The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Date of Accident - August 14, 2020: They are not entitled to further benefits in relation to the August 14, 2020 accident; and 

2. Date of Accident - November 25, 2020: They are not entitled to further benefits in relation to the November 25, 2020 accident.

A hearing was held on May 12, 2022 to consider the worker's appeal.

Issue

1. Date of Accident - August 14, 2020: Whether or not the worker is entitled to further benefits in relation to the August 14, 2020 accident; and 

2. Date of Accident - November 25, 2020: Whether or not the worker is entitled to further benefits in relation to the November 25, 2020 accident.

Decision

1. Date of Accident - August 14, 2020: The worker is not entitled to further benefits in relation to the August 14, 2020 accident; and 

2. Date of Accident - November 25, 2020: The worker is entitled to further benefits in relation to the November 25, 2020 accident.

Background

Date of Accident - August 14, 2020 

The worker filed a Worker Incident Report with the WCB on December 17, 2020 reporting that on August 14, 2020, they slipped and fell at work, injuring their left shoulder, upper arm and neck. The worker described "…I might have jarred something because I felt an instant shooting shoulder (sic) through my left side to my shoulder, neck and eye." The worker advised that they contacted the employer to report the incident and sought medical treatment on August 21, 2020 with their family physician, who recommended the worker attend for massage therapy. The worker noted the massage therapist recommended physiotherapy, but the worker did not do so and continued to work. The worker sought further medical treatment on December 17, 2020 as they had continued difficulties.

In the Doctor's First Report to the WCB for the worker's appointment on December 17, 2020, the worker's family physician recorded that the worker reported "Left sided neck pain radiating into left shoulder" and on examining the worker, provided a diagnosis of a cervical spine strain, and recommended physiotherapy and home exercises. An x-ray taken that date indicated degenerative changes at the C5-6 level of the worker's cervical spine and a normal study for the worker's left shoulder.

At initial physiotherapy assessment on December 21, 2020, the worker reported pain and tightness in their left side of the neck and upper shoulders into their arm, and the physiotherapist noted mild impairment in the worker's cervical range of motion and increased tension in the worker's left upper trapezius. The physiotherapist provided a diagnosis of left cervical sprain and recommended further physiotherapy.

When the WCB contacted the worker on December 22, 2020 to discuss their claim, the worker confirmed that when they slipped and fell on August 14, 2020, they experienced shooting pain from their shoulder up to their eye for approximately ten minutes immediately afterward. The worker advised they continued to work after the incident and eventually sought medical treatment a week later on August 21, 2020. Their treating family physician recommended massage therapy, and the worker attended for two appointments. The worker further advised that the massage therapist would not touch the injured area and recommended the worker seek physiotherapy treatment. The worker advised the WCB they did not attend for physiotherapy and continued to work, accepting their treating physician's advice the pain would "…work it out on its own." The worker noted they started to experience difficulties to the point where they could not work in approximately November and spoke to their supervisor about the difficulties. The worker further noted they had not missed time from work, except for some time to attend physiotherapy on December 21, 2020 and had called in sick on December 22, 2020 due to increased pain following the physiotherapy appointment.

The WCB advised the worker it would investigate further. The WCB spoke with the worker's supervisor on January 5, 2021 and the supervisor confirmed the workplace accident on August 14, 2020 was reported to the employer's safety and health staff. The supervisor noted the worker did not report seeking medical attention and did not miss any time from work, performing their regular job duties from August 2020 to December 2020. Approximately mid-December 2020, the worker contacted the supervisor to advise they were experiencing difficulties and had sought medical treatment, relating the difficulties to the August 14, 2020 workplace accident.

On January 12, 2021, the WCB received a copy of the August 21, 2020 medical report from the worker's treating family physician, indicating normal findings on the worker's head and neck examination, with no swelling or deformities indicated for the worker's extremities. On the same date the WCB contacted the physician's office regarding the information provided and was advised no mention was made of a workplace accident during the worker's appointment on August 21, 2020. The WCB requested a copy of the physician's chart notes for that date.

The WCB spoke with the worker's manager on January 15, 2021. The manager confirmed the worker had filed a report for an incident on August 14, 2020 but they were not aware of any further difficulties after that date.

The WCB advised the worker on January 15, 2021 that their claim was accepted for an accident at work on August 14, 2020; however, they were not entitled to wage loss or medical aid benefits as they continued to work their regular duties and did not report any ongoing difficulties. Due to concerns noted by the worker in conversations with the WCB on January 15, 2021 and January 20, 2021, a revised decision letter was provided to the worker.

On January 28, 2021, the WCB received a report from the worker's treating family physician noting the worker attended for treatment on August 21, 2020, reporting left shoulder and neck pain after falling at work, went to massage therapy for treatment but did not attend for physiotherapy until reporting increased difficulties on December 17, 2020.

On February 9, 2021, the WCB advised the worker that the new information from the treating family physician had been reviewed but there would be no change to the earlier decision they were not entitled to further benefits.

Date of Accident - November 25, 2020 

On January 7, 2021, the worker reported to the WCB they slipped on a patch of ice at work on November 25, 2020. The worker described: "I put my left hand out to catch myself, my right hand was holding the garbage bag. I scraped my left knee and fell onto my left hip. I feel intense pains in my neck and left shoulder. I feel additional pain in left inner thigh traveling up to groin." In the Worker Incident Report, the worker indicated the pain had gotten much worse as of January 3, 2021.

Information from the worker's claim for the August 14, 2020 accident was reviewed for this claim. The medical reports from the worker's December 17, 2020 appointment with their family physician and the December 21, 2020 initial appointment with their treating physiotherapist were noted, along with the December 17, 2020 x-ray report, the voicemail messages from the worker providing additional information and the WCB's conversations with the worker's supervisor and manager indicating the worker did not report further difficulties.

The worker attended for initial physiotherapy assessment on January 11, 2021 reporting the fall onto an outstretched left arm on November 25, 2020. The worker advised the physiotherapist most of their pain initially was in the area of their left groin and left hand and they had a scraped left knee. On noting symptoms in their left shoulder girdle area, the worker sought medical treatment from their family physician in mid-December 2020. The physiotherapist noted good range of motion, with pain in the worker's left trapezius on left rotation, and movements to the right causing tightness; full range of motion with no pain in the shoulder girdle and shoulder area; a normal neurological examination; mild impingement signs bilaterally, with the left greater than the right; and tenderness in the worker's left trapezius area. The physiotherapist provided a diagnosis of left cervical facet sprain with some trapezius tightness.

On January 14, 2021, the employer provided the WCB with an Employer's Accident Report, reporting the worker injured their neck and left shoulder after a slip and fall at work on November 25, 2020. The employer noted the worker reported breaking the skin on their left knee that did not bleed, banging the bottom of their left hand near their thumb and left lower calf tightness. Further, the worker reported pain in their left upper inner thigh area, into their groin, pain in both of their ankles and tightness in their upper back, neck and shoulders, which they felt may have been from tensing up. The employer further advised that when the worker filed their internal incident report on November 26, 2020, they reported "…all injuries are no longer sore except where the skin is broken on her knee."

The WCB spoke with the worker on January 15, 2021 to discuss the claim. The worker confirmed they had advised their supervisor and manager of the incident when it occurred on November 25, 2020. They also further confirmed that when they completed the internal report for the employer they were "feeling fine" and at the time, felt that the difficulties were a result of the August 14, 2020 incident and not the November 25, 2020 fall. The worker also advised they initially sought treatment in December 2020 for difficulties they related to the August 2020 incident and up until that appointment, continued to work their full, regular duties until they lost time to attend physiotherapy. The WCB advised the worker that due to the delay in seeking medical and that the worker did not report this injury to the WCB when they contacted them to discuss the August 14, 2020 injury, it could not establish that their current difficulties were related to the November 25, 2020 workplace accident.

On January 18, 2021, the WCB provided the worker with a decision letter indicating their claim was accepted for a workplace accident that occurred on November 25, 2020; however, they were not entitled to benefits in relation to that accident. The WCB received additional medical information from the worker's treating family physician and on February 16, 2021, advised the information was reviewed but there would be no change to the earlier decision.

Both Claims 

The worker requested reconsideration of the February 8, 2021 and February 16, 2021 WCB decisions that they were not entitled to further benefits on each of these claims. The worker noted in their submission they were injured at work and while they continued to work their regular duties, they required further benefits for physiotherapy treatment.

Date of Accident - August 14, 2020 

On May 25, 2021, Review Office determined the worker was not entitled to further benefits. Review Office found the worker first sought medical treatment on August 21, 2020 then did not seek further treatment and continued to work their regular duties until December 2020. As such, Review Office was unable to relate the worker's current difficulties and the need for treatment to the August 14, 2020 workplace accident due to the worker's almost four-month delay in seeking treatment.

Date of Accident - November 25, 2020 

On May 25, 2021, Review Office found the worker was not entitled to further benefits. Review Office determined the December 2020 reports from the worker's treating family physician and physiotherapist related the worker's difficulties to the August 14, 2020 workplace accident, with no mention of the November 2020 accident, and further, found the first reporting of the November 25, 2020 workplace accident was in a January 11, 2021 physiotherapy assessment. Review Office determined the delay in seeking medical treatment made it difficult to establish the worker's current difficulties were related to the workplace accident and that the worker required further treatment for those difficulties.

Both Claims 

The worker filed an appeal with the Appeal Commission on both claims on November 16, 2021. A teleconference hearing was arranged for May 12, 2022.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act ("the Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker 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 because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

Worker’s Position

The worker appeared before the panel and made a submission on their own behalf and also relied on the documents submitted on April 26, 2022 as evidence in advance of the hearing. The worker provided testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that as a result of the workplace accident of August 14, 2020, they caused injury to their neck and shoulder and that as a result of the accident of November 25, 2020, they caused further injury and an increase of symptoms in relation to their neck and shoulder and therefore, they should be entitled to benefits in relation to both accidents.

The worker confirmed that after the August 14, 2020 injury, they treated their symptoms with massage therapy. The worker noted that when they saw their family physician on August 21, 2020 for an appointment for another purpose, they told the physician about their symptoms of shooting, pulsing pain and tightness in the left sided neck and shoulders. The worker stated the physician told them that physiotherapy was not needed for their symptoms, but massage might be helpful. The worker confirmed they continued to work after this injury and sought massage therapy a few times.

The worker described to the panel how the injuries occurred on August 14, 2020 and November 25, 2020. The worker indicated that on each occasion, they reported the injury to the employer, as required, by calling the incident reporting number and that after the August injury, the operator advised that if no medical treatment was required, there was no need to make a WCB claim. When the worker called in December to advise they sought medical treatment, they were advised to call the WCB.

The worker indicated that after the November 25, 2020 slip and fall accident, they completed their tasks at work despite pain in their inner thigh and groin, upper neck and left shoulder. When the pain in their neck and shoulder did not go away and began to interfere with tasks at work, the worker sought care from their family physician, advising that they had another fall and as a result, the pain in their left shoulder and neck worsened. The physician ordered x-rays and referred the worker to physiotherapy.

The worker was first assessed by a physiotherapist on December 21, 2020 and found some relief with that treatment. The worker indicated more treatment was recommended but when the WCB refused to provide benefits in relation to the August 14, 2020 accident, the worker could not pursue the recommended course of physiotherapy. Subsequently, the worker returned to the physiotherapist for another assessment in relation to the November 25, 2020 accident claim but when the WCB determined there was no entitlement to benefits from that claim, the worker again did not receive further treatment.

The worker explained to the panel that they did not initially seek physiotherapy treatment because their symptoms were tolerable and not interfering with their work, and because their physician indicated they did not require physiotherapy. It was only after seeing the family physician on December 17, 2020 that they arranged for physiotherapy assessment.

The worker described their job duties to the panel, indicating that their job is physical in nature. The worker noted that as a result of unrelated health issues prior to August 2020, they had little sick time available and the employer had them on an attendance program. As a result the worker indicated they needed to continue working after these injuries, despite having continuing symptoms.

The worker confirmed that the employer was aware of their ongoing neck and shoulder symptoms through the fall of 2020 as the worker would mention it from time to time. They pointed out to the panel the letters provided to the Appeal Commission on April 26, 2022 indicating that both the employer’s team manager and resource coordinator had conversations with the worker about their neck and shoulder symptoms.

The worker also referred the panel to the letter dated January 28, 2021 from the treating family physician as confirming the worker provided information on August 21, 2020 about the injury at work prior to that date and that physiotherapy was not required but massage was recommended. The physician also confirmed the worker reported a fall on November 25, 2020 when they attended for treatment on December 17, 2020 and that at that time the physician referred the worker to physiotherapy and for an x-ray. The worker further confirmed that the medical absence notes submitted in respect of January 14 – 21, 2021 and October 1 – 8, 2021 were related to their neck and shoulder symptoms.

The worker indicated that they continue to experience left shoulder and neck pain and require further physiotherapy. The worker confirmed they returned to physiotherapy on May 27, 2021 in respect of this injury and paid for that treatment but have not returned since then, although they continue to do the recommended home exercises. The worker indicated that their ongoing symptoms cause them to miss work and to be unable to complete tasks at work. As a result, the worker has been using more sick days.

In sum, the worker’s position is that they sustained injury to their left shoulder and neck as a result of the August 14, 2020 accident, and that this injury worsened with the November 25, 2020 injury such that the worker required physiotherapy and experienced a loss of earnings for the periods when they were removed from work by their physician resulting from both injuries.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The questions on appeal relate to whether the worker is entitled to benefits in relation to the compensable accident of August 14, 2020 and whether the worker is entitled to benefits in relation to the compensable accident of November 25, 2020. For the worker’s appeal to be granted the panel would have to determine, in respect of each accident, that as a result of the injury the worker sustained in the compensable accident, the worker requires medical aid to cure and provide relief from that injury and/or that the worker experienced a loss of earning capacity as a result of that injury. As noted above and set out in the reasons that follow, the panel was not able to make such findings in relation to the accident of August 14, 2020 but was able to make such findings in relation to the accident of November 25, 2020.

Accident of August 14, 2020 

The panel considered whether there is evidence to support the worker’s position that they required medical aid arising out the accident of August 14, 2020 and further that they experienced a loss of earning capacity in relation to the injury sustained in that accident.

There is little evidence before the panel in terms of the worker’s medical condition following the August 14, 2020 accident. The worker saw their family physician on August 21, 2020 for a prescheduled appointment for another purpose. The physician’s chart from that visit notes that the worker attended for a physical examination and records that the worker’s head and neck exam was normal and there was no swelling or deformities in their extremities. No other information is noted, although the worker recalled providing the physician with information about their recent fall and a discussion about whether they required physiotherapy or massage therapy. In a letter dated January 28, 2021 the family physician confirmed that the worker mentioned on August 21, 2020 that they sustained their injury as a result of a fall “cleaning the floor”, although not explicitly indicating that they understood this was work related, and further confirmed the worker treated the injury with massage therapy but not physiotherapy at that time.

The panel noted that the treating family physician did not report to the WCB that the worker sustained a work-related injury until December 17, 2020, after the worker consulted them with respect to their neck and left shoulder symptoms. Although this report purportedly relates to the injury sustained by the worker in the August 14, 2020 accident, the panel noted that the worker testified to seeking care on December 17, 2020 as a result of the worsening symptoms in their neck and left shoulder following the November 25, 2020 accident. Given the worker’s stated position that the symptoms in their left neck and shoulder in December 2020 were the result of the August accident but exacerbated by the November accident, and given there was only one accident claim at that time, relating to the August injury, it is understandable that there may have been some confusion on the part of the treating physician as to which event the worker’s symptoms in December 2020 were causally related to.

The worker further testified that they sought massage therapy after the fall, on August 18, 2020 and twice after that, on August 26 and November 12, 2020. The worker explained that the therapist was located near the worker’s home and that they provided massage to the worker’s shoulders and upper back.

The panel also considered the December 21, 2020 Physiotherapy Initial Report, which is stated to relate to the August 14, 2020 workplace accident. The panel noted that the treating family physician referred the worker to physiotherapy on December 17, 2020 in relation to the worker’s attendance on that day with left-sided neck and shoulder complaints. Again, the panel noted the worker’s testimony that they did not require physiotherapy until after the November 25, 2020 accident, and that they sought treatment in December because their left shoulder and neck symptoms had worsened after November 25, 2020.

Both the employer’s team manager and resource coordinator confirmed that the worker had made some complaints to them about their neck and shoulder symptoms during the fall of 2020 but neither indicated that the worker missed any work as a result. The worker confirmed to the panel in their testimony that they continued to work their regular job duties after the August 14, 2020 fall and did not take or require any time away from work as a result, until after the second fall on November 25, 2020.

The panel finds that by mid-November 2020, the worker was recovered from the injury sustained in the August 14, 2020 workplace accident, on the basis that the worker did not miss any work in relation to that injury and did not seek or require medical treatment for the injury after August 23, 2020 until they experienced an increase in symptoms after the November 25, 2020 accident.

The panel is satisfied, on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker did not require medical aid to cure and provide relief from their August 14, 2020 injury and, further, that the worker did not experience any loss of earning capacity as a result of that injury. Therefore, the panel finds that the worker is not entitled to further benefits in relation to the August 14, 2020 accident and the appeal on this question is denied.

Accident of November 25, 2020 

In respect of the accepted compensable accident of November 25, 2020, the panel considered whether the evidence supports the worker’s position that they required medical aid in respect of the injury sustained on that date and that they experienced a loss of earning capacity in relation to that injury.

The panel reviewed the medical information provided in relation to the August 14, 2020 accident claim as well as that provided to the WCB in relation to this claim. As noted above, there are medical reports to the WCB that are stated to relate to the August 14, 2020 accident but appear to rather be in relation to treatment provided and arising out of the November 25, 2020 accident. The panel noted the worker’s explanation that when they contacted the employer’s injury and near miss line in December 2020 to inform that they had seen their doctor, they were told to contact WCB and make a claim regarding the August 14, 2020 fall. The worker therefore did so and as a result, that medical appointment and the subsequent physiotherapy assessment were both attributed to the August accident which had not been previously reported to the WCB.

The panel also noted the worker’s testimony that they appropriately informed the employer of their injury in both cases, using the employer’s telephone reporting system and was initially told that they were ineligible to make a claim for WCB benefits as they did not at first require medical care. As such, the worker did not report the injuries until much later, which likely contributed to at least some of the confusion evident in these claim files as to the injury sustained and treatment required in respect of each accident.

The worker described to the panel that when they slipped and fell on November 25, 2020, they landed on their left side on their hand and knee, feeling pain in their left inner thigh, groin and ankle, initially as well as in their left hand. They noted that the pain in their left shoulder and neck worsened after this fall such that they sought treatment from their family physician on December 17, 2020. The worker described to the panel that they did so because the pain was now interfering with their work tasks and had become “intolerable”. The panel noted that this time the treating family physician ordered a cervical spine and shoulder x-ray, referred the worker to physiotherapy for treatment and recommended a home exercise program, as outlined in the December 17, 2020 Doctor First Report. The physician also noted the worker continued working in their regular position. The panel noted this report does not provide any description of the accident, although it is related to August 14, 2020. In the family physician’s January 28, 2021 letter addressed “To whom it may concern”, they indicated that the worker mentioned “another fall” in the workplace that took place on November 25, 2020 and in which the worker fell onto their left knee. The panel also noted that the physician’s December 17, 2020 referral note for physiotherapy indicates it is in relation to “Left sided neck pain + shoulder pain-strain after a fall-whiplash injury.” The diagnostic x-ray of the same date revealed degenerative changes at the C5-6 level but no other abnormalities in the worker’s cervical spine or left shoulder.

The physiotherapist who assessed the worker on December 21, 2020 noted the worker injured themself in “a fall while working. Jarred neck” but does not note any other detail of the injury. At that time, the worker reported pain and tightness in their left side of their neck, upper shoulder and arm, and occasional pain in their left hand. The panel noted that these reported symptoms are consistent with the worker’s description of their most recent fall on November 25, 2020. The physiotherapist diagnosed left cervical sprain and recommended additional physiotherapy.

After the WCB notified the worker that they were not entitled to physiotherapy in relation to the August 2020 accident, the worker attended again for a further assessment on January 11, 2021, this time in relation to the November 25, 2020 accident. The physiotherapist noted the worker’s report of occasional headache, “annoying” left upper trapezius and tender left deltoid. They found full range of motion in the worker’s left shoulder, good range of motion with pain in the left trapezius, mild impingement signs more on the left than right but no other rotator cuff issues. They provided a diagnosis of left cervical facet sprain with some trapezius tightness and recommended further treatment over 4 weeks and provided a home program to address postural awareness and both cervical and upper shoulder range of motion. They indicated the worker was not disabled from work but could continue to work full duties without restrictions.

The worker then sought further treatment from their family physician on January 14, 2021. The physician noted the worker’s “Left arm, neck and shoulder pain as a combination from a fall in [A]ugust and Nov. 2020” and recommended continued use of topical and oral medications, as well as physiotherapy and home exercise. The physician noted the worker continued to work their regular duties but provided a note indicating the worker would be away from work from January 14-21, 2021 due to medical reasons. The worker noted in their testimony that this absence from work related to their neck and shoulder injury.

On the basis of the medical reporting and the worker’s testimony as to an increase in symptoms following the November 25, 2020 accident, the panel is satisfied that the evidence establishes that the worker required medical aid, in the form of physiotherapy treatment, arising out of the injury sustained in that accident. This was recommended both by the treating family physician and the treating physiotherapist in December 2020. There is also some evidence before the panel that the worker was removed from work for a period of time and that the worker was away from work to attend medical appointments relating to the compensable injury, resulting in a loss of earning capacity relating to the November 25, 2020 accident; however, this has not been specifically adjudicated by the WCB as they determined the worker was not entitled to benefits because their current (at that time) difficulties could not be related to the compensable accident given the passage of time. Therefore, the panel has made no findings in respect of the worker’s specific entitlement to any wage loss benefits in relation to the accident of November 25, 2020 and these must be adjudicated by the WCB.

The panel is satisfied, on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker required further medical aid in relation to the compensable injury sustained on November 25, 2020 and, further, that the worker did experience a loss of earning capacity as a result of that injury. Therefore, the panel finds that the worker is entitled to further benefits in relation to the November 25, 2020 accident and the appeal on this question is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2022