The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after April 13, 2021. A hearing was held on September 7, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after April 13, 2021.

Decision

The worker is entitled to benefits after April 13, 2021.

Background

On January 6, 2020, the WCB received a Worker Incident Report that indicated the worker was injured at work on December 23, 2019 when they slipped and fell, landing on their right arm and shoulder. The worker noted they continued working, except on December 24, 2019, despite being in a lot of pain and hardly able to move their arm.

After the accident, the worker sought medical treatment at the local emergency department, where an x-ray did not indicate any obvious fracture. The treating physician diagnosed right rotator cuff injury, provided a sling, and recommended follow-up with a nurse practitioner. On December 24, 2019, the nurse practitioner assessed the worker, recording their complaint of pain and decreased range of motion in the right shoulder. The treating nurse practitioner noted tenderness over the right lateral shoulder and decreased range of motion, and that an MRI was pending.

When the WCB spoke with the worker on January 6, 2020, the worker confirmed the mechanism of injury and that a co-worker witnessed the fall. The worker further confirmed they returned to work on December 30, 2019, with an MRI scheduled for January 17, 2020. The MRI study revealed “Complete full-thickness tears of the supra and infraspinatus tendon with moderate muscle atrophy and fatty infiltration.” In follow-up on January 24, 2020, the treating nurse practitioner referred the worker to an orthopedic surgeon and recommended the worker restrict their lifting.

A WCB medical advisor reviewed the worker’s file and available medical reporting on January 25, 2020, and concluded that the MRI findings did not indicate any acute changes in the worker’s shoulder and that the worker sustained a strain to their rotator cuff in the environment of pre-existing rotator cuff tearing. The WCB medical advisor further noted that a fall onto a shoulder could aggravate a pre-existing tear and recommended treatment with anti-inflammatory medication and physiotherapy. On February 4, 2020, the treating nurse practitioner requested clarification of the WCB medical advisor’s opinion, which clarification was provided on February 6, 2020.

On assessment of the worker on March 25, 2020, the orthopedic surgeon concluded the worker had an “…acute on chronic injury with documented chronic cuff tear, but acute pain and significant dysfunction since the work-related injury.” The surgeon recommended rotator cuff repair surgery. On March 27, 2020, the WCB documented that after a review by the medical advisor, the worker’s claim was accepted for aggravation of a pre-existing rotator cuff tear, and on March 30, 2020, the WCB authorized the treating orthopedic surgeon to proceed with the rotator cuff repair surgery.

On April 20, 2020, the employer advised the WCB that the worker’s term position concluded as of February 21, 2020. In discussion with the worker on April 23, 2020, the WCB advised that, due to their term position ending, the worker was not entitled to wage loss benefits as their loss of earning capacity was due to the employment ending and not the compensable injury, but confirmed that for a period after the surgery, they would be entitled to wage loss benefits, the duration of which would be determined by the WCB. The surgery took place on July 24, 2020. As outlined in the surgical report, the surgeon noted the worker had a “Massive retracted irreparable rotator cuff tear” and a right shoulder arthroscopy with a biceps tenotomy and acromioplasty were performed. On reviewing the surgical report and the worker’s file on July 27, 2020, the WCB medical advisor noted recovery from the surgery was expected in two to three months, with post-operative treatment including early range of motion exercises followed by progressive resistance exercises directed by a physiotherapist. The advisor opined that due to the extensive nature of the worker’s rotator cuff tear, full recovery would not be achieved. After follow-up with the worker on August 20, 2020, the surgeon reported the worker was “doing fairly well” and their pain was settling and the wounds from the surgery were healed. The surgeon recommended the worker begin physiotherapy.

On initial physiotherapy assessment on September 11, 2020, the physiotherapist noted the worker was post-operative from an inoperable rotator cuff tear and with positive testing for Speed’s and empty can tests. The physiotherapist outlined restrictions of no use of the right arm outside of the body envelope and a carrying limit of up to 10 pounds at waist height. The worker continued with physiotherapy, and by March 26, 2021, the physiotherapist noted the worker had “plateaued” in their treatment, recommending the worker continue with range of motion and functional strengthening exercises, and outlined restrictions of limited use of right arm overhead and carrying below shoulder height limited to 5-10 pounds.

On April 5, 2021, a WCB medical advisor reviewed the file and concluded the worker’s presentation as noted on the physiotherapist’s discharge report was consistent with a “…chronic cuff tear…” regardless of the worker having an aggravation. The medical advisor stated their view that the December 23, 2019 aggravation of the worker’s pre-existing condition would have resolved with the surgery and physiotherapy and as such, the worker’s ongoing difficulties were related to their pre-existing rotator cuff tear.

On April 7, 2021, the WCB advised the worker that it determined they recovered from the injury sustained in the workplace accident and they were entitled to benefits through April 13, 2021. The WCB confirmed their discussion with the worker by way of letter dated April 23, 2021.

On August 23, 2021, the worker requested that Review Office reconsider the WCB’s decision, indicating they had no right shoulder difficulties before the workplace accident but now continued to experience difficulties. On September 28, 2021, Review Office upheld the WCB’s decision the worker was not entitled to benefits after April 13, 2021, relying upon the opinion of the WCB medical advisor and the evidence that the worker’s post-surgical issues resolved by April 13, 2021.

The worker filed an appeal with the Appeal Commission on May 16, 2023 and a hearing was arranged.

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.

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, 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 Pre-existing Policy includes the following definitions: 

• 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 in the hearing by a worker advisor who made an oral submission on behalf of the worker. The worker was present and offered testimony through answers to questions posed by their representative and by members of the appeal panel. The worker’s spouse was also present as a support to the worker.

The worker’s position is that the evidence confirms they continued to experience a loss of earning capacity and to require medical aid in relation to the compensable workplace injury of December 23, 2019 beyond April 13, 2021 when the WCB terminated their benefit entitlements, and therefore, they are entitled to benefits after April 13, 2021.

The worker advisor noted that there is no evidence of any prior complaints or symptoms in respect of the worker’s right shoulder and disputed the employer’s comment in the file as to the worker not fully meeting their job responsibilities before the accident occurred. The worker advisor pointed out that the worker’s term position, which began in August 2019, was renewed in early December 2019, prior to the accident and queried why the employer would have done so if the worker was not adequately completing their job duties.

The worker advisor posed questions to the worker as to their job duties that involved the use of their upper limbs. The worker testified to using their arms to sweep, vacuum and scrub floors, clean and dust, and stack furnishings. The worker indicated that after the accident, they felt “tremendous pain” and were unable to lift their right arm at all, but noted that with physiotherapy, they were eventually able to raise their arm almost to shoulder level. The worker explained that after the injury they only took one day off, as they needed the income and hoped to get their job, which was a term position at that time, on a permanent basis. After the accident, the worker explained that they were able to complete their duties by adapting how they did them, relying mostly on their left arm, or using other body parts, such as their hip for support. The worker stated that they remain unable to return to the kind of work they did before the accident and are currently unemployed.

The worker further explained that they underwent further surgery recently and remain in a sling as part of the recovery process from that procedure. The worker stated that their treating surgeon predicted they could recover up to 85% of their pre-accident function with this procedure.

The worker advisor noted that the WCB accepted the proposed rotator cuff repair surgery as compensable, and later confirmed that the biceps tendon dislocation was also related to the workplace injury. The worker advisor stated that the reporting from the treating orthopedic surgeon confirmed the worker sustained an “acute on chronic” injury, and noted the surgeon’s view, set out in their October 26, 2022 opinion, that the workplace accident exacerbated the worker’s pre-existing condition. The worker advisor also relied upon the May 11, 2022 opinion of the consulting physician with an interest in occupational health as supporting the worker’s position that their pre-existing rotator cuff tear was enhanced because of the workplace accident. The worker advisor further noted that the March 26, 2020 opinion of the WCB medical advisor confirms that, but for the workplace injury, the worker would not have required surgery and that the medical advisor also confirmed that it is not uncommon for a rotator cuff tear to be asymptomatic. In reference to the June 14, 2023 examination for purposes of establishing a permanent partial impairment rating, the worker advisor also noted that permanent deficits were found in the worker’s right shoulder mobility and function at that time.

The worker advisor also submitted that, in the event the panel does not agree that the worker is entitled to further benefits, the worker’s benefits should nonetheless be extended beyond April 13, 2021 as the WCB failed to properly advise the worker of the decision to terminate benefits until April 22, 2021 when a formal decision letter was provided outlining the reasons for the decision to terminate wage loss benefits as of April 13, 2021.

In response to questions posed by the appeal panel, the worker elaborated on their specific pre-accident job duties and the physical requirements of those duties. The worker further confirmed that they regularly golfed prior to this accident, including as recently as the fall of 2019, but have been unable to return to the sport since the accident.

In sum, the worker’s position is that as a result of the compensable workplace accident, their pre-existing rotator cuff condition was permanently worsened, resulting in the need for surgical repair and treatment, and that they continued to sustain a loss of earning capacity and to require additional medical treatment related to that injury beyond April 13, 2021. But for the workplace accident, the worker’s right shoulder condition would have remained asymptomatic and would not have caused the impairment and dysfunction that continues to this date. For these reasons, the worker should be entitled to benefits after April 13, 2021 and the appeal should be granted.

Employer’s Position

The employer did not participate in the hearing of the worker’s appeal.

Analysis

The question for the panel to determine is whether the worker is entitled to benefits after April 13, 2021. For the worker’s appeal to succeed, the panel would have to determine that the worker’s continuing difficulties beyond that date are causally related to the injury sustained in the compensable workplace accident of December 23, 2019. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

This appeal arises from the worker’s claim of injury that occurred when they slipped and fell while in the course of their employment, landing on their right shoulder. The worker’s testimony confirms the worker is right-handed, and that they did not have any prior right shoulder symptoms or complaints. This is further confirmed by the evidence of the treating family physician and by the evidence that the worker was able to undertake and complete the physical demands of their job before the accident. The panel noted the worker’s testimony that their job duties involve various activities that engage both arms and include reaching above shoulder level to undertake some tasks. The worker also testified that they were an avid golfer, but with a left swing, and golfed throughout the season preceding the accident, and the panel notes that the activity of golfing also engages both arms and shoulders.

Although there is a lack of evidence before the panel that the worker had any prior right shoulder complaints or injury, the medical reporting post-accident supports a finding that the worker had previously sustained some degree of tearing to their right rotator cuff. The diagnostic evidence includes the worker’s January 17, 2020 MRI study of their left shoulder, which indicated a complete, full-thickness tear of the supraspinatus and infraspinatus with retraction to the glenohumeral level, moderate atrophy and fatty replacement of the supraspinatus and infraspinatus tendons and mild fatty infiltration of the subscapularis and teres minor. The WCB medical advisor opined that these findings are “concordant with longstanding pre-existing rotator cuff tearing” and the panel noted that the treating orthopedic surgeon stated on September 15, 2020 that “In view of the MRI and surgical findings, as well as [the worker’s] symptoms with an injury in December and significant exacerbation of [their] problem at that point…this is an acute on chronic problem with exacerbation of a pre-existing problem.” The panel accepts and relies upon these opinions and finds that the worker had pre-existing rotator cuff tearing, the extent of which cannot be known or determined although the evidence indicates that the worker had no symptoms of such an injury prior to this accident.

The panel considered that the Pre-existing Policy outlines 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, but when the worker has recovered from the workplace injury to the point it is no longer materially contributing to the worker’s loss of earning capacity and the pre-existing condition has not been enhanced as a result of the compensable injury, the loss of earning capacity is not the responsibility of the WCB. The panel therefore considered if there is evidence that the worker recovered from the compensable workplace injury to such a point, or if there is evidence that the worker’s pre-existing condition has not been enhanced because of the compensable injury.

The panel noted that after the worker’s right rotator cuff tearing was identified by MRI imaging, the WCB medical advisor concluded on January 25, 2020 that the compensable diagnosis was “…strain to the cuff in the environment of pre-[existing] cuff tearing.” While noting that such a strain would “typically settle over 2-3 months”, the medical advisor acknowledged that the pre-existing injury “could prolong” the worker’s recovery. In a later memorandum to file dated March 26, 2020, the WCB medical advisor noted that since the worker’s accident, they have had “pain, loss of mobility, and weakness of the cuff” and that the worker “was not heading toward surgery before this injury and the [mechanism of injury] could have aggravated the tear….” The medical advisor went on to conclude that this would support the need for surgery as a result of the compensable injury. The panel also considered that when the proposed surgery took place on July 24, 2020, the surgeon concluded the cuff tear could not be repaired and instead performed a bicep tendon tenotomy and acromioplasty. After the surgery, the WCB medical advisor provided a further opinion on July 27, 2020 that:

“The claim was thought to be an aggravation of a pre-x cuff tear. The MRI didn’t show the dislocation of the biceps but it was noted at the time of the surgery. Bicep involvement is often seen in association [with] cuff tears, so this would be part of the aggravation of the pre-x and the tenotomy would be funded as related to the claim…. Full recovery of this shoulder will not take place due to the extensive nature of the cuff tear.”

The worker submits that their continuing left shoulder issues after April 13, 2021 relate directly to the effect of the injury sustained in the workplace accident upon their pre-existing right rotator cuff tear, and that as predicted by the WCB medical advisor, they have not fully recovered from the effects of that acute injury on their pre-existing shoulder condition, which was more likely than not enhanced by the workplace injury. The panel finds that evidence supports the worker’s position that they were not fully recovered from the workplace injury by April 2021, despite numerous post-operative physiotherapy treatments over the course of several months leading up to that time. As noted in the treating orthopedic surgeon’s November 17, 2020 report to the WCB, the worker was expected to experience “permanent deficits” although some additional improvements in range of motion and function were still possible, and consistent with those expectations, when the worker was discharged from physiotherapy in March 2021 due to a plateau in their treatment, the treating physiotherapist outlined ongoing restrictions related to overhead use of their right arm and carrying ability below shoulder height. The WCB medical advisor’s view, however, as set out in an opinion dated April 5, 2021, was that the worker’s continuing limitations, as described in the most recent physiotherapy assessment, were “quite consistent with a chronic cuff tear regardless of whether [the worker] had an intervening aggravation. The effects of the aggravation would have resolved with the surgery and rehab. Ongoing is more likely related to the underlying (pre-x) cuff tear.”

While the WCB medical advisor was able to conclude that the worker “would have” returned to their baseline in terms of function and symptomatic presentation by early April 2021, the treating medical professionals did not come to the same conclusion. The treating nurse practitioner wrote on April 18, 2021 that “Since that acute injury and resulting surgery, [the worker] has NOT regained the full use of [their] arm. [The worker] does not have full range of motion. … [The worker] also has continued pain with certain movements. I do not believe that [their] remaining disability is from [their] chronic injury; otherwise [the worker] would have returned to [their] base function.” In a report dated October 26, 2022, the treating orthopedic surgeon reiterated that “…it is most likely that the work-related accident of September (sic) 23rd, 2019 exacerbated a previous condition of rotator cuff tear…. [The worker] did have significant increase in pain, loss of motion, and weakness and dysfunction as of that work related injury.” The panel is satisfied that the evidence, on balance, supports a finding that the worker’s pre-existing rotator cuff condition was permanently and adversely affected, or enhanced, by the compensable workplace injury. This finding is supported by the opinions of the treating physiotherapist and treating orthopedic surgeon, and by the WCB medical advisor’s March 26, 2020 opinion in support of the decision to fund the proposed rotator cuff repair surgery in which they confirmed that the worker was not heading to surgery before the injury occurred. While the medical advisor concluded that the worker’s pre-existing condition was aggravated by the workplace injury, the panel noted that the Pre-existing Policy defines aggravation as a temporary clinical effect on a condition, but the evidence here supports a finding that there was a permanent change in the worker’s symptoms and function, arising from the workplace accident. As such we are satisfied that the worker’s pre-existing right shoulder condition was enhanced as a result of the compensable injury and is therefore compensable.

The evidence before the panel confirms that the worker continued to require medical aid in relation to the enhancement of their pre-existing right shoulder condition after April 13, 2021, and further, that the worker sustained a further loss of earning capacity beyond that date, related to this condition, the details of which are yet to be determined and adjudicated by the WCB.

On the basis of the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that the worker is entitled to benefits after April 13, 2021. Therefore, the worker’s appeal 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 15th day of September, 2023