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 benefits after June 20, 2019. A teleconference hearing was held on September 1, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 20, 2019.

Decision

The worker is entitled to wage loss benefits after June 20, 2019.

Background

On May 29, 2019, the worker reported to the WCB that he injured his left shoulder in an incident at work on May 23, 2019. The worker attributed his injury to an increase in the duties he had to perform that day when he had to repetitively open and push the door of a piece of equipment with his left shoulder in order to complete a large order. He advised that his shoulder started to "…burn while he was working, but he continued to work", and there was an increase in pain such that by the end of his shift, he couldn't lift his left arm.

The worker sought medical treatment on May 24, 2019. He reported the incident to the treating physician as "frequent open and closing sliding door - but bearings on door were not working well, so he used his L (left) anterior shoulder against the door to push it closed repetitively". The physician noted the worker's left coracoid process was tender and tenderness on flexion without loading but the worker was able to flex and abduct his left arm over 80 degrees. The physician diagnosed a “left coracoid process bruise vs. coracoid tendinopathy” and recommended restrictions of lifting/pushing/pulling 5 pounds in any fashion with his left arm/shoulder for the next week, after which, weight limit could be increased as tolerated by the worker and guided by a physiotherapist.

On May 28, 2019, the worker attended for a follow-up appointment with his family physician. The treating family physician diagnosed a left shoulder rotator cuff strain and placed the worker off work for two weeks.

At an initial physiotherapy appointment on June 3, 2019, the worker reported difficulty with lifting his arm, anterior shoulder pain and trouble sleeping. The physiotherapist noted a positive Speed's test and diagnosed a left longhead biceps tendon irritation. The physiotherapist recommended the following restrictions: no push/pull/lift/carry over 5 pounds with the left shoulder; no repetitive left shoulder tasks; not lifting left shoulder over 90 degrees and rest as needed.

At follow-up on June 12, 2019, the worker’s family physician recommended the worker remain off work for a further 4 weeks.

The WCB gathered further information from the employer, and a co-worker who confirmed the worker advised him on May 23, 2019 that his shoulder hurt, and he would be attending for medical treatment.

On August 1, 2019, a WCB medical advisor reviewed the worker's file and provided an opinion that given the mechanism of injury, the worker's reported symptoms and the findings on examination by the worker's treating healthcare providers, the worker's likely diagnosis was a left coracoid (area) bruise, which would recover "…over a period of a few days to a few weeks" and would have required a brief period of restrictions on shoulder use. The WCB medical advisor noted that the diagnosis of a rotator cuff injury would not be accounted for in relation to the reported mechanism of injury.

On August 1, 2019, the WCB advised the worker it determined he was recovered from the May 23, 2019 workplace injury and was not entitled to wage loss and medical aid benefits after June 20, 2019.

The worker submitted a request for reconsideration of the WCB's decision to Review Office on September 5, 2019. In his request, the worker noted that he was receiving ongoing medical treatment and believed that his injury was taking longer than the normal 4 weeks to recover.

On October 21, 2019, Review Office determined the worker was not entitled to wage loss benefits after June 20, 2019. Review Office accepted and relied on the August 1, 2019 opinion of the WCB medical advisor that the worker sustained a minor injury to his left shoulder which resolved in a short period of time and not generally totally disabling. As such, Review Office upheld the WCB's decision the worker was not entitled to wage loss benefits after June 20, 2019.

The worker filed an appeal with the Appeal Commission on December 5, 2019. A teleconference hearing was arranged and took place on September 1, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was received and provided to the interested parties for comment. On October 26, 2019, the appeal panel met again 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 Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB Board of Directors.

Section 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 to the worker. Under s 4(2), 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker’s Position

The worker appeared in the hearing on his own behalf, with the assistance of his spouse and another family member, as well as with the services of an interpreter.

The worker’s position, as outlined in the appeal form filed on April 27, 2020 is that as a result of the compensable workplace accident of May 23, 2019, he suffered full or partial wage loss from May 24 through to October 1, 2019. While wage loss benefits were paid until June 20, 2019, the worker’s position is that he is entitled to further wage loss benefits for the period from June 21, 2019 to October 1, 2019 inclusive.

The worker stated in his appeal:

“On May 23, 2019 I had a left shoulder injury at work that resulted in my wage loss from May 24 to October 1. The initial diagnosis was left coracoid area bruise, but on July 17, my physician recognized the symptoms were due to a repetitive strain and rotator cuff injury. It may not be typical to sustain such an injury with the mechanism described, but I cannot find any other cause for the pain I had and which prevented me from working. I had no previous injury and have never had difficulties with my left shoulder until I started using it in the manner that lead to the injury. I was required to use force to push the described sliding door and had to actively use my shoulder in order to be able to do my work. I am not someone to complain about pain easily and take pride in doing my work well.”

In the hearing the worker described to the panel in detail how he had to use his shoulder to slide open the machine door, noting that normally it is not difficult to open and close the door but that it was difficult at that time because the bearings needed to be replaced. He explained that he was able to close the door without use of his shoulder but could not open it using only his hand. The worker estimated that on the day of the injury he had to open and close the door hundreds of times.

Upon his return to work on August 5, 2019, the worker described returning to use of the same machine. At that time, he was able to work without pain through use of pain medication as well as by altering how he opened and closed the door during his 4-hour shifts. The worker confirmed to the panel that he initially returned to 4-hour daily shifts, until September 11, 2019 at which time he increased to 6 hours daily until October 1, 2019 when he left work due to injury to another body part.

The worker told the panel he has not returned to work with the employer, as he was released from the employment on March 21, 2020. He noted that the shoulder continues to cause him pain when he uses it, giving the example of lifting his arm high or mowing the grass, although it is not a problem for driving.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue for the panel to determine is whether the worker is entitled to wage loss benefits after June 20, 2019. In order for the appeal to succeed, the panel would have to determine that the worker had not recovered from the compensable injury by June 20, 2019 such that he continued to sustain a loss of earning capacity related to the compensable accident of May 23, 2019. For the reasons that follow that panel was able to make such a determination.

The panel carefully reviewed the medical reporting as to the worker’s condition at or near the time the WCB determined he was no longer entitled to wage loss benefits. The panel noted that the worker sought medical treatment from a physician on May 24, 2019. The physician’s report to the WCB arising out of that examination set out a diagnosis of left “coracoid process bruise vs. coracoid tendinopathy” and that the worker was capable of modified work with restrictions.

The worker followed-up with his own physician on May 28, 2019. The report from that visit indicated findings consistent with injury to the worker’s left rotator cuff and the physician at that time recommended the worker remain off work for two weeks. On June 12, 2019, the worker returned to his family physician for further follow up and the physician recommended to the worker he remain off work for 4 more weeks.

On July 17, the worker’s treating family physician examined the worker and noted continued findings of pain on movement and tenderness over the longhead biceps tendon and shoulder. The chart notes from that visit indicate that the worker stated physiotherapy was helping with his range of motion and endurance. At this time, the physician recommended the worker’s gradual return to work with restriction on lifting beginning after the pending two-week company shutdown, at 4 hours per day for 6 weeks.

On June 3, 2019, the worker was assessed for physiotherapy and the physiotherapist noted a positive Speed's test and diagnosed a left longhead biceps tendon irritation. The physiotherapist recommended the worker could return to work with a number of restrictions in place for two weeks. Physiotherapy chart notes obtained by the panel indicate the continuing diagnosis of a left longhead biceps tendon irritation, with addition, as of June 26, 2019 of a possible transverse longitudinal tear. In an undated letter from the physiotherapist to the worker’s family physician, the physiotherapist confirmed the treatment provided to the worker noting that he saw the worker 10 times between June 3, 2019 and July 10, 2019 and during that time the worker regained range of motion and some of his strength. The physiotherapist stated:

“Re-Assessing him after his ROM has improved and with his symptoms, his long head of his bicep appears to slide out of the groove on his humerus and clicks over; I suspect he may have damaged his transverse longitudinal ligament. The last time I saw [the worker] was 10 July 2019, he stated he was feeling pretty good and was going to attempt to return to work on the 15 July 2019.”

The physiotherapy chart notes confirm the worker attended for three additional treatments on July 19, 24 and 31.

The WCB medical advisor reviewed the medical reports on the worker’s file on August 1, 2019 and determined that the reported mechanism of injury would not account for injury to the worker’s left rotator cuff as reported by the worker’s physician on July 17, 2019. The WCB medical advisor concluded the findings from the physician and physiotherapist supported a likely diagnosis of left coracoid area bruise as initially reported and suggested this would normally heal within a few weeks without further treatment, although a period of restricted shoulder use would have been “reasonable.” The WCB medical advisor also stated that a brief period of physiotherapy, while not “absolutely required” would also have been reasonable to assist with mobilization and pain relief.

The panel noted that the file information confirms that at the time of the injury the worker was already working in an accommodated light duty role as defined by the employer and that there were no other light duty positions available to the worker within the restrictions imposed arising out of this injury. The worker’s testimony is that he did return to work on a 4-hour per day basis on August 5, 2019 when and as instructed by his treating physician to do so, and increased his hours to 6 hours daily as of September 11, 2019. The worker continued at that basis until October 1, 2019 when he left work due to another injury.

While the WCB medical advisor determined on August 1, 2019 that the worker should have been able to return to work after 2-4 weeks of recovery based upon the accepted compensable diagnosis, the panel noted that the worker’s treating physician did not take the same view and advised the worker to remain off work until he began a gradual return on August 5, 2019.

The panel noted the lack of any diagnostic evidence in the interim that would have supported a different opinion than that provided by the worker’s treating physician. The panel noted as well that while the claim was reported to the WCB by the worker on May 29, 2019 the WCB did not advise the worker that his claim was accepted until August 1, 2019 after the worker’s physician had already approved the worker’s gradual return to work to begin on August 5, 2019.

The panel accepts the worker’s evidence and finds that, in all the circumstances, it was reasonable that the worker would accept, rely upon and act on the advice of his physician with whom he had an ongoing relationship, to remain off work entirely until July 17, 2019 and to return to work on a gradual basis after the two-week plant shutdown ended.

The medical reporting on file and the worker’s own evidence confirm that the worker’s loss of earning capacity for the period after June 20, 2019 was the direct result of the worker complying with the physician’s treatment advice.

The panel therefore finds, on a balance of probabilities, that the worker is entitled to wage loss benefits after June 20, 2019. The worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of November, 2020