Decision #124/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on September 18, 2023 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker filed a Worker Incident Report with the WCB on December 29, 2022, reporting an injury to their right shoulder that occurred at work on December 5, 2022, which they reported to the employer on December 21, 2022. The worker described lifting an item to place it in a vehicle, and feeling a strain in their shoulder as they did so. The worker noted they delayed in reporting the injury as they thought it was minor, but then it worsened. The worker advised they self-treated the injury with over-the-counter medication and hot/cold compresses, and that they continued working until December 21, 2022.
On December 23, 2022, the worker sought medical treatment from a family physician, reporting pain with movement of their right shoulder, difficulty moving their shoulder past 30 degrees, pain when driving on bumpy surfaces and weakness with any movement of the shoulder, that arose after carrying a heavy load and feeling pain and pull in their right shoulder, which progressively worsened. The family physician recorded findings of weakness with right shoulder flexion and abduction, a positive empty can test on the right, and decreased strength with external rotation, and diagnosed a rotator cuff injury. The physician recommended restrictions of no lifting, pulling, or pushing over 25 pounds using the right shoulder for two weeks and referred the worker for an MRI study.
The employer submitted an Employer’s Accident Report on December 30, 2022 confirming the mechanism of injury reported by the worker and noting the worker was “…currently unable to lift arm unless supporting with other arm.” The employer noted the date of accident as December 8, 2022 with a report to the employer on December 25, 2022.
When the WCB contacted the worker on January 6, 2023, the worker confirmed the mechanism of injury and advised there were no witnesses to the incident, and they did not make any complaints to their coworkers after the incident. The worker advised they did not report the incident when it happened as they did not feel it was that bad, but when their symptoms worsened, they sought medical treatment and reported the incident to the employer.
On January 6, 2023, the treating family physician made an additional diagnosis of biceps tendonitis after examining the worker and finding decreased range of motion and weakness of the worker's rotator cuff and abductor muscle, positive rotator cuff testing and noting that a pain relief injection into the worker's biceps produced almost immediate effect. The physician noted their belief that the worker had a rotator cuff tear and biceps tendonitis. The physician also noted the worker did not have any shoulder difficulties in the 3 years before the workplace incident.
The worker attended an initial physiotherapy assessment on January 13, 2023 and reported that on December 5, 2022, when lifting a heavy item, they felt pain in the right shoulder but continued working until the symptoms increased to the point where they could no longer lift their right arm. The physiotherapist noted reduced right shoulder range of motion with positive rotator cuff testing and painful shoulder strength testing and indicated their diagnosis of right rotator cuff strain/sprain, querying a possible tear. The physiotherapist outlined restrictions of no carrying/lifting greater than 10 pounds, no overhead lifting, lift/carry restricted to within the body envelope, and no repetitive lifting and reaching.
In follow up on January 24, 2023, the treating family physician recorded "…tender anterior shoulder, range of motion still limited to just below the horizontal plane on flexion, abduction neurovascularly intact though" and noted that an MRI study was scheduled.
On February 16, 2023, the WCB advised the worker their claim was not acceptable as the worker delayed in reporting the workplace accident, continued to work their regular duties after the workplace accident and delayed in seeking medical treatment, all of which made the WCB unable to determine an injury occurred as the result of an accident arising out of or in the course of the worker's employment.
On March 2, 2023, the worker requested Review Office reconsider the WCB's decision, outlining in their submission that they initially believed the injury of December 5, 2022 was minor in nature and would not impact their functioning; however, as their symptoms increased, they reported the injury to their supervisor at the end of their shift on December 21, 2022 and saw a physician on December 23, 2022. The worker noted their belief they did not delay in reporting or in seeking treatment for their injury as they did not initially believe it to be serious and noted that a recent MRI study confirmed they have a full thickness rotator cuff tendon tear and bicep tendinitis.
On March 30, 2023, Review Office upheld the WCB's decision and found the worker's claim was not acceptable. Review Office found the worker's report of sustaining the injury and then returning to their regular physically demanding duties for over two weeks was not consistent with a traumatic rotator cuff injury, which Review Office found would result in immediate pain symptoms and require immediate medical attention. Review Office concluded the worker's delay in reporting the injury and seeking medical attention made it difficult to establish the worker sustained an injury in the course of their employment.
The worker filed an appeal with the Appeal Commission on April 24, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on November 8, 2023 to discuss the case and render a final decision on the issue under appeal.
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 is entitled to benefits under s 4(1) of the Act when it is established that a worker has sustained “personal injury by accident arising out of and in the course of the employment”. The Act defines accident, in s 1 as a chance event occasioned by a physical or natural cause, or a wilful and intentional act that is not the act of the worker, or an event or condition, or a combination of events or conditions, related to the worker's work or workplace, that results in personal injury to a worker.
The Act requires in s 17(1) that a worker injured by accident shall provide notice of their injury and the circumstances of it to the employer “as soon as practicable” but in any case, within 30 days of the date of accident.
The worker appeared in the hearing on their own behalf, making an oral submission in support of their appeal. The worker’s position is that the claim should be acceptable as they sustained an injury to their right shoulder while completing their job duties on December 5, 2022. The worker noted they initially felt a little pain, or a pinch, in their shoulder when lifting an object and placing it into position in a vehicle, but they did not at that time consider it to be a significant injury as they did not have any limitation in their movement or swelling, and they were able to complete their shift.
The worker described having 4 days off following this event, and then noting pain in opening a heavy door or lifting something when they returned to work. The worker stated the injury did not initially limit their function or ability to do their job, but when the symptoms continued and began to impact the worker’s functional abilities, they reported it to the employer and sought medical attention on December 23, 2022 when they were off duty.
In responding to questions from members of the appeal panel, the worker confirmed that only certain kinds of movements cause pain in their shoulder. They noted that as their symptoms increased, they used their left hand more for driving and opening doors. The worker noted they could lift their right arm up to chest level but could not lift it overhead or behind them. The worker confirmed that they usually work 4 days on, and then 4 days off, and that December 5, 2022 was the last day on before their 4-day break. After the injury, the worker continued working on December 10-13 and December 18-21 before reporting the injury to the employer by completing an incident report in the early hours of December 22, 2022. On the same day, the worker arranged an appointment with a physician.
The worker confirmed they first saw another physician and then their own family physician as well as a sports medicine physician. The worker disputed the assertion that they would not have been able to continue working with a rotator cuff injury, noting that such injuries are sometimes minor initially and can progress over time, and do not always result in immediate, severe shoulder pain.
The worker confirmed they did not have any prior shoulder issues and at the time of the injury, they did not engage in any other physical activities outside of work. The worker explained that they only began their work with the employer in November 2022 and were reluctant to report an injury so soon after starting a new job. The worker indicated they didn’t believe the injury was more serious than “a little strain” and that they hoped it would resolve on its own.
The employer did not participate in the appeal.
This appeal arises from the WCB’s decision that the worker’s claim is not acceptable. For the worker’s appeal to succeed, the panel would have to determine 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 panel considered whether the evidence supports the worker’s position that they did not delay in reporting their injury or seeking medical treatment. The panel noted the worker’s explanation that they initially believed the injury, described as a pinch in their right shoulder, was too minor to report. The panel also noted that the worker testified they were a new employee and wanted to make a good impression on the employer, and as such, they were reluctant to raise a complaint of a minor injury on their very first rotation. The worker also noted that they needed to continue working due to economic constraints, and were able, initially, to self-treat their symptoms with over-the-counter medication, rest, and ice compresses, while self-modifying as needed at work. For example, the worker described using their left hand to reach above shoulder level and driving more with left hand on the wheel. The evidence indicates the worker reported the injury to the employer at the end of their December 21, 2022 shift (in the early hours of December 22, 2022) and arranged a medical appointment for the very next day. The panel is satisfied that the delay in reporting an injury was not in this case prejudicial to the employer, nor to the WCB’s ability to investigate the claim, given there were no witnesses to the incident and that the employer did not dispute the worker’s claim. We find that the worker reported an injury to the employer and the WCB as well as seeking medical attention within less than three weeks of the incident causing the injury, which is well within the time required by the Act.
Having determined the claim was made on a timely basis, the panel considered the evidence as to when and how the worker sustained their right shoulder injury. We noted that the mechanism of injury is described consistently in the worker’s reports to the employer, the WCB and the treating care providers. While there was some confusion as to the date of accident, we noted the worker’s testimony that they were off work and between shifts on December 8, 2022, which is the date noted on the employer’s report to the WCB, and all the medical reporting indicates an accident date of December 5, 2022, consistent with the worker’s report. The panel further considered that there is a lack of evidence of any cause for the worker’s right shoulder injury other than the reported workplace incident, and as noted previously, the employer did not dispute that the injury occurred as the worker reported. Further, the panel found the worker to be a credible witness on their own behalf and we accept their testimony in relation to how they sustained the right shoulder injury.
While Review Office found that the worker could not have continued to work for two weeks in a physically demanding role with a rotator cuff injury, the evidence confirms that the worker did so, and the worker explained that they self-modified their duties to accommodate the right shoulder symptoms and self-treated until seeking medical treatment on December 23, 2022. The worker further explained that their symptoms at first were not serious but worsened with time, such that they realized the injury was more significant than they at first believed. The panel is satisfied by and accepts the worker’s explanation in this respect. The panel also noted the treating family physician’s January 6, 2023 note indicating that in the previous three years of providing care for the worker, the worker had never complained of any shoulder problems.
Based on 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 right shoulder while undertaking their regular job duties during their shift that began on December 5, 2022. Therefore, the worker’s claim is acceptable, and the worker’s appeal is granted.
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 17th day of November, 2023