The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for their right shoulder difficulties as being a consequence of the May 12, 2023 accident. A hearing was held on July 10, 2025 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the May 12, 2023 accident.

Decision

Responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the May 12, 2023 accident.

Background

The worker has an accepted WCB claim for an L1 compression fracture that occurred at work on May 12, 2023 when they were pushed by a resident and then "…stumbled a few steps backwards and then fell straight on my back on the ground." After the incident, the worker was taken by ambulance to a local hospital where they were diagnosed with an L1 compression fracture and remained in hospital until May 21, 2023.

The hospital report noted the worker was admitted on May 12, 2023 after being pushed by a resident and falling on their back. Pain to their back and difficulty mobilizing was reported by the treating physician and it was noted an undisplaced compression fracture of the L1 vertebral body was found on diagnostic imaging. The worker was admitted until May 21, 2023 for pain management and physical therapy. On discharge, the hospital's occupational and physical therapists requested supportive equipment for the worker. The worker was seen for an initial appointment with their family physician on May 30, 2023 reporting ongoing back pain, inability to walk more than a few steps, only able to stand for a short time and having to change position frequently when sitting. The physician noted the worker was moving with difficulty, had tenderness at their mid and lower back, a normal neurological examination and no pain into their legs.

On June 6, 2023, the WCB's rehabilitation specialist conducted an independent living and personal care allowance assessment, and the worker was provided with coverage for assistance with housekeeping and laundry, along with grocery shopping and community outings until July 31, 2023. Also on June 6, 2023, the worker attended an initial physiotherapy assessment reporting decreased range of motion in their lumbar spine due to pain and inability to ambulate with use of a walker. The treating physiotherapist found the worker had antalgic gait and their strength was inhibited due to pain. The physiotherapist recommended the worker remain off work as the worker was unable to tolerate any positional option and their pain was not well managed.

At a follow-up appointment on June 19, 2023, the treating physiotherapist noted the area of injury to be the worker's low back and right arm and noted the worker's reporting of pain to their back and right shoulder, with the right shoulder pain "…started post back injury…" possibly from the worker's walker, and further noted the worker reported difficulty sleeping due to shoulder and back pain and inability to do their hair due to arm pain. It was noted the worker struggled to bend and rotate from their hips and move their arm over their head. The physiotherapist provided a diagnosis of L1 fracture with mild impingement of right shoulder and queried a deltoid strain. Ongoing time off work was recommended. The worker also attended for a follow-up appointment on June 26, 2023 with their treating physician who noted that since the May 12, 2023 workplace accident, the worker reported not being able to move their right shoulder, and that the pain in their shoulder was masked by the pain medication the worker was taking for their back. It was also noted the worker had been referred for an MRI study.

The July 12, 2023 right shoulder MRI study indicated the worker had a near full-thickness tear of the anterior half of the supraspinatus tendon; intradendinous partial thickness tear of the infraspinatus tendon; marked supraspinatus and infraspinatus tendinosis; and partial thickness tearing of the most cephalad fibers of the subscapularis tendon. At a further follow-up appointment with the treating physician on July 21, 2023, the worker's diagnosis was updated to include a rotator cuff tear, and the physician referred the worker to an orthopedic specialist.

The WCB provided the employer with the worker's temporary restrictions of sedentary work, walk for 20 minutes maximum, sit with regular walking breaks, limit lifting to 15 pounds, no twisting squatting and no reaching with right arm on September 12, 2023 based on a report from the treating physiotherapist on September 8, 2023. In a discussion with the worker on September 12, 2023, the WCB advised their claim for an injury to their right shoulder was under review and additional investigation was required. The WCB requested chart notes from the worker's treating physician on the same date.

The worker attended an initial appointment with a sports medicine physician on September 14, 2023. The physician found a reduced range of motion in the worker's right shoulder, along with positive rotator cuff tear testing and diagnosed a right rotator cuff tear. The physician also noted the worker had been referred to an orthopedic specialist but had not been seen yet. In the referral letter to the orthopedic specialist, the physician indicated the worker should not use their right arm. The WCB spoke with the worker's treating physiotherapist on September 18, 2023, noting concern that the worker had not reported difficulty with their right shoulder at the time of the workplace accident. The physiotherapist noted it was possibly overlooked and that the worker may have landed with force on their right arm. The WCB queried whether the worker may have injured their shoulder attempting to get out of bed or using the walker with the physiotherapist indicating that was unlikely. The treating physiotherapist advised they encouraged the worker to return to work, supporting that it would be part of the worker's rehabilitation but noted the worker disagreed and advised the WCB it may be difficult to transition the worker back to work. The physiotherapist further noted the worker's concerns with being asked to do more than they were capable of doing by the employer, possible interactions with aggressive residents and their inability to assist residents if they were falling.

In a discussion with the worker on September 21, 2023, the WCB advised the worker it had been determined they had recovered from the compensable back injury and as such, the WCB would not support any restrictions for their back. In addition, their claim for a right shoulder injury was still under review. The worker noted disagreement with the WCB's decision indicating their back was still sore and they continued to use a walker to mobilize. The worker further advised their right shoulder injury occurred as a result of the May 12, 2023 accident, as they landed on their right arm during the fall. The worker noted they had advised the healthcare providers at the hospital at the time of the accident. The worker also noted their shoulder became sore due to using a cane and a walker. The WCB advised the worker their treating physiotherapist had noted it was unlikely their shoulder difficulties were due to using the walker. A formal decision letter was provided to the worker on September 21, 2023 advising their entitlement to benefits related to the compensable back injury would end on September 28, 2023.

The worker's file was reviewed by a WCB medical advisor on September 22, 2023. The advisor opined the July 12, 2023 MRI study indicated "…significant pre-existing rotator cuff tendinopathy involving all three tendons, and degenerative fraying of the entire glenoid labrum with a moderate joint effusion and posterior subluxation of the humeral head" and further provided the findings on the diagnostic imaging were not medically accounted for by the mechanism of the May 12, 2023 workplace accident. As well, the advisor indicated that if the difficulties noted on the MRI study had been acute, the worker would have experienced "…severe shoulder pain and loss of range of motion within a few days of injury" and noted the worker advised the symptoms began after the workplace accident but there was no mention in the medical information of difficulties until approximately a month later. Lastly, the WCB medical advisor indicated the current restrictions indicate sedentary duties however, the treating physiotherapist noted the worker had significant clinical improvement in pain and loss of function with the restriction on the worker reaching with their right arm not related to the compensable injury. On the same date, the WCB provided the worker with a formal decision letter advising responsibility for their right shoulder difficulties would not be accepted.

A follow-up report from their worker's treating family physician for an appointment on September 26, 2023 was received by the WCB. The report noted the worker's reporting of ongoing pain in their right shoulder with very limited range of motion. The physician examined the worker and found tenderness and limited range of motion for abduction and flexion. Restrictions of modified duties of light duties for 4 hours, change position frequently, no interaction with client, start with every other day and increasing gradually over a few weeks if tolerated was recommended. The WCB provided the worker's treating physiotherapist with a graduated return to work plan, on September 27, 2023, which was set to begin on September 29, 2023.

On November 1, 2023, the worker requested reconsideration of the WCB's decision to Review Office. On their submission, the worker noted their belief that the right shoulder injury occurred as a result of the May 12, 2023 workplace accident as they had no previous difficulties with that shoulder and indicated when they fell, they must have used their hand. The worker also provided a detailed chronology of their medical treatment, including physiotherapy, after the workplace accident and noted disagreement that their right shoulder difficulties were not reported until June 14, 2023. The worker also provided further physiotherapy reports with their submission. The employer advised the WCB on November 7, 2023 the worker had not returned to work since October 11, 2023 and had not provided any medical information to support why they were off work. The employer advised Review Office they would participate in the worker's appeal and provided a submission in support of the WCB's decision on January 5, 2024, with the worker providing a response on January 22, 2024, which included statements from two coworkers who witnessed the May 12, 2023 workplace accident. On January 29, 2024, the Review Office determined responsibility for the worker's right shoulder difficulties would not be accepted. The Review Office accepted and agreed with the opinion of the WCB medical advisor that the worker had significant pre-existing issues with their right shoulder and had those issues been impacted by the workplace accident, the worker would have experienced severe pain and loss of range of motion that would have been present even with the worker taking pain medication. In addition, the Review Office agreed with the worker's treating physiotherapist's opinion the worker's right shoulder difficulties were not caused by the use of a cane or walker or by the worker attempting to get out of bed in the hospital, as reported by the worker.

The worker's representative submitted additional medical information to the Review Office on August 16, 2024. The representative argued the chart notes and January 15, 2024 surgery report indicated the worker had difficulties with their shoulder that required surgery and had not returned to work since the surgery as the employer was unable to accommodate the worker's restrictions. The representative provided that the worker first noticed their right shoulder difficulties when they were in the hospital and was transitioning from a lying position to sitting, when dressing and undressing and when using a walker to mobilize. The representative noted that after the worker was discharged from the hospital, they started physiotherapy and after stopping the pain medication and using their right arm more, their difficulties became more apparent.

The Review Office determined again on September 12, 2024, responsibility for the worker's right shoulder difficulties would not be accepted. The Review Office found the worker's treating healthcare providers, specifically the orthopedic surgeon and family physician, both support the worker had pre-existing degenerative issues in their right shoulder prior to the May 12, 2023 workplace accident and that the accident aggravated those difficulties to the point where the worker required surgery to repair a rotator cuff tear. The Review Office preferred to rely on information on the worker's file closer in time to the workplace accident and noted the worker's right shoulder difficulties were not reported to any of their treating healthcare providers until June 6, 2023. As well, the Review Office found the worker did not report any shoulder difficulties to a WCB rehabilitation consultant who attended to determine if the worker had any limitations with their activities of daily living or to their WCB case manager. The Review Office again accepted and agreed with the opinion of the WCB medical advisor that had the worker sustained an acute right shoulder injury from the workplace accident, their difficulties would have been apparent within a short time of the accident.

The worker's representative filed an appeal with the Appeal Commission on December 23, 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 (“Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The applicable provisions of the Act and policies are those in effect as of the date of the accident.

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. ‘Accident’ is defined in s 1(1) of the Act as:

"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…

Policy 44.05, “Arising Out of and in the Course of Employment”, and its Administrative Guidelines provides the following:

“A. When does an accident arise in the course of employment? 

When worker's accident occurs on their employer's premises, at a time when a worker might reasonably be expected to be there, the WCB generally considers the worker's accident to have occurred in the course of their employment (i.e. at work).”

Policy 44.10.20.10, “Pre-existing Conditions”, provides the following:

“What is a pre-existing condition? 

A pre-existing condition is any medical condition the worker had prior to their workplace injury. Pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. Workplace injuries can also have an effect on pre-existing conditions. When a worker's pre-existing condition is temporarily worsened because of a workplace injury, this is considered an aggravation of a pre-existing condition. When a worker's condition is permanently worsened because of a workplace injury, this is considered an enhancement of the pre-existing condition. [emphasis added]”

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor relied on prior written submissions and provided additional oral submissions during the hearing. The worker offered testimony through answering questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the evidence supports a finding that the worker sustained their shoulder injury as a result of the May 12, 2023 workplace accident. Specifically, that their right shoulder pain began only following the accident. This pain was raised by the worker when they were admitted at the hospital, and during their first medical appointment immediately following their stay at the hospital.

The worker advisor summarized the medical records of the worker and the findings of the various medical professionals that treated the worker. In summary, the worker advisor submitted that the worker's right shoulder surgeon provided the opinion that the worker's disability would likely not have resulted but for the workplace injury. Based on the surgeon's medical opinion, the May 12, 2023 workplace injury materially changed the pre-existing condition in the worker's right shoulder and therefore the worker's right shoulder claim should be accepted.

Employer’s Position

The employer was represented in the hearing by an advocate. The advocate relied on prior written submissions and made oral submissions to the panel and answered questions posed by members of the appeal panel.

The employer’s position is that the Review Office decision should be upheld, and that the worker’s right shoulder condition did not arise out of and occur in the course of employment. The employer asks the panel to place weight on the description of the symptoms outlined by the WCB’s medical consultantin their September 20, 2023 opinion that the MRI findings reflect pre-existing conditions that do not relate to the mechanism of injury.

The employer further takes the position that there were inconsistencies about the reported mechanism of injury, and inconsistencies about the reporting of the onset of the worker’s right shoulder pain.

The employer submits that the claim should not be accepted.

Analysis

The question on appeal is whether or not responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the May 12, 2023 accident. For the appeal to succeed, the panel would have to find that the worker’s right shoulder difficulties were the result of an accident arising out of and in the course of employment. As detailed in the reasons below, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The worker has an accepted claim involving their L1 vertebra, diagnosed as a compression fracture when, on May 12, 2023, the worker was pushed while working, causing the worker to stumble a few steps backwards and land on the ground. The force exerted on the worker from the push was of sufficient energy to cause the worker to sustain an L1 vertebra fracture. The incident was witnessed by an individual who was with the worker at the time of the incident.

The medical evidence on the file supports the finding that after the May 12, 2023 incident, the worker was suffering from right shoulder pain since at least their initial physiotherapy appointment on June 6, 2023. Since that appointment, there are multiple instances throughout the medical file where the worker reported ongoing right shoulder pain.

During the hearing, and in their written submissions, the worker reiterated that they immediately reported their right shoulder issues while at the hospital, during the home visits with their occupational therapists, and with the healthcare aids that assisted the worker at home. Unfortunately, it does not appear that the worker’s complaints were recorded nor was the worker’s shoulder medically evaluated while the worker was admitted in the hospital.

The panel finds that the mechanism of injury the worker sustained to their L1 vertebra during the May 12, 2023 incident, was capable of having caused a right shoulder injury. Specifically, that it is reasonable and probable that the worker attempted to break their fall by outstretching their arm(s) which injured their right shoulder.

The panel notes the worker was prescribed pain medication to treat the pain from their fractured vertebrae. The panel accepts that the medication would have likely masked the worker's right shoulder symptomology and explains the worker's underreporting, if there was any, of the right shoulder injury immediately after the workplace incident.

The panel accepts the consensus that the worker had deterioration in their right shoulder prior to the workplace incident and that the worker likely suffered from an asymptomatic pre-existing condition, as determined by a number of medical professionals who treated the worker.

The worker's treating orthopedic surgeon, in their April 12, 2024 report stated the following:

“I reiterated my opinion, that her underlying RC tendonopathy was likely pre-existing and asymptomatic. However the workplace injury resulted in significant pathology and pain that required surgical intervention (example of an old tire hitting a pothole was used for purposes of clarity). ln this way. both sides are correct. Her disability would likely not have resulted if not for her injury.”

The MRI report of September 27, 2023 stated the following:

There is a near full-thickness tear of the anterior half of the supraspinatus tendon. The tear measures 10 mm AP and 5 mm ML. Only a few bursal sided fibers may remain intact. There is a partial-thickness intratendinous tear within the infraspinatus tendon resulting in a small cyst at the myotendinous junction. There is a marked hypertrophic tendinosis of the suprapinatus and infraspinatus tendons. There is partial thickness tearing of the most cephalad fibers of the subscapularis tendon. All rotator cuff muscles are mildly atrophic. There is mild edema in the infraspinatus muscle, The deltoid is normal.

“IMPRESSION: 

1. Near full-thickness tear of the anterior half of the supraspinatus tendon. Intratendinous partial thickness tear of the infraspinatus tendon. 

2. Marked supraspinatus and infraspinatus tendinosis. 

3. Partial thickness tearing of the most cephalad fibers of the subscapularis tendon.”

The panel finds that the worker suffered an injury to their right shoulder in the May 12, 2023 workplace incident.

While it is noted that the worker had a pre-existing right shoulder condition, it was asymptomatic and the worker was working their full job duties with no restrictions. There is no evidence before the panel that the worker had any right shoulder limitations prior to the workplace incident. The panel notes that the type of work that the worker was performing was physically laborious. However, the evidence shows that the worker had been working their regular duties without restrictions, prior to the May 12, 2023 injury.

Conclusion

The panel accepts, on a standard of a balance of probabilities, that the worker’s fall due to the workplace incident of May 12, 2023 impacted the worker’s right shoulder.

Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker’s right shoulder difficulties were the result of an accident arising out of and in the course of their employment, and that responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the May 12, 2023 accident.

The worker’s appeal is granted.

Panel Members

R. Mamucud, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of August, 2025