on January 29, 2016. Unfortunately, with the prolonged time course between the injury and your next follow up appointment, it was impossible for me to determine if the rotator cuff impingement and partial tear occurred at that time, however, based on your report, this was the moment the change in your presentation occurred.

Since your surgery on September 29, 2017, the rotator cuff symptoms in the right should have resolved and I now continue to follow you for management of the myofascial trapezius, rhomboid and infraspinatus pain for which [physician name] initially referred you to me back in 2010.”

While the treating physician could not confirm that the injury to the worker’s rotator cuff occurred on January 29, 2016 because of the gap between that event and the assessment, he does confirm that a change did occur between November 10, 2015 and March 1, 2016, and that based upon the worker’s report that is when the injury likely occurred.

The panel also considered the worker’s testimony and answers provided to panel members’ questions. The worker confirmed he did not seek medical attention until March 1, 2016 when he had a previously scheduled appointment with the pain clinic physician and explained that he did not believe he would obtain any necessary treatment or referral before that date in any case, given the remote location of the work site and lack of access to specialist care in that geographic region.

The worker described to the panel that the impact of the tram door against his shoulder caused pain that was more excruciating than anything he had previously experienced, bringing him to tears and to his knees. The panel also heard that although the worker was accustomed to living and working with pain in his neck and shoulder since the injuries sustained in the non-compensable event of 2005, this injury caused an immediate and different kind of pain.

The worker testified that when the initial pain subsided after about half an hour, he was able to continue working by making modifications to how he worked. For example, he described entering the vehicle by pulling himself up with his left arm, using his right arm only for balance. He was also able to control the bucket with his right arm on a rest, using only wrist motions. For the most part, the worker was able to control the pace of his work, reducing it as required. He continued to make such modifications, as required, until the events of May 2017 that resulted in his moving to light duties. Subsequent to the accident, the worker obtained some relief from pain symptoms through the use of pain medications and trigger point injections in the right trapezius, infraspinatus and deltoid muscles, according to the treating pain clinic physician and the worker’s own testimony.

The panel finds that the evidence from the treating physician and the worker support a finding that the worker did experience immediate and severe symptoms at the time of the traumatic injury on January 29, 2016 and that there was an immediate change in his functional abilities at that time, although he did not initially need to miss any time at work. Furthermore, when the worker ultimately did seek medical attention some 31 days later, there were clinical findings that suggested a right rotator cuff injury and possibly a tear, such that the physician referred him for a MRI study to rule out a rotator cuff tear. The treating pain clinic physician’s October 2, 2018 report confirms there was a change in the worker’s clinical presentation on March 1, 2016 from the previous assessment on November 10, 2015 and that after the surgical repair of the rotator cuff tear, the worker’s presentation again returned to his baseline, pre-accident condition.

The panel finds that the totality of evidence supports that the accepted mechanism of injury could account for the tearing of the worker’s right rotator cuff, particularly in the known environment of a pre-existing degenerative condition. The worker’s reported symptoms at the time of injury are consistent with an acute rotator cuff injury as described by the WCB medical advisor and the worker’s reported reduction in functional abilities and self-modification of his work to accommodate those reduced abilities until May 2017 when he went on light duties, are also consistent with an acute rotator cuff injury.

On the standard of a balance of probabilities, the panel concludes that as a result of the accident of January 29, 2016, the worker suffered an injury to his right rotator cuff. Further, the panel determines that the evidence before us supports a finding that as a result of the rotator cuff injury sustained on January 29, 2016 the worker experienced a loss of earning capacity and required medical aid to cure and provide relief from that injury after the date of accident.

Therefore, the worker is entitled to wage loss and medical aid benefits after January 29, 2016. The appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of September, 2020