The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appeals decisions of the Workers Compensation Board ("WCB") that the claim is not acceptable in respect of the accident of September 1, 2021 and that the claim is not acceptable, in respect of the accident of April 22, 2022.

A hearing was held on September 9, 2024 to consider the worker's appeal of both decisions.

Issue

Accident of September 1, 2021: Whether or not the claim is acceptable

Accident of April 22, 2022: Whether or not the claim is acceptable

Decision

Accident of September 1, 2021: The claim is not acceptable; and

Accident of April 22, 2022: The claim is not acceptable.

Background

Date of Accident – September 1, 2021

On speaking with the worker after receiving a May 25, 2022 MRI of the worker’s right shoulder on June 6, 2022, the worker advised the WCB that the MRI related to their July 2020 accident claim. The worker later stated the MRI was conducted to investigate whether the worker’s shoulder injury in 2020 was misdiagnosed. The worker described onset of right shoulder symptoms soon after July 2020 which progressed until February 2022 when they could no longer use their right arm to dress or bathe themselves. The worker stated they left their job with the employer (the “first employer”) in November 2021 and began working for a new employer (the “second employer”) at that time, working at approximately 40% lighter duties, to allow them to continue working despite their shoulder difficulties. The worker confirmed working modified light duties since May 2022 due to their restrictions.

In further discussion with the worker on June 20, 2022, the WCB noted the 2020 accident claim made no mention of any right shoulder injury and confirmed the worker returned to full duties as of July 31, 2020. The worker noted they continued to experience pain in their shoulder but self-treated with anti-inflammatory medication as recommended by their treating physician (the “first physician”). At that time, the worker said, the diagnosis was a strain, treated with physiotherapy, but when physiotherapy did not resolve the symptoms, the worker returned for further treatment in November 2021. The worker further noted that a new physician (the “second physician”) replaced the first physician and referred them for the MRI study, which took place on May 25, 2022 and indicated a full thickness tear in the supraspinatus and mild acromioclavicular (“AC”) joint osteoarthritis. The worker advised that the second physician explained the MRI findings on June 3, 2022 and referred them to an orthopedic surgeon. The worker explained they did not report their symptoms to the WCB until the second physician suggested the symptoms may be more serious and related to the worker’s job duties. The worker confirmed the new employer could no longer accommodate their restrictions.

In a June 20, 2022 report to the WCB, the second physician reported the worker’s ongoing symptoms and confirmed the referral to an orthopedic surgeon. The physician also noted they erred in reporting the injury as related to the 2020 claim, and confirmed this is a new claim for a rotator cuff tear caused or exacerbated by the worker’s overhead work, as an overuse injury.

In discussion with the WCB on June 23, 2022, the worker stated their belief that their shoulder symptoms began while working for the first employer and were aggravated while working for the second employer. On June 30, 2022, the WCB and the worker discussed when the worker’s difficulties started and agreed to establish September 1, 2021 as the date of accident.

On July 5, 2022, the first employer advised that job duty assessments for positions requiring repetitive, above the shoulder duties were undertaken but the worker’s position was not identified as being at risk. The first employer further stated the worker’s position involved “…the occasional physical component with lifting, but not repetitive heavy lifting above shoulders” and that the worker’s job duties varied, with some jobs were more labour intensive or physically demanding but noted it would be difficult to confirm what the worker’s tasks were when their difficulties began due to the passage of time. The first employer further noted the worker did not report any shoulder difficulties before resigning in November 2021.

A WCB medical advisor reviewed the claim on August 11, 2022, noting the first physician queried a diagnosis of rotator cuff tendonitis, the treating physiotherapist diagnosed right rotator cuff strain/impingement, and the May 25, 2022 MRI report indicated a supraspinatus tear with no associated muscle atrophy, suggesting a more acute tear/injury. The medical advisor considered that the worker reported persistent right shoulder symptoms since September 2021; however, there was no specific workplace incident reported and the worker also reported worsening symptoms around February 2022, referencing difficulty with overhead activities, dressing and sleep issues. The medical advisor concluded that an acute supraspinatus tear was not medically accounted for in relation to a workplace injury on September 1, 2021.

An August 8, 2022 report from the treating orthopedic surgeon outlined the worker’s report of worsening pain in their right shoulder for at least a year, which continued despite physiotherapy and treatment with anti-inflammatory medication, and the worker’s report they were not comfortable climbing ladders and could not lift, push, pull or work overhead. On examination, the surgeon noted 160 degrees forward elevation, 30 degrees external rotation on the right compared to 70 degrees on the left, pain along the biceps and acromioclavicular joint, and a positive impingement test. The surgeon also noted the MRI findings and recommended surgery.

On August 25, 2022, the WCB advised the worker that the claim was not acceptable as the WCB could not causally relate the worker’s current difficulties to their employment with the first employer.

The second physician provided a report to the WCB on September 21, 2022, supporting the worker’s claim and indicating they initially treated the worker for an overuse injury related to their daily job duties, which worsened between September 2021 and February 2022 and noted their belief that the worker’s right shoulder injury was caused, in part, from having a pre-existing injury to their shoulder which was exacerbated by overhead lifting. On September 27, 2022, the WCB advised the worker the new medical information was reviewed and there would be no change to the decision that the claim was not acceptable.

The treating physiotherapist also provided a report in support of the worker’s claim, outlining their belief that the worker’s prior injury led to their current right shoulder symptoms and as such, their claim should be compensable. On October 25, 2022, the WCB advised the worker that the new information was reviewed and there was no change to the decision that the claim was not acceptable.

On November 7, 2022, the worker requested Review Office reconsider the WCB’s decision, noting the onset of shoulder difficulties in September 2021 resulting in their seeking medical treatment in October 2021, and that their treatment providers support a relationship between the worker’s right shoulder difficulties and their job duties. On December 19, 2022, the worker submitted reports from the treating orthopedic surgeon and physiotherapist in support of their request. The treating surgeon’s report noted the MRI results and findings from the November 23, 2022 surgery were not indicative of typical use and age-related changes and related the worker’s injury and ongoing difficulties to their job duties. The surgeon further noted that the worker’s shoulder pain commenced in September 2021 and that the worker’s ability to continue working until April 2022 did not reflect the severity of their injury. The treating physiotherapist, in their December 15, 2022 letter, noted they wished to amend their previous report to note the worker had not injured their right shoulder in an accident relating to a prior claim, and to remove the statement in their chart notes indicating the worker had a previous diagnosis of a torn rotator cuff in their right shoulder.

On December 21, 2022 Review Office determined the worker’s claim was not acceptable.

Date of Accident – April 22, 2022

On July 24, 2023, the worker submitted a Worker Incident Report to the WCB reporting a right shoulder injury that occurred at work with the second employer on April 22, 2022. The worker related the injury to their job duties including “Heavy overhead work, lots of climbing, work outside the bodies, lifting heavy loads with arm consistently extended, and repetitive overhead work” which caused tearing to their right rotator cuff. In their report, the worker noted they first noticed their symptoms in March 2022 at work, which progressed over time. The worker further noted they did not report their injury at that time as they believed it would get better, but it worsened.

The worker’s representative contacted the WCB on August 17, 2023 noting the worker began working for the second employer on November 15, 2022 and worked regular duties until April 21, 2022. On April 22, 2022, the worker sought medical treatment for their right shoulder and was placed off work for one week. Between April 30, 2022 and May 30, 2022, the employer accommodated the worker with modified duties which the worker continued until June 17, 2022. The representative indicated the worker’s job duties with the second employer either caused the rotator cuff tear indicated on the May 25, 2022 MRI study or aggravated an existing tear and as such, the worker’s claim should be accepted.

In speaking with the worker’s representative on August 23, 2023, the WCB noted the Review Office decision in the 2021 claim commented on the first five months of employment with the second employer; however, the representative noted the decision did not make findings regarding the worker’s injury arising out of or in the course of their employment with the second employer. The WCB agreed to investigate further. The representative noted the file information indicated that the worker had a shoulder injury and was seeking treatment for their symptoms when they started their employment with the second employer but noted their belief the worker’s job duties with the second employer may have caused the rotator cuff tear or aggravated an existing tear.

The WCB added medical information from the worker’s September 1, 2021 claim file to this claim file on September 7, 2023. On the same date, the worker confirmed to the WCB that they had a sore right shoulder when they began their employment with the second employer, but they were able to perform their regular duties. The worker also advised they were not receiving any medical treatment when they started their employment and did not make any complaints to the second employer regarding their shoulder. The worker confirmed there was no specific incident or accident that occurred between the time they began their employment until April 22, 2022.

The WCB obtained chart notes from the second physician on September 14, 2023. The February 14, 2022 chart note indicated the worker’s report of a shoulder injury in October 2021 that had not improved with physiotherapy. On examining the worker, the second physician recorded tenderness to palpitation of the supraspinatus, infraspinatus, anterior deltoid and pectoralis areas, decreased passive range of motion and positive empty can testing. The second physician recommended an MRI study and continued physiotherapy. The April 22, 2022 chart note recorded findings of swelling in the worker’s right shoulder that extended into their pectoralis and down their arm with tenderness to palpitation in the deltoid and pectoralis areas and into the anterior shoulder groove, as well as painful rotation testing, and that the physician placed the worker off work for one week, followed by modified duties for one month.

On October 3, 2023, the WCB advised the worker that the claim was not acceptable, noting they could perform their full regular duties and did not make any complaints to the second employer regarding their right shoulder until they sought medical treatment on April 22, 2022. The WCB found the evidence did not establish a causal relationship between the worker’s right shoulder difficulties and their employment.

On November 14, 2023, the worker’s representative requested Review Office reconsider the WCB’s decision, arguing the evidence supported a finding that the worker had a pre-existing right shoulder injury when they began their employment with the second employer, and that the injury was significantly improved such that the worker had almost full range of motion in the shoulder at that time. The representative provided the worker’s regular duties required them to work outside of the body envelope while holding weighted objects, along with climbing ladders and reaching up under machinery to work on them. The representative indicated that after months of those duties, the worker’s shoulder difficulties worsened, with a significant reduction in range of motion and the onset of swelling in their shoulder, identified in the May 2022 MRI as a full thickness tear of the supraspinatus. As such, the representative submitted the worker’s job duties with the second employer either caused the supraspinatus tear or in the alternative, aggravated the worker’s pre-existing condition and such, the worker’s claim is acceptable.

On December 7, 2023, Review Office upheld the WCB’s decision that the worker’s claim was not acceptable.

Both Claims

The worker’s representative filed appeals on both claims to the Appeal Commission on March 12, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. The provisions of the Act, regulations and policies in effect on the dates of the accidents apply to this claim.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. The Act in effect on the date of the 2021 accident defines accident as follows:

“accident” means a chance event occasioned by a physical or natural cause, and includes 

(a) a wilful and intentional act that it 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 Act in effect on the date of the 2022 accident defines accident as follows:

"accident", subject to subsection (1.1), includes 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) 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, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Policy”) sets out that:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-X Policy”) outlines that the WCB will not provide benefits for disablement resulting solely from the effect of a worker’s pre-existing condition as such a condition does not fall within the definition of personal injury by accident arising out of and in the course of employment.

Worker’s Position

The worker was represented in the hearing by a worker advisor. The worker advisor provided an oral submission in support of the worker’s appeals, and the worker offered testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, in respect of the September 2021 claim, is that the evidence, including the medical reporting by the treatment providers, confirms the worker sustained a cumulative injury to their right shoulder arising out of and in the course of their job duties with the first employer and therefore the claim should be accepted.

In support of their appeal, the worker advisor relied upon job duty notes or logs prepared by the worker in 2021 as well as a document confirming the worker’s paid hours in the months leading up to their departure from this employment. The worker testified that they prepared these notes each day for their own use, to help them remember the tasks to be logged at the end of the shift in the employer’s system, but that not all tasks completed were recorded as some were easy to remember. The worker also explained in response to panel questions that they annotated the logs in preparation for the appeal. In further response to panel questions, the worker explained they no longer have their notes for the period between late June 2021 and late September 2021. The worker testified that they worked overtime as required.

The worker advisor relied on evidence submitted as confirming the worker’s hours increased in July 2021 and decreased in August 2021 when the worker was off work due to another injury. The worker testified that they experienced a resulting increase in shoulder pain in July which decreased while away from work and on light duties in August 2021, and then increased again in September 2021 upon their return to regular duties, resulting in the worker seeking medical attention in October in relation to their right shoulder symptoms.

The worker’s position in respect of the April 2022 claim is that their job duties with the second employer either caused a right rotator cuff tear or aggravated a pre-existing tear or right shoulder condition, and as such the claim should be accepted.

The worker advisor acknowledged the worker had an injury to their right shoulder upon beginning work with the second employer, noting the worker was seeking treatment at that time, and submitted that the worker’s job duties required extensive overhead work with both arms, climbing and arms extended outside the body envelope, heavy lifting, pulling, pushing and carrying, and repetition in those duties, which either caused tearing in the worker’s right rotator cuff or worsened any pre-existing tearing.

First Employer’s Position

The first employer participated in the appeal, represented by a general manager who made a submission on behalf of the employer and provided evidence through answers to questions posed by the appeal panel. The employer’s position is that the evidence does not support the conclusion that the worker sustained injury to their right shoulder arising out of and in the course of their job duties in that employment.

The general manager allowed that while it is possible that the worker’s job duties could have caused injury to the worker’s shoulder, the worker’s specific job duties were assessed as being at low risk for such injury. Further, the general manager challenged the worker’s assertion that they spent 90% of their time at work engaged in heavy duty mechanical tasks, noting that would mean the operation was out of service during those times and to that extent; whereas the first employer’s records indicate that in the relevant period, the employer’s operation was up and running 78% of the time. The general manager also noted the worker’s job duties primarily involved providing preventative maintenance to the various machines onsite, with major breakdowns necessitating heavy work as described by the worker occurring only occasionally and not daily. The general manager further noted that for heavy duty tasks, multi-person teams and lifts are used to move or hold heavy equipment.

The general manager further noted the absence of any injury reports from the worker during the time of their employment, and that the worker was not working alone all the time but had support from a team of other staff for approximately half of each shift.

Second Employer’s Position

The second employer did not participate in the appeal.

Analysis

This appeal arises from the WCB’s decisions in two separate claims made by the worker in relation to two different employers. In each case, for the worker’s appeal to succeed, the panel would have to determine that the worker’s injury, whether as a new injury or as an aggravation or enhancement of a pre-existing injury, is the result of an accident as defined in the Act and policies of the WCB. As detailed in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeals are denied.

As both claims relate to injury to the worker’s right shoulder and as such, in considering each claim, the panel considered all the available medical evidence and opinions.

September 2021 Claim

The panel noted with concern that the worker’s claim of injury arising out of and in the course of their employment was not made until June 2022, by which time the worker had been employed by the second employer for some seven months. The panel further noted the worker at no time reported any shoulder injury or concerns to the first employer nor did they advise the employer of any work-related restrictions prior to leaving that employment, although the worker stated they left that employment due to their ongoing shoulder symptoms, seeking less demanding work. The panel finds the delay in the worker’s reporting to be significant.

The panel is satisfied there is evidence of onset of the worker’s right shoulder symptoms at some point between July and October 2021, although we noted several inconsistencies in the worker’s reports in this regard, with initial reports suggesting July 2020 onset. The earliest medical reporting indicates the worker described symptoms as beginning in mid-late July 2021, and the worker advisor argued this related to the worker’s increase in overtime during that month. The worker testified they noticed soreness and muscle fatigue at the end of most workdays and that after returning to work from time away due to an unrelated injury in August 2021, their shoulder felt better, but their symptoms increased with the return to regular duties. The panel accepts this chronology as it is supported by the earliest medical reporting.

Our review of the evidence does not support the finding that the worker developed a cumulative injury to their right shoulder arising out of any hazard arising out of their job duties with the first employer, nor that there was any specific event or incident that caused the worker’s injury. Rather, the evidence confirms that, other than working overtime for one week in July 2021, the worker’s job duties did not increase or change over this period. Further, we accept that the worker’s job duties were not classified as being at high risk of injury, and that when undertaking any heavy duties, the worker would have been supported by coworkers and supportive equipment. The panel also finds that the worker’s job duties, as described, were not repetitive as the evidence indicates significant variation in day to day job duties and tasks, as the worker moved from building to building on site and undertook a wide range of maintenance and repair tasks.

In reviewing the medical reporting, the panel noted that after the first physician’s October 2021 diagnosis of “right shoulder pain, possibly rotator cuff tendinitis”, the physiotherapist diagnosed rotator cuff strain/impingement and diagnostic imaging in May 2022 revealed a full thickness supraspinatus tear measuring about 1.5 centimetres, with no atrophy and mild AC joint arthritis.

The panel noted the worker did not at first attribute their job duties to the symptoms they described as occurring both at home and at work, and that the first physician recommended avoiding overhead work but did not report any work-related injury to the WCB, nor provide a medical note indicating workplace restrictions, and the worker did not advise the first employer of any limitations or injury at that time. The panel further noted the physiotherapist recorded the worker’s report of difficulty with dressing and sleeping, especially with reaching behind their body or lifting and rotating their arm, but after four treatments, the worker reported significant improvement and discontinued that therapy as of November 4, 2021.

The panel considered the orthopedic surgeon’s December 15, 2022 opinion that the worker’s right shoulder findings would not be explained by typical use and age-related changes alone but were consistent with “repetitive overhead heavy use”, and that the worker’s shoulder condition is “occupationally caused/exacerbated”. However, as noted above, we find that evidence indicates the worker’s job duties did not require “repetitive overhead heavy use” although such duties were occasionally required. The panel therefore gives less weight to the conclusions offered by the orthopedic surgeon which are based on a different understanding of the facts.

The panel also finds that the evidence does not confirm the worker’s job duties enhanced or aggravated a pre-existing right shoulder injury. The panel noted that the treating medical providers did not attribute the worker’s symptoms to their job duties until nearly one year after those symptoms arose, and some seven months after the worker left employment with the first employer. While there is reference in the reporting to a prior accident and previous rotator cuff injury, the treating physiotherapist later sought to retract these comments from their reporting. Further, the treating orthopedic surgeon’s opinion that the worker’s job duties exacerbated the worker’s shoulder injury are, as noted above, based on information about the worker’s job duties which we find are not supported by the evidence, and furthermore, is not supported by the surgeon’s own opinion that the tear likely occurred between November 2021 and February 2022, when the worker had already left this employment.

Based on the evidence and on the standard of a balance of probabilities, we are unable to find that the worker sustained injury as a result of an accident and therefore the claim is not acceptable.

April 2022 Claim

The panel noted the worker’s claim in relation to the second employer was made in June 2023, approximately one and a half years after first seeking medical attention for their right shoulder and beginning that employment. While the second employer learned of the injury and related workplace restrictions approximately one year earlier, the worker did not at that time report that the injury arose out of that employment. The panel finds this delay to be significant.

The panel finds that the evidence does not support the worker’s position that the increase in the worker’s right shoulder symptoms in February 2022 was the cumulative result of their job duties with the second employer, nor that it was the result of a new acute injury, nor an aggravation or enhancement of a pre-existing non-compensable injury. The evidence before the panel indicates the worker’s job duties with the second employer were some “40%” less demanding than their work with the first employer, and the employer confirmed to the WCB that there is significant variation in the job duties, which are less physical than construction work, but require some ladder climbing and some tasks with reaching out with minimal weight. At the time the worker reported an increase in symptoms, in February 2022, they were on the job for just two months, which the panel finds is not long enough for the worker to have developed a cumulative injury in the context of their varied and lighter duty daily job duties.

While there is evidence that the worker had a pre-existing right shoulder condition at the time they began working for the second employer, the evidence does not support the worker’s position that their job duties in this employment caused an aggravation or enhancement of that condition. The evidence rather indicates that the worker was appropriately treated with physiotherapy, which treatment the worker discontinued before starting this job, having reported significant improvement with treatment by November 4, 2021. While the worker later stated they had a sore right shoulder when they began working with the second employer, they also stated they could carry out their regular duties, and they did not report any shoulder complaints to the employer until April 2022, at which time the worker did not indicate there was any relationship between their shoulder condition and their job duties.

The evidence before the panel also does not indicate any incident or cause for an acute injury to the worker’s supraspinatus while in the course of their employment with the second employer. We noted the WCB medical advisor’s view that the tearing indicated in the May 2022 MRI study was an acute tear, and that the treating orthopedic surgeon proposed that this tear occurred between November 2021 and February 2022. We find that if this is the case, it is likely that the worker would have sought further treatment before their February 14, 2022 meet and greet appointment with the second physician, who noted the worker’s right shoulder symptoms incidentally. There is however no evidence that the worker returned to physiotherapy or sought treatment from any other provider during this period.

The panel finds the evidence does not support any specific conclusion as to when and how the rotator cuff tear occurred. We accept the evidence that supraspinatus tears can arise due to multiple factors, including age-related degeneration, micro trauma, and macro trauma, with a variety of risk factors that are both personal and occupational, as set out in the WCB medical advisor’s August 11, 2022 report. The worker’s position relies largely upon the treating orthopedic surgeon’s opinion as to when the tearing occurred, but as noted above, we give less weight to this opinion, which is based on speculation and an inaccurate portrayal of the worker’s job duties.   Based on the evidence and on the standard of a balance of probabilities, we are unable to find that the worker sustained injury as a result of an accident and therefore the claim is not acceptable.

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 4th day of October, 2024