The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. The worker’s left arm, elbow, shoulder, and neck difficulties are related to the November 22, 2022 accident; and 

2. The worker is entitled to wage loss benefits in relation to injuries sustained on November 22, 2022.

A hearing was held on September 13, 2023 to consider the employer's appeal.

Issue

1. Whether or not the worker’s left arm, elbow, shoulder, and neck difficulties are related to the November 22, 2022 accident; and 

2. Whether or not the worker is entitled to wage loss benefits in relation to injuries sustained on November 22, 2022.

Decision

1. The worker’s left arm, elbow, shoulder, and neck difficulties are related to the November 22, 2022 accident; and 

2. The worker is entitled to wage loss benefits in relation to injuries sustained on November 22, 2022 through to their return to work on December 12, 2022.

Background

In a Worker Incident report provided to the WCB on November 28, 2022, the worker reported injuries to their left shoulder, left arm and fingers as the result of an incident at work on November 22, 2022. The worker described that a heavy plastic roll fell onto their hand and that they reported the incident to their supervisor the same date. The worker indicated they attempted light duties afterward and did so again on November 23, 2022 and for two hours on November 24, 2022 before seeking medical treatment.

The worker saw a family physician on November 25, 2022 reporting a tender left shoulder, arm and hand with movement and a swollen and tender left middle finger after a fall at work on November 22, 2022. On examining the worker, the physician noted full range of motion but tenderness in the worker’s left shoulder, arm and hand when moving into certain positions and a swollen, tender left middle finger. Range of motion in the worker’s neck was intact and their left hand was noted to be neurovascularly intact. The physician diagnosed left shoulder, arm and finger sprain and requested an x-ray of the worker’s left thumb. The physician provided a medical note indicating the worker should remain off to December 11, 2022 and return to work from December 12 to 31, 2022 on “modified duties as 4 hours per shift – and not to use left hand – and to use RT hand as pushing pulling lifting not more than 10 pounds.”

The worker attended an initial chiropractic assessment on November 28, 2022, reporting an injury to their left wrist, hand and shoulder that happened when they lost control of a plastic roll overhead, which fell onto their hand, jamming the left wrist and hand into extension and shoulder into external rotation. The worker reported sharp pain in their neck, ache in shoulder, burning tight pain down their arm, pins and needles in the left hand, worse in their middle finger. The chiropractor diagnosed a left wrist sprain, left rotator cuff strain and ulnar nerve and cervical spine strains, and recommended the worker remain off work.

On December 2, 2022, the employer filed an Employer’s Accident Report with the WCB indicating the worker injured their left shoulder, left arm and fingers but that there were “No reports of an incident that occurred in the workplace.” Further, the employer noted “Worker stated it was non-work related, sought medical attention and has applied to short term disability.” At follow-up with the treating chiropractor on December 2, 2022, the chiropractor recommended the worker could return to work on light duties on December 12, 2022.

When the WCB contacted the worker on December 5, 2022, the worker clarified the mechanism of injury, noting they were in the process of changing out a plastic roll when the roll fell, they put up both hands to protect themselves and the roll struck their left hand. The worker stated they felt a sharp pain from their left hand, up to their left shoulder and neck area. Further, the worker noted there were two coworkers who witnessed the incident. The worker advised they continued to work on light duties after the incident on November 22, 2022 and attempted to work through their injury on November 23, 2022 and November 24, 2022, before seeking medical treatment on their day off on November 25, 2022 due to increased symptoms. The worker confirmed the injury happened at work and they had not applied for other disability insurance. Further, the worker noted the employer had not provided any functional ability form for completion by their treating healthcare provider.

On December 5, 2022, the WCB also spoke with the employer who advised that the worker did not mention a specific incident or injury. The WCB requested contact information for the worker’s supervisor and coworkers who witnessed the incident. The employer contacted the WCB again on December 6, 2022 to advise the worker was provided with an Occupation Fitness Evaluation form on November 24, 2022 to be completed by their physician, but the worker had not provided the completed form. The employer confirmed they offered the worker suitable one-handed light duties, but the worker declined that offer.

When the worker attended physiotherapy on December 21, 2022, the treating physiotherapist noted swelling and tenderness, along with pain on wrist flexion and weakness in the worker’s left middle finger. The physiotherapist diagnosed acute left middle finger flexor tendinopathy and recommended continuing with 4-hour shifts of right-handed duties only.

On December 29, 2022, the WCB spoke with the worker’s supervisor who confirmed they were aware of an incident occurring and the worker advised them they were getting pain in their arms from having to reach at work. On January 5, 2023, the WCB advised the employer that the worker’s claim was accepted. The WCB advised the employer they had spoken with the worker’s supervisor who advised they were aware of an incident that occurred on November 22, 2022, with the employer again advising they did not have anything on file regarding an incident on that date. The employer confirmed the worker was working four hours per day as recommended by the treating healthcare providers.

On the same date, the WCB advised the worker that their claim was accepted.

At physiotherapy on January 19, 2023, the worker reported left middle finger swelling improved, with continued soreness along the middle finger into their palm, but that they were better able to close their fingers to make a fist. The physiotherapist noted swelling from the mid palm into the left middle finger, with tenderness to palpitation along the path of the flexor tendon, mild pain with isolated flexion of the middle finger and reduced grip strength on the right. The physiotherapist recommended the worker increase their hours to 8-hour shifts with restrictions of regular light use of left hand permitted, occasional lifting no more than 5 kilograms and limit powerful grasp and carry with left hand. A January 18, 2023 report from the worker’s treating family physician confirmed the worker could work 8 hours per shift. The WCB provided the restrictions to the employer on January 20, 2023.

On January 25, 2023, the worker confirmed to the WCB they had returned to full hours on January 19, 2023 with modified duties. At an appointment on February 16, 2023, the physiotherapist noted the worker was attempting to return to the full regular duties at their regular 10 hour shifts and on March 2, 2023, the treating physiotherapist cleared the worker to return to their full regular duties and hours.

On March 7, 2023, the employer’s representative requested Review Office reconsider the WCB’s decision that the worker was entitled to benefits for left arm, elbow, shoulder and neck difficulties and wage loss benefits. The representative submitted the mechanism of injury could not have caused the extent of injuries reported by the worker. Further, the representative noted the employer offered one-handed modified duties, but the worker advised they were unable to perform the duties offered. The employer’s representative indicated the medical evidence did not support the worker was totally disabled and as such, the worker would have been capable of performing the offered modified duties.

On March 22, 2023, Review Office determined the worker was entitled to benefits for left arm, elbow, shoulder and neck difficulties and wage loss benefits. Review Office accepted the medical reports on file from the treating family physician and treating chiropractor. Review Office found the employer offered the worker one-handed modified duties on December 6, 2022 but noted that the treating healthcare providers authorized time off work, with the treating family physician recommending a return to work, at four hours per shift, on December 12, 2022, at which time the worker returned to work. Review Office further found the worker followed the direction of their treating healthcare providers to remain off work, then return on modified hours and duties, with the employer providing suitable accommodated duties.

The employer’s representative filed an appeal with the Appeal Commission April 12, 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.

A worker who has sustained an injury by accident arising out of and in the course of employment is entitled to compensation under s 4 of the Act, including wage loss benefits for any loss of earning capacity resulting from the accident on any working day after the day of the accident.

Section 22 of the Act sets out the responsibilities of every worker to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, to seek treatment that promotes their recovery and cooperate with the board in relation to return to work, rehabilitation, and disability management program as necessary to promote their recovery.

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.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and provided answers to questions posed to them by members of the appeal panel.

The employer’s position is that the evidence does not establish that the worker sustained injuries to their left arm, elbow, shoulder, and neck in the workplace accident of November 22, 2022, and further, that the evidence does not support a finding that the worker was disabled from all employment after the date of accident, given the employer’s offer of appropriate one-handed duties that accommodated the worker’s accident-related restrictions.

The employer’s advocate submitted that the mechanism of injury described by the worker could not have caused the extent of the injuries claimed by the worker, noting the worker’s statement that the plastic roll fell only onto their left hand, but also caused injuries to their left arm, elbow, shoulder, and neck. The advocate pointed to the x-ray findings which did not indicate a fracture in the worker’s hand and stated that as such, the accident resulted in no more than a soft tissue finger injury.

The employer’s advocate further noted that that the employer offered appropriate right-hand only duties to the worker immediately after being advised of the injury, and that the worker undertook those duties on the date of accident, on the next day and for a few hours the day after that. The advocate noted the evidence that the employer offered these job duties to the worker again after they were initially removed from work, and these were the same duties that the worker returned to on December 12, 2022 with the support of the worker's treating medical providers. The advocate stated the employer provided the worker with a functional abilities form on November 24, 2022 but the worker did not have their physician complete it. The advocate submitted that the evidence does not support a finding that the worker was totally disabled from all work at any time after the accident, nor that there was any reason why the worker should return to work on a limited-hour basis. As such, the employer’s position is that the worker failed to mitigate their loss of earning capacity by returning to the offered modified duties at full hours as soon as possible, and therefore, they should not be eligible for wage loss benefits.

In sum, the employer’s position is that the WCB incorrectly provided treatment to the worker for injuries beyond the scope of the worker’s compensable left-hand injury, for injury to the worker’s left arm, elbow, shoulder, and neck, and that the worker could perform the modified duties repeatedly offered by the employer. For these reasons, the panel should find that the worker’s left arm, elbow, shoulder, and neck difficulties are not related to the November 22, 2022 accident and the worker should not be entitled to wage loss benefits in relation to the injuries sustained in that accident.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The employer’s appeal is in respect of the WCB’s decisions that the worker’s left arm, elbow, shoulder, and neck difficulties are related to the compensable workplace accident of November 22, 2022, and that the worker is entitled to wage loss benefits in relation to that accident. For the appeal to succeed, the panel would have to determine that these difficulties are not a result of the workplace accident, and further, that the worker has not experienced a loss of earning capacity as a result of their injury. As detailed in the reasons that follow, the panel is satisfied that the worker’s left arm, elbow, shoulder, and neck difficulties are related to the November 22, 2022 accident and that the worker is entitled to wage loss benefits in relation to injuries sustained on November 22, 2022 until their return to work on December 12, 2022. Therefore, the employer’s appeal is granted in part.

Are the worker’s left arm, elbow, shoulder, and neck difficulties related to the November 22, 2022 accident? 

In considering whether the worker’s left upper limb and neck difficulties relate to the workplace accident, the panel reviewed the initial accident reporting and noted that the employer reported an injury to the worker’s left shoulder, left arm and fingers, but that it was not work-related. In further communication with the WCB on December 6, 2022, an employer representative stated the worker “originally disclosed the soreness to [their] left arm/hand” was not work related. The worker’s report of November 28, 2022 indicates injury to their left shoulder, left arm and fingers after a “quite heavy” plastic roll fell onto their hand. In providing further information to the WCB on December 5, 2022, the worker indicated that when the roll struck their left hand, they “Felt sharp pain run up from left hand to left shoulder and neck.”

The panel also reviewed the medical reporting, noting that the Doctor First Report, provided to the WCB on November 26, 2022 outlined injuries to the worker’s “left shoulder – arm and fingers”, with reported findings of “tender left shoulder arm and hand”, “swollen tender left middle finger”, “Intact neck ROM no pain and intact left arm hand neurovascular status”. A diagnostic x-ray of the worker’s left hand taken November 25, 2022 did not reveal a fracture. The Chiropractor First Report based on the November 28, 2022 assessment indicates injury to the cervical spine, left hand, wrist, shoulder and left ulnar nerve, and records findings of a loss of active range of motion to the left in the lower cervical spine, paresthesia or burning in arm and hand, weak C7 myotome and pain and weakness in all rotator cuff tests. The chiropractor diagnosed left wrist sprain, left rotator cuff strain, left ulnar nerve injury, and left C5-6-7 facet sprain. On further assessment on November 30 and December 1, 2022, the chiropractor reported findings related to the worker’s left shoulder, cervical spine, and ulnar nerve. The panel also noted that later treatment included physiotherapy with a hand specialist who first assessed the worker on December 21, 2022. That treatment focused only on the worker’s left hand with a diagnosis provided of “Acute left D3 flexor tendinopathy, possible FDS partial tear”. On December 30, 2022, the treating family physician recorded improvement in the worker’s range of motion in their left shoulder, arm, elbow, and wrist with no pain, but persistent left middle finger tenderness.

While the employer’s position is that it is unlikely that the worker sustained injuries to their left elbow, arm, shoulder, and neck because of a plastic roll falling onto their left hand, the evidence before the panel does not support that view. On reviewing the medical reporting and taking into account the initial reporting by both the employer and the worker, we are satisfied that the worker sustained injury to their left elbow, arm, shoulder and neck arising from the compensable workplace accident. The panel also noted the absence of any evidence to suggest that the reported symptoms or injuries in these areas can be related to any cause other than the compensable workplace accident.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s left arm, elbow, shoulder, and neck difficulties are related to the November 22, 2022 accident.

Is the worker entitled to wage loss benefits in relation to injuries sustained on November 22, 2022? 

In considering whether the worker sustained a loss of earning capacity as a result of the injuries sustained in the workplace accident, the panel reviewed the medical reporting in respect of the worker’s removal from work, noting that initially, the worker was removed from all work for 1 week, as detailed in the Doctor First Report sent to the WCB on November 26, 2022. The treating chiropractor reported on November 29, 2022 that the worker was not at that time capable of alternate or modified work and would be reassessed on December 2, 2022, and on reassessment, the chiropractor indicated the worker would again be reassessed on December 9, 2022 but was expected to return to light duties on December 12, 2022. In the interim, the chiropractor discharged the worker from further treatment on December 5, 2022 and referred them for physiotherapy assessment. Then, on December 8, 2022 the WCB received a second version of the Doctor First Report from the treating family physician, also based on the November 25, 2022 assessment. In this second report, the physician outlined the worker would be off work until December 11, 2022 and that from December 12, 2022 the worker would be capable of modified duties not using the left hand with no pushing, pulling, or lifting above 10 pounds for a maximum of 4 hours per shift. The panel noted the absence of any explanation for the limitation in terms of hours on return to work and that the report contained no new clinical findings. There was also no explanation offered for the variation between the two Doctor First Reports relating to the same medical assessment on November 25, 2022.

The panel noted that the treating chiropractor’s December 2, 2022 report did not suggest any restriction of hours or gradual return to work in anticipating the worker’s likely return to light duties on December 12, 2022. Given that the treating family physician did not assess the worker again between November 25, 2022 and December 30, 2022, the panel gives less weight to their return-to-work recommendations, as outlined in their second report dated November 25, 2022, than to those of the chiropractor who treated the worker through the period leading up to the return to work. Further, we noted that on discontinuing treatment of the worker on December 5, 2022, the treating chiropractor specifically referred the worker for physiotherapy with a hand specialist, and that when that physiotherapist assessed the worker on December 21, 2022, it was only in relation to their left-hand injury, despite noting the worker’s description of symptoms throughout their left arm, shoulder, and neck at the time of the accident. By that time, the worker had already returned to work on a schedule of 4-hour shifts with right-handed duties only, and the physiotherapist merely indicated that this was appropriate to continue for the next 4 weeks.

Based upon the medical reporting, the panel is satisfied that the injuries to the worker’s left elbow, arm, shoulder, and neck were effectively resolved at the time of the December 30, 2022 appointment with their treating physician

In considering whether the worker is entitled to wage loss benefits, the panel also reviewed the evidence that the employer offered one-handed, modified duties to the worker on the date of the accident and that the worker returned to those duties on November 23, 2022 for a full shift and on November 24, 2022 for two hours. The evidence further indicates that the employer offered those duties again on December 6, 2022, and that worker returned to those duties on December 12, 2022 on a limited-hours basis. The panel noted that the file evidence confirms that the worker continued working modified duties for four-hour shifts until January 19, 2023 when the shifts increased to 8 hours and to full 10-hour shifts on regular duties on February 16, 2023.

In light of the panel’s finding that the injuries other than the injury to the worker’s left middle finger were effectively resolved at the time of the December 30, 2022 appointment with their treating physician, and the medical reporting as a whole, the panel is satisfied that the evidence does not support a finding that after December 11, 2022, the worker’s accident injuries resulted in disability other than to their left hand. While the treating physiotherapist agreed with the family physician’s recommendation for a graduated return to work, there is a lack of evidence to indicate that either medical provider was advised of or considered the nature of the light duties available to the worker on their return to work, and as such, we do not find that these recommendations were justified. Furthermore, we accept the evidence that the modified duties offered by the employer to the worker required performance of right-hand only light duty tasks at a table of proper ergonomic height with no requirement for lifting, pushing, or pulling, and as such we find that these duties aligned with the restrictions recommended by the treating physician, the treating chiropractor, and the treating physiotherapist. We find that the modified duties were appropriate, that the evidence supports the worker was capable of these duties after the accident, and that the worker was aware of the availability of these duties from the date of accident.

The evidence before the panel does not support that there was any accident-related need or medical basis for the worker’s gradual return to work after just over two weeks away from work due to the injury. While the medical providers did support a gradual return to work, we are not satisfied that they were aware of the nature and kind of modified duties available to the worker. Furthermore, the panel finds that the nature and extent of the soft tissue injuries sustained by the worker in the workplace accident of November 22, 2022 would not, on a balance of probabilities, result in a requirement for any limitation in terms of the worker’s hours of work, provided that the other appropriate restrictions were accommodated.

Based upon the evidence before us, and on the standard of a balance of probabilities, the worker is entitled to wage loss benefits in relation to the accident of November 22, 2022 until their return to work on December 12, 2022 and is not entitled to further wage loss benefits as of that date. The employer’s appeal is granted in part.

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 September, 2023