Decision #22/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on January 18, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
A Worker Incident Report was filed with the WCB on January 15, 2020, reporting an injury to the worker's right shoulder that occurred on February 1, 2019, which was reported to the employer on November 1, 2019. The worker didn't note a specific incident that occurred, relating the injury to their job duties involving over the shoulder work such as lifting tools and carrying materials up and down stairs. The worker noted their shoulder difficulties started in February 2019, and due to an increase in symptoms, they sought medical treatment.
The WCB spoke with the worker on March 10, 2020 to gather information on their claim. The worker confirmed they did not have any previous injuries or pre-existing conditions with their right shoulder. The worker advised they wake up every morning with shooting pain in their right shoulder, with numbness and tingling down their arm into their hand. Further, they advised they first noticed the pain in their shoulder in February 2019, which increased with work activities. The worker advised they told their boss about their shoulder in November 2019 as they thought the pain would go away on its own but it did not and got worse.
A Doctor's First Report, dated October 28, 2019, was received by the WCB on March 12, 2020. The worker's treating physician noted the worker's reporting of "no injury - slow progression of pain" with subjective complaints of pain, worse with overhead movements and lying on their right side and after examining the worker, found the range of motion was "essentially normal", with positive Neer's and empty can tests. The worker was diagnosed with rotator cuff tendinopathy, physiotherapy was recommended and the worker was referred for an MRI study. The MRI was conducted on February 28, 2020 and indicated "1. Tendinosis of the rotator cuff tendons. Small, high-grade partial thickness tear of the supraspinatus tendon is present. 2. Osteoarthritis of the acromioclavicular joint. 3. Suspected partial thickness tearing of the long head biceps tendon. 4. Suspected degenerative tear of the posterior labrum." The worker attended for a follow-up appointment with their treating family physician to review the MRI results on March 9, 2020. The treating physician recommended restrictions of avoid overhead work, repetitive movements at right shoulder and referred the worker to an orthopedic surgeon.
On March 25, 2020, the employer discussed the claim with the WCB. The employer confirmed the worker's job duties and that there had not been a change or increase in those duties but noted the workload was high and physically demanding. The employer confirmed the worker had reported their right shoulder was injured and made ongoing complaints but continued to work their full regular duties.
The worker's file was reviewed by a WCB medical advisor on March 26, 2020. The advisor opined the worker's current diagnoses "…appear to include tendinosis of the right rotator cuff tendons, a small high grade partial thickness tear of the supraspinatus at the footprint, moderate to advance osteoarthritis of the acromioclavicular joint, partial thickness tearing of the long head of the biceps tendon and posterior labral fraying…" The WCB medical advisor went on to provide those injuries were not medically accounted for in relation to the workplace injury as the moderate to advanced acromioclavicular joint osteoarthritis was a pre-existing condition; the fraying of the posterior labrum was a degenerative condition; and the small supraspinatus tear would have been related to a specific traumatic incident, which the worker did not report. The advisor also opined tendinosis of the rotator cuff tendons was a common age-related condition. On April 6, 2020, the WCB advised the worker their claim was not acceptable as a causal relationship between their right shoulder difficulties and an accident arising out of and in the course of their job duties could not be established.
The worker requested reconsideration of the WCB's decision to Review Office on January 13, 2021 and included a letter from their orthopedic surgeon. The worker's treating orthopedic surgeon's letter in support of the worker's claim was dated October 14, 2020. The surgeon noted the worker has "…signs consistent with supraspinatus tendon and subscapularis tendon tear and has confirmation of partial tears of both tendons on an MRI. [The worker] has symptomatic rotator cuff tears of his right shoulder, which he attributes to heavy and repeated lifting and reaching at his job." The treating orthopedic surgeon recommended right rotator cuff repair surgery.
On February 3, 2021, Review Office determined the worker's claim was not acceptable. Review Office found the medical evidence on the worker's file did not support the worker sustained an injury at work as the worker did not report a specific incident. Review Office noted rotator cuff tears generally occur while performing job duties involving heavy lifting and would have had an immediate pain reaction. Further, Review Office found the medical evidence did not support the worker aggravated or enhanced their pre-existing degenerative conditions.
The worker filed an appeal with the Appeal Commission on September 21, 2021. A hearing was arranged for January 18, 2022.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies approved by the WCB's 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.
The Act defines accident in s 1(1) as a chance event occasioned by a physical or natural cause, including "…any event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment…and as a result of which a worker is injured." Section 17(1) of the Act states that in every case of injury to a worker by accident in any industry within the scope of this Part, the worker, or in the case of his death, a dependant, shall, as soon as practicable, but in any case not later than 30 days after the happening of the accident, give notice thereof to the employer.
Section 19(1) of the Act states that a worker or dependant entitled to compensation under this Part shall file with the board an application and the certificate of any health care provider, hospital or other health care facility that provides care to the worker, in a form and manner acceptable to the board, with such proof or other information as the board requires, and pending the receipt of proof or information, the board may withhold compensation.
Section 19(2) of the Act states that subject to section 109, unless application for the compensation is filed
(a) within one year after the day upon which the injury occurred; or
(b) if the applicant is a dependant, within one year after the death of the worker;
no compensation in respect of any injury is payable under this Part.
The WCB policy 44.05 Arising out of and in the course of Employment provides in part:
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 WCB has established Policy 18.104.22.168, Pre-Existing Conditions (the "Policy") to address the issue of pre-existing conditions. The Policy states that the WCB will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not an injury by accident arising out of and in the course of the employment. The WCB is only responsible for personal injury as a result of accidents that arise out of and in the course of employment. The Policy goes on to state that:
When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.
The worker was self-represented on the appeal. The worker made an oral presentation to the panel. The worker also responded to questions from the panel.
The worker believed that they injured their right shoulder on November 1, 2019 while lifting materials over equipment on the jobsite. The worker advised that it took them three to four weeks to see their Doctor and subsequently until February of 2020 to have an MRI taken.
The worker references a letter authored by their orthopedic surgeon who provided a recap of their physical examination. This exam states in part that “…there are signs consistent with supraspinatus tendon and subscapular tendon tear and has confirmation of partial tears of both tendons on an MRI.”
The worker states that the injury is the same as their left shoulder injury that was covered by WCB.
The employer did not participate in the hearing.
The issue before the panel is whether or not the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the injury to their right shoulder arose out of and in the course of his employment. After careful review and consideration of all of the evidence, on file and as submitted at the hearing and in response to questions from the panel, the panel is unable to make that finding.
The panel notes that the WCB medical consultant has indicated the presence of a moderate to advanced joint osteoarthritis as a pre-existing condition. In addition, they opined that the frayed labrum is considered to be a degenerative condition. The panel accepts and relies upon these findings.
The panel also acknowledges that the worker reported during the hearing of a time that they were lifting materials on November 1, 2019 when they felt something went wrong and that they believed this to be the injury in question. The panel noted that this was inconsistent with previous reporting of the incident to the WCB. On January 15, 2020 the worker reported the incident to the WCB. They indicated that symptoms of the injury began in February of 2019 and the likely cause was carrying materials and tools up and down stairs on job sites. On March 9, 2020 the Doctor First Report indicated “no injury-slow progression of pain” under the worker’s description of accident or injury. The panel places greater weight on the reporting of the details of the incident earlier on file which did not include a specific acute event.
The worker argues that the injury to their right shoulder is the same as their left shoulder injury, which was covered by the WCB. However, the panel notes that on a number of occasions, the worker described the injury to their right shoulder as a progression of worsening pain and discomfort beginning in February of 2019. This is in contrast to the injured left shoulder that was reported immediately after a specific occurrence. Although the injuries to both shoulders involved rotator cuff tears, the panel was unable to ascertain, based on the evidence on file and on a balance of probabilities, that an injury occurred to the right shoulder while at work on November 1, 2019. The panel notes that each claim is decided based on its own facts and evidence and is unable to draw a conclusion that both shoulders suffered the same injury due to a workplace incident.
The panel therefore finds, based on the evidence and on a balance of probabilities, that the injury to the worker's right shoulder did not arise out of and in the course of their employment. Accordingly, the worker's claim is not acceptable.
The worker's appeal is dismissed.
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of February, 2022