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 November 7, 2023. The employer is appealing the decision made by the WCB the worker is entitled to wage loss benefits after August 2, 2023. A hearing was held on January 30, 2025 to consider the appeals.

Issue

Employer Appeal:

Whether or not the worker is entitled to wage loss and medical aid benefits after August 2, 2023.

Worker Appeal:

Whether or not the worker is entitled to wage loss and medical aid benefits after November 7, 2023.

Decision

Employer Appeal:

The worker is entitled to wage loss and medical aid benefits after August 2, 2023.

Worker Appeal:

The worker is entitled to wage loss and medical aid benefits after November 7, 2023.

Background

The worker submitted a Worker Incident Report to the WCB on May 30, 2023, identifying an injury to their right arm/shoulder that occurred at work on May 26, 2023, which was reported to the employer on the same date. The worker described “Transferring bags of material from one pallet to another and felt a twinge in arm and started swelling” and noted they self-treated the injury with a tensor bandage, ice and elevation, thinking the swelling would go down and the injury would resolve by the following Monday. On the Report, the worker noted their coworkers noted the swelling to their arm, but they continued to work their shift, self-modifying their duties to not do any lifting by hand.

A Hospital Triage Assessment was received by the WCB for the worker’s attendance at a local emergency department on May 28, 2023. The assessment recorded the worker’s reporting of lifting heavy objects at work on Friday, feeling a “pull” on their right arm and experiencing swelling to their whole arm a few hours later. It also noted the worker reporting noticing bruising to the inner aspect of their right upper arm the week previous. An x-ray of the worker’s right shoulder taken that date indicated “There is mild degenerative AC (acromioclavicular) joint arthrosis. No fracture or dislocation is identified.” The worker was diagnosed with a right shoulder impingement and rest, range of motion as tolerated, elevation, icing and tensor bandage were recommended.

In a discussion with the WCB on May 31, 2023, the worker confirmed the mechanism of injury and described their current symptoms as sore shoulder, swollen right arm down to their hand, tingling in their right fingers and swelling in their right elbow. The worker noted the swelling in their right hand and fingers had started to go down. The worker noted they could not use their right arm and could not make a fist or lift their right arm up. The worker advised the treating emergency department physician had placed them off work until June 1, 2023, and they had spoken to the employer who provided them with a functional abilities form to have completed by their physician. The worker advised their next scheduled appointment was for June 2, 2023.

On June 1, 2023, the employer provided the WCB with an Employer’s Accident Report. The worker’s supervisor noted on the Report, the worker had initially reported a swollen and sore arm to them on May 26, 2023, but had not related it to a work injury. It wasn’t until May 30, 2023, when the supervisor spoke with the worker that the worker described moving heavy objects then feeling pain from their shoulder to their hand. The employer noted concern with the worker’s claim indicating “…an extremely swollen arm from shoulder to fingertips,...is not consistent with a work injury or shoulder strain injury” and that the worker told the employer on June 1, 2023 their physician had advised of a possible blood clot which they were going for further testing. The employer noted the blood clot would not be caused by work activities or a hazard of employment.

Also on June 1, 2023, the worker attended for medical treatment with their family physician reporting extreme swelling to their upper and lower right arm and noted they were seen at a local emergency department and treated for shoulder tendinosis. On examining the worker, the family physician found swelling to their right upper and lower limb and hand, reduced range of motion in the right shoulder with painful passive movement and normal neurological testing. The treating family physician diagnosed the worker with edema and recommended a consultation to rule out subclavian thrombosis. The physician completed a Functional Abilities Form, placing the worker off work for 1 week.

The employer again contacted the WCB to express their concerns with the worker’s claim on June 2, 2023. The employer noted the worker advised their supervisor on May 26, 2023, their right arm was very sore and swollen, which was observed by the supervisor. At that time, the worker did not relate their injury to a work-related incident. The worker then had 2 days off work for the weekend and reported their injury to the WCB on May 30, 2023. The employer spoke with the worker on May 31, 2023, who related their injury to their job duties they were performing on May 26, 2023, when they experienced a very sharp pain in their right shoulder. The worker advised the employer that they sought treatment at a local emergency department on May 28, 2023, was prescribed medication and placed off work until June 1, 2023. On June 1, 2023, they went to see their family physician as they did not feel they could return to work. After they were seen by their physician, they contacted their supervisor to advise that a diagnosis of a blood clot may have been missed at the emergency department and they were to go for further testing. A further Functional Abilities Form was completed by the family physician indicating a non-work related injury and placing the worker off for another week. The employer noted their concern that the development of a blood clot was not related to the worker’s job duties and the worker’s entire arm, hand and fingers swelling was unusual for a sprain/strain type of injury to the worker’s right shoulder. The employer further noted their belief that the worker’s claim should not be accepted as the evidence did not support the worker sustained an injury in the course of their employment. The WCB contacted the worker on June 2, 2023 to gather further information. The worker confirmed they had met with their family physician on June 1, 2023, who indicated concern with a possible blood clot in their right arm and sent the worker for further testing. The worker advised that their physician had indicated it was a non-work-related injury in error. In addition, the WCB asked the worker about the reference to bruising on their right arm noted in the emergency department report from the previous week. The worker advised they had noticed a bruise, but it was a small bruise and not related to the workplace injury.

On June 2, 2023, the worker attended an assessment with a sports medicine physician. The worker reported carrying heavy objects at work, then feeling a pull in their right shoulder. Later that day, the worker reported their whole arm (from their shoulder to their hand) was extremely swollen and felt tight and that they experienced reduced range of motion, especially abduction. The worker also noted increased pain and bruising around their bicep area. The worker advised the treating physician they believed the swelling had improved but they were still experiencing pain with certain movements. After examining the worker, the physician noted obvious swelling to the right upper extremity and bruising near the bicep, tenderness at the long head of bicep, supraspinatus and subacromial muscles, limited forward flexion, abduction and external rotation, painful supination with resistance, flexion of elbow limited secondary to bicep pain and positive empty can and resisted external rotation testing. The physician queried a diagnosis of a bicep tear or rotator cuff tear that may be causing bruising and swelling. It was recommended that the worker follow-up with their family physician to rule out a blood clot and a further appointment was scheduled for June 5, 2023 to assess swelling and function. During the follow-up virtual visit on June 5, 2023, the worker advised the sports medicine physician that their family physician had ruled out a blood clot. Further diagnostic imaging was recommended to confirm whether the worker had a rotator cuff and/or bicep tendon tear, and the worker was referred to an orthopedic surgeon for further treatment. The physician recommended restrictions of avoiding use of their affected right arm for 2 weeks before reassessment.

At a further follow-up appointment with their family physician on June 8, 2023, the worker reported ongoing extreme pain and swelling to their right shoulder and arm. The treating physician found the worker’s right arm was still swollen, with poor and painful range of motion and queried a venous obstruction. The physician’s assessment was edema of the right upper limb, rotator cuff sprain/tear at the right shoulder and recommended testing to rule out venous obstruction. It was noted the worker was scheduled for an MRI study on June 18, 2023. Physiotherapy for right rotator cuff tendinitis was also recommended, and the physician placed the worker off work until June 23, 2023. The worker underwent a right shoulder MRI on June 18, 2023, which indicated “Cuff tendinosis with no tear. Mild AC (acromioclavicular) and glenoid osteoarthritis. Small degenerative labral tear at the posterior biceps insertion.” The MRI study was reviewed by the worker’s treating family physician and discussed with the worker at an appointment on June 26, 2023. The physician noted the MRI confirmed the worker has tendinosis in their right rotator cuff and after examining the worker, found reduced swelling in their right arm, poor range of motion, internal rotation, anterior flexion and abduction. A diagnosis of a rotator cuff sprain was provided. At a further follow-up appointment on July 4, 2023, the worker was placed off work until August 1, 2023 by their treating family physician. The worker also attended an appointment with their treating sports medicine physician on July 4, 2023. It was noted by the treating physician that the worker had undergone an ultrasound that was indicated to be positive for an axillary-subclavian venous thrombosis (ASVT). The physician opined an ASVT was “…also known as an effort thrombosis and through a (sic) overall more rare diagnosis, ASVT is felt to be most often secondary to vigorous upper extremity activity or repetitive overhead activities where the vein can be compressed causing small lining tears, sluggish or reduced blood flow making it more likely to develop a thrombosis/clot” and noted the worker had reported performing job duties involving heavy lifting prior to the workplace accident.

On July 10, 2023, the worker attended for a further appointment with their family physician who noted the worker’s ongoing pain and tightness in their right shoulder and confirmed the rotator cuff tendinitis diagnosis. The worker also attended an initial physiotherapy assessment on July 10, 2023, complaining of constant aching pain in their right shoulder, tingling in the first three digits of their right hand and difficulty bending their right elbow due to pain in their right triceps. The treating physiotherapist recorded reduced range of motion and painful flexion and extension on the right and provided a diagnosis of a grade 2 supraspinatus, subscapular and triceps strains.

The worker’s file was reviewed by a WCB medical advisor on July 18, 2023. The advisor opined the worker’s current diagnosis was a right upper extremity thrombosis/clot, with no evidence of a significant right shoulder/arm injury beyond a mild strain, which likely had resolved. The advisor provided the thrombosis/clot resolves over a period of a few weeks with treatment and that condition would not account for total disability as the worker would have been able to participate in light duties with no use of the affected right arm. The WCB medical advisor further provided the treating sports medicine physician had opined ASVT may develop in relation to vigorous upper extremity activity or repetitive overhead activities and noted that it was not clear if the worker’s job duties met those conditions. A file note was added to the worker’s file by the medical advisor to add that the degree of shoulder strain the worker sustained on May 26, 2023 in relation to their job duties had a natural history of recovery over a period of a few days to 2 to 6 weeks.

The WCB advised the worker by way of a formal decision letter on July 21, 2023 that their claim was accepted for a mild right shoulder strain but their current difficulties could not be medically accounted for in relation to the May 26, 2023 workplace accident. As such, they would not be entitled to wage loss and medical aid benefits after July 6, 2023. The worker requested reconsideration of the WCB’s decision to the Review Office on September 5, 2023, noting their treating healthcare providers supported the worker’s condition required further time off work to recover. On October 23, 2023, the employer provided a submission to the Review Office to participate in the worker’s appeal and to request the issue of the acceptance of the worker’s claim be added as their appeal. The employer noted the medical information supported the worker had right shoulder tendinitis, which is a degenerative condition as the result of repetitive and chronic overuse however, the worker reported a traumatic injury on May 26, 2023. The employer noted disagreement with the WCB medical advisor’s opinion that the worker sustained a strain/sprain type injury as the medical evidence indicated a degenerative condition. As well, with respect to the WCB accepting the worker’s claim, the employer noted the worker’s thrombosis/clot condition became symptomatic while at work, the worker had a pre-existing degenerative condition and sustained a non-work related injury approximately a week prior to May 26, 2023. A copy of the employer’s submission was provided to the worker on October 23, 2023.

On November 7, 2023, the Review Office determined the worker’s claim was acceptable and the worker was entitled to wage loss and medical aid benefits after July 6, 2023. The worker’s file was returned to the WCB’s Compensation Services for further adjudication.

On November 29, 2023, the worker provided the WCB with copies of reports from their treating hematologist dated November 8, 2023, and their family physician dated November 24, 2023. The report from the hematologist provided the opinion that the worker sustained a vascular injury at work on May 26, 2023, after lifting a heavy object and experiencing sudden pain in their right shoulder. The report from the family physician provided support for the hematologist’s opinion and indicated the worker was still experiencing pain and weakness in their shoulder and was unable to work. The WCB requested and received chart notes from the worker’s treating physiotherapist on December 7, 2023. The last chart note, dated August 9, 2023, noted the worker reported less pulling in their medial bicep, with some tightness, and constant tingling in their right thumb. The physiotherapist found tenderness in the worker’s right wrist flexors/extensors/supinator. Continued progression in strength was noted and a return to work in 1 to 2 weeks was queried. A further update from the physiotherapist, dated October 20, 2023, was received by the WCB and noted that the worker was still experiencing discomfort with end range right shoulder flexion, abduction and external rotation but indicated improved range of motion and strength. The report also noted the employer was not able to provide modified duties for the worker. On December 8, 2023, additional chart notes from the worker’s treating physiotherapist were received, including chart notes up to December 6, 2023. The chart notes indicated the worker’s reporting of improved strength overall with the December 6, 2023 chart note indicating the worker had full range of motion after treatment. In response to a query from the WCB, the worker’s treating physiotherapist advised the WCB on December 20, 2023, they considered the worker’s compensable injury of a right shoulder sprain/strain to have resolved by approximately November 8, 2023. The worker’s file was reviewed by a WCB medical advisor. The advisor’s opinion, dated January 5, 2024, was that the worker’s initial diagnosis, based on the medical reporting on file, was a right subclavian and axillary vein thrombus, which was not medically accounted for in relation to the worker’s job duties. It was noted to be unlikely that the worker strained their right shoulder significantly as no evidence of a trauma related injury was indicated on the June 18, 2023 MRI study. The WCB medical advisor noted a previous WCB medical opinion had provided that any minor right shoulder strain, if one had occurred, would have resolved within a few days to 6 weeks at most.

The WCB advised the worker on January 11, 2024, it had been determined they were entitled to wage loss and medical aid benefits to August 2, 2023. The WCB noted a review of the medical information provided indicated the mild shoulder strain sustained as a result of the May 26, 2023 workplace accident would have resolved within a few days to 6 weeks, with the treating physiotherapist’s chart notes supporting that the treatment was focused on areas other than the compensable injury after August 2, 2023.

The worker requested reconsideration of the WCB’s decision to the Review Office on May 13, 2024. On August 12, 2024, the Review Office determined the worker was entitled to wage loss and medical aid benefits after August 2, 2023. The Review Office accepted and agreed with the treating physiotherapist’s December 20, 2023 report that the worker had recovered from the compensable workplace injury as of November 8, 2023 and found the worker was entitled to wage loss and medical aid benefits to November 7, 2023.

The employer filed an appeal with the Appeal Commission on August 26, 2024 on the issue of wage loss and medical aid benefit entitlement after August 2, 2023. The worker’s representative filed an appeal with the Appeal Commission on October 8, 2024 on the issue of wage loss and medical aid entitlement after November 7, 2023. A hearing was arranged for both issues.

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. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Section 4(2) of the Act provides that a worker 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under Section 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 “as the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker."

Worker’s Position

The worker appeared in the hearing and was represented by a worker advisor, who provided a written submission in advance of the hearing (dated January 17, 2025) and made an oral submission to the panel at the hearing. The worker provided testimony in the hearing through answers to questions posed by the worker advisor and by members of the appeal panel.

The position of the worker is that they are entitled to benefits beyond August 2, 2023 and beyond November 7, 2023. The worker submits that their compensable injuries (including the blood clot) had not resolved, and the worker required benefits after August 2, 2023 and continued to require further benefits after November 7, 2023.

The worker’s accident report and the description of the injury in the testimony of the worker indicate that their co-workers and supervisor observed the worker’s swollen arm on the date of the accident.

The worker submits that the mechanism of injury involved trauma to the worker’s shoulder, which is a known or acceptable cause of an acute blood clot. The worker submits in fact that the workplace injury was the direct cause of the blood clot. The worker does not accept that it could be simply coincidental that following an injury to their right shoulder, they developed a blood clot in that arm so soon after the injury.

The worker’s position is that their injury would not have occurred but for employment-related factors. The worker submits that there may be several factors that act in combination to cause an injury and puts forth the argument that work does not have to be the only factor for the “but for” test to be met.

The medical evidence the worker points to in support of their position is that prior to and following August 2, 2023, the worker was declared unable to work by their treating physiotherapist, capable of working with right arm restrictions by the treating sport medicine physician and capable of working light duties by their treating family physician.

The worker’s position is that the medical evidence identifies ongoing symptoms and limitations beyond the dates in question.

Employer’s Position

The employer was represented in the hearing by their legal counsel, who made an oral submission on behalf of the employer and relied upon their written submission (dated January 23, 2025) provided in advance of the hearing.

The employer's position is that any ongoing treatments or any associated wage loss or need for medical aid following November 7, 2023, as it related to the right arm, was as a result of the non-compensable blood clot condition, and as a result, the worker’s appeal should be denied.

Furthermore, the employer argues that as of August 2, 2023, the worker had recovered from the compensable injury (mild right shoulder strain). The employer also relies on the opinion of the treating physiotherapist that the injury from the workplace would have resolved within a few days to 6 weeks and that any treatment after August 2, 2023 was focused on other areas.

The employer submits that the panel ought to rely on the opinion of the WCB medical advisor of December 18, 2023, which provides that significant swelling of the nature the worker experienced would not be medically accounted for in relation to a shoulder strain. The opinion of the advisor is that the swelling strongly suggests a right subclavian and axillary vein thrombus, which would not be medically accounted for in relation to the worker’s reported job duties.

Analysis

There are two issues before the panel, namely:

• The issue being appealed by the worker - whether or not the worker is entitled to wage loss and medical aid benefits after November 7, 2023; and

• The issue being appealed by the employer - whether or not the worker is entitled to wage loss and medical aid benefits after August 2, 2023.

For the worker’s appeal to succeed the panel would have to determine that the worker continued to sustain a loss of earning capacity or required medical treatment after November 7, 2023, in relation to the compensable workplace injury of May 26, 2023. As outlined in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

For the employer’s appeal to succeed the panel would have to determine that the worker did not continue to experience a loss of earning capacity or require medical treatment after August 2, 2023, in relation to the compensable workplace injury of May 26, 2023. As outlined in the reasons that follow, the panel was not able to make such findings and therefore the employer’s appeal is denied.

The worker described the injury and their job duties to the panel. Their job duties included what the worker referred to as “hand-bombing”, which at the time of the injury involved transferring bags that weighed approximately 42 pounds. The worker testified that after transferring 4 to 6 bags they felt pain in their arm and stopped transferring bags. The worker also told the panel that they often did a pre-shift warm up to prepare themselves for their shift. The panel has the benefit of the testimony of the worker and of reviewing the entire file and is of the view that the worker’s duties were physically demanding or vigorous in nature.

The panel places weight on the opinion of the treating sports medicine physician who opined in their chart notes of July 4, 2023, that axillary subclavian vein thrombosis may develop in relation to “vigorous upper extremity activity or repetitive overhead activities.”

The WCB medical advisor stated in their opinion dated July 18, 2023 that “it is not clear that the reported workplace duties are of this sort”, namely vigorous and repetitive overhead activities, which demonstrates that the advisor may not have fully comprehended the physical nature of the worker’s job duties. While the specific duties the worker was engaged in at the time of the injury were not overhead activities, it is the panel’s view that they could be considered vigorous upper extremity activity.

The worker had an accepted claim regarding their right shoulder and the panel is of the view that the worker’s blood clot was also related to their workplace injury. The panel places significant weight on the opinion of the hematologist, who has specific knowledge regarding vascular injuries, and who stated in their opinion of November 8, 2023 that the vascular injury the worker suffered on May 28, 2023 was causally related to the workplace injury on May 26, 2023.

The medical evidence before the panel confirms that the worker experienced ongoing symptoms beyond August 2, 2023. The worker continued to seek physiotherapy treatment beyond August 2, 2023. With their treating physiotherapist’s chart notes stating on August 2, 2023 that the worker’s range of motion is “fairly good but has pain at the top of the shoulder at end ra[n]ge flexion”. On August 9, 2023 the physiotherapist’s chart notes state that the plan was for the worker to continue strength progress and “query gradual return to work”. The treating physiotherapist also noted improvements in the worker’s symptoms on October 20, 2023 but continued discomfort, and functional limitation regarding their shoulder, including range of motion and strength. The evidence before the panel confirms that the worker had not recovered from their compensable injuries by August 2, 2023.

The panel also notes there is medical evidence of ongoing symptoms beyond November 7, 2023. The report of the treating hematologist dated November 8, 2023 indicates that the worker’s subclavian vein thrombus showed major resolution but also confirms that a “1.3 cm non-occlusive proximal subclavian vein thrombus” persists. Furthermore, the worker’s treating physician noted on November 24, 2023 that the worker was still unable to work and had symptoms of weakness and pain regarding their right shoulder. Therefore, the panel finds that the worker had not recovered from the compensable injury at that date.

The panel notes that the chart notes from the physiotherapist mention a gradual return to work, specifically the chart notes dated December 11, 2023 reference that the worker is nearing a return to full duties, but has not returned to work because the employer is unable to accommodate modified hours or duties. The panel is of the view that the worker would have been entitled to appropriate wage loss benefits as it relates to any gradual return to work period.

On the standard of a balance of probabilities, the panel is satisfied that the worker is entitled to wage loss and medical aid benefits after August 2, 2023 and after November 7, 2023. The panel makes no finding with respect to the duration or extent of the worker’s ongoing entitlement to wage loss or medical aid benefits, and as such the matter will be referred to the WCB for further determination. The worker is successful with respect to both issues under 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 31st day of March, 2025