The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that this claim is not acceptable. A hearing was held on March 14, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The employer provided an Employer’s Accident Report to the WCB on August 29, 2019 reporting the worker injured their right shoulder and neck in an incident at work on July 22, 2019, which they reported to the employer on August 12, 2019. The employer noted the worker attended a first aid station on August 12, 2019, advising of difficulties that began the week of July 22, 2019 to July 26, 2019 but that they did not report it at that time. The worker was on vacation from July 29, 2019 to August 5, 2019. The worker again attended the first aid station on August 26, 2019 with right shoulder and neck complaints. The employer reported the worker advised that a specific incident did not occur, but that they began to feel pain in their right shoulder. The employer noted the worker was placed on modified duties.

The worker sought medical treatment on September 5, 2019 reporting a right shoulder and neck injury from repetitive movement at work. On examining the worker, the physician noted limited range of motion in the worker’s right shoulder with pain and tenderness at the worker’s right neck area. The physician did not provide a diagnosis but outlined restrictions of limited lifting and bending and no repetitive motions.

In the Worker’s Incident Report submitted to the WCB on September 18, 2019, the worker set out that their right shoulder and right side of their neck began hurting on July 22, 2019 and that after attending the first aid station, the employer provided modified duties. The worker indicated their shoulder and neck hurt when they exert themselves or grab something heavy and they cannot lift their arm up without pain.

On September 17, 2019, a physiotherapist assessed the worker, noting the worker advised they were experiencing right neck and shoulder pain while at work from repetitive duties, with the pain increasing with increased work and dull tools. The worker reported constant pain which was aggravated with reaching and lifting. The physiotherapist noted flexion and extension pain at the worker’s neck, tenderness in the worker’s neck and shoulder, and positive impingement tests. The physiotherapist diagnosed a repetitive strain injury and right shoulder impingement and recommended the worker continue with the light duties for a further two weeks.

The employer provided a Physical Demands Analysis of the worker’s position to the WCB, which was placed in the worker’s file on October 10, 2019. When the WCB contacted the worker, the worker explained they related their difficulties to the repetitive movements of their job duties and to dull tools used in work which added stress to their arm and shoulder. The worker advised they initially noticed pain and soreness in their right shoulder before taking vacation in July 2019 and found their symptoms improved while away from work. On returning to work, the symptoms reoccurred, affecting the worker’s ability to perform their job duties, and they sought treatment at the employer’s first aid station. The worker indicated their symptoms were improving with physiotherapy, but they continued to experience pain when reaching away from their body.

A February 10, 2020 cervical spine and right shoulder MRI indicated no abnormality with respect to the worker’s cervical spine and a partial-thickness supraspinatus tear in the worker’s right shoulder. At a February 21, 2020 appointment, the treating family physician referred the worker to an orthopedic surgeon for further treatment. Due to the COVID-19 pandemic, the worker had a virtual visit with the orthopedic specialist on May 8, 2020. The specialist recommended the worker consider a pain relief injection when pandemic restrictions allowed for in-person visits.

On June 9, 2020, the treating physiotherapist requested additional treatment, noting the worker had a partial thickness tear that was giving the worker regular pain which was exacerbated by work and further treatment would allow the worker to get stronger and manage their pain. The physiotherapist noted the worker could work their regular duties. In discussion with the WCB on June 30, 2020, the worker advised they required restrictions due to ongoing symptoms and the WCB recommended the worker see the treating physiotherapist for an updated assessment.

On July 22, 2020, the worker received an injection from the treating orthopedic specialist. On the same date, the specialist provided restrictions of no lifting above the shoulders, no lifting over five kilograms from the floor to waist and no lifting over five kilograms from the waist to shoulders. The WCB provided these restrictions to the employer on August 6, 2020. At follow-up with the orthopedic specialist on August 12, 2020, the worker advised the pain injection did not help and the specialist referred the worker to an orthopedic surgeon, recommending the worker continue with their current modified duties, and not lifting over five kilograms from floor to shoulder and avoid overhead work with right arm.

The orthopedic surgeon assessed the worker on January 28, 2021 and noted the worker’s report of ongoing right shoulder symptoms “…both at the anterior aspect of the shoulder but also in the trapezius area and lateral neck.” The surgeon noted the worker’s difficulties with reaching and repetitive internal rotation activities and that the worker advised they had returned to their full duties with some discomfort. The surgeon recorded localized subacromial tenderness at the right shoulder along with mild impingement signs, with full range of motion and no cuff weakness. The surgeon recommended arthroscopic surgery with a possible debridement or repair for the partial thickness supraspinatus tear found on the February 10, 2020 MRI and the worker agreed to proceed with the surgery.

On February 6, 2021, the WCB authorized the surgery, and on May 17, 2021, the worker underwent an arthroscopy with debridement of the labrum, debridement of a superficial rotator cuff tear and acromioplasty. At post-surgical follow-up on June 10, 2021, the treating surgeon noted the worker’s wounds were healing well but the worker continued to use a sling and was hesitant to use their arm. The surgeon recommended physiotherapy to start range of motion exercises.

The worker remained off work and sought physiotherapy. On initial physiotherapy assessment on June 30, 2021, the treating physiotherapist noted the worker was capable of alternate or modified work duties and hours with restrictions of avoiding use of their right arm and taking movement breaks as needed. The WCB provided the restrictions to the employer on July 2, 2021, who confirmed the same date that they could accommodate the worker. The worker returned to work on a graduated basis beginning on July 7, 2021.

On September 23, 2021, the worker advised the WCB that their shoulder continued to hurt, they could not lift their arm and they had not seen any improvement since the surgery. The WCB recommended the worker return to their treating surgeon for further investigation. The worker saw the orthopedic surgeon on October 21, 2021, reporting ongoing stiffness and pain. The surgeon concluded the worker developed adhesive capsulitis, with restricted range of motion, and recommended continuing with physiotherapy and light duties as it may take several months to recover. At follow-up appointments on January 20, 2022 and April 7, 2022, the surgeon noted improvement and recommended continued modified duties.

A July 18, 2022 physiotherapy report noted the worker’s continued complaints of high pain in both their right shoulder and neck and the worker remained on light duties with reduced hours at work. By December 2022, the worker resumed most of their regular duties with their regular hours.

At the request of the WCB, the worker attended a Functional Capacity Evaluation (FCE) on March 16, 2023. The athletic therapist who conducted the FCE noted the worker failed some of the validity checks of the examination. The WCB arranged a call-in examination with a WCB medical advisor which took place on May 31, 2023. After examining the worker, the medical advisor concluded the worker did not require workplace restrictions and found the worker’s current difficulties were not medically accounted for in relation to the July 22, 2019 workplace accident.

On July 28, 2023, the WCB advised the worker it had determined they recovered from their workplace accident, and therefore were not entitled to further benefits. On August 25, 2023, the worker requested Review Office reconsider the WCB’s decision, submitting that they continued to experience pain performing the activities of daily living in addition to their job duties and required further benefits. On October 6, 2023, Review Office advised the worker and the employer of an expansion of issue under consideration to include whether the worker’s claim was acceptable. On October 24, 2023, Review Office determined the worker’s claim was not acceptable as it could not establish that the worker was injured as a result of an accident arising out of and in the course of the worker’s employment and as a result, found the worker was not entitled to any benefits.

The worker filed an appeal with the Appeal Commission on November 15, 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 legislation and policy in force at the date of accident are applicable.

A worker’s entitlement to benefits under s 4(1) of the Act arises when it is established that a worker has been injured as a result of an accident at work, and 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 is 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….

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the " Policy") to address eligibility for compensation when a worker has a pre-existing condition. The Policy confirms that the WCB will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition because a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." Rather, the WCB is only responsible for personal injury resulting from accidents that arise out of and in the course of employment. This Policy defines pre-existing condition as a medical condition that existed prior to the compensable injury.

Worker’s Position

The worker appeared in the hearing accompanied by their daughter, who made an oral submission on behalf of the worker. The worker also provided a submission in support of their appeal and answered questions from members of the appeal panel, with the assistance of an interpreter. The worker’s spouse attended as a support to the worker.

The worker’s position is that their repetitive job duties over the course of 16 years, which involve ongoing use of both arms, caused them to sustain an overuse injury to their right shoulder, and therefore the claim should be accepted. The worker stated they continue to experience difficulties with that shoulder and that the injury sustained at work was not resolved when the WCB terminated their benefits in July 2023.

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 further information in response to questions posed to them by the members of the appeal panel.

The employer’s position is that the evidence does not support a finding that the worker’s right shoulder symptoms arose from any specific accident or event at work nor that the worker’s job duties require sufficient force and repetition to cause injury to the worker’s shoulder. Therefore, the worker’s claim should not be accepted.

The employer’s representative noted that the worker did not report an injury in July 2019 when they said they first noted symptoms but reported right shoulder concerns to the employer upon returning from vacation in August 2019, which they did not describe as being related to their job duties. The representative further noted that the worker did not report an injury to the WCB until September 2019.

The employer’s position is that the evidence does not support a finding that the worker’s job duties exposed them to the risk factors that could account for the development of the worker’s right shoulder condition and that it is more likely the worker’s shoulder condition is caused by naturally occurring degeneration. The employer’s representative submitted the MRI findings are not related to the worker’s job duties, which do not involve use of significant force or frequent repetition, as outlined in the job demands analysis.

The employer’s representative also noted that the employer accommodated the worker with modified duties as soon as the worker advised that they were having difficulties, but that the worker chose to return to their regular duties.

Analysis

The question on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to be granted, the panel would have to determine that the worker sustained an injury arising out of and in the course of their employment. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

At the beginning of the hearing, the worker raised a preliminary question about the panel determining their entitlement to further benefits. The employer’s representative confirmed they understood that this issue was before the panel for determination. The panel noted that the only issue on appeal, as communicated to all participants by the Appeal Commission, is whether the claim should be accepted, and that based on the October 24, 2023 decision of Review Office, the question of the worker’s further entitlement to benefits was not determined as Review Office decided the claim was not acceptable. As such, the panel concluded that it did not have jurisdiction to consider the question of the worker’s entitlement to further benefits in this hearing and advised the participants that it would only consider the issue of claim acceptance. With the agreement of the participants, the hearing proceeded on this basis.

The panel noted the employer’s concern that the worker failed to report their injury to the employer and to the WCB on a timely basis. The evidence confirms the worker did not report their injury to the WCB until early September 2019 after seeing their family physician, but the worker also testified that they first advised the employer of their injury when attending the nurse’s station on July 22, 2019. The evidence further confirms that the worker was on vacation for a period from July 29 to August 5, 2019. The panel also noted that the employer provided modified duties to the worker beginning in August 2019 and the Employer’s Accident Report indicates the employer was advised of an injury on August 12, 2019. As such, the panel is satisfied that the worker notified the employer of their injury within a reasonable time after first noting the symptoms, and after seeking treatment from their family physician on September 5, 2019, reported the injury to the WCB.

The worker’s claim is based upon their belief they developed a repetitive use injury to their right shoulder while and because of undertaking their regular job duties over 16 years of employment, with symptoms that first arose on or around July 22, 2019. In the hearing the worker gave evidence as to the details of their job duties, demonstrating how they use their arms and their body positioning at the various workstations. The physical demands analysis documents provided by the employer to the WCB also provides significant details in terms of the physical requirements of the worker’s job. The worker explained that their work rotates through four different task areas on half-hour rotations, such that they spend a total of two hours in each rotation during each eight-hour shift. The panel noted that the tasks demonstrated by the worker require the use of both arms and would engage the worker’s shoulders as well, although the work is at waist level, with one task requiring the worker to place items forward of their body at or just above shoulder level. The worker described a steady stream of work with no breaks between tasks in each rotation area, using at least two different tools, depending on the task at hand, and that in at least one of the task rotations, they spend about 13 seconds per task, which would equate to at least four repetitions each minute.

The panel noted the worker also related some of their ongoing shoulder complaints to another incident at work that resulted in further injury to their right arm; however, the panel noted the claim before the panel does not relate to that event and there does not appear to be any WCB claim filed in that regard.

The panel considered the medical reporting and opinions in light of the evidence as to the worker’s job duties. The initial report from the worker’s family physician noted limited right shoulder range of motion, painful arc and positive Jobe’s testing which the worker ascribed to lifting and repetitive movement at work. We note the initial physiotherapy report of September 17, 2019 contains a diagnosis of repetitive strain of the upper fibres of the trapezius muscle and right shoulder impingement. On first review of the worker’s claim by a WCB medical advisor on March 30, 2020, the medical advisor concluded that the partial supraspinatus tear identified in the February 2020 MRI study “…would be medically accounted for [in relation to the worker’s job duties] if [the worker] performed the following activities on most days of work over months or years:

• Combination of force/repetition – moving the shoulder against force (> 25 lbs) several times an hour over most hours of a workday 

• Combination of force/posture – moving the shoulder against force (> 25 lbs) with the arm held at or greater than 60 [degrees] of flexion or abduction 

• Prolonged work with the arm held at or greater than 60 [degrees] of flexion or abduction. 

• Highly repetitive movements – moving the shoulder in the same motion with a cycle time less than 30 seconds (equates to doing the same action at least twice per minute) over two-thirds of the typical workday.

The medical advisor confirmed that the MRI findings “would be a match for” the worker’s symptoms and confirmed the “specific pathology causing the cuff tendonopathy (sic).” The panel accepts and relies upon the evidence of the treating family physician and physiotherapist, as well as the WCB medical advisor.

We do not agree with the Review Office finding that the worker’s job duties do not involve the kind of motions and activities outlined in the WCB medical advisor’s opinion. Considering the evidence, including the worker’s testimony in respect of the nature and pace of their daily job duties, we are satisfied that the worker’s daily job duties do involve highly repetitive movements such as the WCB medical advisor described. Further, we are satisfied that the evidence, including the early clinical findings and the later diagnostic imaging, supports a finding, on the balance of probabilities, that the worker developed rotator cuff tendinopathy including a partial supraspinatus tear as a result of the highly repetitive nature of the worker’s job duties.

In coming to this conclusion, the panel also considered that there is no evidence that the worker’s injury occurred in any circumstances other than at work nor that it was the result of any pre-existing degenerative condition. The worker testified they had symptoms and sought medical attention at work before going on vacation, although there is no confirming record of that before the panel. Further, the worker stated they did not engage in any activity while on vacation that would have caused their shoulder symptoms. In the absence of any evidence to the contrary, the panel accepts and relies upon the worker’s testimony in this regard. The panel also noted that Review Office concluded that the May 17, 2021 surgical findings represented a “pre-existing condition of degenerative bone morphology” which did not relate to the worker’s job duties; however, the panel finds there is no support for that conclusion within the evidence before us, neither in the various medical reports provided to the WCB, nor in the opinions provided by the WCB medical advisors.

Based on the evidence before us, and on the standard of a balance of probabilities, we are satisfied that the worker sustained a repetitive use injury arising out of and in the course of their

employment duties. As such, we are satisfied that the worker sustained an injury arising out of an accident as defined in the Act. Therefore, the claim is acceptable, and 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 12th day of April, 2024