Decision #155/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after November 6, 2018. The employer is appealing the decision made by the WCB that the claim is acceptable. A videoconference hearing was held on October 21, 2021, and continued on November 2, 2021, to consider both appeals.
Whether or not the claim is acceptable.
Whether or not the worker is entitled to benefits after November 6, 2018.
That the claim is not acceptable.
That the worker is not entitled to benefits after November 6, 2018.
On July 9, 2018, the worker filed a Worker Incident Report with the WCB claiming he injured his left arm in an incident at work on July 6, 2018. The worker described that his left arm was pulled upward while using a hoist on the roof of a jobsite. He described the incident as follows: "I grabbed it with my left hand and the garbage bag with my right hand. The operator went up when it should have went down." The worker noted he did not at first report his injury as it happened at the end of his shift and he thought the injury would resolve.
When the worker sought medical treatment at the local emergency room on July 9, 2018, he advised the treating physician "…he was trying to hook waste bag to overhead hook line when the wind caused it to swing and smack into his shoulder area." The physician noted pain all over the worker's shoulder and soft tissue swelling. Results of an x-ray were normal and the worker was diagnosed with a soft tissue injury.
The WCB discussed the claim with the worker on July 10, 2018 and confirmed that the workplace accident occurred at the end of his shift on July 6, 2018. The morning of July 7, 2018, the worker contacted his supervisor to advise that his shoulder was swollen and sore and he would not be at work that day.
The WCB also discussed the claim with the employer on July 10, 2018. The employer noted concerns with the worker's claim. On July 11, 2018, the WCB spoke with a co-worker present at the time the incident occurred. The co-worker advised he had a clear view of the worker and "…did not see anything happen."
The worker attended an appointment with a sports medicine physician on July 13, 2018. Based on clinical testing, the physician diagnosed a left shoulder rotator cuff injury and recommended modified duties of no lifting, no overhead activities, and no repetitive activities for a period of four weeks.
The WCB accepted the worker's claim on July 13, 2018. At his initial physiotherapy assessment on July 23, 2018, the worker reported a "Ripping/needle sensation" over the lateral portion of his left shoulder, intermittent numbness in his arm and forearm, weakness and loss of range of motion and a sense of instability in his left shoulder. The physiotherapist diagnosed a shoulder strain and recommended modified duties of avoid lifting and reaching, avoid over chest level lifting and no lifting greater than 20 pounds. Due to ongoing complaints, at a follow-up appointment with the treating sports medicine physician on August 13, 2018, the worker was referred for an MRI study. The MRI conducted on September 17, 2018 indicated "Tearing of the posterior labrum with associated paralabral cyst."
On September 28, 2018, a WCB medical advisor reviewed the worker's file and determined the medical findings supported the diagnosis of a left shoulder strain with a typical recovery period of four to eight weeks. The medical advisor was of the view the posterior labral tear indicated on the MRI study was not accounted for by the mechanism of the worker's injury, noting the worker would have had "…immediate pain provocation with the onset of a labral tear." Further, the medical advisor commented that the upward traction mechanism of injury is not normally associated with a posterior labral lesion and that the treating sports medicine physician reported negative O'Brien's and modified O'Brien's tests on July 13, 2018. Restrictions were recommended, to be reviewed in three to four weeks, and were provided to the employer on October 3, 2018.
On October 29, 2018, the WCB medical advisor again reviewed the worker's file and concluded the worker's current difficulties were not related to the July 6, 2018 workplace injury. The WCB advised the worker on October 31, 2018 that it had been determined he had recovered from the workplace accident and was not entitled to benefits after November 6, 2018.
The worker requested reconsideration of the WCB's decision to Review Office on December 13, 2018, noting he continued to suffer the effects of the workplace injury and was therefore entitled to benefits beyond November 6, 2018. The employer's representative submitted a response on February 5, 2019. The response was shared with the worker, and the worker submitted additional medical information from a March 15, 2019 follow-up appointment with the treating sports medicine physician, as well as a medical article. On March 26, 2019, the worker's spouse provided a letter in support of the worker's request.
On March 29, 2019, Review Office determined the worker was not entitled to benefits after November 6, 2018. Review Office noted the inconsistent reporting of the mechanism of injury but accepted that the evidence supported the worker suffered a left shoulder strain from the workplace accident. Further, Review Office found that by November 6, 2018, four months after the workplace accident, the worker's ongoing left shoulder difficulties were no longer related to the compensable strain injury.
The worker's representative submitted narrative reports from the worker's treating sports medicine physician dated July 5, 2019, and treating physiotherapist dated June 6, 2019, in support of a request to Review Office for reconsideration. On August 19, 2019, the employer's representative advised they would participate in the reconsideration request and also appealed the determination that the worker's claim was acceptable. The employer submitted photographs of the equipment used by the worker on the day of the workplace accident and copies of the worker's training certificates. The WCB shared these with the worker's representative on August 20, 2019. On August 27, 2019, the worker's representative provided a response to the employer's representative's submission.
Review Office determined on September 3, 2019 that the worker's claim was acceptable but he was not entitled to benefits after November 6, 2018. Review Office accepted that the worker sustained a left shoulder strain and found that his claim was acceptable; however, Review Office also found the new evidence submitted by the worker was not relevant and did not change the March 29, 2019 decision.
The worker's representative filed an appeal with the Appeal Commission on September 10, 2019 and the employer's representative filed an appeal with the Appeal Commission on September 16, 2019. An oral hearing was arranged for both appeals and a teleconference hearing was arranged for April 15, 2020.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and provided to the parties for comment. Both the worker's representative and the employer's representative provided further written submissions for the panel's consideration.
On June 23, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal. On July 24, 2020, the Appeal Commission published Decision No. 77/20, finding the worker's claim was acceptable and the worker was entitled to benefits after November 6, 2018.
On August 4, 2020, the employer's representative requested that the WCB's Board of Directors review Decision No. 77/20 pursuant to subsection 60.9(1) of The Workers Compensation Act (the "Act"), on the grounds that the Appeal Commission inappropriately relied on and applied WCB Policy 188.8.131.52, Pre-Existing Conditions (the "Pre-existing Conditions Policy").
At an April 19, 2021 meeting, the WCB's Board of Directors determined that the Appeal Commission misapplied the Pre-existing Conditions Policy, and set aside Decision No. 77/20. On April 21, 2021, the WCB's General Counsel advised the employer's and the worker's representatives that their appeals would be re-listed and re-heard by a new panel. A videoconference hearing was subsequently arranged and proceeded on October 21, 2021, then reconvened on November 2, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations under the Act 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.
What constitutes an accident is defined in subsection 1(1) of the Act, 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,
(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.
Subsection 4(2) of the Act 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.
The WCB's Board of Directors has established WCB Policy 44.05, Arising Out of and in the Course of Employment, which provides, in part, as follows:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The employer was represented by an advocate and by its Safety Supervisor. The advocate made an oral submission on behalf of the employer, a written copy of which was also provided in advance of the hearing. Both the advocate and the Safety Supervisor responded to questions from the panel members. The advocate also called as a witness a co-worker, who provided testimony in response to questions from the advocate and the panel members.
With respect to the issue of claim acceptability, the employer's position, as outlined by its advocate, was that the evidence does not support that the worker was injured as a result of an accident arising out of and in the course of his employment and the claim is not acceptable.
The advocate submitted that at no time during his shift on July 6, 2018 did the worker appear to be in any discomfort. The evidence of the co-worker, who was operating the hoist on July 6, 2018, was that he did not witness the worker sustain an injury, nor did the worker complain at any time of discomfort or report an injury. The co-worker indicated it was important he be able to watch the worker's hand when operating the hoist and he would have been aware of any such incident if it had occurred. The evidence showed that the worker also did not complain to his other co-workers of an incident having occurred or of having been injured or feeling uncomfortable.
The advocate further noted that when the worker notified the employer on July 7, 2018 that he was not coming into work that day, he did not mention having experienced a work-related injury or the circumstances under which such an injury arose.
The advocate also referred to variations in the worker's reporting of the mechanism of injury, as evidenced by medical reports from the time of injury, and inconsistencies in medical findings, particularly with respect to stability of the worker's shoulder in the weeks following the reported injury.
The advocate submitted that the best evidence did not support that the hoist incident occurred such that the test of occurring "in the course of" employment was not satisfied. Further, there was no medical or credible evidence which would suggest that the injury arose out of some aspect of the worker's employment and the second test of "arising out of" his employment was also not satisfied.
In addition, the advocate noted that the employer did not accept Review Office's conclusion that the worker suffered a strain injury based on overuse, as the evidence did not support such a finding.
With respect to the issue of further entitlement to benefits, the employer's position was that if the worker was injured as a result of a workplace accident, the totality of the evidence did not support a finding that his condition beyond November 6, 2018 was causally related to the compensable accident.
In conclusion, the advocate submitted that the claim should not be accepted and the worker should not be entitled to benefits beyond November 6, 2018.
The worker was represented by a worker advisor, and was accompanied by his spouse at the hearing. The worker advisor provided a written submission in advance of the hearing and made an oral submission to the panel on behalf of the worker. The worker provided evidence in response to questions from the worker advisor and from members of the panel.
With respect to the issue of claim acceptability, the worker's position, as outlined by the worker advisor, was that the evidence supports the worker suffered an injury which arose out of and in the course of his work duties, and the claim is acceptable.
The worker advisor noted that there was no delay in seeking medical, in the onset of symptoms, or in reporting the injury to the employer and the WCB, and the claim was accepted as a soft tissue injury. It was submitted that minor discrepancies in some versions of the mechanisms of injury, as noted in different medical and accident reports, were not within the worker's control, and should not be taken as evidence that nothing occurred.
The worker advisor submitted that while there must be evidence of an injury for a claim to be accepted, no specific diagnosis is required. The question of whether the worker suffered a strained muscle, a labral tear or an impact to another part of a limb was not really relevant to the issue of claim acceptance. Specific diagnoses are only relevant to the issue of the type and duration of benefits.
With respect to the issue of further benefits, the worker's position was that the medical evidence supports that the same compensable left shoulder difficulties for which the WCB accepted benefits through to November 6, 2018 continued after that date and are ongoing.
The worker advisor submitted that the reported symptoms since the accident, including a sense of instability, correlate to a labral tear. Medical information on file further indicates that these types of tears are initially difficult to detect and supports that one of the mechanisms of injury that causes such tears is a jerking or pulling motion, which is consistent with the mechanism of injury in this case.
The worker advisor further submitted that absent any earlier imaging, it is not possible to say whether there was a small asymptomatic tear prior to the accident or not. Nevertheless, the evidence supports that the accident either caused the tear or enhanced a prior asymptomatic tear and made it symptomatic, and the tear continues to be symptomatic.
The worker advisor noted that more recent medical information on file indicates the worker has increased symptoms which appear to be more than a labral tear. The worker advisor noted that the report from a physician with an interest in occupational medicine, which was submitted in advance of the hearing, provided a medical explanation for these increased symptoms, and supported that the worker continued to experience symptoms and difficulties which are related to the workplace accident and injury.
In conclusion, the worker advisor submitted that the claim is acceptable, and the worker is entitled to benefits beyond November 6, 2018.
Employer Appeal: Whether or not the claim is acceptable.
For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is able to make that finding.
The panel has carefully reviewed and considered all of the evidence which is before us, on file and as presented at the hearing, and the submissions of the parties. Based on our review, the panel is unable to find that the incident with the hoist occurred or resulted in an injury to the worker.
In arriving at that conclusion, the panel notes that the descriptions of the hoist incident which is said to have given rise to the claim vary and have changed over time. The worker indicated in his Worker Incident Report filed July 9, 2018 that his left arm was pulled upward while using a hoist and he was "raised off the ground a little bit." Also on July 9, 2018, the worker attended a hospital emergency department where the treating physician noted the worker advised that he was trying to hook a waste bag to an overhead hook line when the wind "caused it to swing and smack into his shoulder area."
In response to questioning at the hearing on April 15, 2020, the worker stated that when the event took place, he was both hit somewhere on his left arm or shoulder or elbow by the weight on the hoist, and was lifted off the ground by the hoist.
More recently, in the report from the physician with an interest in occupational medicine dated July 8, 2020, the physician noted that the worker's description of the accident mechanics was that "he was gripping an overhead cable of a roof hoist crane when it was accidently activated by a co-worker: he was jerked off his feet and swung sideways while twisting. The couple and hook, approximately 10 lbs in weight that hung on the end of the cable below his grip, swung around and struck the medial side of his elbow and proximal forearm as well."
The panel questioned the worker at length at the hearing with respect to the nature and circumstances of the accident. In response to such questioning, the worker indicated the incident occurred when he was taking an empty bag off the hook. He had moved from maybe three or even six feet away from the boom, with his left hand on top of the weight holding it at about a 45° angle, and he "got pulled sideways…It was pretty quick. It was like a sideways jerk and then…my hand locked up on it…" The worker confirmed that the pull would have moved him three or more feet sideways to come underneath the boom, then lifted him up, that "it had to straighten out first and then go straight up, so…it was a sideways jerk."
The panel reviewed the set-up and arrangement of the hoist equipment with the worker, with reference to photographs of equipment which the employer had previously provided and were on file. The worker noted that although it was not the actual crane that they were using on July 6, 2018, the set-up and crane in the photographs were fairly close to what was in place at the time of the incident, minus a lead rope and harnesses. Based on our review of the equipment, and given its placement and the heights involved, both of the equipment and the worker, the panel is not satisfied that the physics of the event as described would have resulted in the worker being lifted off the ground.
The evidence further indicates that no one witnessed an incident having occurred. In saying that, the panel notes that the worker was not alone at the time. The co-worker who was present and operating the hoist, was located approximately six feet away from where the worker was working. The co-worker's evidence was that he had an unobstructed view of the worker, and could see him perfectly. The co-worker said he knew the worker was new and recalled having instructed the worker to face him as he needed to see the worker's hands before operating the hoist. The co-worker stated that there was no way the accident could have occurred without his being aware of it. The co-worker further confirmed that the worker did not at any time during his employment complain of any discomfort or report any injury to him. The worker himself was also asked whether the operator would have known what happened, to which he responded "Not if he wasn't paying attention."
In addition, while the event occurred towards the end of the workday, the evidence shows that the worker finished his shift and did not say anything to his co-workers about an incident having occurred. He climbed down the ladder from the roof without difficulty and was "high-fiving" his co-workers and saying he would see them the next day. The worker agreed that this was the case, noting that he is very jovial by nature, and indicating he did not really consider the event a cause for concern.
The evidence shows that there was no immediate onset of symptoms to suggest that an accident or injury had occurred. The panel finds that thereafter, the documentation on file shows that there is a lack of consistency in terms of the worker's descriptions of his symptoms and the onset of those symptoms.
While the worker advisor has argued that the evidence supports that the worker suffered a labral tear as a result of the July 6, 2018 incident, the panel is unable to make that finding. As indicated above, the panel is not satisfied that the mechanism of injury as described would have caused a labral tear. Further, the panel finds that the symptoms and clinical findings after July 6, 2018 are not consistent with a labral tear. The panel acknowledges the worker advisor's comment that these types of tears are initially difficult to detect, but notes that several specific tests for identifying such a tear were performed on several occasions and were negative. The worker also indicated at the hearing that the treating sports medicine physician was very thorough in performing these tests at each appointment.
While the September 17, 2018 MRI subsequently showed the presence of a posterior labral tear, the panel is not satisfied that the evidence supports that the tear was symptomatic or was causally related to a workplace incident. Further medical information provided to file following the April 15, 2020 hearing indicates that the posterior labral tear was not likely what was causing the worker's pain. Among other things, in a February 5, 2020 letter to the treating sports medicine physician, the worker's orthopedic surgeon thus stated that he did not think the labral tear was the cause of the worker's diffuse shoulder pain.
The panel is further unable to find that the various descriptions of the worker's left shoulder condition and clinical findings at or around July 6, 2018 establish that the worker suffered a soft tissue injury at that time, as a result of the hoist incident or an overuse injury.
With respect to the hoist incident, as previously stated, the panel does not accept that such an incident occurred. The panel further notes that there is evidence, including in the treating physiotherapist's July 23, 2018 report that the worker's condition was worsening, and the panel is satisfied that such a deterioration in the worker's condition was inconsistent with a soft tissue injury having occurred on July 6, 2018.
The panel is further unable to accept, based on the evidence, that the worker suffered a strain injury due to overuse on July 6, 2018. The panel notes in this regard that the evidence indicates that July 6, 2018 was the worker's third day on the job, and his first day of actual labour. The worker further indicated that the work that day was not physically strenuous and was consistent with what he had done before, and that he was very strong at that time. While the worker indicated that he had experienced some tightening of his muscles, he also indicated that this was normal when starting a new job.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of or in the course of his employment. The claim is therefore not acceptable.
The employer's appeal on this issue is allowed.
Worker Appeal: Whether or not the worker is entitled to benefits after November 6, 2018.
For the worker's appeal on this issue 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 November 6, 2018 as a result of the July 6, 2018 workplace accident. The panel is unable to make that finding.
Given our findings on the Employer Appeal, that the worker's claim is not acceptable, the panel finds that the worker did not suffer a loss of earning capacity or require medical aid beyond November 6, 2018 as a result of the July 6, 2018 workplace accident. The worker is therefore not entitled to benefits after November 6, 2018.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of December, 2021