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 full wage loss benefits for the period October 28, 2023 to December 7, 2023. A hearing was held on April 30, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits for the period October 28, 2023 to December 7, 2023.

Decision

The worker is entitled to full wage loss benefits for the period October 28, 2023 to December 7, 2023.

Background

A Worker Incident Report was submitted to the WCB on November 14, 2022, indicating the worker injured their right shoulder in an incident at work on November 9, 2022, when an individual ran into them and "…fell back into me causing my right shoulder to hit the wall." The worker noted immediate pain in their shoulder but finished their shift that day and attended work the following day but left early to seek medical treatment. A medical report from the worker's appointment on November 10, 2022 was received and noted the worker's reporting of being hit then falling forward, striking their right shoulder on a wall. Pain to the anterior aspect, radiating to the humerus was noted, along with pain with abduction of the right arm. The treating physician found the worker's right shoulder and humerus were normal and that the worker was able to flex and extend their right arm at the elbow and wrist. An x-ray taken that day was initially noted to be normal. The worker was diagnosed with an upper extremity injury and it was recommended they not lift anything heavier than five pounds with their right arm for the next week. On November 13, 2022, the physician contacted the worker to advise the x-ray indicated a nondisplaced greater tuberosity fracture, with a possible nondisplaced break of the humeral surgical neck and the worker was referred to a sports medicine clinic. A doctor's note was provided providing restrictions of no use of right arm (aside from fine finger/hand movements) for four weeks. The WCB spoke with the worker on November 15, 2022, who advised their right arm was very painful, they could not move it very well and they were currently using a sling for that arm. The worker further noted they had not yet been seen by the sports medicine physician.

The WCB advised the employer of the worker's restriction of no use of their right arm on November 16, 2022 and accepted the worker's claim on November 17, 2022. The employer advised the WCB on November 21, 2022 they were unable to accommodate the worker within their restrictions.

On December 1, 2022, the worker was seen by a sports medicine physician. The physician noted the worker had limited range of motion in their right shoulder due to pain, was tender on palpitation over the greater tuberosity, with mild bruising on their arm. The physician diagnosed the worker with a greater tuberosity fracture and recommended they been seen by an orthopedic surgeon. A further four weeks off work was recommended as a restriction of not using their right arm was provided. The worker was seen by the orthopedic surgeon on December 6, 2022. The surgeon noted the diagnostic imaging finding of a "Comminuted greater tuberosity fracture with proximal retraction" and recommended conservative treatment, including physiotherapy for active assisted range of motion in the shoulder to prevent stiffness, over surgery. The worker attended for an initial physiotherapy assessment on December 15, 2022. The physiotherapist noted the worker was wearing a sling, and reported their complaints of pain at rest, which increased with movement and inability to perform the activities of daily living due to the use of the sling. After examining the worker, the treating physiotherapist found decreased range of motion in the worker's right shoulder and recommended restrictions of no function use of the right arm. The physiotherapist further recommended the worker wean off the use of the sling within a week.

A follow-up appointment with the physiotherapist took place on January 9, 2023, with the worker indicating some improvement with their shoulder but they were still unable to lift their right arm overhead and noted the sports medicine physician had advised them to stop using the sling. Restrictions of reduced hours of 4 hours per day, 3 days per week, not working with combative individuals and no lifting, pushing and pulling were recommended. The restrictions were provided to the employer on January 10, 2023 who advised on the same date they were unable to accommodate the worker.

The worker underwent a right shoulder MRI on April 5, 2023, which indicated:

1. Comminuted and impacted greater tuberosity fracture. The anteroinferior glenoid is also irregular and together the findings could be a Hill-Sachs deformity and osseous Bankart lesion if there has been an anterior glenohumeral dislocation. 

2. Full-thickness tear involving the majority of the supraspinatus and infraspinatus tendon width. Relatively advanced infraspinatus muscle fatty atrophy. 

3. Small tear of the cranial subscapularis tendon. Short longitudinal split tear of the intra-articular long head biceps tendon with minor subluxation from the bicipital groove. 

4. Mild glenohumeral osteoarthritis and irregular tearing of the inferior glenoid labrum. 

5. Small glenohumeral joint effusion with synovial thickening and several intra-articular bodies.

The worker attended an appointment with their treating surgeon on April 11, 2023 to discuss the results of the MRI. The surgeon noted the worker had “…made some incremental improvement in terms of range of motion, although certainly still having pain and weakness in the shoulder.” The treating surgeon discussed the option of a shoulder arthroscopy and rotator cuff repair with the worker, who decided to try another month of physiotherapy prior to making a decision to proceed with surgery. The worker’s file was reviewed by a WCB medical advisor on April 28, 2023. The advisor opined the worker’s diagnosis related to the November 9, 2022 workplace accident was a right shoulder greater tuberosity fracture and acute-on-chronic rotator cuff tear, supported by the results of the April 5, 2023 MRI study. It was noted the tearing of the right shoulder infraspinatus tendon was likely pre-existing as the advanced fatty atrophy found on the MRI “…takes years to develop following a rotator cuff tear…”. The WCB medical advisor further opined the mechanism of the November 9, 2022 injury would medically account for the greater tuberosity fracture and enhancement of the pre-existing right shoulder rotator cuff tear and indicated the WCB would approve the right shoulder surgery proposed by the worker’s treating orthopedic surgeon.

On May 18, 2023 and June 29, 2023, the worker attended for follow-up appointments with their treating orthopedic surgeon who noted improvement in the worker’s symptoms with continued weakness and recommended continued physiotherapy for strengthening. The worker attended for a call-in examination with a WCB physiotherapy consultant on July 25, 2023. The consultant noted the worker’s compensable right shoulder greater tuberosity comminuted fracture and rotator cuff tears had been treated conservatively and further in-clinic physiotherapy treatment would likely not result in a sustained improvement in function. It was noted the worker had advised the consultant they had been provided with a comprehensive home exercise program and the consultant advised the worker should be encouraged to continue with that program. Subject to the worker’s upcoming appointment with their treating orthopedic surgeon, restrictions of right arm lifting up to 5 pounds within the body envelope, no right arm lifting with resistance outside the body envelope, avoid repetitive right arm work above shoulder height or outside the body envelope and no right arm lifting with resistance above shoulder height were recommended. An August 31, 2023 report from the treating orthopedic surgeon noted the worker was doing “overall quite well” and was making “gradual progress”. After examining the worker, the surgeon found the worker was able to active elevate her shoulder overhead. On September 1, 2023, the employer was provided with the worker’s temporary restrictions of no lifting greater than 5 pounds, no working overhead, no pushing/pulling greater than 5 pounds and all forms of lifting, pushing and pulling need to be within the body envelope. The employer advised the WCB on September 8, 2023, they were working on an accommodated position for the worker.

The employer provided the worker and the WCB with a description of the proposed accommodated position on September 21, 2023. The WCB spoke with the worker on the same date and advised they would be entitled to partial wage loss benefits if the wages for the accommodated position were less than their pre-accident earnings and the worker was advised if they wanted to proceed with the proposed arthroscopic and rotator cuff repair surgery, their full wage loss benefits would be reinstated on the date of that surgery. On September 22, 2023, the worker advised they would be participating in the return to work program with the employer, which program commenced on September 25, 2023. At a follow-up appointment with the orthopedic surgeon on October 5, 2023, the worker agreed to proceed with the proposed surgery. The surgery was approved by the WCB on October 25, 2023.

The worker contacted the WCB on October 24, 2023 to advise when they were at work that day, they were bent over to speak to someone when an individual jumped up and landed on their right shoulder. The worker advised they reported the incident to the employer and left, missing approximately three hours of work. The WCB queried whether the worker had sought medical treatment, with the worker advising they were attempting to contact their treating orthopedic surgeon to have pre-operative testing completed but had not been able to reach their office. The WCB advised the worker to contact either their family physician or attend a walk-in clinic or other clinic as the worker was reporting their pain as 9 out 10 even with pain medication. The next day on October 25, 2023, the worker again contacted the WCB and advised they had sought medical treatment at a walk-in clinic the previous day and an x-ray was taken. The treating physician had advised they did not have a fracture but may have torn ligaments in their shoulder. Restrictions were provided for two weeks to enable the worker to recover. The WCB received a copy of the October 25, 2023 report and noted the worker’s restrictions were updated to no lifting greater than two pounds with the right arm, 10 pounds with the left arm, no lifting above shoulder level with right arm at all and lifting above the shoulder will continue to be restricted until after the surgery. The restrictions were provided to the employer on October 25, 2023, who confirmed they could continue to accommodate the worker.

On November 3, 2023, the WCB received a copy of a report from the worker’s treating family physician for an appointment on October 26, 2023 where the worker reported they were anxious, worried and scared to return to work due to their right shoulder pain and restricted movement. A sick note was provided by the physician indicating the worker was to be off work effective October 26, 2023 to an unknown date. In a discussion with the WCB on November 7, 2023, the WCB advised the worker the medical information received on October 25, 2023, noted the October 24, 2023 incident and provided updated restrictions but did not support the worker was totally disabled from working. The worker noted an October 26, 2023 sick note from their treating physician placed them off work with the WCB noting the medical provided with that note did not provide evidence of total disability and the WCB would not be providing wage loss benefits after October 27, 2023. A formal decision letter was provided to the worker on the same date.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on November 28, 2023. The representative submitted the medical information provided initially on October 25, 2023 did not provide consistent information on the worker’s ability to return to the accommodated position after the October 24, 2023 incident. It was further noted the information provided by the worker’s treating family physician on November 3, 2023 was more reasonable and documented the worker’s concern regarding return to work after the October 24, 2023 incident and noted the worker’s reporting of right shoulder pain and restricted movement and placed them off work. The representative argued that medical evidence supported the worker should be entitled to full wage loss benefit after October 27, 2023 as they suffered an aggravation of their compensable injury. In the alternative, the representative submitted the worker should be entitled to partial wage loss benefits they would have been entitled to had they participated in the accommodated return to work position.

On March 7, 2024, Review Office determined the worker was entitled to partial wage loss benefits from October 28, 2024 to December 7, 2023, being the date before the worker had surgery. Review Office found the medical evidence provided supported the worker had restrictions but was not totally disabled from working. Review Office agreed with the worker’s representative that had the worker continued to work the accommodated position, they would have been entitled to partial wage loss benefits as the wages the worker was receiving in the accommodated position was less than their regular wages. As such, Review Office found the worker was entitled to partial wage loss benefits from October 27, 2023 up until December 7, 2023.

The worker’s representative filed an appeal with the Appeal Commission on March 8, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

This panel is bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is 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.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB has established a policy to outline their approach to the return to work of injured workers through modified or alternate duties with the accident employer. Policy 43.20.25, Return to Work with the Accident Employer, (the "RTW Policy") provides guidance and interpretation of the re-employment obligations under the Act. The RTW Policy defines modified and alternate work and states, specifically, that:

"Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers."

The RTW Policy provides that the WCB is to compare the worker’s compensable medical restrictions and capabilities to the demands of the work to determine if the worker is medically able to perform the suitable work.

Worker’s Position

The worker was represented by their union representative, who relied on past written submissions on the worker’s file, made a presentation at the hearing and responded to questions from the panel.

The worker’s representative submits that the evidence on file and from the worker demonstrate that the worker had a total loss of earning capacity because of their compensable injury. The evidence is that the injury was caused by a student falling into the worker. The worker was cleared to perform sedentary work, but the employer was initially unable to accommodate the worker for several months. The worker states they had ongoing pain but eventually returned to an accommodated position and a short while later, an incident occurred where a student jumped up unexpectedly and landed on the worker’s injured arm. The worker's evidence is that they believed they were authorized to be off work and states that their treating family physician recommended that the worker stay off work and wait for their pending surgery.

The position of the worker is that the accommodation was not suitable and the worker, despite having concerns, did return to the modified alternate work. The worker submits that, following the second injury, it was reasonable for the worker to follow the advice of their long time physician and remain off work until her surgery to avoid the possibility of further or permanent injury.

It is submitted that considerations outlined in the RTW policy were not taken into account, including the safety concerns that the worker had about the accommodation.

The worker's representative also makes note of the fact that following the second injury the worker contacted the case manager on October 24, 2023 to advise the WCB of the injury. The case manager confirmed on October 25, 2023 that the employer was still able to accommodate the worker however had not yet received the doctor's report at that point regarding the details or any restrictions related to the second injury.

The evidence before the panel is that they were making progress in physiotherapy after the initial injury, but that there was a significant reduction in range of motion after the second injury and perhaps an indication of further damage. The only testing the worker had following the second injury was an x-ray. There was no additional imaging done to assess whether there was any further damage caused by the second injury.

The worker submits that they are entitled to full wage loss benefits between the second injury and the date of their surgery. The worker argues that the accommodation was unsuccessful and unsuitable. The worker is seeking that the Appeal Commission fully reinstate the worker's wage loss benefits.

Employer’s Position

A senior human resources administrator and a return to work officer represented the employer at the hearing. The employer’s representatives made submissions at the hearing, provided information surrounding the return to work program and planning that was done and responded to questions from the panel.

The position of the employer is that they were provided with restrictions from the WCB and they identified a position that met those restrictions. The employer states that they accommodated the worker and believe the accommodation was working.

The employer's position is that the worker could continue working in the accommodated position.

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss benefits for the period October 28, 2023 to December 7, 2023. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a full loss of earning capacity during this timeframe as a result of the workplace accident or injury. For the reasons that follow, the panel is able to make that finding.

The panel accepts the worker's evidence regarding the duties required of the accommodated position and acknowledges that the accommodated position would put the worker in contact with highly active children (in the classroom, in the gym and during recess). The worker's evidence was that she had concerns about this and voiced some concerns to her doctor and to the WCB, prior to starting the accommodation, and to the principal of the school, during her accommodation.

Following the second injury, the WCB confirmed, just two working days later, that the worker could return to work. There is however a lack of objective evidence to satisfy the panel that the worker was able to resume work in the accommodated position. The panel notes that there was no MRI following the second injury and does not accept that an x-ray would have been sufficient to consider the injury in this instance. Furthermore, it is not reasonable to the panel that the initial injury resulted in approximately 5 weeks of recovery time, while the second, very similar injury, only warranted two days of recovery time.

The panel places greater weight on the opinion of the worker's treating family physician, who had more knowledge of the worker's medical history, than the opinion of walk-in clinic physician. The worker states that they did not discuss the safety concerns they had with the accommodation with the physician at the walk-in clinic, but did discuss these concerns with their family physician.

Based on the evidence before us, the panel is satisfied that the employer made best efforts to accommodate the worker based on the information provided by the WCB. However, the panel is not satisfied that the WCB properly considered the duties of the accommodated position and potential risks to the worker. Furthermore, the panel finds that the WCB did not take into account the legitimate safety concerns expressed by the worker in returning to the accommodated position following the second injury. These concerns should have been fleshed out by WCB, prior to starting the accommodation or, at minimum, following her second injury.

The panel finds, on a balance of probabilities, that the worker was jusitified in following the advice of their treating family physician and not returning to work following their second injury. The panel is of the view that the worker sustained a full loss of earning capacity from October 28, 2023 to December 7, 2023.

Accordingly, the panel finds that the worker is entitled to full wage loss benefits from October 28, 2023 to December 7, 2023. The panel grants the worker's appeal.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of June, 2024