The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on March 16, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on May 6, 2022 reporting injury to their left shoulder from an incident at work on April 16, 2020, reported to the employer on April 27, 2020. The worker described lifting heavy pails and putting them on shelves when they heard a pop in their shoulder. The worker noted:

I didn’t think anything of it at the time. I just kept working that day and finished off the day. The next day when I woke up is when I felt the pain in my shoulder. So I took the day off then I returned to work the following week. Then I found out I couldn’t lift pails anymore because it was too painful. I thought it would just get better. At that point I went to see a doctor.

The worker noted they reported the incident to a supervisor but was unsure of the exact date of the incident, believing it to be near the end of April 2020, and reported to the employer approximately 1 week later. The worker further noted the employer advised them it was too late to report the claim so they opened a claim with the employer’s disability insurer. The worker stated they sought medical treatment the week they were injured and later had an MRI study, were referred to a nerve specialist and provided with physiotherapy and medications. The worker was also later referred to an orthopedic surgeon, who diagnosed a small rotator cuff tear and recommended surgery and that the worker report the injury to the WCB.

On May 17, 2022, the employer provided an Employer’s Accident Report to the WCB, indicating that the worker had not reported injury to them. The employer outlined a timeline of the worker’s attendance prior to the workplace accident and noted the worker had been on short-term and then long-term disability since April 27, 2020. Further, the employer noted that both supervisors from April 2020 were still employees, and neither indicated the worker reported an injury to them. The employer confirmed they contacted their disability insurer to discuss the worker’s claim and were advised the worker indicated to them that they had injured their left shoulder after falling at home then lifting something the wrong way which aggravated the shoulder. Further, the employer stated when they contacted the worker on May 10, 2022 to discuss their WCB claim, the worker advised the incident occurred approximately April 18, 2020 when they were lifting a pail and felt their shoulder pop. The worker noted their belief the incident happened near the end of the day on a Friday, and they returned to work on the following Monday but left halfway through the day as their shoulder was bothering them. The worker further advised the employer that they reported their injury to a supervisor but was told it was "too late" to fill out a green card. When questioned by the employer, the worker could not recall specifically who they reported the injury to.

On May 20, 2022, the WCB received a report from the worker's treating family physician dated March 5, 2022, outlining the worker's report of feeling severe pain in their left shoulder and being unable able to lift their arm after lifting a heavy item at work. On examination, the physician indicated the worker was unable to elevate or abduct their shoulder even with passive manipulation. The physician noted the worker was seen by a sports medicine physician and referred for a consultation with an orthopedic surgeon. The physician further noted the October 11, 2020 MRI of the worker’s left shoulder indicated a left long head biceps tear and adhesive capsulitis.

On May 19, 2022, the WCB received the May 4, 2022 report from the orthopedic surgeon, who recommended arthroscopic surgery, noting the worker had failed to improve with conservative treatment for two years since the workplace injury. The surgeon noted evidence of a “Popeye deformity” that was consistent with distal biceps tendon rupture and found tenderness anteriorly around the shoulder. As well, the surgeon noted the worker could not elevate their arm fully overhead, internal rotation was slightly diminished, and the worker had pain with resisted internal rotation and very strong pain on resisted forward elevation with mildly positive impingement signs. An x-ray of the same date indicated some acromioclavicular (“AC”) joint arthrosis.

When the WCB contacted the worker to discuss their claim on May 25, 2022, the worker advised they remained on long term disability, were not currently receiving active treatment but had surgery scheduled for October 18, 2022. The worker provided details of their medical treatment since April 2020 and confirmed their belief that the injury occurred on a Friday in April 2020, at which time they did not immediately report the injury as everyone had already left. The worker stated when they returned to work on the following Monday to report the injury and fill out a green card, the employer advised it was too late to report and told the worker to see a doctor and apply for the employer's disability insurance. The worker advised they could not recall if they had told the insurer that it was a work-related injury. The WCB advised the worker it would investigate further.

On June 6, 2022, the WCB received a copy of the worker's October 11, 2020 MRI of their left shoulder which indicated a "Fall onto shoulder" and "Persistent pain" and noted impression of:

1. Calcific and non calcific tendinopathy of the infraspinatus and supraspinatus tendons respectively. No discrete tear is identified. 

2. Severe tendinosis/tearing of the proximal long head biceps tendon… 

3. Acromioclavicular osteoarthritis. 

4. Findings raising the possibility of adhesive capsulitis. Correlate clinically.

Physiotherapy chart notes indicated the worker was treated on August 12, 2020, August 17, 2020, August 25, 2020, September 1, 2020, September 22, 2020, September 29, 2020, October 6, 2020 and October 13, 2020 and provided a history of lifting something at work and feeling a pop in their shoulder, after which they could not move the shoulder. The physiotherapist diagnosed rotator cuff/long head biceps tendonitis and queried tears, pending an MRI study.

On June 20, 2022, the WCB received the March 9, 2021 report to the worker's treating family physician from a sports medicine physician noting the worker's report of ongoing issues with their left shoulder after "several falls", with localized anterior shoulder pain worse with overhead activity and exertion. The sport medicine physician found an "…obvious long head biceps tear" and wasting in the left paraspinal cervicals as well as in the trapezius, supraspinatus, infraspinatus and levator scapula. The physician noted tenderness over the anterior shoulder area at the region of the bicipital groove and no obvious swelling. The physician also recorded findings of decreased range of motion in both the shoulder and the neck area, with positive impingement tests, and that the X-rays showed some degenerative changes at C7/T1 level, but a normal shoulder study. The sport medicine physician referred the worker for an MRI and a nerve conduction study. The nerve conduction study findings of April 1, 2021 indicated: "1) Clinical and MRI evidence for a torn proximal long head of biceps tendon. 2) Calcific and noncalcific tendinopathy of the infraspinatus and supraspinatus tendons at the left shoulder on MRI." On reviewing the MRI, the sports medicine physician recommended a pain injection, which took place on May 4, 2021. At follow-up on June 28, 2021, the worker reported their shoulder was "good" after the injection, but their arms had been "yanked" after their dog chased a rabbit. The sport medicine physician provided a further injection on September 9, 2021, with follow-up on November 8, 2021, at which time the worker reported no improvement to their shoulder following the injection and was referred to the orthopedic surgeon for further treatment.

When a WCB medical advisor reviewed the worker's file on July 7, 2022, they concluded the worker’s left shoulder difficulties were accounted for by the diagnoses of calcific and non-calcific left rotator cuff tendinopathy and a long head of biceps tear, but opined the mechanism of the April 2020 workplace accident "…was concordant with a left shoulder strain." The medical advisor noted the October 11, 2020 left shoulder MRI did not indicate a rotator cuff tear and found the worker would have sustained a mild strain from the workplace accident. The advisor outlined that a typical recovery period for a mild strain was over the course of 4 to 8 weeks, with a slightly longer duration if in the environment of a pre-existing condition. The medical advisor went on to find that, given the amount of time that had passed since the workplace accident, the worker's current left shoulder difficulties were not accounted for in relation to that accident. With respect to the other diagnoses provided by the treating healthcare providers, the WCB medical advisor noted the medical information nearest in time to the workplace accident did not make note of a Popeye deformity, which would indicate a long head of biceps tear; accordingly, the medical advisor concluded a long head of biceps tear could not be medically accounted for in relation to the April 16, 2020 accident. The medical advisor further noted that the treating healthcare providers at various times documented that the worker had fallen on their left shoulder and opined "A fall on a shoulder or outstretched upper limb is a common cause of rotator cuff tears or long head of biceps tears." Further, the medical advisor noted the diagnostic imaging found "…mild to moderate pre-existing osteoarthritis of the acromioclavicular joint." The WCB medical advisor opined that the surgery proposed in the March 4, 2022 report from the worker's treating orthopedic surgeon was directed at the worker's pre-existing degenerative conditions, and those conditions were the cause of the worker's current left shoulder difficulties. On July 15, 2022, the WCB advised the worker that their claim was not acceptable.

On August 19, 2022, the worker requested reconsideration of the WCB's decision to Review Office. In their submission, the worker noted they had advised their supervisor on April 22, 2020 they felt a pop in their shoulder and requested to leave work early. The following day, the worker advised they called in sick due to the pain in their shoulder and did not attend work the following day for the same reason. They did attend on April 27, 2020 but could only work for 2 hours before having to leave due to pain. The worker also noted their treating healthcare providers support that their left shoulder injury was as a result of their workplace accident.

Review Office determined on October 4, 2022 that the worker's claim was not acceptable. Review Office considered the worker's two year delay in reporting the workplace accident, the discrepancy as to the date of injury, and the reporting of a different mechanism of injury to the employer's disability insurer and found it could not establish the worker sustained an accident arising out of or in the course of their employment.

The worker filed an appeal with the Appeal Commission on November 29, 2022 and a hearing was arranged.

Reasons

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. The provisions of the Act in effect on the date of the accident apply.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. The term “accident” is defined in s 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 it not the act of the worker, 

(b) any 

(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.

Worker’s Position

The worker appeared in the hearing on their own behalf, providing an oral submission and testimony through answers to questions posed to them by members of the appeal panel. The worker’s position is that the claim should be accepted as the worker sustained an injury to their shoulder at work in late April 2020 while lifting a heavy pail and placing it on a shelf.

The worker recalled that the injury occurred late in the workday and the employer’s offices were locked so that the worker could not enter to fill out a green card on the date of injury. The worker stated that this happened during their first week on the job and that they took the next day off after waking with pain in their shoulder. The following day, the worker described doing their job “one-handed”. This was followed by a weekend, and on the next working day, the worker stated they tried to do their job but left early that day after telling their supervisor they had hurt their shoulder and would not be coming into work the next day, as they were seeing a doctor.

The worker confirmed that they were unable to see their doctor the next day but that when they did see the physician, they were referred for an MRI study and the doctor diagnosed a torn bicep.

The worker stated that on reporting the injury to the employer after seeing the physician, the employer told the worker it was too late to make a WCB claim because they did not complete the green card at the time of injury and therefore would instead have to seek insurance coverage through the employer’s disability insurance program. The worker stated that they accepted this information and relied on it until early in 2022 when the treating orthopedic surgeon advised the worker that they could make a WCB claim in respect of this injury. The worker confirmed receiving short term disability benefits through the employer’s plan in the interim.

In response to questions posed by members of the appeal panel, the worker noted that the fall at home referenced in some of the medical reporting had resulted in injury to the worker’s right shoulder, whereas this injury at work was to their left shoulder. The worker also confirmed that they had no prior left shoulder injuries or symptoms.

The worker clarified that the injury occurred when they were lifting a full 5-gallon pail of product that weighed approximately 20 kilograms. The worker stated they heard a pop in their shoulder as they were moving a pail onto a storage shelf at about table height and felt a burning sensation in the front and top of their left shoulder. The worker described having to swing the bucket up to the shelf and as they did so, they were gripping the handle above their shoulder height.

In terms of their medical treatment, the worker noted that before seeing the surgeon, they attempted physiotherapy and cortisone injections. Since the surgery, they have been improving daily, with physiotherapy and strength training, but still experience some occasional pain and diminished mobility in that shoulder.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to find on the standard of a balance of probabilities that the worker was injured as a result of an accident arising out of and in the course of employment. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The worker’s position is that their claim should be accepted as they injured themself at work and although a claim was not submitted until some two years later, the employer was aware the worker hurt their shoulder soon after it occurred, and the worker relied on the employer’s advice that a workplace injury report could not be made as the worker reported too late. The panel noted that the worker’s evidence in the hearing as to when the injury occurred is generally consistent with the timeline provided by the employer to the WCB on May 17, 2022 although the worker had poor recall of the specific dates. The employer’s timeline indicated the worker left early on April 22, 2020, called in the next day reporting a sore shoulder, did not work the following day (a Friday), and then returned to work on Monday, April 27, 2020 working a short day. On April 27, 2020 the worker was provided with short term disability forms by the employer and left work after a few hours that day. At the time of making their claim, in early May 2022, the worker stated that the injury occurred “near the end of April 2020 and reported approximately 1 week later.” The worker acknowledged at that time that they were unsure of the specific date, which the panel accepts given that some two years had passed by the time of reporting to the WCB.

The information provided by the employer indicates that the worker’s supervisors and their superintendent denied that the worker reported any injury to them and noted that the worker was aware of the requirement to complete a green card but failed to do so. Further, the employer noted the worker applied for short term disability benefits at that time. The worker testified in the hearing and set out in their initial claim to the WCB that they did not complete a green card at the time of injury as the office was closed and when they reported the injury to the employer on their next day at work, they were told it was too late to complete the green card and that they should apply for disability insurance. The worker testified they were first advised to submit a WCB claim on being assessed by the orthopedic surgeon in early May 2022. The orthopedic surgeon’s report of May 4, 2022 confirms that the worker advised that the injury occurred when lifting heavy pails at work approximately two years earlier, reported to the employer a few days later and that the employer told the worker it was too late to make a WCB claim at that time.

The panel accepts that the employer’s staff did not recall the worker reporting an injury in April 2020, when asked about it by management some two years later. This is the very reason why documenting incident reports at the time they occur is important. In this case, however, the panel accepts that no green card or other incident report was completed at that time, and in fact, the evidence confirms the worker applied for short term disability insurance soon afterward. The panel accepts that while the employer was likely aware of the disability insurance application at that time as indicated by the worker, they may or may not have known any details of the worker’s injury and treatment until making further inquiries in response to the notification of a WCB claim.

As noted in prior adjudication in this matter, there are inconsistencies in the reporting as to the timing and cause of injury, which are likely due in part, at least, to the delayed reporting to the WCB and therefore delayed investigation of the claim by the WCB. The panel however accepts the worker’s testimony that they did not believe they could report this as a workplace accident given the information that they understood the employer to have provided to them and note that this is supported by the worker’s actions in making a late report to the WCB and by information provided by the treating orthopedic surgeon.

The panel accepts and relies upon the medical reporting from the treating family physician, set out in their June 2, 2022 summary narrative report, which confirms the worker reported left shoulder pain on April 22, 2020 in the course of a telephone consultation and that in a further phone consultation on April 28, 2020, the worker described “significant left shoulder pain after lifting a heavy barrel…at work” and that the worker was “in too much pain to continue working” at that time. The physician diagnosed an acute rotator cuff injury or tear and the next day, provided injections into the worker’s left anterior shoulder and sent an MRI request on April 30, 2020. We find this to be the most reliable information as to the nature and cause of the worker’s injury given its proximity to the date of accident.

While we note there are some references in the file to a prior shoulder injury due to a fall at home, the worker explained that they fell on ice at home in the months preceding this accident causing injury to their right shoulder. We accept the worker’s explanation in this regard.

The panel also considered that the medical reporting confirms the continuity of the worker’s left shoulder symptoms, as the worker continued to report such symptoms to their care providers after that date and sought ongoing treatment from their family physician and physiotherapist as outlined in the file evidence. The MRI study from October 11, 2020 indicated both a long head biceps tear and adhesive capsulitis, which resulted in the October 2020 referral to the orthopedic surgeon who the worker ultimately did not see until May 2022. In the interim, the worker was also referred to a sports medicine physician and for nerve conduction studies. As summarized by the treating orthopedic surgeon on May 4, 2022, by that time, the worker had “…ongoing pain that has failed to improve with conservative treatment for two years since [their] workplace injury. [The worker] has been unable to return to work and has ongoing symptoms….”

The panel further noted that although the WCB medical advisor in their opinion of July 7, 2022 disputed the relationship between the worker’s presentation at that time and the workplace injury, they accepted that the reported mechanism of injury in April 2020 “was concordant with a left shoulder strain.” As such, the panel finds that this opinion also supports that the worker likely sustained a left shoulder injury at that time.

On the basis of the totality of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker sustained an injury to their left shoulder arising out of an accident at work on or about April 22, 2020. Therefore the claim is acceptable and the worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of May, 2023