Decision #09/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits in relation to the February 16, 2016 accident. A videoconference hearing was held on December 10, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to benefits in relation to the February 16, 2016 accident.
The worker is entitled to benefits in relation to the February 16, 2016 accident.
The employer filed an Employer’s Accident Report with the WCB on March 22, 2019 reporting the worker injured his left shoulder in an incident at work on February 16, 2016 when “…he slipped on ice on a jobsite and felt something pull in his left shoulder as he stabilized himself.” The employer further reported that when the incident occurred, the worker completed an incident investigation report. Since that time, the worker reported to the employer he was experiencing shoulder pain, migraine headaches and dizziness, and the worker’s treating healthcare providers related those issues to the February 16, 2016 workplace accident.
The worker filed his Worker Incident Report on March 28, 2019. In his Report, the worker noted the incident that occurred on February 16, 2016 and indicated that over the previous three years, he had missed some time from work due to his shoulder and migraine headaches he related to the shoulder injury. The worker went on to note that since the injury, he sought treatment from healthcare providers including a neurologist and was referred to but had not yet seen an orthopedic surgeon. He indicated his difficulties had worsened over the previous three years and that as of March 21, 2019, he was taken completely off work as a result.
After the injury occurred, the worker attended for an initial medical assessment on February 20, 2016. The sports medicine physician noted the worker reported onset of left shoulder pain approximately one week prior and that the worker “often works with his arms raised above his head.” It was questioned whether the injury was work-related, but no specific incident was noted. The worker was diagnosed with a rotator cuff strain/tendonitis.
At a follow-up appointment on April 12, 2016, the worker was referred for an MRI. The MRI report of July 18, 2016 noted “…no evidence for a significant rotator cuff tear. A minor degree of infraspinatus tendinosis is suspected.”
The worker continued to seek treatment including physiotherapy, massage therapy and received pain injections in his shoulder. On February 23, 2017, the worker saw a neurologist to address headaches that developed approximately five months prior. The treating neurologist noted the worker’s left shoulder was better although he was still experiencing difficulties and, with respect to the worker’s migraines stated, “…likely chronic migraine currently; the association with his left shoulder pain is not clear but perhaps the shoulder issue was the trigger for his previously episodic migraine transforming to chronic migraine.” Further medications were prescribed, and a nerve conduction study recommended for reported hand difficulties. The worker continued to attend appointments with the neurologist for follow-up for his migraine headaches.
On April 3, 2018, the worker was referred to an orthopedic specialist by his treating sports medicine physician for a pain injection to address the unresolved left shoulder pain. On May 10, 2018, the orthopedic specialist diagnosed a possible long head biceps tendinopathy in the worker’s left shoulder and provided a pain injection. On June 5, 2018, the worker was referred to an orthopedic surgeon with chronic left shoulder pain. The orthopedic surgeon reviewed the worker’s medical file and provided a provisional diagnosis of shoulder impingement syndrome on July 9, 2018, noting it would be 6 - 8 months before the worker could be seen in person for a definitive diagnosis and specific recommendations for treatment.
The worker’s treating family physician noted on March 21, 2019 that the worker experienced worsening shoulder pain, exacerbated by his overhead job duties and related his severe headaches to the shoulder pain as he had been “…treated for essentially all other etiologies without success.” The physician further noted the diagnostic imaging and the worker’s other treating healthcare providers diagnosed the worker with subscapularis tendinopathy and long biceps head tendinopathy and the worker was still awaiting an orthopedic surgical consultation. The treating family physician provided the worker was only able to work 2 to 3 days per week due to pain and recommended a restriction of performing work below the level of his shoulders. In an update provided to the WCB on April 23, 2019 the family physician reported the worker’s current diagnoses of chronic migraine with element of tension headache secondary to shoulder pain and a likely long head biceps tendinosis with generalized rotator cuff inflammation, and noted the worker continued to await consultation with the orthopedic surgeon. In the interim, the physician referred the worker to a neurologist who specialized in problematic headaches.
An initial physiotherapy report dated April 30, 2019 provided a diagnosis of left rotator cuff tendinopathy and probable associated cervicogenic headache related to years of compensatory movement. The report notes the worker’s report of a constant dull ache in his shoulder with intermittent sharp pain with reaching and overhead movement, aggravated by his job duties with daily temporal headaches, often with dizziness and neck pain.
On June 25, 2019, the WCB advised the worker his claim was accepted for an accident only and he was not entitled to benefits. The WCB advised that a relationship between the worker’s current difficulties and the February 16, 2016 workplace accident could not be established and noted the worker did not report a work-related incident when he sought medical treatment on February 20, 2016.
The worker’s representative requested reconsideration of the WCB’s decision to Review Office on July 23, 2019. The representative noted the medical evidence supported the worker did not have any previous injury to his shoulder and/or rotator cuff other than the workplace accident that occurred on February 16, 2016 and it was because of that accident that the worker was having difficulties with his left shoulder and was unable to work.
Review Office found on September 11, 2019 the worker was not entitled to benefits. Review Office relied and placed weight on the information on the worker’s file in close proximity to the workplace accident on February 16, 2016 and found it could not be established the worker’s difficulties after that date were related to the accident.
The worker’s representative filed an appeal with the Appeal Commission on September 17, 2019. A videoconference hearing was arranged and held on December 10, 2020.
Applicable Legislation and Policy
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.
The worker appeared in the hearing represented by legal counsel. The worker provided evidence to the panel in response to questions posed by his lawyer and by members of the panel. Legal counsel made an oral submission on behalf of the worker.
The worker’s position, as outlined by counsel, is that the evidence supports a finding that as a result of the compensable accident of February 16, 2016, the worker sustained an injury to his left shoulder that resulted in a loss of earning capacity and a requirement for medical aid to cure and provide relief from the injury. The worker should therefore be entitled to benefits in relation to the February 16, 2016 accident.
The worker’s counsel noted the evidence does not support the statement of the WCB medical advisor, who reviewed the worker’s file on May 21, 2019 that there was no medical report indicating the worker saw any medical practitioners regarding left shoulder symptoms within the two years following the accident. Rather, the triage notes from the worker’s February 20, 2016 visit to a sport medicine clinic confirm onset of left shoulder symptomology in the week prior to that assessment. The worker at that time reported pain in the anterior and lateral areas of his left shoulder and the chart notes indicate a question as to whether the symptoms were related to the worker’s employment. Further, a report dated May 5, 2019 confirms that the worker first consulted the sport medicine physician with respect to his left shoulder pain on February 20, 2016 and continued to be treated by him over the course of 2016 and again in 2018. Counsel pointed out that although this report was received by the WCB on May 21, 2019 it does not appear to have been part of the medical advisor’s file review of the same date.
In a further report from the sport medicine physician, dated June 14, 2019, chart notes are provided to the WCB as well as diagnostic reports indicating ongoing investigation of the cause of the worker’s left shoulder symptomology. Despite the contents of the medical reports, the WCB determined on June 25, 2019 that the worker was not entitled to benefits arising out of the compensable accident of February 16, 2016.
Counsel pointed to the report from the orthopedic surgeon dated July 27, 2020 as key in linking the worker’s left shoulder pathology back to the initial mechanism of injury arising out of the accident of February 16, 2016. The orthopedic surgeon commented on the results of the arthroscopic surgery of November 13, 2019 that revealed an anterior labral tear, as well as a small Hill-Sachs defect on the posterior humeral head, stating that “These findings are highly suggestive of an instability type event in the shoulder, likely an anterior shoulder subluxation.” The surgeon, in his report goes on to review the mechanism of injury of February 16, 2016 and concludes that this mechanism of injury “...would correlate with the surgical findings of labral tear. So [it] would be my conclusion that in all likelihood, based on my discussion with the patient and my clinical assessment, that the injury and labral tear occurred as described in February 2016.”
The worker’s counsel argued that there are no opinions or findings to support any other cause of the worker’s left shoulder injury than the compensable accident of February 16, 2016.
The worker described to the panel the circumstances of the accident of February 16, 2016, noting that he felt a pull in his shoulder as he waved his arms to regain his balance when he slipped on ice at a job site. The worker was wearing required plastic booties over his footwear at the time. The worker explained he provided an incident report to his employer because:
“I initially made the report because my, I did feel something in my shoulder. And with us we're supposed to report everything that, anything that could become anything, right. I wanted to cover myself, and of course it got worse and worse, to the point where I needed surgery.”
The worker stated he sought medical treatment at the sport medicine clinic four days later because his shoulder was still really sore, noting he continued to work in the interim, with worsening pain. The worker stated he initially treated the injury with physiotherapy and massage therapy, covered by his workplace insurance, in addition to seeking ongoing medical treatment.
The worker explained to the panel that his employer reported the claim to WCB in March 2019 because he was no longer able to perform tasks at work. At that time, he could not lift overhead, and the employer had no light duties available so that the worker had to go off work.
The worker’s position, in sum, is that the evidence supports a determination, on a balance of probabilities, that the worker’s left shoulder injury was sustained as a result of the compensable accident of February 16, 2016 and that the worker should therefore be entitled to benefits arising out of that injury including wage loss benefits and medical aid.
The employer did not participate in the hearing.
The worker appealed the decision that he is not entitled to benefits in relation to the accident of February 16, 2016. In order to find in favour of the worker, the panel would have to determine that as a result of the compensable accident, the worker sustained an injury that caused him to experience a loss of earning capacity or require medical aid. The panel was able to make such a determination for the reasons that follow.
The circumstances of the accident of February 16, 2016 are not in dispute. The WCB accepted the worker’s claim on June 25, 2019 but denied his entitlement to benefits arising out of that accident on the basis that the mechanism of injury is inconsistent with the symptoms presented a few days later and the worker’s symptoms at that time.
Having reviewed the medical reporting on file and having considered the worker’s testimony, the panel has come to a different conclusion. We find that the evidence supports the worker’s position that his left shoulder symptoms and the findings of the arthroscopic surgery of November 13, 2019 are directly linked to the workplace accident of February 16, 2016.
The panel noted that when the worker first sought medical treatment on February 20, 2016, the medical chart notes from the sport medicine clinic record that there was a question as to whether or not the symptoms arose out of the worker’s work duties. The medical reporting from the sport medicine physician confirms a continuity of symptoms reported beginning February 20, 2016 and continuing through to 2018 as investigations into the worker’s symptoms were ongoing. Those investigations included MRI, CT and x-ray studies. The worker was treated by an orthopedic specialist with subacromial injection to address his pain. He attended for physiotherapy and massage therapy. He was referred to a neurologist for investigation of headaches. Ultimately, as other treatment options proved unsuccessful, the worker was referred to the orthopedic surgeon who first assessed him in June 2019 and recommended arthroscopic surgery for diagnostic and possible therapeutic reasons.
The arthroscopic surgery conducted in November 2019 revealed a small tear in the anterior labrum and small Hill-Sachs defect in the posterior humeral head that correlated to the labral tear. In considering whether or not the shoulder injury can be related back to the compensable workplace accident, the panel gives significant weight to the opinion of the orthopedic surgeon that the reported mechanism of injury in the workplace accident of February 16, 2016 “would correlate with the surgical findings of labral tear.” The panel noted as well that there is no evidence of any other incident or event that would account for the injury to the worker’s left shoulder.
The panel also considered the opinion of the WCB medical advisor provided on May 21, 2019 that the diagnosis arising out of the February 16, 2016 workplace accident is “unclear.” We note that this opinion did not take into account the May 5, 2019 medical report of the sport medicine physician, and further, that at the time the WCB medical advisor provided this opinion, the worker’s left shoulder diagnosis was not yet apparent. It was only after the arthroscopic surgery took place some 6 months later that the labral tear and associated Hill-Sachs defect were identified.
The panel accepts the evidence of the worker that he missed time from work beyond the date of accident and notes as well that the employer confirmed to the WCB that as of March 21, 2019 the worker was unable to continue working as a result of his left shoulder injury.
On the basis of the medical findings and opinions reviewed, and the evidence heard, the panel is satisfied on a balance of probabilities that as a result of the accident of February 16, 2016 the worker sustained injury to his left shoulder that resulted in a loss of earning capacity and a need for medical aid to cure and provide relief from that injury. The worker is therefore entitled to benefits in relation to the February 16, 2016 accident. The worker’s appeal is allowed.
K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of January, 2021