Decision #93/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his right shoulder difficulties as being a consequence of the December 29, 2017 accident. A teleconference hearing was held on August 27, 2020 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker’s right shoulder difficulties as being a consequence of the December 29, 2017 accident.
Responsibility should be accepted for the worker’s right shoulder difficulties as being a consequence of the December 29, 2017 accident.
On January 2, 2018, the worker reported to the WCB that he injured his low back and right shoulder on December 29, 2017 after “Getting down off the ladder when I had a slight twist injuring myself.” The worker noted in the Worker Incident Report that he felt better after seeking treatment from his chiropractor and intended to return to work on January 6, 2018. The employer filed their report January 3, 2018, confirming the incident as occurring when the worker’s “…foot slipped on icy conditions. Hideaway step frozen making for longer distance from ladder to ground level.”
The Chiropractor First Report dated January 2, 2018 outlined that the worker reported to his treating chiropractor that he “twisted low back climbing slippery ladder…” and indicated he had sharp pain that radiated to his leg, difficulty moving and sitting. On examination, the chiropractor noted left sacroiliac rotation, swelling, lumbar spasms and positive compression tests and diagnosed the worker with a lumbosacral sprain/strain. On January 10, 2018, the WCB accepted the worker’s claim.
At a follow-up appointment on January 31, 2018, the treating chiropractor updated the worker’s diagnosis noting that he “...also pulled Rt (right) arm back when twisted at time of injury” and noted the worker’s right acromioclavicular strain was “still bothering” him. On examination, the chiropractor reported lumbar spasms, reduced motion, sacroiliac fixation, right acromioclavicular tenderness and reduced motion.
On March 6, 2018, the worker saw a sport medicine physician. The worker reported to the physician that he had initially been treated for his low back pain by his chiropractor but had experienced progressive pain to his right shoulder since the workplace accident. The physician recorded that the worker reported “…he slipped and the R (right) shoulder was jerked upward...”and now he has pain in the joint of his right shoulder, limited range of motion, increased pain on full range of motion of his right arm and intermittent pain that wakes him at night. On examination, the physician indicated positive tests for impingement and rotator cuff injury and noted the “…rotator cuff insertion is sore.” The sport medicine physician diagnosed a rotator cuff impingement and cuff strain and recommended physiotherapy.
In a discussion with the WCB on March 8, 2018, the worker advised that the treating sport medicine physician recommended he remain off work for a week but he continued to work. He noted that at the time of the workplace accident, it was indicated that his low back and his right shoulder were injured but he was more concerned with his back. He explained that he advised his treating chiropractor about the injury to his shoulder and during the last month of treatments, the chiropractor treated the worker’s lower back as well as his shoulder.
On March 10, 2018, the worker attended for an initial physiotherapy assessment. The worker described the incident that caused an injury to his right shoulder and lower back as “Descending ladder…Lt (left) foot slid away, Rt (right) shld (shoulder) yank/body twist to Lt (left) to Rt (right) head impact”. The physiotherapist diagnosed a right shoulder rotator cuff strain and was unable to rule out a possible small right rotator cuff tear.
The worker’s treating chiropractor provided the WCB with a discharge report on March 23, 2018. In the report, the chiropractor noted that the worker’s low back injury resolved as of March 23, 2018 but the worker’s care was being transferred to a local sports injury clinic for treatment of his shoulder injury. The worker’s chiropractor also provided a narrative report dated March 23, 2018 setting out a chronology of the worker’s treatment and indicating that the worker advised the chiropractor on January 8, 2018 that his right shoulder “…continued to be very sore.” The chiropractor stated that given the mechanism of injury, the diagnosis was a right rotator cuff strain and by January 29, 2018, the right shoulder became the worker’s “…area of chief complaint as the low back subjective and objective findings continued to improve as expected.”
At a follow-up appointment on March 29, 2018, the sport medicine physician noted the worker’s left shoulder was also sore as he was using it more to save his right shoulder.
On April 5, 2018, the WCB accepted the worker’s right shoulder strain. In discussion with his WCB case manager on April 6, 2018, the worker advised that he “…hurt his left shoulder outside of work, he banged it really hard…” and sought treatment for that shoulder approximately 10 days after his right shoulder.
An MRI study conducted on the worker’s right shoulder on July 30, 2018 revealed a high-grade, partial thickness tendon tear involving the junction of the supraspinatus and infraspinatus tendons; severe, non-specific fatty atrophy of the teres minor muscle belly; mild osteoarthritis of the acromioclavicular joint; and suspected tearing of the anterior labrum.
The worker saw an orthopedic surgeon on September 6, 2018. The surgeon confirmed the diagnosis of a near full thickness supraspinatus tear. The worker noted his hesitancy to proceed with a surgical repair of the tear and chose instead to continue with aggressive physiotherapy.
A WCB medical advisor reviewed the worker’s file on September 20, 2018 and provided an opinion that based on the mechanism of injury and the medical information on file, the workplace accident caused a strain/sprain of the low back and a tear of the right rotator cuff. The WCB advised the worker on October 5, 2018 that it accepted the rotator cuff tear.
While providing a status update to his WCB case manager on October 22, 2018, the worker advised that injury to his left shoulder occurred and was related to his right shoulder injury and the workplace accident. He further noted that his healthcare providers were aware of his left shoulder difficulties and an MRI study on his left shoulder indicated three separate tears. On October 23, 2018, the worker’s WCB case manager advised the worker of an investigation into his left shoulder. The WCB contacted a co-worker and also requested further narrative information from the worker’s treating chiropractor, physiotherapist and sports medicine physician.
On January 11, 2019, the WCB advised the worker his left shoulder injury was not accepted as a secondary injury to his accepted right shoulder injury claim. The WCB noted the worker initially described the injury to his left shoulder as being unrelated to the workplace injury and the WCB could not relate an overuse injury to the worker’s left shoulder to the accepted injury to his right shoulder.
On March 24, 2019, the worker requested reconsideration of the WCB’s decision to not accept responsibility for his left shoulder injury to Review Office. The worker noted in his submission that his healthcare providers relate his ongoing difficulties with his left shoulder to overuse as a result of his right shoulder injury. The worker provided further information, including photographs of the area where the initial workplace accident occurred. The May 28, 2019 submission from the employer also noted the employer’s issue with the WCB’s acceptance of the worker’s right shoulder difficulties. On the same date, Review Office contacted the employer to seek confirmation of the addition of an employer appeal of acceptance of the injury to the worker’s right shoulder. Review Office advised the worker the same date that the employer requested reconsideration of the WCB decision regarding his right shoulder difficulties.
On June 10, 2019, the WCB chiropractic consultant reviewed the worker’s file and provided the opinion that the worker’s right shoulder was not examined, diagnosed or treated prior to January 29, 2018. This opinion was provided to both parties and further submissions were received from both parties and shared.
Review Office determined on July 8, 2019 that the worker’s right shoulder difficulties were not related to the workplace accident and as a result, the worker’s appeal for his left shoulder difficulties was moot. Review Office determined it could not relate the worker’s right shoulder difficulties to the workplace accident due to inconsistencies by the worker in describing the workplace accident, a month delay by the worker in reporting his right shoulder difficulties to his treating healthcare providers and a lack of medical evidence to support those difficulties were a result of the workplace accident.
On September 3, 2019, the worker submitted further information to Review Office, including a detailed chronology of his treatment, excerpts from medical journal articles and an August 29, 2019 letter in support of his request from his treating chiropractor. The worker requested the Review Office reconsider the July 8, 2019 decision not to accept responsibility for his right shoulder difficulties. Review Office advised the worker on October 10, 2019 that the previous decision was upheld and responsibility would not be accepted for his right shoulder difficulties. Review Office noted their review of the worker’s submission but found the one month delay in reporting his right shoulder difficulties to his treating chiropractor made it difficult to establish that he sustained the diagnosed injury of a right rotator cuff tear as a result of the workplace accident.
The worker’s representative filed an appeal with the Appeal Commission on February 26, 2020. A teleconference hearing was arranged and took place on August 27, 2020.
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.
Section 1(1)(a) of the Act defines an accident as a chance event occasioned by a physical or natural cause, 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.
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 December 29, 2017, the worker sustained injury to his right shoulder, as well as to his lower back. The injury to the worker’s right shoulder arose out of and in the course of his employment and therefore, the WCB should accept responsibility for the worker’s right shoulder difficulties.
The worker advisor outlined for the panel the evidence that supports the worker’s position noting that the worker reported injury to his shoulder in the questionnaire completed for the treating chiropractor on January 2, 2018. The worker confirmed to the panel that he completed this document himself and noted he injured his lower left back with radiating pain, left gluteal and hamstring muscles and right shoulder while working on December 29, 2017. The worker’s WCB incident report of January 2, 2018 also noted injury to the worker’s low back and right shoulder.
The worker in his testimony outlined in some detail how the injury occurred as he stepped onto frozen ground from a higher than usual distance. He described twisting his lower back while he hung onto the rail with his right arm, so that he landed on his knees rather than falling completely to the ground. The worker noted he was loaded with close to 100 pounds of gear and clothing at the time. He initially felt a “twang” in his lower back and “twinge” in his right shoulder and noted that he was unable to get out of bed the next day. With chiropractic treatment, the worker saw improvement in his low back injury but his shoulder did not improve. He had increasing difficulty in lifting his right arm above his head after the injury. When chiropractic treatment did not provide relief, he sought additional treatment through the sport medicine clinic where it was determined that there was likely a rotator cuff sprain/strain injury and further imaging was ordered.
The worker advisor acknowledged that the medical reporting available does not reference treatment of the shoulder injury until one month after the injury occurred but noted the worker did seek medical assistance within days of the injury occurring and did report the shoulder injury at that time. The worker advisor noted the Review Office relied in part upon the lack of evidence of treatment in finding there was no support for the worker’s position but suggested to the panel that the absence of evidence of treatment does not mean there was no evidence of injury. The worker advisor noted that the treating chiropractor admitted in his March 18, 2018 narrative report that he was aware the worker’s right shoulder was injured in his fall on December 29, 2017 but “...underestimated the degree of injury as [he] hoped initially it was concurrent with the many bumps and bruises [the worker] obtained in the fall and would resolve with time.” In this report, the chiropractor indicated that treatment of the right shoulder area was undertaken in January 2018 and that by the end of that month “...the right shoulder had become the area of chief complaint as the low back...continued to improve as expected.”
The worker advisor also addressed the concerns noted by the Review Office with respect to the changes in the narrative of the accident as set out in the medical reports, noting that this is neither unusual nor indicative of a lack of credibility. Rather, the worker advisor suggested, the expansion of detail in the description of mechanism of injury is indicative of more focused questioning by the treating medical practitioners over time as the lack of improvement in the worker’s shoulder became apparent. The worker advisor suggested the differing descriptions of the mechanism of injury reflect greater nuance but that the basic facts remain the same – the worker lost his footing as he descended icy steps and but was able to avoid falling completely because he held onto the rail with his right arm, and that the heavy protective clothing and gear he wore caused a significant load on his right arm and shoulder when he caught himself with that arm.
The worker advisor noted that the chiropractor appropriately referred the worker to a sport medicine clinic for further investigation and treatment of the shoulder injury when it did not resolve with time and chiropractic treatment. That investigation immediately suggested a right rotator cuff tear that was ultimately confirmed by the MRI imaging.
The worker advisor concluded that the issue of causation is addressed by the reporting of the treating medical practitioners as well as the WCB medical advisor who agree that the mechanism of injury described by the worker could result in the rotator cuff tear. Further there is no evidence of injury prior to the date of accident or of injury to the worker’s right shoulder subsequently. The worker’s own reports and oral testimony confirm that the injury occurred on December 29, 2017.
In sum, the worker’s position is that the appeal should be allowed because the injury to his right shoulder was sustained arising out of and in the course of his employment, and as a result of the compensable workplace accident of December 29, 2017.
The employer was represented in the hearing by its Workers Compensation Coordinator, who made an oral submission on behalf of the employer and answered questions from members of the appeal panel.
The employer’s position, as outlined in its representative’s submission is that the evidence does not support a finding that the worker’s shoulder was injured as a consequence of the compensable workplace accident. The employer agrees with the decision of the Review Office which found that the medical reporting and worker’s own reports of the injury most proximate to the date of accident are inconsistent with the worker’s position that his right shoulder difficulties are a result of that accident.
The employer’s representative stated that the earliest reporting of the injury by the worker describes a “slight twist” as he fell, while the first reporting by the treating chiropractor doesn’t reference a shoulder injury at all. The employer’s representative noted the mechanism of injury described by the worker in his conversation with the WCB on March 8, 2018 is very different from the original description in the incident report, and that the history provided to the surgeon is even more vivid and detailed in terms of the mechanism of injury. This changing description of the mechanism of injury, the employer’s representative suggested, is cause for concern and the panel should therefore rely on the description provided by the worker most proximate to the date of injury.
With respect to the chiropractic reporting in particular, the employer’s representative highlighted that the chart notes provided do not align with the information provided by the chiropractor in the March 18, 2018 narrative report, and that the WCB chiropractic consultant confirmed on June 10, 2018 that there was no reference to treatment of the worker’s right shoulder in the chart notes prior to January 29, 2018. The employer’s representative questioned why the chiropractor would fail to document the right shoulder injury if it had been assessed and treated, and suggested that the panel not rely on the chiropractor’s explanations after the fact.
The employer’s representative also noted that the fact the MRI study of both shoulders revealed similar findings bilaterally raises the question of causation as there appear to be multiple issues in both shoulders that may well be pre-existing. Further, the employer’s representative urged the panel to disregard the opinion provided by the WCB medical advisor that suggested the mechanism of injury could account for the worker’s right rotator cuff tear, on the basis that the opinion was based on facts that have not been established by the evidence.
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 right shoulder condition was the compensable workplace accident of December 29, 2017. Therefore, responsibility should not be accepted for the worker’s right shoulder difficulties as a consequence of the December 29, 2017 accident.
In order for the worker's appeal to succeed, the panel must find that the worker’s right shoulder injury arose as a result of the compensable accident of December 29, 2017. On the basis of the evidence before us and for the reasons that follow, the panel was able to make such a finding.
The panel considered the worker’s initial reporting of injury to both the treating chiropractor and the WCB and noted that in each case the worker reported both injury to his lower back and to his right shoulder arising out of the accident at work on December 29, 2017. These reports were made on January 2, 2018 and as such are the most proximate to the date of injury.
The panel noted as well that there is no evidence of injury to the worker’s right shoulder prior to December 29, 2017 and that the treating chiropractor has confirmed this in his reporting. Furthermore, there is no evidence of any injury to the worker’s right shoulder occurring subsequent to the date of accident and before the first reference to shoulder injury in the treating chiropractor’s reporting in late January 2018.
The worker’s description of the essential elements of the mechanism of injury has not changed over time, although more details have emerged since the original reporting on January 2, 2018. The panel noted that this was not a concern to the WCB in its original decision-making on this file and only arose as an issue of concern at the Review Office after the employer provided a submission on the worker’s left shoulder injury in May 2019.
The panel does not find the brief description of the mechanism of injury in the worker’s initial Incident Report to WCB to be unusual, nor of any concern. While the worker’s description of the accident does contain more detail after the original reporting, he does not waver in his description of the basic facts, being that he slipped as he took a large step from a ladder on a truck to the icy ground below it and twisted as he fell, injuring his lower back and right shoulder. Furthermore, the panel found the worker to be a credible witness on his own behalf and is satisfied by the explanation provided by the worker and the worker advisor as to why an increasing level of detail is provided over time.
In support of the worker’s position that the right shoulder difficulties are a consequence of the December 29, 2017 workplace accident, the panel also accepts and relies upon the September 20, 2018 opinion of the WCB medical advisor who concluded, on the basis of a review of the WCB claim file including all medical reporting to that point in time, that “It is probable that the workplace injury caused a strain/sprain of the low back and a tear of the right rotator cuff. These are consistent with the mechanism of injury and the chiropractic and medical findings after the injury.” The panel noted the Review Office conclusion that this medical opinion cannot be relied upon as it is based on facts that it found not to be supported by the evidence, but disagrees with that conclusion. The WCB medical advisor reviewed the entire file and reached conclusions based upon not only the developing history of the injury provided by the worker to a number of healthcare professionals, but also the medical findings including the MRI study, chiropractic findings and physical findings. Furthermore, as noted above, the panel accepts the worker’s evidence as to the mechanism of injury on December 29, 2017.
On a balance of probabilities, the panel is satisfied that the worker’s right shoulder difficulties are a consequence of the December 29, 2017 workplace accident and determines that the WCB should therefore accept responsibility. The worker’s appeal is allowed.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
D. Neal, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of September, 2020