Decision #22/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits in relation to their left shoulder difficulties as being related to the April 4, 2019 accident. A teleconference hearing was held on January 26, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits in relation to their left shoulder difficulties as being related to the April 4, 2019 accident.
The worker is entitled to benefits in relation to their left shoulder difficulties as being related to the April 4, 2019 accident.
The worker filed a Worker Incident Report with the WCB on April 5, 2019 indicating that they injured their lower back in an incident at work on April 4, 2019, described as “I was getting out of the forklift. I slipped on the floor, I didn’t fall to the ground but in catching myself, injured my lower back.” The Employer’s Accident Report provided to the WCB on April 8, 2019 indicated the worker “slipped on floor and fell on left hip”.
In a discussion with the WCB on April 9, 2019, the worker confirmed the mechanism of injury as noted on the Worker Incident Report and confirmed that they did not fall or injure their left hip as noted on the report the employer submitted. The worker reported current symptoms of a sore and stiff lower back, but noted they had not missed any work, were continuing with regular duties and had received chiropractic treatment on April 8, 2019. The WCB advised the worker their claim was accepted for an accident occurring on April 4, 2019.
On April 10, 2019, the WCB received a copy of the Chiropractor First Report dated April 8, 2019. The chiropractor noted the worker’s report of lower back pain with a loss of range of motion and diagnosed a lower back strain. In a follow-up report from the chiropractor, received by the WCB on April 29, 2019 relating to examinations on April 17, 2019, April 24, 2019 and April 29, 2019, the chiropractor updated the diagnosis to include a possible rotator cuff tear/impingement, noting the worker’s complaint of left shoulder pain and set out that the worker was referred to their family physician for an x-ray.
The worker contacted the WCB on April 29, 2019 to advise that their left shoulder was “really bad” from the workplace accident. The worker confirmed they had not done anything over the previous weekend and that they could not lift their left shoulder at all but could still perform some of their job duties.
The worker’s family physician referred the worker for an MRI study that took place on May 22, 2019. The MRI study indicated a small full-thickness supraspinatus tendon tear, posterosuperior labral tear and acromioclavicular (“AC”) joint osteoarthritis. On May 24, 2019, the worker attended a follow-up appointment with their family physician who noted the worker’s left shoulder was “tender, sore, poor rom [range of motion], still lots of pain” and referred the worker to an orthopedic surgeon.
On June 11, 2019, the worker saw an orthopedic surgeon. Upon examination, the surgeon concluded the worker had a “…troublesome most likely work-related rotator cuff tendon tear to the left shoulder” and a rotator cuff tear surgery was recommended.
When the worker attended for an initial physiotherapy assessment on June 22, 2019, the physiotherapist noted the worker’s complaints of left shoulder pain, inability to lift their shoulder, locking, difficulty in performing their activities of daily living and inability to sleep due to pain. The physiotherapist diagnosed a left shoulder rotator cuff tear – supraspinatus tear.
A WCB medical advisor reviewed the worker’s file on September 9, 2019 and provided an opinion that the diagnosis to account for the worker’s left shoulder pain was a “…full thickness supraspinatus tear…” as indicated on the May 22, 2019 MRI study, and that a natural history of recovery for smaller tears was over the course of 4 to 12 months with larger tears potentially requiring surgical repair. The WCB medical advisor noted the worker first mentioned the difficulties with their left shoulder to their treating chiropractor on April 29, 2019, more than 3 weeks after the April 4, 2019 workplace accident and that was not the typical progress of a rotator cuff tear. The advisor noted “A rotator cuff tendon or muscle tear is typically accompanied by an eureka moment that coincides with the moment of tearing” and found the information on file did not support a left shoulder injury occurred at the time of the workplace accident. As such, the WCB medical advisor was of the view that it would be speculative and not supported by the evidence to attribute the left rotator cuff tear to the April 4, 2019 MOI workplace accident. The WCB advised the worker on September 13, 2019 their left shoulder difficulties would not be accepted in relation to the April 4, 2019 workplace accident.
On October 4, 2019, the worker requested reconsideration of the WCB’s decision to Review Office, providing a detailed chronology of the events following the workplace accident along with chart notes from chiropractic visits on April 17 and 22, 2019. On October 8, 2019, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.
The WCB’s Compensation Services requested additional medical information from the worker’s treating chiropractor. On November 25, 2019, the WCB advised the worker that the new medical information was reviewed and there would be no change to the earlier decision.
The worker again requested reconsideration of the WCB’s decision to Review Office on December 2, 2019 and referred to the chronology provided October 4, 2019 as support for the request. On January 3, 2020, the employer’s representative provided a submission in support of the WCB’s decision and on January 24, 2020, the worker’s representative provided a response. Review Office found on February 10, 2020 that the worker was not entitled to benefits for a left shoulder problem, relying upon the opinion of the WCB medical advisor that the worker’s left shoulder difficulties were degenerative, and the onset of the worker’s current symptoms was not related to the workplace accident. Review Office was unable to find a causal relationship between the worker’s left shoulder difficulties and the workplace accident.
The worker’s representative filed an appeal with the Appeal Commission on August 10, 2020. A teleconference hearing was arranged for January 26, 2021.
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.
Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."
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 a worker advisor. The worker provided evidence in response to questions posed by the worker advisor and by members of the appeal panel. The worker advisor made an oral submission to the panel and relied as well upon a written submission provided in advance of the hearing.
The worker’s position, as outlined by the worker advisor, is that as a result of the compensable workplace accident of April 4, 2019, the worker’s left shoulder was injured when they caught themself from falling using their outstretched left arm, resulting in a traction-rotation injury to the worker’s left shoulder as their bodyweight shifted to that arm.
The worker initially sought care from their chiropractor on April 8, 2019, and treatment focused on the worker’s lower back. The next day, the worker advised their supervisor of pain in their left arm resulting from the accident, as is confirmed in the statement of the supervisor provided to the WCB. While the worker’s back pain subsided over time, the worker’s left shoulder symptoms increased such that by April 17, 2019 the chiropractor noted possible rotator cuff tearing or impingement in the chart notes and referred the worker to their family physician for further investigations.
The worker advisor noted the MRI report from May 22, 2019 revealed degenerative arthritis in the worker’s AC joint and degenerative labral tearing as well as traumatic rotator cuff tearing that would correlate to the mechanism of the worker’s injury. The worker advisor noted that the worker’s family physician confirmed in a letter dated July 24, 2020 that the worker had not been treated for any left shoulder concerns prior to the workplace accident, and that the treating orthopedic surgeon reported that the worker’s AC joint arthritis and labral tear were asymptomatic on testing in June 2019. Both treating physicians related the findings of a rotator cuff tear to the worker’s injury arising out of the workplace accident of April 4, 2019.
The worker advisor noted the worker’s report to their treating chiropractor of taking part in other non-compensable activities after the date of the accident but suggested to the panel that these activities were not of a kind likely to cause a traumatic rotator cuff tear, whereas the mechanism of injury on April 4, 2019 as described by the worker could have caused such an injury.
The worker described to the panel, in testimony, how the injury occurred, noting that as they were descending from the forklift to a wet, slippery floor below, the foot first down to the floor slipped and then, to stabilize, the worker grabbed the rollbar frame on the forklift with their left arm and held on to avoid falling to the ground. There was no impact, but the worker described jarring their hip and back as the fall was halted. The same evening, the worker called their treating chiropractor for an appointment. The first available appointment was on April 8, 2019 at which time the worker related to the chiropractor how the injury occurred. At that time, the worker stated that they were primarily experiencing difficulty with sitting and laying down due to lower back pain. It was not until the next chiropractic appointment that the worker reported pain and swelling in their left shoulder arising out of this accident. At that time, the chiropractor suggested the worker limit their use of the left arm, modifying their duties as tolerated.
On questioning by members of the panel, the worker confirmed that on the date of the accident, their shoulder was not causing concern. The injury occurred near the end of the shift and the accident was reported to the WCB the next day. The worker was able to work the next day at their regular duties and continued working regular duties to April 29, 2019 by which point the worker was no longer able to use their left arm.
The worker confirmed to the panel that they advised their supervisor on April 9, 2019 that their left arm was sore as a result of the accident. This conversation occurred at the start of the shift that day. The worker recalled saying that their arm was sore, but that they could still do their job, and that the symptoms were specifically related to the workplace accident of the prior week.
In sum, the worker’s position is that the injury to the left shoulder occurred at the same time and as a result of the same compensable accident on April 4, 2019 that also caused injury to their lower back and hip region. The left shoulder injury became symptomatic within days of the accident, as confirmed by the evidence of the worker’s supervisor, and was subsequently revealed by the MRI study some 7 weeks later to be a rotator cuff tear. This injury to the worker’s left shoulder arose out of the compensable workplace accident of April 4, 2019 and the worker is therefore entitled to benefits in relation to their left shoulder difficulties as being related to the April 4, 2019 accident.
The employer was represented in the hearing by an advocate. The advocate outlined the employer’s position in an oral submission.
The employer’s position is that the evidence does not support a finding that the worker’s left shoulder injury arose out of the compensable workplace accident of April 4, 2019, noting that the worker initially reported only injury to their lower back and hip area. Further, the medical reporting nearest to the date of accident does not support that the worker had any injury to their shoulder arising out of the accident.
The employer’s advocate also noted that there is evidence of other potential causes of injury to the worker’s left shoulder, including the worker’s non-compensable activities as noted in the treating chiropractor’s chart notes, as well as the worker’s pre-existing left shoulder degenerative condition, as identified in the MRI study of May 22, 2019. The employer’s advocate noted that the evidence of the worsening of symptoms in the worker’s left shoulder over time is consistent with the natural history of an osteoarthritic, degenerative shoulder condition, and is not related to the workplace injury.
The employer’s advocate asked the panel to consider the opinion of the WCB medical advisor that the worker’s left shoulder difficulties were degenerative in origin, and the onset of the worker’s current symptoms was not related to the workplace accident.
In sum, the employer’s position is that the decision of the Review Office should be upheld, and the worker’s appeal should be denied.
The issue for determination by the appeal panel is whether the worker is entitled to benefits in relation to their left shoulder difficulties as being related to the April 4, 2019 accident. In order for the panel to grant the worker’s appeal, it would have to determine that the worker sustained injury to their left shoulder as a result of the compensable workplace accident of April 4, 2019 and that as a result of that injury, the worker is entitled to benefits under the Act. The panel was able to make such a determination as outlined in the reasons that follow.
The WCB accepted the worker’s claim with respect to an injury to their lower back and hip resulting from an accident in the workplace that occurred on April 4, 2019. The worker’s claim outlines that the injury occurred when the worker’s foot slipped on the floor while climbing out of a forklift and the worker prevented a fall to the floor by catching onto the forklift.
The worker described to the panel in significant detail how the accident occurred. The panel is satisfied on the basis of the evidence heard that as the worker slipped, a fall was prevented by the worker grabbing onto the frame of the forklift with their left hand, resulting in the left arm being outstretched and bearing the worker’s weight as they fell.
The WCB did not accept the worker’s explanation with respect to the report of injury to their left shoulder arising out of this accident, as the early medical reporting on file did not reference any left shoulder complaints. Even after the worker provided chiropractic chart notes indicating that left shoulder complaints were reported on April 17, 2019, the WCB did not accept that there was any relationship to the compensable workplace accident. The WCB relied instead upon the opinion of the WCB medical advisor that a relationship between the reported accident and the left shoulder rotator cuff tear was not supported based on the evidence as the worker did not report any left shoulder symptoms until several weeks after the accident took place.
The panel noted however the written statement from the worker’s supervisor that the worker did report pain in their left arm to the supervisor on April 9, 2019 and at that time related it to the April 4, 2019 workplace accident. While the statement is not detailed, the contents of the statement are not disputed or contradicted by any other evidence before the panel and we therefore accept the supervisor’s statement as evidence that the worker did note injury to their left arm within a few days of the accident and related this to the accident of April 4, 2019.
The panel agrees that the MRI findings support the WCB medical advisor’s conclusion that the worker had pre-existing left shoulder degeneration. The worker’s treating physician confirmed, however, that prior to the workplace injury, the worker had not reported any symptoms in their left shoulder and accordingly, had not been treated for left shoulder complaints. We also accept the worker’s argument that in an environment of degeneration, the worker’s left shoulder was more susceptible to injury, rather than less, and that the degenerative shoulder condition made it more likely that the accident could have caused injury to the worker’s shoulder as the worker reached out with their left arm to grab the forklift so as to prevent falling to the ground.
Further, the panel noted the opinion of the treating surgeon that a traction rotation kind of injury as described by the worker could have caused the tear to the worker’s left rotator cuff. The surgeon described the causal link between the worker’s history and their injury as “fairly straightforward.” The worker’s treating physician agreed that the traumatic left shoulder injury was related to the worker’s accident and stated that the accident also enhanced the worker’s left shoulder arthritic condition.
While there was a delay of a few days in reporting this aspect of the worker’s injury to the employer, the panel notes that this time period included a weekend and that the worker also sought medical attention in this interval. We are satisfied by the worker’s testimony that they were not at first aware of the extent of the injury to their shoulder and that as it became apparent that it was sore and not improving, the left shoulder symptoms were also reported to the treating chiropractor, setting in motion the referral for x-ray and further investigation of that aspect of the injury and ultimately resulting in the MRI study of May 22, 2019 and referral to the orthopedic surgeon for further treatment.
On the basis of the evidence heard and contained in the worker’s WCB claim file, the panel is satisfied, on a balance of probabilities that the worker sustained a rotator cuff tear injury to their left shoulder as a result of the compensable workplace accident of April 4, 2019. We are further satisfied that as a result of the left shoulder injury, the worker experienced a loss of earning capacity and required medical aid to cure and provide relief from that injury.
Therefore, the worker is entitled to benefits in relation to their left shoulder difficulties as being related to the April 4, 2019 accident. The worker’s appeal is granted.
K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of February, 2021