The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits for a right shoulder rotator cuff tear. A hearing was held on May 31, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits for a right shoulder rotator cuff tear in relation to the January 26, 2022 accident.

Decision

The worker is entitled to benefits for a right shoulder rotator cuff tear in relation to the January 26, 2022 accident.

Background

On January 28, 2022, the worker filed a Worker Incident Report with the WCB reporting multiple injuries as the result of an incident at work on January 26, 2022. The worker described:

Slipped on Ice of workplace. Fell and hit my head and back, but because I fell on my head and back, my head is in pain but my neck is very painful.

The worker noted on the Report that she felt dizzy and nauseous after hitting her head and had called in sick for January 27, 2022. The worker sought medical and was told she could return to work on February 4, 2022. The worker further described not being able to move her head or neck without feeling pain.

The WCB received a Doctor First Report for an appointment on January 27, 2022, where it was noted that the worker reported headache, neck pain, and upper and lower back pain after slipping on ice on a driveway at work. The physician recorded slight tenderness in the worker's neck muscles, lower and upper back and decreased range of motion. A diagnosis of a neck strain and upper and lower back strain was provided, and it was noted the worker could return to her regular duties on February 4, 2022.

The employer submitted an Employer's Incident Report to the WCB on January 28, 2022, confirming the mechanism of injury and that the worker was in the course of her job duties on January 26, 2022 when the workplace accident occurred.

On February 2, 2022, the WCB contacted the worker to discuss the claim and gather further information. The worker confirmed she slipped on ice, fell and hit her head and back and did not lose consciousness. The worker noted she stayed at work after the incident and was in pain and feeling dizzy. Her current symptoms were noted to be headache, pain to the right side on the back of her head, neck pain, pain to the mid and lower back and shoulder blades, chills and nausea. The worker noted she was throwing up for approximately two days after the workplace accident. The WCB accepted the worker's claim on February 3, 2022.

On February 2, 2022, the worker attended an initial appointment with her family physician. The report from the treating physician noted the worker's reporting of a headache, neck pain and tenderness, inability to lift her right arm above shoulder height or to lift any weight with her right arm. The physician recorded tenderness on lateral muscles of the neck, tenderness on the worker's upper back, and limited range of motion on lateral elevation and posterior rotation of the worker's right shoulder, with a positive impingement test. The physician diagnosed the worker with a mild concussion, multiple trauma, and possible CTS right shoulder, and referred the worker for an MRI for her head.

In the report of a follow-up appointment on February 16, 2022 with the treating family physician, the physician noted the worker's complaints of mild posterior headache, neck pain with extension, rotation and bending forward, mild upper and lower back pain, inability to laterally elevate right shoulder above shoulder height and limited posterior rotation.

On February 18, 2022, the worker attended an initial chiropractic assessment and reported a constant headache since the January 26, 2022 incident, neck pain and crepitus and right shoulder pain. The chiropractor noted bilateral suboccipital tenderness, lower cervical spine facet joint tenderness, and decreased range of motion in the worker's right shoulder on lateral raise. The chiropractor diagnosed the worker with a cervicothoracic sprain/strain and a right shoulder sprain.

At a follow-up appointment on March 9, 2022, the treating chiropractor noted the worker's reporting of lessening frequency of headaches but continued difficulty concentrating at times. The chiropractor proposed a graduated return to work schedule based on discussions with the worker. On March 17, 2022, following discussions with the worker and the employer, the WCB confirmed to the treating chiropractor that the worker would begin the graduated return to work plan on March 24, 2022.

On March 16, 2022, the worker's treating family physician provided a further report to the WCB. In the report, the physician updated the worker's diagnoses to include post-concussion syndrome and possible rotator cuff strain for her right shoulder. The treating physician noted a positive impingement test for the right shoulder, and changes in concentration and impaired balance with respect to the worker's head injury. The physician noted agreement with the proposed graduated return to work schedule, and indicated that if the worker experienced increased symptoms, she was to rest for at least 30 minutes and if there was no improvement, she was to stop working. At a follow-up appointment on March 30, 2022, the worker's treating physician referred the worker for an MRI of her right shoulder.

On April 7, 2022, the worker's file was reviewed by a WCB sports medicine consultant. The sports medicine consultant opined that the worker's initial diagnoses were a soft tissue injury to the head, neck and back strain, and right shoulder strain, with the current diagnoses being non-specific, non-ominous headaches, non specific neck and back pain and non specific right shoulder pain - pending clarification by the requested MRI. The WCB sports medicine consultant went on to note that it was not probable that the reported mechanism of injury of a fall on the back/head would lead to a structural injury to the worker's right shoulder such as a rotator cuff or labral tear.

On April 21, 2022, the worker underwent an MRI of her right shoulder which indicated "Small full-thickness crescentic insertional tear mid supraspinatus." On April 22, 2022, the worker's treating family physician referred the worker to an orthopedic surgeon for an opinion on further treatment for her right shoulder.

At the request of the WCB, the WCB sports medicine consultant reviewed the worker's file and the April 21, 2022 MRI, and opined on April 28, 2022, that the right rotator cuff tear indicated on the MRI was likely degenerative in nature as the reported mechanism of injury of a fall on the worker's back/head did not support she suffered an acute rotator cuff tear as a result of the January 26, 2022 workplace accident and degenerative changes and tendinosis were also indicated. The consultant noted that the mechanism for an acute rotator cuff tear "…would involve a fall on the outstretched hand or a downward traction injury of the shoulder (i.e. sudden forceful pull)."

A copy of an April 26, 2017 MRI for the worker's right shoulder was obtained and placed on her WCB file on May 16, 2022. The 2017 MRI indicated a "Partial-thickness partial width intratendinous tear supraspinatus tendon measuring 3 x 4 mm" and "Mild lateral acromial downsloping." On May 20, 2022, the WCB advised the worker that responsibility for her right shoulder rotator cuff tear would not be accepted as it was determined the worker had a pre-existing rotator cuff tear and the mechanism of injury of the January 26, 2022 workplace accident would not have resulted in a rotator cuff tear.

On June 2, 2022, the worker requested that Review Office reconsider the WCB's decision. In her submission, the worker noted that after she fell, the client who observed her fall attempted to help her up, pulling on her right arm "a couple of times." The worker further advised she had fallen on her shoulder, which the worker noted could be confirmed by witnesses to the workplace accident. The worker also noted she sustained an injury to her right shoulder on November 27, 2016, which was treated with physiotherapy and did not require surgery, and since that time, she had experienced no right shoulder difficulties until the workplace accident. On July 15, 2022, the employer provided a submission in support of the WCB's decision.

On August 4, 2022, Review Office determined that the worker was not entitled to benefits for a right shoulder rotator cuff tear. Review Office found the worker had a pre-existing degenerative right shoulder rotator cuff tear, which would have become worse due to the degenerative process. Review Office further found the mechanism of injury of the January 26, 2022 workplace accident, as reported by the worker, was not the type of fall that would typically produce or aggravate a rotator cuff tear. Review Office also found the worker did not complain of immediate rotator cuff symptoms after the accident, which supported the tear or worsening of the pre-existing supraspinatus tear was not as a result of the workplace accident.

On August 31, 2022, the worker's treating family physician submitted a letter to Review Office in support of the worker's request for reconsideration. The physician indicated the right shoulder injury was initially noted on February 2, 2022, and opined that the workplace accident caused a change from a partial thickness tear to a full tear of the supraspinatus. On September 2, 2022, Review Office advised the worker that the medical information had been reviewed but there would be no change to their August 4, 2022 decision that she was not entitled to benefits for a right shoulder rotator cuff tear.

On November 15, 2022, a worker advisor appealed the Review Office decision to the Appeal Commission on the worker's behalf, and an oral hearing was arranged.

Reasons

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act states, in part, that the WCB "…may provide to a worker who is or may be entitled to compensation…any medical aid the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker…"

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as a worker's loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:

The Workers Compensation Board (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 "personal 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 are determined to be arising out of and in the course of employment.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor, who filed a written submission, together with supporting documentation, in advance of the hearing, and made an oral presentation at the hearing. The worker was provided with the services of an interpreter, and provided testimony in response to questions from her representative and the panel. The worker's representative also responded to questions from the panel.

The worker's position, as outlined by her representative, was that the January 26, 2022 workplace accident caused the enlargement of the worker's right shoulder rotator cuff tear, and the WCB is responsible for the resulting outcome.

The worker's representative noted at the outset that they were largely relying on their written submission in support of their position on the appeal.

The worker's representative submitted that there were two mechanisms of injury in this case: the worker slipping on ice, falling, and landing to her right side, where multiple body areas made contact with the driveway; and the worker being helped back to her feet by a client of the facility pulling her right arm. It was submitted that either of these mechanisms could have caused the worker's pre-existing partial supraspinatus tear to become a full thickness tear, and the WCB is therefore responsible for this outcome.

The worker described the January 26, 2022 workplace incident at the hearing. The worker testified that she slipped and fell on the ice on the driveway at work after getting out of a taxi. When she fell she hit her head first, then the right side of her body. She was lying on the ground for a couple of minutes when the client came and tried to help her up. The client was very strong, and the first time he went to help her up he grabbed her right hand only and pulled but he could not get her up. After that, he went back a couple of steps, "…then came and he grabbed me with his two hands my hand, and he pulled me very strongly. I fly like a paper and then I stand up…" The worker said she felt very faint after and told the client "…you almost take out my air."

The worker's representative referred to an August 30, 2022 report from an occupational health physician (OHP), which had been provided in advance of the appeal. The representative submitted that the OHP's opinion, after reviewing the worker's claim files, and interviewing and examining the worker, was that the worker's fall to the ground, creating an impact to the right shoulder, likely caused the increase in the size of the worker's pre-existing supraspinatus tear. The representative noted that the worker's family physician, who examined the worker one week after the accident, also wrote to the WCB in August 2022 to express their opinion that both mechanisms of injury were responsible for the enlargement of the rotator cuff tear. The representative asked that the panel attach significant weight to the opinions of the OHP and the family physician in deciding the issue on appeal.

The worker's representative submitted that the panel should attach no weight or less weight to the WCB sports medicine consultant's causation for several reasons, including that the consultant had only addressed one of the two mechanisms of injury and therefore did not sufficiently address causation.

The worker's representative submitted that a hand written communication log which the worker had obtained from her coordinator and was also provided in advance of the hearing corroborated that a client tried to help the worker. The representative submitted that in sum, this mechanism of injury was more likely than not capable of causing enlargement of the rotator cuff tear.

The worker's representative submitted that the worker's concurrent injuries drew initial attention away from the right shoulder, and reasonably explained the absence of specific notation about the right shoulder from within the accident report forms and first medical report.

The worker's representative further submitted that the WCB adjudicators' investigations into the mechanism of injury and what the worker experienced after were incomplete. It was noted among other things, that no attempt was made to communicate with a co-worker who the worker came into contact with over the remainder of her work shift.

In conclusion, the worker's representative submitted that to uphold the Review Office decision, the panel would have to be satisfied that after several years of engaging in full-time, unrestricted work in a symptom-free manner, the worker's full-thickness rotator cuff tear occurred spontaneously, and suddenly, became symptomatic on the same day as, or within at most week of, an accident involving two mechanisms of injury that are both capable of causing acute rotator cuff tearing.

Applying the "but for" test, "but for the worker falling to the ground and making contact with the right shoulder, as well as having her right arm forcefully pulled by a client, the worker's" right shoulder would not have become symptomatic; the worker would not have sought medical attention and thereafter been referred in a matter of weeks for an MRI to review for a rotator cuff tear; and the April 2022 MRI would unlikely have shown an enlarged tear in the absence of other degenerative tears. In conclusion, the worker's representative asked that the panel grant their appeal, because the evidence favours the workplace accident being the most likely cause of the worker's enlarged rotator cuff tear.

Employer's Position

The employer was represented by its WCB Coordinator, who participated in the hearing by videoconference. The employer's representative made a submission at the hearing, and responded to questions from the panel.

The employer's position was that Review Office's August 4, 2022 decision that the worker is not entitled to benefits for a right shoulder rotator cuff tear was made in keeping with the Act and WCB policies, and the decision should be upheld.

The employer's representative submitted that the first description of when the client helped the worker up is not mentioned until June 2, 2022, when the worker submitted an appeal letter to Review Office. The representative noted that this description of events came after the worker would have received the WCB's May 20, 2022 letter advising that the WCB was not accepting responsibility for a right rotator cuff tear in relation to the January 26, 2022 accident.

The employer's representative submitted that if the client pulled on the worker's right arm as described to the OHP, causing the tear noted on the April 21, 2022 MRI, the worker would have been immediately aware of the injury given the significant pain which typically follows this type of injury.

The employer's representative submitted that the two medical opinions that the worker's representative had referred to were based on two mechanisms of injury that were not described until considerably later in the file.

The employer's representative submitted that based on the information on file, the worker is not entitled to additional benefits for a right shoulder injury, as a causal connection cannot be established between the January 26, 2022 workplace accident and the current diagnosis of right rotator cuff tear. The representative submitted that this is supported by the file, which confirms that the worker did not immediately make a complaint of a right shoulder injury in her initial reporting during the initial medical examination or in conversation with the WCB.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits for a right shoulder rotator cuff tear in relation to the January 26, 2022 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right shoulder rotator cuff tear was causally related to her January 26, 2022 workplace accident. The panel is able to make that finding, for the reasons that follow.

The panel accepts the worker's evidence and description at the hearing of the workplace accident. The panel notes that two mechanisms of injury are indicated: the worker slipping on ice, falling, and landing on her right side, where multiple body areas made contact with the driveway; and the worker being helped back to her feet by a client of the facility pulling her right arm. The panel has considered both of these mechanisms of injury, and is satisfied, on a balance of probabilities, that the worker was subjected to a forceful pulling motion, where the client was trying to help her get up, and that this would likely have caused the full tear which was identified on the April 21, 2022 right shoulder MRI.

The panel notes with respect to the WCB sports medicine consultant's April 28, 2022 opinion, the only mechanism of injury which was before the consultant at that time was where the worker fell on her back and head. Based on the available information, the consultant referred to degenerative changes on the April 21, 2022 MRI, and noted that the rotator cuff tear could be degenerative but added that:

If acute, in relation to an injury, the mechanism would involve a fall on the outstretched hand or a downward traction injury of the shoulder (i.e. sudden forceful pull). The reported mechanism on January 26, 22 however, is a fall on her back/head (Jan. 26/22 worker's accident report, Feb. 2/22 initial contact memo).

The consultant went on to conclude that "An acute right rotator cuff tear does not appear to be consistent with the January 26/22 workplace injury."

The WCB consultant therefore did not consider the mechanism of the worker having been pulled forcefully pulled back to her feet, nor does she appear to have considered the April 26, 2017 MRI, which was placed on the claim file subsequent to her opinion, on May 16, 2022.

The panel further notes that while the worker had a prior shoulder injury in November 2016, the panel is satisfied that the evidence indicates that the worker's right shoulder symptoms had fully resolved within a year following that injury and the worker had continued to work full-time, without difficulties, for several years after that, and remained asymptomatic up until the time of her workplace accident.

Based on the evidence, the panel is further unable to find that the evidence supports that the worker's rotator cuff tear as shown on the April 21, 2022 MRI is degenerative, or due to a progression of degenerative disease or progression of the partial tear which was identified on the April 26, 2017 MRI. In this regard, the panel places weight on the OHP's August 30, 2022 report, where the physician noted that:

There is no clinical indication that the partial tear progressed. Her latest April 21, 2022 MRI right shoulder report does not mention supraspinatus tendinosis (described as mild in 2017) and there is no atrophy or fatty infiltration of the rotator cuff musculature that often accompanies longstanding rotator cuff tears.

In these circumstances, the panel acknowledges the worker suffered a rotator cuff tear in the environment of a shoulder which was previously diagnosed as degenerative as far back as 2017, and that the January 26, 2022 workplace accident caused an enhancement or enlargement of the worker's right shoulder rotator cuff tear.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right shoulder rotator cuff tear is causally related to her January 26, 2022 workplace accident. The worker is therefore entitled to benefits for a right shoulder rotator cuff tear in relation to that accident.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of July, 2023