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 hearing was held on November 3, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On November 9, 2018, an Employer’s Incident Report was filed with the WCB indicating the worker injured his right shoulder at work on November 4, 2018. The worker reported to the employer that his right shoulder had been sore for “…several months which he attributes to a variety of packaging tasks.” The worker filed his Worker Incident Report on November 21, 2018. On his Report, the worker advised he began to feel “…tightness and swellness (sic) in my right shoulder up to the neck” on January 15, 2018 and over time, his right shoulder became worse to the point he could not perform his job duties. The worker further advised he sought treatment with a chiropractor for four sessions but did not get a diagnosis.

The WCB contacted the worker on November 29, 2018 to discuss his claim. The worker described his current job duties as including lifting boxes weighing approximately 25 pounds with both hands and placing them on a conveyor belt, making up to 200 to 250 boxes in a 2 hour period and also stacking the boxes, averaging 20 in a row, 5 rows high. The worker confirmed there was no increase or change in his job duties and he could not recall a specific incident or accident. The worker further advised that he had no prior difficulties with his shoulder before January 15, 2018.

The WCB received a Doctor’s First Report from the worker’s family physician for an appointment on November 5, 2018. The report noted the worker was in attendance for a follow-up after an MRI was conducted for his reported right shoulder pain, with the MRI indicating “…progression of the rotator cuff changes in the right shoulder.” The treating physician noted the worker’s right shoulder was tender and the worker had difficulty putting his right arm above his head. He was diagnosed with a right rotator cuff tear and referred to an orthopedic surgeon for further treatment. The WCB also received a copy of the October 24, 2018 MRI outlining “Interval progression of rotator cuff changes….” A November 8, 2018 report from the worker’s family physician noted the worker had a right supraspinatus tear.

On December 11, 2018, the worker saw an orthopedic surgeon. The surgeon noted the worker reported having ongoing pain for approximately 11 months, which the worker attributed to his repetitive job duties. The orthopedic surgeon diagnosed the worker with biceps tendinitis with an associated superior labral tear from anterior to posterior (SLAP) lesion and recommended the worker undergo surgical repair.

A WCB medical advisor reviewed the worker’s file on January 16, 2019 and provided an opinion that the worker’s current diagnoses were a rotator cuff tear and a SLAP lesion, supported by the medical information provided by the treating healthcare providers. The WCB medical advisor outlined that cuff tendonopathy and tears were associated with: prolonged exposure to combinations of force/repetition and force/posture; prolonged work with an arm held at greater than 60 degrees of flexion or abduction; and highly repetitive movements. The medical advisor also noted that cuff tendonopathy could be caused by degeneration, with no history of trauma and the worker’s labrum tear was indicated as degenerative.

On January 17, 2019, the WCB advised the worker that his claim was not acceptable as a relationship between the worker’s current difficulties and an accident or the worker’s job duties could not be established.

A further report was received from the worker’s treating orthopedic surgeon on May 6, 2019. The surgeon diagnosed biceps tendinitis/tenosynovitis with the worker relating his symptoms and difficulties to the repetitive activity of his job duties. The orthopedic surgeon provided the diagnosis was “…classically precipitated by repetitive activities” and opined the repetitive nature of the worker’s job led to the development of the biceps tendinitis/tenosynovitis. On July 3, 2019, the worker was advised the medical information from the orthopedic surgeon was reviewed but there would be no change to the earlier decision.

The worker requested reconsideration of the WCB’s decisions to Review Office on July 4, 2019. In his request, the worker noted that he was having surgery on his right shoulder on August 1, 2019 and as such, believed his claim should be accepted.

On July 25, 2019, Review Office determined the worker’s claim was not acceptable. Review Office accepted the opinion of the WCB medical advisor that the degenerative changes in the worker’s shoulder were not caused by his job duties with the employer and did not find any evidence to support the worker’s degenerative changes had been structurally altered or enhanced by the workplace accident.

The worker’s representative submitted the August 1, 2019 surgical report to Review Office on September 23, 2019 and asked for a review of the July 25, 2019 decision. On September 23, 2019, Review Office advised there would be no change to the earlier decision.

The worker filed an appeal with the Appeal Commission on December 9, 2019. A teleconference hearing was arranged for November 3, 2020.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to paragraph 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of 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 represented by his spouse, who made an oral submission outlining the worker’s position.

The worker’s representative stated the worker’s position that as a result of his work with previous employers over the course of many years, his right shoulder was injured. The worker’s representative clarified that the worker never believed that his right shoulder condition was related to his work with the employer but that it was related to his job duties in prior positions with other employers.

The worker’s representative noted that the treating surgeon’s opinion was that the injury arose out of years of wear and tear on the worker’s shoulder, not from his recent job duties with the employer. The worker stated that this injury did not occur at his employment with the employer and that he told his supervisor with the employer that his symptoms were not related to his current work.

The worker’s position, in sum, is that the injury did arise out of and in the course of his employment, but with a different, prior employer or employers.

Employer’s Position

The employer was represented in the hearing by legal counsel and its senior manager of human resources.

On hearing the position put forward by the worker, the employer’s counsel indicated he would not make a submission but would make a motion for dismissal of the appeal. Counsel advised that he reserved the right to make a submission on behalf of the employer should the panel determine not to grant the motion.

Analysis

The panel dealt firstly with the preliminary issue of the employer’s motion to dismiss the appeal. The panel considered whether it has authority to consider such a motion and determined that its authority under the Act is to confirm, vary or overturn a prior decision of the WCB Review Office. The prior decision of the WCB Review Office was that the worker’s claim is not acceptable, and therefore that is the question that the panel must determine. A decision to dismiss the appeal would not provide such a determination, in the panel’s view and therefore the panel determined not to grant the employer’s motion on this point.

The question on appeal and for determination is whether or not the claim is acceptable. To find that it is acceptable the panel would have to determine that the worker was injured as a result of an accident that occurred arising out of and in the course of his employment with the employer. For the reasons that follow, the panel was not able to do so.

The worker’s representative made a submission that outlined the worker’s position that he suffered a repetitive use injury to his right shoulder arising out of his work with two employers prior to the present employer. The worker confirmed that when he first experienced symptoms in January 2018, he advised his supervisor that he was injured but stated that the injury was not related to his work with the employer.

The worker’s representative referenced the opinion of the treating surgeon that the worker’s injury arose out of years of wear and tear on his shoulder, likely in the course of his work. The worker’s representative reiterated that it was not the worker’s position that this injury arose out of and in the course of his work with this employer.

The employer’s legal counsel requested that on the basis of the worker’s submission, the appeal be dismissed as the employer is not responsible for the worker’s injury. While the panel declined to grant the employer’s motion to dismiss the appeal, it agrees with the employer’s position that on the basis of the worker’s submission, no further submissions or evidence need be provided by the employer.

Taking into account the evidence before the panel in the worker’s WCB file and on considering the worker’s unequivocal position that the injury to his shoulder did not occur arising out of and in the course of his employment with this employer, but arose out of prior employment with employers who are not party to this claim, the panel determined that the decision of the Review Office must be confirmed.

The claim is not acceptable.

In the unusual circumstances of this hearing, the panel met to consider the questions before it and determined to make its decision prior to adjourning the hearing. The panel communicated its decision orally to the parties directly indicating that written reasons would follow.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of November, 2020