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 further benefits in relation to the August 21, 2023 accident. A hearing was held on March 13, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the August 21, 2023 accident.

Decision

The worker is entitled to further benefits in relation to the August 21, 2023 accident.

Background

On September 13, 2023, the worker submitted a Worker Incident Report to the WCB indicating they injured their right shoulder at work after pushing a heavy bin back into a building on August 21, 2023. The worker noted "There was a bump in the threshold and as I put the garbage bin in, I felt a crack in my right shoulder." The incident was reported to the employer on August 22, 2023.

The worker attended an initial physiotherapy assessment on August 29, 2023, reporting constant pain to their right shoulder, worse when trying to lift their arm with the pain travelling into their right neck and arm and difficulty sleeping due to pain. The worker noted the onset of pain began after they pushed a large garbage bin while at work. After examining the worker, the treating physiotherapist found limited active range of motion with pain, and all range of motion testing of the worker's right shoulder was painful. A diagnosis of a right rotator cuff strain, and a possible tear, was provided and restrictions of no lifting with right arm and no lifting above shoulder height with the right arm were recommended. The worker underwent a right shoulder MRI on August 31, 2023. The MRI indicated “Supraspinatus tendinosis with unchanged high-grade partial-thickness tear.” It was noted the MRI findings were similar to a prior MRI in 2022.

In a conversation with the WCB on September 18, 2023, the worker confirmed the mechanism of injury noting that while they were pushing the garbage bin, 2 wheels of the bin got stuck on the raised lip of the floor and they felt a crack to their right shoulder. The worker noted they had attended for medical treatment with their family physician on August 24, 2023 for this injury along with an injury for a separate work incident, at which time they were referred for an MRI. The worker was seen by an orthopedic surgeon and the MRI was conducted on August 31, 2023. The worker noted surgery was recommended and they had been placed on a wait list. The WCB was further advised that the worker was off work due to another WCB injury. The WCB accepted the worker’s claim and advised they would be also requesting a copy of the 2022 MRI study referenced in the August 31, 2023 MRI.

A copy of the October 11, 2022 right shoulder MRI was received by the WCB on September 19, 2023 and provided to a WCB medical advisor for review. The advisor opined the worker’s diagnosis with respect to the August 21, 2023 workplace accident was a right shoulder strain/sprain and then requested a review of the diagnostic imaging by a WCB Radiology Consultant, who placed their opinion to the worker’s file on September 25, 2023. In summary, the consultant opined the MRI’s both indicated a “…partial bursal sided tear…” which were comparable on both sides and the August 31, 2023 did not indicated any new findings. A WCB medical advisor placed a further opinion to the worker’s file on October 5, 2023, providing “…the evidence on file does not support that a structural/material injury to the right shoulder or enhancement of the pre-existing right shoulder partial-thickness rotator cuff tear occurred in relation to the August 21, 2023 workplace incident.”

At a follow-up physiotherapy appointment on October 12, 2023, the worker reported constant pain in their bilateral neck area, pain in their right shoulder with use and issues with sleeping due to pain. The treating physiotherapist noted reduced range of motion in the worker’s right shoulder with painful movements and recommended restrictions of no lifting with right arm and no lifting with right arm above shoulder height. A September 7, 2023 report from the worker’s treating orthopedic surgeon to the worker’s family physician was received by the WCB on October 25, 2023. The report noted the worker’s right shoulder complaints and that the diagnostic imaging had confirmed a high-grade partial thickness supraspinatus tear which was previously found on a 2022 MRI. The surgeon indicated the worker’s reporting of pain with reaching and overhead activities and advised the worker wished to proceed with right rotator cuff repair surgery.

The worker contacted the WCB on November 29, 2023 to inquire whether or not the proposed right rotator cuff repair surgery would be covered by the WCB. On December 7, 2023, the worker’s file was reviewed by a WCB orthopedic surgery consultant. The consultant reviewed the previous healthcare opinions on the worker’s file and provided that the proposed rotator cuff surgery would be related to the worker’s pre-existing right shoulder rotator cuff tear that was not enhanced by the August 21, 2023 workplace accident. On December 21, 2023, the WCB advised the worker their claim had been accepted for a right shoulder strain and it had been determined they had recovered from that injury. As such, the WCB would not be accepting responsibility for the proposed right shoulder rotator cuff repair surgery.

On January 9, 2024, the worker’s representative requested reconsideration of the WCB’s decision to the Review Office. The representative submitted a copy of the December 22, 2023 operative report from the worker’s right rotator cuff repair surgery and noted the surgical report indicated the worker’s injury was more severe than previously reported on the imaging. As such, the representative believed the worker was entitled to further benefits in relation to the August 21, 2023 workplace accident.

The Review Office determined on February 21, 2024, the worker was not entitled to further benefits. The Review Office placed weight on the opinions of the WCB medical advisors that the worker’s partial thickness rotator cuff tear was pre-existing and the compensable injury in relation to the workplace accident was a shoulder strain, with a typical recovery in 4 to 6 weeks. The Review Office found the surgical report for December 22, 2023 noted findings similar to the MRI’s of October 2022 and August 2023 and the diagnosis from the surgery was supraspinatus tendinosis with an unchanged high-grade partial thickness tear.

The worker’s representative filed an appeal with the Appeal Commission on November 14, 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 (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act 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 states 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 to cure and provide relief from an injury resulting from an accident.”

The WCB has established Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses 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. It is further noted that 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 Policy provides that wage loss benefits will cease when a worker has recovered 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 was present at the hearing, with support from their spouse. The worker was represented by an advisor from the Worker Advisor Office, who made an oral submission to the panel. The worker provided testimony through answers to questions posed by the worker advisor and by members of the panel.

The worker’s position is that the evidence supports the worker had not recovered from the injury sustained in the workplace accident of August 21, 2023, but continued to sustain a loss of earning capacity and a need for medical aid in relation to that injury. Therefore, the worker submits they should be entitled to further benefits.

The worker submits that the medical evidence on file supports their pre-existing right shoulder condition was enhanced by the August 21st, 2023 workplace injury, and relies on the opinion of their treating physician who opined that there was a worsening to their pre-existing tear. The worker also relies on the opinion of the orthopedic surgeon who performed the surgery and observed the tear.

The worker's evidence is that they had increased symptoms following the workplace accident, including reduced mobility and function and required restrictions while awaiting surgery. The position of the worker is that but for the August 21, 2023 workplace injury, they would not have required the December 22nd, 2023 right rotator cuff repair surgery.

The worker’s position is that they are entitled to further benefits as the workplace injury permanently worsened their pre-existing right shoulder tear, requiring surgical repair, and they continue to suffer loss of earning capacity and require benefits as a result.

Employer’s Position

The employer was represented by an agent who made an oral submission on behalf of the employer and answered questions posed by members of the panel.

The employer agrees with the Review Office that weight should be placed on the WCB medical consultant’s opinions of September 19, 2023 and October 5, 2023 that the rotator cuff tear was pre-existing and that the injury from the August 21, 2023 injury was a shoulder strain/sprain.

The employer submits that the medical evidence before the panel confirms that the worker’s right shoulder was problematic prior to the August 21, 2023 accident and that the rotator cuff tear was already present and pre-existing. The employer argues that a comparison of the MRI imaging shows that there were no changes when comparing the imaging from the pre-accident MRI and the post-accident MRI. The employer relies on the opinion of the WCB musculoskeletal radiology consultant, dated September 25, 2023, who confirmed that the pre-existing tear had not progressed since 2022.

The employer submits that the typical recovery period for shoulder strain/sprain is within four to six weeks of injury.

The position of the employer is that the worker recovered from the effects of the strain/sprain and any ongoing difficulties with their shoulder are not compensable. The employer submits that any ongoing symptoms the worker is experiencing are not causally related to the August 21, 2023 workplace accident.

The employer is seeking that the decision of the Review Office to terminate benefits be upheld by this panel.

Analysis

The issue on appeal relates to the worker’s entitlement to further benefits arising out of the accident of August 21, 2023. For the appeal to succeed, the panel would have to decide that when the WCB ended the worker’s benefits, the worker continued to have a loss of earning capacity or continued to require medical aid arising out of the injuries sustained in the workplace accident. For the reasons outlined below, the panel was able to make such findings and therefore the worker’s appeal is granted.

The evidence before the panel is that the worker suffered a non-work-related right shoulder injury and had consulted a physician who ordered an MRI. After reviewing the MRI, the treating physician indicated that surgery was not required. The worker’s evidence is that they missed four days of work as a result of the non-work-related injury and continued working their full regular duties until the August 21, 2023 workplace injury. The panel acknowledges that the worker’s regular duties are physically demanding.

The panel accepts the worker’s description of the mechanism of injury on August 21, 2023. The worker described pushing a heavy industrial garbage bin into a building and injuring their shoulder when the garbage bin went over a bump in the threshold.

The opinion of the worker’s treating physician is that there had been a worsening of the worker’s pre-existing tear. In support of their opinion, the treating physician references a change in the percentage noted on the two MRI studies from a 50% partial thickness supraspinatus tear (pre-accident) to a 75% partial thickness supraspinatus tear (post-accident). The panel acknowledges however that the opinion of the WCB medical consultants (an orthopedic consultant and a radiology consultant) is that the tear is 50% thickness on both MRI studies. The panel further notes that the initial MRI (pre-accident) references specific measurements of 5 x 4 mm, whereas the second MRI (post-accident) does not provide specific measurements. The worker underwent surgery to repair the tear on December 22, 2023 and the operative report documented a 1 cm supraspinatus tear.

The evidence of the worker is that they were working their regular duties, which involved overhead work, prior to the August 21, 2023 injury. The worker then experienced shoulder pain on August 21, 2023 after pushing the industrial garbage bin and sought treatment and reported their injury to their employer. The panel accepts that the mechanism of injury was adequate to cause a shoulder injury of this nature.

In considering all of the available evidence, the panel finds that the ongoing symptoms are more likely caused by the workplace accident.

The panel also finds that there was a worsening of the worker’s condition because of a workplace injury. The worker had a pre-existing shoulder condition and the accident on August 21, 2023 enhanced said pre-existing condition.

The medical evidence and the submissions of the worker support a finding that the worker was experiencing continuing symptoms from the accident and that the worker’s injury was not resolved when the WCB terminated the worker’s benefits.

The panel relies on the evidence of the treating physiotherapist which indicates that the worker had constant pain which got worse when trying to lift the arm. The panel acknowledges that 7 weeks post-injury the Physiotherapy Progress Report (dated October 12, 2023) noted that the worker was not improving and eventually the worker required surgery to repair the rotator cuff tear. The panel finds that there was no evidence of recovery at the time the WCB terminated benefits.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker is entitled to further benefits as they sustained a loss of earning capacity and/or required further medical aid because of the injuries sustained in the workplace accident. Therefore, the worker is entitled to further benefits in relation to the August 21, 2023 accident. The appeal is granted.

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 12th day of May, 2025