The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on April 30, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The WCB received a Doctor's First Report for the worker's July 8, 2019 appointment with his family physician. The physician noted the worker had pain and limited range of movement, with a positive Job's test, decreased range of flexion and limited range of abduction and diagnosed a rotator cuff tear. The physician recommended modified duties for four weeks and requested an MRI. The physician also provided a chart note from an April 15, 2019 visit that indicated the worker reported “Two weeks ago was lifting something heavy, had a bruise which disappeared. Still in pain” and provided a diagnosis of “Likely rotator cuff tear” with an x-ray and MRI recommended. An x-ray of the worker’s right shoulder from June 20, 2019 noted normal findings.

The worker filed a Worker Incident Report with the WCB on July 10, 2019 indicating he injured his right shoulder in an incident at work on June 6, 2019. He reported feeling a tear in his shoulder when lifting a heavy item, noting after that he "…took it easy and finished my shift."

On July 10, 2019, the WCB contacted the worker to discuss his claim. The worker confirmed the reported mechanism of injury noting that as he lifted the heavy item, “…he felt a sharp pain/tearing in the right shoulder” that he reported to his supervisor right away and that he has been working modified duties since that time. Also on July 10, 2019, the WCB spoke to the employer who advised the worker had not reported an injury before July 9, 2019, and he was not aware of any ongoing complaints as the worker had been working his regular duties.

At the initial physiotherapy assessment on July 12, 2019, the worker reported he had “torn right shoulder muscles from lifting” and experienced sharp pain in his right shoulder. The physiotherapist diagnosed a supraspinatus strain and queried whether the worker had a tear, noting they were awaiting an MRI study. The physiotherapist went on to recommend the worker remain off work for a week, with a gradual return to  work after that period as the worker had been working, which worsened his condition.

On July 24, 2019, the WCB advised the worker that after a review of his file, it had determined that his claim was not acceptable. The WCB noted that it could not establish that a workplace accident occurred on June 6, 2019 as the employer was not aware of an injury until July 9, 2019 and the worker had continued to work his regular duties. Further, the initial treatment date of April 15, 2019 was prior to the reported dated of injury and no workplace accident was reported to the treating physician at that time.

The WCB received a copy of an MRI study done of the worker’s shoulder on August 10, 2019. The MRI indicated the worker had a full thickness tear of the distal supraspinatus with mild retraction and muscle atrophy, tendinosis and tearing of the glenoid labrum. The WCB also received a copy of the Doctor’s Progress Reports for August 22, 2019 and September 12, 2019 noting the worker’s treating physician referred the worker for an orthopedic consultation. On September 12, 2019, the worker’s family physician wrote to the WCB noting the worker sustained a right shoulder injury, that an x-ray on June 20, 2019 was normal and the MRI study on August 10, 2019 noted a rotator cuff tear. Further, the physician referred the worker for orthopedic surgery, scheduled for October 8, 2019. On September 19, 2019, the WCB advised the worker the new medical information was reviewed and there would be no change to the earlier decision that his claim was not acceptable.

The worker requested reconsideration of the WCB’s decisions to Review Office on September 19, 2019, noting his belief that the WCB based the decision to deny his claim on an incorrect reporting date and that his employer and treating physician agree on the correct date.

On October 31, 2019, Review Office found the worker’s claim was not acceptable. Review Office could not establish the worker sustained a workplace accident on June 6, 2019. In coming to this conclusion, Review Office found the worker significantly delayed in filing a claim as the initial medical report indicated he was having difficulties with his right shoulder in April 2019 and that the worker’s x-ray of June 20, 2019 and MRI of August 10, 2019 were both initiated based on the April 15, 2019 examination. Furthermore, the worker delayed in reporting the incident to his employer and continued to work his full regular duties without complaint.

The worker filed an appeal with the Appeal Commission on January 6, 2020. A teleconference hearing was arranged for April 30, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and forwarded to the interested parties for comment. On October 1, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

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…

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work.

Worker’s Position

The worker appeared in the hearing on his own behalf. He made an oral submission outlining his position and answered questions posed to him by members of the appeal panel. On reviewing the additional information requested by the panel after the oral hearing, the worker provided an additional written submission for consideration by the panel, dated September 3, 2020.

The worker’s position is that he was injured in the course of his work but that the WCB denied his claim due to clerical mistakes made by his doctor and the employer’s inability to remember that the worker had been injured. He described the employer as not being reliable in terms of record-keeping and noted that the employer, on March 23, 2020 wrote a letter confirming that the worked had informed him of the injury on June 6, 2019.

The worker noted that it is common for him to injure himself in the course of his work and that such injuries are not always documented; however, he recalled specifically discussing this injury with the employer. The worker confirmed that he continued to work after the incident on June 6, 2019 until late July when he took time off on the advice of his treating physiotherapist. He noted he also missed some time prior to that to attend for doctor’s appointments.

The worker told the panel that after the injury occurred, he worked the next day and then, after the weekend subsequent, saw his family physician on June 10, regarding the injury to his shoulder. He noted that he also hurt himself at work in April but described this as an injury to his sternum and ribs. The worker stated that the x-ray and MRI of his right shoulder were scheduled during this June 2019 visit to his family physician.

In the worker’s September 3, 2020 response to the additional medical information obtained by the panel after the hearing, he stated that he believes that the family physician’s April 15, 2019 chart note contains information about the request for an x-ray of his shoulder, in error as the request was initially in relation to his chest area injury.

In sum, the worker’s position is that the claim should be acceptable because he injured his right shoulder arising out of and in the course of his employment on June 6, 2019.

Employer’s Position

The employer did not participate in the appeal.

Analysis

In order to find that the claim is acceptable, the panel must determine that as a result of an accident in the workplace, as defined by the Act, the worker was injured. For the reasons that follow, the panel was not able to make such a finding.

The panel noted the worker did not make a claim to the WCB until July 10, 2019, and at that time related the injury to events that occurred on June 6, 2019. As noted by the Review Office, such a delay in bringing his claim only adds to the difficulty in the investigation and adjudication of his claim. That difficulty was compounded in this case by inconsistencies between the medical reporting, the worker’s reporting, and the employer’s reporting.

The panel considered the medical reporting on file and noted in particular that the April 15, 2019 chart note obtained from the worker’s treating family physician points to a shoulder injury that pre-dates the worker’s purported accident by nearly two months and his report to WCB by some three months. The chart note set out that diagnostic testing (x-ray and MRI) was ordered at this time to investigate a possible rotator cuff tear injury. The panel noted as well that the November 19, 2018 chart note from the worker’s treating family physician also referenced the worker’s complaint at that time with respect to both shoulders.

There is no record of any assessment of the worker by his family physician in June 2019, despite the worker’s assertion that he saw his physician on June 10, 2019. The panel noted there was a shoulder x-ray taken on June 20, 2019 which indicated normal findings.

When the worker saw his physician on July 8, 2019, he reported injury to his right shoulder that started “...after lifting a brake drum.” The physician noted a complaint of chronic right shoulder pain in his chart notes and after this visit the physician reported an injury to the WCB. Notably, the Doctor First Report referenced that the injury to the worker’s right shoulder occurred on June 6, 2019 but provided no detail as to the mechanism of that injury and did not reference the June 20, 2019 x-ray taken.

The panel also considered that the employer, in its report to the WCB on July 15, 2019, described injury to the worker’s right shoulder on June 6, 2019 having been reported to the employer on June 9, 2019 but provided no detail as to the mechanism of injury. When the panel compared this report to the information the employer previously provided to the WCB in a July 10, 2019 telephone conversation, it noted that on July 10, 2019 the employer was not able to confirm the worker had reported any injury to his shoulder at work but stated the worker had referenced an ankle injury. Then, on September 5, 2019, the employer advised the WCB that the Employer Report contained an error in relation to when the worker notified the employer of his shoulder injury, which was on July 9, 2019 rather than on June 9, 2019. The employer later provided a further explanation of these events in a letter addressed “To whom it may concern” dated March 23, 2020. In that letter the employer outlined that the worker informed him “...on June 6, 2019 that he felt pain in his right shoulder from lifting a brake drum. He said it was tender and weak. He was still able to perform some duties.” The employer then went on to describe that he first became aware of the WCB claim after the worker had a second injury on July 6, 2019 to his chest muscles and told him on July 10, 2019 that the claim had been filed. The worker’s explanation to the panel of these inconsistencies was that the employer simply did not remember and was not reliable in record-keeping.

The panel also considered the worker’s own reporting and explanations regarding the injury and timing of reporting and seeking medical care. While the worker claimed he first sought medical attention for his right shoulder on June 10, 2019, the medical chart notes do not confirm that but suggest that the worker was seeking treatment for his shoulders as early as November 2018, and again in April 2019. Later, when the worker sought medical attention for his shoulder in July 2019, he related to the physician that he injured it at work resulting in the physician’s report to the WCB and ultimately, the worker’s report a few days later.

There are significant discrepancies and inconsistencies in the evidence before the panel in this case. While there is no question that the worker has incurred an injury to his right shoulder, it is not at all clear from the evidence when and how that injury occurred.

In the absence of compelling evidence that the worker did injure his right shoulder arising out of and in the course of his employment on June 6, 2019, as he claimed, the panel is unable to find that the worker’s injury was the result of an accident, as defined by the Act.

In sum, the totality of evidence on file and provided by the worker does not establish, on the standard of a balance of probabilities, that there was an accident arising out of and in the course of the worker’s employment. Therefore, the claim is not acceptable.

The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of October, 2020