The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Responsibility should not be accepted for the worker's right shoulder rotator cuff tear as being a consequence of the September 9, 2021 accident; and 

2. They are not entitled to benefits after May 17, 2022.

A hearing was held on March 24, 2025 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for the worker's right shoulder rotator cuff tear as being a consequence of the September 9, 2021 accident; and 

2. Whether or not the worker is entitled to benefits after May 17, 2022.

Decision

1. Responsibility should be accepted for the worker's right shoulder rotator cuff tear as being a consequence of the September 9, 2021 accident; and 

2. The worker is entitled to benefits after May 17, 2022.

Background

The employer filed an Employer’s Accident Report with the WCB on September 23, 2021 indicating that the worker reported an injury to their left wrist that occurred at work on September 9, 2021. The employer noted concern that the worker had not reported a specific incident or accident and had reported feeling pain in their left wrist when performing their job duties. The employer noted the worker had a previous WCB claim and had been cleared to return to their regular duties since January 2021 but had complained of right shoulder pain and now left wrist pain due to the shoulder pain. The employer further noted the worker’s treating healthcare provider had recommended modified duties for the worker but the worker had requested time off work instead.

Chart notes from the employer’s health unit were supplied for the worker’s attendance on September 15, 2021. The worker reported having issues with their right shoulder since returning to their regular duties, with no new incident or accident reported. In addition, the worker also reported pain to their left wrist but was unsure of the cause. The treating healthcare provider noticed limited radial deviation and slight swelling to the worker’s wrist.

The worker received medical treatment on September 16, 2021, complaining of left wrist pain due to repetitive movement at work. The treating physician found tenderness at the worker’s left dorsal wrist and a positive Finklestein’s test. A diagnosis of left wrist strain was provided, along with a left thumb spica splint and it was recommended that the worker remain off work. At a follow-up appointment on September 21, 2021, the worker’s treating physician provided a Functional Status Report indicating the worker was capable of modified duties including not using their left arm for a period of two weeks due to a pre-existing issue with their right shoulder.

On September 27, 2021, the WCB spoke with the worker to discuss their claim. The worker attributed their right shoulder and left wrist difficulties to the repetitive push and cutting they do while performing their job duties. The worker advised they had been working in their current position since May 2020 and had first noticed their symptoms around September 9, 2021. They went to the health unit at work where the nurse applied ice and medicated cream to their wrist and were told to work light duties. Their symptoms did not improve, and the employer suggested they seek medical treatment. The worker saw their family physician on September 16, 2021 and was given two weeks off work. However, after missing only September 17, 2021 to September 22, 2021 and at the urging of their physician, the worker returned to work in a different area on September 23, 2021. The worker noted their wrist was still weak and sore and they were wearing a wrist brace. The worker attended for physiotherapy on October 1, 2021 and after being examined, was diagnosed with right shoulder rotator cuff related pain and weakness and tendinopathy with left wrist de Quervain’s tenosynovitis. Restrictions of maximum lift of 1 pound bilaterally, maximum push/pull of 2 pounds on the right, 1 pound on the left and limit repetitive movement bilaterally were recommended for 3 weeks.

The worker’s claim was accepted by the WCB and the payment of various benefits started.

The worker underwent MRI studies on February 8, 2022 for their left wrist and March 30, 2022 for their right shoulder. The left wrist MRI was noted to be normal, with the right shoulder MRI indicating “Moderate supraspinatus tendinosis with partial-thickness articular sided tear at the tendon footprint.” At an April 1, 2022 follow-up appointment with the treating physician, the worker was referred to an orthopedic surgeon for further treatment.

On May 5, 2022, at the request of the WCB, the worker’s file was reviewed by a WCB medical advisor. The advisor opined the worker’s diagnosis with respect to their left wrist was de Quervain’s tenosynovitis and for their right shoulder, a shoulder strain, both injuries having a natural history of recovery over a period of a few days to 2 to 6 weeks. The WCB medical advisor noted the February 8, 2022 MRI study was normal for the left wrist and as such, a current diagnosis of non-specific left wrist pain was provided. It was further provided the March 30, 2022 MRI of the right shoulder found “…thickening and high signal within the rotator cuff tendon, with an associated partial thickness tear” and the advisor opined this indicated degeneration and gradual attrition of the tendon versus an acute injury. Given the time away from work and physiotherapy, the WCB medical advisor further opined the worker’s injuries had resolved some time ago. On May 9, 2022, the WCB advised the worker it had been determined they had recovered from the September 9, 2021 workplace injury and they were not entitled to further benefits. On June 22, 2022, the worker’s treating physician provided a written letter to the WCB advising that the worker continued to experience pain and difficulties with their right shoulder and left wrist and required further benefits. The WCB advised the worker on July 8, 2022, the information was reviewed but there would be no change to the earlier decision.

The WCB received a copy of an October 19, 2022 report from the worker’s orthopedic surgeon. The surgeon recorded the worker’s reporting of a 2-year history of shoulder pain, starting in November 2020, they related to overuse due to repetitive job duties, which was made worse by an associated left wrist tendonitis that limited use of their shoulders. The surgeon noted the worker had a full course of conservative treatment, including physiotherapy, with little benefit and continued to experience “…significant shoulder pain, difficulty with any reaching or overhead lifting, difficulty with ADLs (activities of daily living) and pain at rest at night.” It was further noted an MRI study showed a high-grade 75% supraspinatus tear. An arthroscopic rotator cuff repair was recommended. On November 1, 2022, the WCB advised the worker’s surgeon that coverage for the proposed surgery would not be provided as the WCB had not accepted responsibility for the rotator cuff tear as a compensable injury of the worker.

On December 15, 2022, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. The representative’s submission included a detailed chronology of the events by the worker and noted the worker sustained a more severe injury than a strain and required further benefits. On February 14, 2023, the Review Office determined the worker was not entitled to further benefits, however, it was noted the WCB’s policy had not been followed correctly with respect to providing the worker with notice of the ending of their benefits and as such, Review Office found the worker was entitled to benefits to May 17, 2022.

The WCB received a surgery report from the worker's treating surgeon on May 27, 2023 for a rotator cuff repair surgery the worker underwent on May 20, 2023. It was noted the worker had a 1 cm high-grade supraspinatus tear. A follow-up report for an appointment on April 6, 2023 was also received and noted the surgeon's opinion the worker's injury was as a result of a work-related incident. A further follow-up report dated June 7, 2023, noted the worker's recovery from the surgery had been complicated by "…adhesive capsulitis with persistent shoulder stiffness, pain and dysfunction." A November 9, 2023 report noted ongoing pain but slow improvement in range of motion in the worker's right shoulder.

The worker's representative submitted a letter to the WCB on February 1, 2024 and requested consideration be given to accepting the worker's rotator cuff tear as part of their claim. The representative provided information that the worker was performing some of their job duties with dull equipment, outside of their body envelope at or above their shoulder height, which mechanism of injury was consistent with a rotator cuff tear. The worker's file and the information provided by the worker's representative were reviewed by a WCB medical advisor on March 20, 2024. The advisor opined sustained or repetitive frequent use of arms at or above shoulder level was an activity that could place rotator cuff tendons "…at risk of impingement and associated accelerated wear or attrition." Frequent use was described as duties carried out for 34 to 66% of a workday for 4 to 6 or more consecutive weeks or several months. The WCB requested and received information from the employer on the worker's job duties on April 12, 2024 and on the same date, the WCB advised the worker a connection between their job duties and the development of a rotator cuff tear could not be established.

On August 2, 2024, the worker's representative requested reconsideration of the WCB's decision the worker's rotator cuff tear was not a result of the September 9, 2021 workplace accident and that the worker was not entitled to benefits after May 17, 2022. The representative presented the argument the evidence supported the worker's job duties were forceful and repetitive and outside of their body envelope and caused the worker to develop a rotator cuff tear and as the compensable injury was more serious than the shoulder strain accepted by the WCB, the worker should be entitled to further benefits after May 17, 2022.

The Review Office determined on October 9, 2024, the worker's claim was not acceptable for a rotator cuff tear and they were not entitled to benefits after May 17, 2022. The Review Office found the evidence on file indicated the job duties noted by their representative to be a possible cause of the worker's development of a rotator cuff tear were of a short duration and did not reach the level of frequency required to have caused the tear. In addition, the Review Office found prior diagnostic imaging confirmed the worker had a pre-existing condition in their right shoulder and the evidence did not support the September 9, 2021 workplace incident structurally altered the pre-existing condition. As the Review Office did not accept the worker's rotator cuff tear as part of the compensable injury, it was found the worker did not require further benefits after May 17, 2022 as the right shoulder strain had recovered.

The worker's representative filed an appeal with the Appeal Commission on October 11, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.

A worker is entitled to compensation under Section 4(1) of the Act when it is established that they sustained personal injury because of an accident at work. Under Section 4(2) of the Act, a worker injured in an accident is entitled to wage loss benefits for their 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 of the accident.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, compensation is payable under Section 37 of the Act. Section 39(2) of the Act provides that the WCB will pay wage loss benefits until the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB has established WCB 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 purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as the temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition.

Worker’s Position

The worker was present at the hearing, supported by a worker advisor, an interpreter and a support person. The worker’s representative made an oral submission to the panel and relies on their previous submissions on file. The worker answered questions posed by their advisor and by members of the appeal panel.

The position of the worker is that their job duties were consistent with an overuse rotator cuff tear and rely on the opinions of the WCB medical advisor on March 20, 2024 and the worker's treating orthopedic surgeon.

The worker's representative submits that the Review Office noted inconsistencies in the worker’s description of which duties caused the worker’s right shoulder difficulties, however it is argued by the worker’s representative that the employer provided the description of only one of the worker’s job duties. In addition, it is submitted that any inconsistencies are due to the worker’s limited English language skills and education and the fact that the description of the worker’s physical duties were provided through the use of a community translator who does not work in the facility or have a medical background.

The worker submits that they have a physically demanding job, which involves overhead work. The worker’s representative states that it is indisputable that the worker performed repetitive, forceful work at or above shoulder height.

The worker also submits that even with rotating their shifts every 2 hours, they would rotate back to the position where they performed overhead work and that this would result in a total of 4 hours per shift in that position or up to six hours per shift, if there was a staffing shortage.

The worker’s evidence is that they had no shoulder issues when they returned to their regular duties in January 2021 and that they were able to perform their full regular duties without issue. There were no complaints of shoulder difficulties until August 22, 2021.

The worker submits that the rotator cuff tear did not exist prior to January 27, 2021, and submits that there is no medical evidence to support otherwise. However, the worker argues, in the alternative, that if the panel is of the opinion that the rotator cuff tear existed prior to January 27, 2021, the worker’s position is that the workplace duties worsened a pre-existing tear as the worker was performing repetitive, forceful overhead work duties between January 2021 and October 9, 2021.

The worker states that the tear was further enhanced by their workplace duties between February 15, 2022 and April 2022, when the worker was accommodated in a job that was outside of their restrictions. The worker’s position is that there is no evidence that they recovered from their right shoulder difficulties on May 17, 2022.

The worker is seeking further benefits, and for the WCB to accept responsibility for their right rotator cuff tear.

Employer’s Position

The employer’s representative appeared virtually at the hearing and made an oral submission to the panel. The representative answered questions posed by members of the panel.

The employer states that they support the assessment of the facts and policy completed by the claims adjudicator and by the review officer.

The employer’s position is that the worker’s rotator cuff tear was degenerative in nature and not causally related to the workplace accident of September 9, 2021.

The employer states that their job design includes requiring regular or cyclic task rotation to reduce ergonomic exposure to physical stress and fatigue. The employer also states that they provide aids, such as ergonomic stands, to ensure employees do not have to perform duties overhead. Therefore, the job duties can be performed at or below chest height level for all employees within the body envelope.

The employer’s position is that the evidence supports that the appropriate accepted diagnosis would be right shoulder strain and they agree with the opinion of the review officer that the worker’s workday does not consist of frequent at or above shoulder level activity, given the job rotation every two hours.

The employer argues that there was no query by the treating physician of a rotator cuff tear. The employer’s position is that the onset of the tear cannot be determined or related to the alternate occupational duties which the worker was performing between September 2021 through March 2022.

The employer’s position is that the MRI imaging confirms the cause of the tear to be degeneration and gradual attrition, and not the result of a workplace injury.

The employer states that there was a significant fall in July of 2021, which resulted in the worker being away from work for two weeks. The employer submits that this is one possible alternate explanation for the shoulder tear and states that this is supported by the worker’s reports of shoulder pain that has been ongoing for some time in September 2021.

The employer asks that the panel confirm the decision of the Review Office as the right shoulder rotator cuff tear has not been demonstrated to be work related.

Analysis

There are two issues for consideration by this panel. The findings are set out in detail below.

Issue 1:

The first issue is whether or not responsibility should be accepted for the worker's right shoulder rotator cuff tear as being a consequence of the September 9, 2021 accident. For the worker’s appeal of this issue to be successful, the panel must find there is a casual connection between the rotator cuff tear and the workplace accident in 2021.

The panel accepts the evidence that the worker’s duties were physically demanding, repetitive and overhead. The panel also accepts the worker’s evidence that despite job rotations they could be doing these duties for more than 2 hours per shift.

The panel relies on the evidence of the WCB medical advisor in their March 20, 2024 opinion, which provides as follows: “sustained or repetitive use of the arms at or above the shoulder lever is typically regarded as an activity that places the rotator cuff tendons at risk of impingement and associated accelerated wear or attrition…..consistent performance of such activities over several (4-6 or more) consecutive weeks or several months could be expected to be associated with adverse effects on the rotator cuff tendons, especially in the setting of anatomy with significant impingement.”

The panel is of the view that the repetitive duties contributed to the rotator cuff tear, which occurred within an environment of a pre-existing degenerative condition.

Therefore, the panel finds, on a balance of probabilities, that the worker’s right rotator cuff tear was a consequence of their workplace accident of September 9, 2021. The worker’s appeal of this issue is granted.

Issue 2:

The second issue under appeal is whether or not the worker is entitled to benefits after May 17, 2022. For the worker’s appeal to succeed, the panel would have to find that the worker had a loss of earning capacity or required medical aid after the date in question arising from the injury sustained in the compensable workplace accident. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker is entitled to benefits after May 17, 2022.

The panel has reviewed the medical evidence and relies on the opinion of the physiotherapist and the worker’s treating physician. The panel notes that the Physiotherapy Application for Additional Treatment form dated May 9, 2022 references continued pain at right shoulder and states that the recovery has not been satisfactory. The chart notes from the treating physician dated May 28, 2022 note that there are continued reports of right shoulder pain and tenderness. The evidence before the panel does not support that the worker had recovered from their right shoulder difficulties on May 17, 2022.

With respect to the worker’s left wrist, the medical evidence does not support that the worker had recovered. The worker was using their left hand while doing modified duties and the panel is of the view that this would have slowed the worker’s recovery. The evidence before the panel is that the treating physiotherapist noted on May 9, 2022 that the left wrist was approximately 60% improved. Improvement does not equate to recovery. The treating physiotherapist referenced the worker had swelling to the wrist and noted there was discomfort when performing the Finkelstein test. Furthermore, the chart notes of the treating physician confirm reporting of continued left wrist pain by the worker after May 17, 2022. The panel is of the view that the worker had ongoing left wrist difficulties.

The panel finds, on a balance of probabilities, that the worker had a loss of earning capacity or required medical aid as a result of their workplace accident of September 9, 2021. The panel therefore finds that the worker is entitled to wage loss benefits after May 17, 2022.

The worker’s appeal is granted on both issues.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 23rd day of May, 2025