Decision #73/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits beyond January 17, 2019. A videoconference hearing was held on April 8, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after January 17, 2019.
That the worker is entitled to benefits after January 17, 2019.
The worker reported to the WCB in a Worker Incident Report dated July 30, 2018 that he injured his right shoulder and back at work on July 26, 2018. The worker described helping a co-worker who was falling. The worker reported the co-worker "…was going over the edge and I had to hold him and pull him up. He got up but slid back down and I felt a pull in my shoulder and back. He was a big man."
The worker was seen at a local walk-in clinic on July 27, 2018, where he reported pain in his right shoulder and back and was diagnosed with a right shoulder and neck strain. The WCB spoke with the worker on August 1, 2018. The worker advised that the co-worker he assisted knew the worker had injured himself after the incident, and that he only worked three hours that day. He advised he had not returned to work yet as the employer did not have modified duties for him to perform.
The worker attended the walk-in clinic again on August 2, 2018, where he reported that his pain was unchanged; and noted that he initially had pain in his shoulder but his lower back started to hurt the next day. The walk-in clinic physician recommended the worker attend for physiotherapy. The worker attended an initial physiotherapy assessment that same day, where the physiotherapist noted tenderness and decreased range of motion, and diagnosed the worker with a soft tissue injury in the right scapular region and a rotator cuff injury in the right shoulder. The physiotherapist recommended restrictions of office work, with no lifting, repetitive motion with the right arm, and no work above shoulder height. The worker's claim was accepted and payment of benefits commenced.
The worker continued with physiotherapy treatment, and started a graduated return to work at four hours a day on September 24, 2018. On September 25, 2018, the worker advised the WCB he continued to experience pain in his lower back and had to take painkillers after finishing work. The worker said his employer had him performing his regular duties but he was not carrying equipment.
On November 1, 2018, the worker attended a call-in examination with a WCB physiotherapy consultant. The physiotherapy consultant opined that the worker's current diagnosis was resolving right shoulder strain and found the worker had "…adequate range of motion and some residual subacromial impingement findings." The consultant also noted a diagnosis for the worker's mid-back pain was not clear and recommended he attend for further medical follow-up to clarify the diagnosis. The consultant advised that a shoulder strain would normally recover within six to twelve weeks, and the worker's recovery from that strain was within the acceptable guidelines, with improvements in range of motion and strength reported. Current restrictions were recommended of avoiding prolonged overhead work (15 minutes or less); avoiding reaching outside the body envelope on a repetitive basis; no lifting greater than 10 pounds above shoulder height; and avoiding repetitive truncal rotation. The WCB provided the restrictions to the employer on November 6, 2018, and on November 7, 2018, the employer advised they could not accommodate the worker within the restrictions.
On December 3, 2018, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's diagnosis with respect to his right shoulder was a right shoulder strain which appeared to have resolved, as right shoulder pain was not reported at a November 22, 2018 medical appointment. With respect to the low back pain, the medical advisor opined that the diagnosis was not clear and an MRI had been requested. Updated restrictions were noted to be limiting repetitive bending or twisting about the waist and limiting lifting, carrying, pushing or pulling more than 20 pounds. On December 10, 2018, the worker underwent an MRI of his lumbar spine, where multi-level degenerative changes were noted.
On January 3, 2019, the MRI results were reviewed by a WCB medical advisor, who noted that the November 22, 2018 medical report from the worker's treating physician documented the worker's persistent low back pain, and made no mention of right shoulder issues. The medical advisor noted that the MRI indicated the multi-level changes were degenerative in nature and were not structurally altered by the July 26, 2018 workplace accident. He opined that the likely diagnosis in relation to the workplace accident was a back strain in the environment of pre-existing degenerative lumbar spine osteoarthritis, and that the natural history for recovery from a low back strain was over a course of four to eight weeks, with a longer duration in the presence of pre-existing degenerative conditions. The medical advisor further noted that as it was six months since the workplace accident, currently reported low back symptoms were likely more accounted for on the basis of the degenerative osteoarthritis, and any required work restrictions would likely be preventive and not related to the workplace accident. On January 10, 2019, the WCB advised the worker that his entitlement to benefits would end on January 17, 2019 as they had determined he had recovered from his July 26, 2018 workplace injury.
The WCB received a progress report from a November 4, 2019 appointment, in which the attending physician noted the worker was complaining of increased pain in his right shoulder for one week, since October 28, 2019. The physician noted the worker had tenderness over the medial scapular line and behind the scapula, and queried whether the worker had subscapular bursitis. On November 14, 2019, the worker contacted the WCB to report recurring pain from the workplace accident and advised that he had been referred for physiotherapy. On November 20, 2019, the worker was advised that the new information had been reviewed but there would be no change to the earlier decision that he was not entitled to benefits after January 17, 2019.
On December 2, 2019, the worker requested that Review Office reconsider the WCB's decision. The worker provided a written submission indicating his injuries resulting from the July 26, 2018 workplace accident had become worse after being forced to return to his regular duties, and he had been let go from his current position as he was unable to perform his job duties and needed to be retrained. A report and medical note from his treating sports medicine physician were included with his submission.
On January 21, 2020, Review Office determined that the worker was not entitled to benefits after January 17, 2019. Review Office found that the evidence supported the worker had recovered from his compensable injuries as of January 17, 2019, and they were unable to find that those conditions contributed, to a material degree, to the new right shoulder problems which only began in the last week of October 2019.
On February 25, 2020, the WCB received a progress report from an attending physician dated February 22, 2020 provided in support of the worker's claim, which noted the worker's right shoulder pain had returned. On February 24, 2020, return to work capabilities were provided by the treating sports medicine physician, indicating that the worker was not able to lift heavy items or perform overhead and/or repetitive activities, and that these restrictions were to remain in place for six weeks. On May 1, 2020, the worker's representative provided the WCB with the report of a March 22, 2020 MRI of the worker's right shoulder, and requested the new information be considered. The March 22, 2020 MRI indicated a medium-sized near full-thickness rotator cuff tear and minimal acromioclavicular joint osteoarthritis.
On May 25, 2020, the worker's file was reviewed by a WCB medical advisor, who opined that the worker appeared to have materially recovered from the right shoulder strain by November 22, 2018 and the onset of right shoulder symptoms in October 2019 could not be causally related to the July 26, 2018 workplace accident. On May 26, 2020, the WCB advised the worker the new information had been reviewed, but there would be no change to the January 10 and November 20, 2019 decisions that he was not entitled to further benefits from the WCB.
On July 30, 2020, the worker's representative requested that Review Office reconsider the May 26, 2020 WCB decision. The representative submitted that the injury the worker sustained to his right shoulder as a result of the July 26, 2018 workplace accident was a rotator cuff tear, from which he had not recovered by January 17, 2019, and as such, he was entitled to further benefits.
On September 14, 2020, Review Office upheld the WCB decision and determined the worker was not entitled to benefits beyond January 17, 2020. Review Office found that the evidence did not support the worker's right shoulder problems as reported on October 28, 2019 were directly related to the workplace accident. The recurrence of disability was therefore not accepted in relation to the claim, and there was no entitlement to benefits beyond January 17, 2020.
On October 7, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 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.
Subsection 4(2) provides that 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.
Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
WCB Policy 188.8.131.52.10, Recurring Effects of Injuries and Illness (Recurrences) deals with situations where there is a recurrence of an injury that results in a loss of earning capacity. A recurrence is described as "a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity."
The worker was represented by a worker advisor, who submitted additional documentation in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative and from the panel.
The worker's position was that the shoulder injury which he sustained in the workplace accident was a rotator cuff tear, which he had not recovered from when his benefits were terminated, and he should be entitled to further benefits, including benefits for the surgical repair, medical aid and any loss of wages resulting from this injury.
In her presentation to the panel, the worker's representative reviewed the history of the claim. The representative submitted that the worker saw a series of walk-in physicians, which resulted in incomplete medical documents and a lack of continuity of care. It was submitted that the worker's shoulder symptoms were not fully investigated, as the physicians only saw the worker once each and did not take responsibility for following his after accident care.
The worker submitted that the sudden jerking motion on the shoulder by the co-worker and subsequent need to hold the co-worker, who weighed over 200 pounds, supported by the shoulder, not only could have caused the rotator cuff injury, but most likely did cause the injury. The representative submitted that this is also supported by the treating sports medicine specialist, who indicated that the type of rotator cuff tearing seen on the MRI is most likely a traumatic injury as opposed to a chronic overuse injury and that the mechanism of injury caused the rotator cuff tear. Further support for the rotator cuff tear having been caused by the accident is provided by the worker's treating orthopedic surgeon, who opined that given that there was no degenerative change in the tendon and the worker's relatively young age, it was clear to him that this was a traumatic injury. The representative submitted that the worker had no other traumatic injury to his shoulder to provide an alternate cause for the torn rotator cuff.
The worker's representative further submitted that the worker's shoulder was not sufficiently examined in the call-in examination, as the examination was stopped part-way through because of the pains the worker was experiencing. The worker did regain some range of motion, as indicated at the call-in examination, but did not regain strength and functionality of the shoulder to an extent he could resume regular duties. After the call-in examination, however, the focus shifted and remained on the worker's back symptom investigation.
The worker's representative submitted that the only report that the worker recovered from his right shoulder injury came from the WCB medical advisor, who relied on the fact that a November 22, 2018 report from a walk-in doctor did not mention shoulder symptoms. The explanation for the walk-in doctor's report rests with the instructions from the WCB to the clinic to investigate the back. The representative submitted that the WCB medical advisor did not appear to consider the information from the call-in exam and the physiotherapist discharge reports only a couple of weeks prior to that decision clearly outlining the worker's continued shoulder difficulties.
The worker's representative noted that the worker was laid-off from his employment because he was incapable of doing his regular duties due to his rotator cuff tear. The representative submitted that the worker was disadvantaged in the workforce from finding another job. He was only able to find one employer who quickly ran out of accommodated work. The representative submitted that there is therefore a continued loss of earning capacity, and asked that the panel find in the worker's favour with respect to the issue of benefits beyond January 2019.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to benefits after January 17, 2019. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond January 17, 2019 as a result of the July 26, 2018 workplace incident. The panel is able to make that finding, for the reasons that follow.
The worker's representative confirmed at the hearing that the worker's low back issues had resolved and the issue on appeal related to the worker's right shoulder, and the fact that his shoulder had not recovered by the time his benefits were terminated.
At the hearing, the worker's representative reviewed the mechanism of injury with the worker. The panel notes that the worker's description of the mechanism of injury has been consistent throughout, and is satisfied that the mechanism of injury is consistent with a finding of a rotator cuff tear as identified on the MRI and at surgery.
The panel notes that with the series of visits to walk-in physicians at the beginning of the file, there was a lack of follow-up of imaging with respect to the worker's right shoulder complaints and difficulties.
While the WCB medical advisor relied on the November 22, 2018 report from the walk-in clinic physician as evidence that the diagnosis was likely a right shoulder strain which appeared to have resolved as there was no reference to shoulder symptoms in that report, the panel is unable to accept that position. The panel is satisfied that the lack of reference to shoulder symptoms in that report was due to the walk-in clinic physician having been specifically asked to address the worker's low back difficulties and imaging at that visit. The panel does not accept that the lack of reference to shoulder symptoms is indicative of the worker no longer experiencing such symptoms.
The panel notes that other medical reports at or around that time do refer to ongoing shoulder symptoms. The call-in examination notes of November 1, 2018 thus refer to the worker having resolving right shoulder strain and some residual subacromial impingement findings, and suggests current restrictions relating to those findings. The Physiotherapy Discharge Assessment dated November 13, 2018 also refers to ongoing symptoms including right shoulder pain on overhead work and when reaching outside the body envelope and the worker being unable to perform his regular work duties, and outlines restrictions which include limited overhead/ladder work and reaching outside the body envelope and limited lifting overhead.
The panel is further satisfied that there is a continuity of narrative with respect to the worker's right shoulder difficulties, notably through the reports from the treating physiotherapist. In the initial assessment report on August 7, 2018, the physiotherapist thus provided a diagnosis of a soft tissue injury to the right scapular region and rotator cuff injury to the right shoulder. The physiotherapist continued to refer to rotator cuff symptoms and difficulties in the September 20, 2019 Application for Additional Treatment and in the November 13, 2018 Discharge Assessment referred to above.
The panel notes that the evidence further shows that the worker had an ongoing inability to work or perform his regular duties following the workplace injury due to his right shoulder difficulties. The worker indicated at the hearing that he returned to work on reduced hours and modified duties on September 24, 2018, but was laid off in or around November 2018 as there were no more light duties for him to perform and he could not perform the work he was supposed to do. The worker said he tried to go back to work with the accident employer towards the end of March or the beginning of April 2019, but only worked 36 hours in total because of the pain and his physical limitations and had to quit because he could not do the work. The worker tried to work again in July 2019 for a different employer doing lighter duties, but his symptoms increased as the work got heavier and he was again unable to do the work.
Additional documentation provided by the worker's representative in advance of the hearing including an operative report of surgery performed on March 16, 2021 to address the worker's right shoulder diagnoses. The panel places significant weight on the operative report including, in particular, the orthopedic surgeon's statement in that report that the worker:
…had an obvious tear of his supraspinatus involving 90% of the medical to lateral width of the supraspinatus footprint. Given that there was no degenerative change whatsoever in this tendon and his relatively young age it was clear to me that this is a traumatic injury.
In conclusion, the panel is satisfied, based on the evidence which is before us, that the worker's right shoulder injury had not resolved and he is entitled to further benefits, through to and including the surgical repair, resulting from that injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid beyond January 17, 2019 as a result of the July 26, 2018 workplace incident. The worker is therefore entitled to benefits after January 17, 2019.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of June, 2021