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 wage loss and medical aid benefits after October 6, 2023 in relation to the January 12, 2023 accident. A hearing was held on May 22, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after October 6, 2023 in relation to the January 12, 2023 accident.

Decision

The worker is entitled to wage loss and medical aid benefits after October 6, 2023 in relation to the January 12, 2023 accident.

Background

The WCB received a Worker Incident Report from the worker reporting an injury to their right shoulder and arm in an incident at work on January 12, 2023 when they were helping to dress a person. The worker noted they were "…stretching and moving around, I was stretching too much I could feel it in my shoulder." On finishing the task, the worker contacted their supervisor and advised them of the incident. In the Report, the worker indicated they self-treated with ice, heat, and over-the-counter pain medication. The worker sought medical treatment on January 16, 2023 reporting ongoing pain in their right shoulder, with some radicular pain in their right thumb, very tight upper trapezius muscles and a tense neck/upper back area. The physician recorded mild right shoulder impingement signs and "Decent" range of motion and offered a diagnosis of right rotator cuff tendinopathy and trapezius muscle strain, placing the worker off work.

The Employer's Accident Report submitted on January 17, 2023 confirmed the mechanism of injury as described by the worker and noted the worker had permanent restrictions for both shoulders arising from previous WCB claims. The Employer’s Report also noted the worker's concern that this task was outside of their restrictions.

When the WCB spoke with the worker on January 19, 2023, the worker advised that the night before their shift, they contacted their office to ask if they should be assigned this task as they were concerned some of the job duties involved may be outside their permanent restrictions, and that the employer confirmed the duties were within the restrictions. The worker described that while helping the person dress, they felt a pain in their right shoulder, described as a sharp pain that radiated down their arm and into their right thumb, and felt an immediate limitation in the range of motion in their shoulder. The worker stated they felt weak and had difficulties driving home after their shift. The worker confirmed the treating physician placed them off work until January 24, 2023 at which time they would complete a modified duties form for the employer. The worker described continuing sharp pain to the tip of their right shoulder, down into their arm and thumb, difficulty sleeping and difficulties with some activities of daily living. The worker indicated they had some pain in their right shoulder before the accident, rated at 2/10. The WCB confirmed acceptance of the claim for a sprain/strain type injury only.

On follow-up on January 24, 2023, the treating family physician noted ongoing right shoulder pain and provided a note removing the worker from work until February 8, 2023. The worker saw a chiropractor on January 25, 2023, reporting ongoing right shoulder pain, limited range of motion and pain on loading. On examination of the worker, the chiropractor found reduced range of motion and painful extension and abduction and diagnosed right shoulder cuff strain. The worker continued with chiropractic treatment. On March 1, 2023, the treating family physician provided restrictions of no use of right arm away from the body and maximum lifting with right arm of less than 10 pounds. The WCB provided these restrictions to the employer on March 2, 2023.

At follow-up on March 21, 2023, the treating physician noted the worker was improving, and experiencing pain only with overuse. The physician recorded full passive range of motion and active range of motion of 170 degrees in the right shoulder, with less painful arc and minimal impingement signs. They noted minimal tension in the upper trapezius area, a normal cervical spine and that the worker was neurovascularly intact. The family physician indicated the worker could return to work on March 27, 2023 and the worker confirmed they would do so, with no restrictions related to this workplace injury.

The WCB received a Doctor's First Report on March 28, 2023 noting the worker's complaints of right sided neck, scapular and shoulder pain radiating down the back of the arm. The physician found full range of motion with muscular tenderness in the areas of complaint and recommended the worker remain off work for a week and see their family physician for follow-up treatment.

On March 29, 2023, the worker left a message with the WCB indicating they had returned to work but had not done well and were up all night in pain. The worker saw the treating family physician on April 3, 2023, reporting an "…exacerbation on [return to work] March 27/23”. The worker complained of persistent right shoulder pain and tightness that was improving. The physician recommended the worker remain off work until follow-up on April 11, 2023. At that time, the physician indicated no improvement and recommended further time off work. After the worker spoke with the WCB on April 11, 2023, wage loss benefits were reinstated as of March 28, 2023.

The treating family physician referred the worker for an MRI study, which took place on May 4, 2023. The right shoulder MRI findings indicated a new small full-thickness tear of the anterior most fibers of the supraspinatus tendon, marked hypertrophic tendinosis of the supraspinatus and infraspinatus tendons and mild acromioclavicular joint osteoarthritis as compared to a November 19, 2020 MRI study. The treating family physician reviewed the MRI findings on May 10, 2023 and referred the worker to an orthopedic surgeon, recommending the worker remain off until assessed by the surgeon.

On September 18, 2023, a WCB medical advisor reviewed the worker's claim, including the medical information contained in the worker's other WCB claim files related to shoulder injuries. The medical advisor noted the worker's treating healthcare providers noted "decent" shoulder range of motion on January 16, 2023, 90% of full range of motion on January 24, 2023 and by February 9, 2023, 90-95% of full range of motion in the right shoulder. The WCB medical advisor concluded the diagnosis arising out of the January 12, 2023 workplace accident was a right shoulder strain, which appeared to have resolved by late March 2023, with full active range of motion noted on March 21, 2023. The medical advisor stated such a rapid recovery of range of motion was not consistent with an acute rotator cuff tear, as indicated on the May 4, 2023 MRI. The medical advisor concluded the worker was functionally recovered from the workplace injury and as such, their current difficulties were not medically accounted for in relation to the January 12, 2023 workplace accident. The WCB medical advisor also provided the worker was not totally disabled by the workplace injury and that the previous permanent restrictions remained appropriate. On October 3, 2023, the WCB provided a decision letter to the worker advising it determined they recovered from their workplace accident and their entitlement to benefits would end on October 6, 2023.

On November 1, 2023, the worker requested Review Office reconsider the WCB's decision, noting they continued to experience the effects of their injury and required further benefits. Review Office requested that a WCB medical advisor review the worker's file. In an opinion dated December 26, 2023, the medical advisor concluded the mechanism of injury described was not likely to cause an acute traumatic right shoulder rotator cuff tear, noting that findings of decent right shoulder range of motion and mild right shoulder impingement signs on January 16, 2023 also do not indicate a recent traumatic rotator cuff tear. The medical advisor concluded the worker's current presentation was accounted for in relation to the progression of their accepted compensable chronic right shoulder rotator cuff tendinopathy from their previous WCB claim, and, as shoulder strains typically resolve within one to three months, at nearly one year from the date of accident, no further restrictions, other than the permanent restrictions, were necessary.

Review Office determined on January 18, 2024 that the worker was not entitled to wage loss and medical aid benefits after October 6, 2023. Review Office accepted and relied on the opinions of the WCB medical advisors and found the worker to be functionally recovered from the right shoulder strain sustained in the January 12, 2023 workplace accident by October 6, 2023.

The worker filed an appeal with the Appeal Commission on March 5, 2024 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, regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to compensation under s 4(1) of the Act when it is established that they sustained personal injury 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 their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, 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 of the Act allows the WCB to provide medical aid to a worker entitled to benefits that “…the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.”

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 Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury, and notes that pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. As well, workplace injuries can impact pre-existing conditions. A temporary worsening of a worker’s pre-existing condition is considered an aggravation of the pre-existing condition and a permanent worsening of the worker’s condition because of a workplace injury is an enhancement of the pre-existing condition. The Pre-existing Policy provides that wage loss benefits will cease when a worker has recovered from the workplace injury to the point that the injury is no longer contributing, to a material degree, to the worker's loss of earning capacity, and the pre-existing condition is not a compensable condition.

Worker’s Position

The worker appeared at the hearing on their own behalf, with assistance and support from their son. The worker made an oral submission in support of their appeal, and both the worker and their supporter provided information to the panel in response to questions posed.

The worker’s position is that they should be entitled to further benefits as they were not recovered from the compensable workplace injury when the WCB determined that there was no entitlement to further benefits. The worker submits that they continued to require medical aid in relation to the compensable injury and continued to sustain a loss of earning capacity because of that injury, and therefore are entitled to further benefits.

The worker described the mechanism of injury in the hearing, noting that while in the process of dressing the person, whom they were supporting with their left side and arm, they had to tug a pair of tight-fitting leggings onto the person using their right arm only. While doing so, they felt a pop in their shoulder and immediate pain, such that they did not finish their shift that day but called work immediately after completing this job and advised the employer.

The worker described to the panel that prior to sustaining this injury, they were not having any difficulties in doing their work, working within the restrictions in place, and had been working double shifts for some time. The worker stated that if they missed work before this, it was due to migraine or weather, but not related to their shoulders. The worker confirmed that before the accident, they had right shoulder pain that they described as at a level of 2 on a scale of 1 to 10 but afterwards, they had right shoulder pain of closer to 9 out of 10.

The worker described treating the injury with over the counter pain relief medication and muscle relaxants. They stated that the shoulder remains very painful, and noted they have another consultation scheduled with an orthopedic surgeon in early June 2024. The worker confirmed that this surgeon previously advised, in 2020, that the worker was not a good candidate for surgery.

The worker stated they have not returned to work since the accident, except for trying a shift on light duties on March 27, 2023. The worker confirmed that despite undertaking only very light duties that day, they had an increase in symptoms such that their treating physician agreed they should remain off work. The worker confirmed there was no new incident or injury during that return to work attempt.

Employer’s Position

The employer was represented in the appeal by an advocate who did not participate in the hearing but provided a written submission in advance of the hearing, which was shared with the worker.

The employer’s position is that the worker is entitled to further benefits, but not in relation to this claim; rather, the worker’s entitlement arises from a prior compensable injury as a result of which they continue to experience symptoms and work under permanent restrictions.

The employer’s representative acknowledged the worker has a current right shoulder rotator cuff tear but noted that the decision of Review Office provides that the worker can pursue a further review of the prior claim if they wish, and stated the employer agrees that this is the appropriate procedure for the worker to pursue in relation to their need for ongoing benefits.

The employer’s representative confirmed the worker remains off work, consistent with the advice of their treating medical provider, and that the employer has not received any notification that the worker is cleared for a return to work in any capacity.

Analysis

The worker’s appeal arises out of the WCB’s decision that they are not entitled to further benefits in relation to the accident of January 12, 2023. For the appeal to succeed, the panel would have to determine that as a result of the injury sustained in the compensable workplace accident, the worker continued to experience a loss of earning capacity or continued to require medical beyond October 6, 2023. As set out in the reasons that follow, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The panel reviewed the evidence as to the nature and extent of the worker’s injury arising from the accident. We noted that the WCB concluded that the compensable injury was a shoulder strain based on the reported mechanism of injury contained in the Worker Incident report and the clinical findings of January 16, 2023. The panel noted that the worker was referred in late April 2023 for diagnostic imaging when they did not recover as initially expected and the treating physician queried whether there was a tendon tear. That imaging indicated a “new small full-thickness tear of the anterior most fibers of the supraspinatus tendon” as well as other findings which were consistent with the worker’s prior imaging and the chronic right shoulder injury.

While a WCB medical advisor concluded on September 18, 2023 that this tearing was likely an outcome of the worker’s pre-existing compensable shoulder condition, the panel finds that the evidence rather suggests it was more likely caused by the workplace accident. Specifically, we note the worker’s description of feeling a pop in their right shoulder followed by significant pain, which is described in the initial physician’s report to the WCB of January 16, 2023 as sudden onset shoulder pain at work on January 12, 2023, with worsening pain thereafter. We further noted that the medical advisor relied upon statements that the worker’s pre-accident pain level was 8/10, but in the hearing the worker confirmed that this was not accurate and that their pre-accident pain levels were 2-3/10 and increased to 8/10 after the accident, which is consistent with the worker’s initial statement to the WCB. We further noted the medical advisor relied upon the examination findings of January 24, 2023 that indicated the worker had 90% range of motion in their right shoulder but did not address the other ongoing findings in relation to the worker’s AC joint, lateral and medial epicondyle and thumb, nor the subsequent clinical findings that indicated a reduction in the worker’s symptoms but only to a point, and that the worker continued to experience anterolateral shoulder pain. As such, the panel is not satisfied that the WCB medical advisor’s conclusion was based on a complete and accurate description of the accident and further, does not address the worker’s ongoing symptoms and clinical findings beyond January 24, 2023. We give this opinion less weight.

The panel further noted that while the WCB had previously implemented permanent restrictions in respect of both the worker’s right and left shoulders, the worker’s testimony indicates that at the time of the accident, the worker was working within the scope of those restrictions. This was explicitly confirmed by the employer to the worker on the evening before this accident. We accept and find that to be the case.

The panel also noted and considered that although the worker had a prior chronic right shoulder condition, there is no evidence before us to indicate that condition impaired or impacted the worker’s ability to undertake their job duties prior to the accident. The worker’s testimony indicates they were able to carry on their job duties and were frequently working double shifts until the accident occurred but that they have not been able to do so since then.

On reviewing the medical reporting and the worker’s testimony, the panel is satisfied that the mechanism of injury as described more likely than not was the cause of the worker’s acute rotator cuff tear injury. This finding aligns with the evidence of the worker’s continuing difficulties beyond the expected recovery period for a shoulder sprain. Further, we are satisfied that the evidence does not support the conclusion that the tear occurred prior to the workplace accident, nor thereafter when the worker was removed from the workplace due to their injury.

The panel also considered whether the worker was capable of a return to work as of October 6, 2023, or required any further medical intervention in relation to the workplace injury beyond that date. We noted that the treating physician indicated to the WCB in their report of September 28, 2023 that the worker should remain “Off work until assessment and rotator cuff repair” and that the worker was not capable of alternate or modified work. We further noted that the WCB orthopedic surgery consultant indicated their view, on December 26, 2023, that “A right shoulder rotator cuff tear would only account for restrictions relating to the right shoulder and would not account for total disability” and recommended further restrictions. The panel noted as well that the employer’s representative stated in their submission that the worker remained off work “consistent with the medical notes provided for this appeal” and that “clearance to return to work in any capacity has not been provided to the Employer.”

The panel is satisfied that the evidence does not indicate that the worker has been cleared by their treatment provider to return to work but rather that they have been removed from work pending assessment of the shoulder by an orthopedic surgeon, which the worker testified is scheduled to take place in early June, 2024.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker continued to sustain a loss of earning capacity and to require medical aid in relation to the injury sustained in the January 12, 2023 accident. 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 31st day of May, 2024