The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on November 19, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On April 30, 2025, the employer submitted an Employer's Accident Report to the WCB to report the worker injured their right shoulder at work on March 4, 2025. The employer noted the worker delayed in reporting and did not report the incident to their manager until April 29, 2025. The worker described assisting a resident with a transfer, when the resident struggled and only partially turned and the worker hurt their shoulder after pulling hard. The employer noted the worker had not missed time from work until April 29, 2025, reported their shoulder was fine but they were not sleeping well. The employer was advised by the worker that they had sought medical treatment and had an MRI done, along with an appointment with a surgeon.

The WCB received a copy of chart notes from the worker's treating physician on May 2, 2025. The March 19, 2025 chart note indicated the worker was seen for acute right shoulder pain. The worker reported pain, restricted range of motion and weakness for 3 weeks, in the anterior and lateral area of their shoulder that was progressively worsening. It was noted the worker was self-treating their shoulder injury with over-the-counter pain medications. Impingement testing was noted to be positive on examination and the worker was diagnosed with right shoulder subacromial pain, secondary to clinically suspected rotator cuff tendinopathy. The worker was referred to an MRI study. The worker underwent a right shoulder MRI on April 14, 2025, which indicated a "Full-thickness, partial width tear of the supraspinatus tendon posteriorly at the footprint." The April 22, 2025 chart note from the treating physician indicated the worker reported ongoing issues with the right shoulder and the results of the MRI were discussed. It was noted by the treating physician the tear was relatively acute with no muscle atrophy or fatty infiltration, and the worker reported clicking in their shoulder. The worker was referred to an orthopedic surgeon and physiotherapy was recommended.

The worker attended for an initial physiotherapy assessment on April 30, 2025. The worker reported pain in their right shoulder in their shoulder blade, pectoral region and down their arm, with intermittent numbness and tingling into their fingers and interrupted sleep after assisting a resident at work on March 4, 2025. The treating physiotherapist examined the worker and found restricted and painful range of motion in the shoulder, with a positive empty can test on the right. The diagnosis of a full thickness tear of the right supraspinatus was noted to be confirmed by the MRI study. Restrictions of no lifting with the right arm with weight outside of the body envelope and can use left arm above shoulder height and outside of the body envelope were noted on a Functional Abilities Form completed by the physiotherapist on April 30, 2025. The employer confirmed they could accommodate the worker within those restrictions and a graduated return to work plan was developed, with the worker starting the plan on May 5, 2025.

On May 13, 2025, the WCB spoke with the worker to discuss their claim. The worker confirmed the mechanism of injury noted on the employer’s report and advised the WCB they had reported the injury to their supervisor and a coworker and provided contact information for both but was unsure of the date. The worker noted they felt immediate pain from their shoulder down their bicep to their elbow after the incident. After which, lifting got more difficult with their right arm but they continued to work, protecting their right arm by using their left arm as much as they could. The worker further noted they continued to work 4 hours shifts on modified duties of not lifting and keeping their right elbow at their side. The worker also noted their sleep was disturbed as they could not sleep on their right side. On the same date, the WCB spoke with the worker’s supervisor who confirmed the worker contacted them on April 29, 2025 to report the incident they believed occurred on March 4, 2025. At that time, the worker advised the supervisor they did not believe the injury was severe and it wasn’t until they felt they couldn’t manage it anymore that they reported the incident. In addition, the supervisor added the worker advised of their medical treatment and MRI at the time of the April 29, 2025 telephone conversation. On May 26, 2025, the WCB spoke with the worker’s coworker who advised the worker had reported to them in approximately January or February, 2025 that they thought they pulled something and they were going to “…try and push through it.” The worker also advised the coworker they believed the injury occurred with a specific client but the coworker could not recall the date it happened. The coworker also advised the WCB approximately two weeks later, the worker mentioned the incident again at a meeting and the worker mentioned they would try to figure out a way not to use their shoulder.

On May 27, 2025, the WCB advised the worker their claim was not acceptable as the worker delayed in reporting the injury to the employer and the WCB and it could not be established the worker suffered an injury in the course of or arising out of their employment. On June 18, 2025, the worker’s representative provided further medical information and the contact information for further witnesses and asked the WCB to reconsider their decision the worker’s claim was not acceptable. The medical information supplied included a May 29, 2025 letter from the worker’s treating sports medicine physician, who provided that based on the worker’s clinical history of no prior issues with their right shoulder, the described mechanism of injury and the diagnostic imaging, they opined the worker sustained an acute rotator cuff tear as a result of the March 4, 2025 workplace accident. In addition, a May 31, 2025 report from the treating orthopedic surgeon noted the diagnostic imaging indicated a right shoulder full-thickness rotator cuff tear and a possible small partial low-grade tear of their infraspinatus tendon, with the worker reporting persistent pain and limited function after a workplace injury. It was noted the worker was on the wait list for a right shoulder arthroscopy and rotator cuff repair surgery. The WCB also spoke with the two witnesses provided by the representative. The first witness advised on June 20, 2025, they were aware the worker had injured their shoulder, but did not know which shoulder was injured. The coworker also advised they knew the resident the worker had been working with on March 4, 2025 and confirmed the potential for an injury would exist with that resident. The WCB also spoke with the second witness on the same date. The second witness also advised they could not recall when the worker’s injury occurred, but the worker did tell them they injured their shoulder, and noted they believed the worker used an incorrect transfer technique with the resident when their injury occurred. The WCB advised the worker again on June 20, 2025, their claim was not acceptable as it could not be established the worker injured their shoulder at work on March 4, 2025.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on June 24, 2025. In their submission, the representative noted the worker reported the injury to the employer and the WCB and provided statements from coworkers/witnesses who confirm the worker indicated they injured their right shoulder at work. As well, the representative noted the worker’s treating sports medicine physician clarified an earlier report from March 19, 2025 that detailed the worker’s injury as degenerative and noted that was in error. The representative argued the worker did delay in reporting their injury to the WCB and the employer however, the medical evidence and the witnesses’ testimony supported the worker sustained a right shoulder injury, likely a rotator cuff tear, while at work on March 4, 2025. The employer’s representative provided a submission in support of the WCB’s decision to Review Office on August 6, 2025, with the worker’s representative responding on August 14, 2025.

Review Office determined on August 19, 2025, the worker’s claim was not acceptable. Review Office found the worker’s delay in reporting their injury to the employer and the WCB until after the diagnostic imaging indicated the worker may require surgical repair of their shoulder made it difficult to determine the worker suffered an injury at work on March 4, 2025.

The worker’s representative filed an appeal with the Appeal Commission on August 20, 2025 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…

WCB 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).”

Worker’s Position

The worker appeared in the hearing represented by a union representative. The representative relied on prior written submissions and provided additional oral submissions during the hearing. The worker offered testimony through answering questions posed by the worker’s representative 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 a workplace accident which occurred on March 4, 2025. Specifically, that the worker injured their right shoulder while attempting to assist their client in a pivot transfer to the client’s wheelchair. The worker explained that they initially believed that they had a strain on their shoulder, which would improve with time. The worker explained that they only sought medical help when the pain to their shoulder did not improve.

The worker’s representative summarized the medical records of the worker and the findings of the medical professionals that treated the worker. In summary, the worker’s representative submitted that the worker's physicians provided the opinion that the worker's injury arose out of an acute traumatic event, consistent with a workplace injury.

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 relies on a number of points which were raised before the panel; (i) the delay in the reporting of the worker to the WCB, (ii) the worker’s delay in reporting the injury to their medical provider, (iii) the fact that the worker is educated and trained in reporting injuries at work, (iv) the incomplete medical history on file (in particular the MRI report dated April 15, 2025 sought a “requisition for full history” which was not provided to the WCB), (v) the timing of the correction by the worker’s medical provider during their May 29, 2025 report clarifying that their prior notes were made in error, and (vi) that the witness statements provided by the worker in support of their claim had no real connection to the incident claimed by the worker.

The employer overall takes the position that the cause-and-effect relationship between the workplace and the worker’s injury has not been established. 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 March 4, 2025 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 panel considered whether there is evidence of an accident, as defined by the Act, as arising out of and in the course of employment that resulted in injury to the worker.

The worker is a healthcare aide who attends to their client’s residences and assists them in various tasks. As a result, the worker usually works alone and there would be no other co-workers or supervisors on site to witness any incidents. The worker alleges that they were aiding a patient, when in an attempt to help the client from falling, the worker grabbed the client’s pants with their right hand, causing a "twinge" in their right shoulder.

The employer’s advisor during the hearing confirmed that the worker was at work on March 4, 2025. The employer’s advisor provided evidence to the panel that once the report was eventually made by the worker, the employer was able to investigate the incident. However, the employer did not provide a written report, nor did the employer interview the client (or the client’s spouse) that were present when the worker alleged the injury took place.

The worker provided evidence stating that they initially believed that the pain that they felt was a pulled muscle, and since they had the following days off, and since they were now moving onto day shifts, they did not immediately report the incident to their employer. Throughout their injury, the worker testified that they did not take any sick days, but instead continued to work despite the pain. The worker also testified that because the pain on their shoulder did not resolve, they attended a sports medicine clinic where they were examined by a student doctor, and eventually referred for an MRI. Due to the worker’s apprehension to undergo surgery, the worker initially attempted physiotherapy, but this did not resolve the issue.

The worker’s medical records were provided to the panel from the worker’s medical visit. During this initial visit, the worker did not inform the physician that the injury was work related. The worker was also unaware as to the extent of the injury and the exact cause of their shoulder pain. The notes from the worker’s treating physician dated March 19, 2025 contained the following report:

“History of Presenting Illness: 

Handedness: RHO 

Duration: 3 weeks 

Mechanism: atraumatic, degenerative 

Location: anterior and lateral 

Radiation: anterolateral upper arm 

Course: progressively worsening 

Current Symptoms: pain, restricted range and weakness 

Aggravating factors: weight-bearing, lifting and throwing 

Treatments to date: NSAIDs and Tylenol”

The same treating physician provided a second letter dated May 29, 2025 correcting their March 19, 2025 letter by stating:

“I am writing to clarify the medical findings and clinical context regarding my patient, [worker], who sustained a shoulder injury while at work. The injury occurred as a result of a pulling mechanism during a fall while assisting a patient, consistent with an acute traumatic event.

Clinical Summary

- patient presented with ongoing shoulder pain and mechanical symptoms (clicking) following the workplace incident 

- MRI imaging demonstrates a full thickness rotator cuff tear. Importantly, there is preservation of muscle bulk and no evidence of muscle atrophy or fatty infiltration, findings which are inconsistent with a chronic or degenerative tear. 

- There is no mention of degenerative changes in the MRI report or in my clinical notes. 

- Any reference to “degenerative” in the documentation appears to have been inadvertently included in a trainee’s note and does not reflect my assessment or the imaging findings.

Based on the clinical history, mechanism of injury, and imaging, it is my medical opinion that this is an acute rotator cuff tear directly related to the workplace incident. The patient is young and does not have risk factors or imaging findings to suggest a degenerative etiology.”

A report from the worker’s orthopedic surgeon dated May 31, 2025 provided the MRI Imaging Results. In their notes, the following were listed:

“MRI of the right shoulder (April 14, 2025): 

• Focal full -thickness tear involving the posterior aspect of the supraspinatus tendon at the footprint, at its junction with the infraspinatus tendon 

• Tear measures 1.2 cm x 1.2 cm 

• Possible small (4 mm) partial low- grade tear of the infraspinatus tendon inferiorly at the footprint

…

Impression

• Right shoulder full-thickness rotator cuff tear involving the posterior supraspinatus at the footprint, at the junction with the infraspinatus tendon 

• Possible small partial low-grade tear of the infraspinatus tendon 

• Persistent pain and functional limitation following workplace injury 

• Currently struggling with pain symptoms, requiring modified duties at work”

The panel also reviewed the medical evidence and notes that there is no prior report of shoulder issues preceding the March 4, 2025 incident, and the worker has no prior claims involving their right shoulder. The panel finds that based on the medical evidence presented, the worker suffered an acute (non-degenerative) tear on their right shoulder rotator cuff.

The panel also considered the context in which the worker reported their injury. The panel acknowledges that when there is a delay in reporting a workplace incident, such a delay can cause WCB difficulty in investigating and assessing claim acceptance. The panel notes that the employer has not provided any evidence that the delay has had any measurable impact on the employer’s ability to verify the worker’s claim. The worker attends a client’s residence to perform their work, and there likely would not have been any witnesses if an incident occurred.

The panel finds that the worker’s explanation credible as to why they did not immediately report the incident (due to a belief that the pain would resolve itself), along with the fact that the worker did not take any time off.

Conclusion

Based on the evidence and on the standard of a balance of probabilities, we find that the worker sustained an injury arising out of and in the course of their employment, and as such, the worker’s claim should be accepted.

The worker’s appeal is granted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of December, 2025