Decision #48/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on March 29, 2001, at the request of the claimant. The Panel discussed this appeal on March 29, 2001.
Issue
Whether or not the claimant is entitled to wage loss benefits beyond October 12, 1999.
Decision
That the claimant is entitled to wage loss benefits from October 13, 1999 to her return to work date on July 24, 2000.
Background
The claimant filed an application for compensation benefits indicating that she injured the lower right side of her back and neck while cleaning under a bed in an awkward position during her employment activities as a housekeeping aid on August 4, 1999.
Initial medical information showed that the claimant attended her physician for treatment on August 6, 1999 for a sore back that had been hurting for at least one month. The physician noted pain in the right sacroiliac joint and in the right upper thoracic spine. On August 31, 1999, the physician noted that the claimant complained of tenderness to her right shoulder. X-rays of the lumbosacral spine showed a shallow scoliosis within the inferior lumbar spine, convex left. There was anterior spurring at L2-3. There was a subchondral scoliosis noted on the iliac side of the left SI joint which may relate to early osteoarthritis.
On September 2, 1999, following a telephone conversation with the claimant, a Workers Compensation Board (WCB) adjudicator documented the claimant's description of the work activities which led to her back difficulties on August 4, 1999.
In a decision dated September 21, 1999, the claimant was advised that her claim for compensation was unacceptable as there was insufficient evidence to establish a relationship between her low back and neck difficulties and an accident arising out of and in the course of employment. The matter was referred to Review Office and on December 17, 1999, Review Office overturned the decision stating that the claimant's lower back and neck problems arose out of her cleaning duties, specifically cleaning under and around beds.
On January 6, 2000, the claimant spoke with a WCB benefit adjudicator to provide an up-date as to her current status. The claimant indicated that she had not returned to work since August 1999 and that she was still seeing her physician every two weeks. The claimant indicated that her physician wanted to refer her for physiotherapy but since her claim had been denied she never started physiotherapy treatment.
On January 10, 2000, a WCB medical advisor was asked to review the medical reports on file and to provide an opinion as to the diagnosis and the recovery time for each diagnoses. In response, the medical advisor noted the following diagnoses:
- Musculoligamentous neck/back (31/8/99) - 3 to 4 weeks recovery period;
- Myalgias/anthralgias (28/9/99) - 1 to 2 weeks recovery period;
- shoulder tendinitis (Dec. 17/99) - 4 to 6 weeks recovery period;
- ? (l) sacroiliac osteoarthritis? (10/8/99) - permanent;
- Back pain (6/8/99) - ? Unknown, depends on cause.
The medical advisor also made the following comment: "There is no supporting evidence of injury to prolong this list of complaints with exacerbations."
In a decision dated January 27, 2000, the claimant was informed that she was entitled to six weeks of wage loss benefits between August 6, 1999 to September 16, 1999. The benefit adjudicator indicated there was no supporting evidence provided by the attending physician indicating that a normal recovery period would have been prolonged.
Subsequent progress reports were received from the attending physician and from a physiotherapist. Reports were also received from a sports medicine and rehabilitation specialist. On February 29, 2000, the specialist assessed the claimant with scapulothoracic postural instability and likely tendinosis of the rotator cuff (supraspinatus). Arrangements were made for a CT arthrogram to rule out a tear in the rotator cuff.
On April 12, 2000, the results of a CT post shoulder arthrogram revealed no evidence of a rotator cuff tendon tear.
In a report dated April 24, 2000, the sports medicine and rehabilitation specialist stated that clinical findings today showed near resolution of the injury sustained to the claimant's right rotator cuff and that the claimant was ready for a graduated return to work.
On July 12, 2000, the attending physician wrote that the claimant's right shoulder strain was slowly resolving with medical management and that the claimant was scheduled to return to full duties as of July 24, 2000.
On October 4, 2000, a union representative appealed the decision made by primary adjudication on January 27, 2000. The union representative was of the view that the claimant had not recovered from the effects of her August 4, 1999 work injury as of September 16, 1999, and that her employer did not offer her any suitable modified work, causing her to suffer both physically and financially. The union representative concluded that the claimant was entitled to further wage loss and medical aid benefits.
Prior to considering the above appeal, Review Office obtained the opinion of a WCB orthopaedic consultant on October 17, 2000, with respect to diagnoses. The orthopaedic consultant was also asked for his opinion as to whether or not the claimant had recovered from her injuries as of September 16, 1999.
On October 27, 2000, Review Office determined that no responsibility could be accepted for the claimant's right shoulder complaints and that she was entitled to payment of wage loss benefits to October 12, 1999, inclusive and final.
Review Office noted that the sole focus of medical attention was to the claimant's lower back and neck. Later, the focus of medical attention was on the right shoulder which a specialist finally determined was nothing more than a strain. Review Office indicated that it was unable to reconcile a localized injury to the claimant's shoulder to this claim given that the worker's original complaints involved difficulty getting up and sitting down which would be indicative only of a lower back problem. From the medical reports available, Review Office felt that the claimant's low back problem had essentially resolved by October 12, 1999, with the main focus of attention going to other areas of the claimant's anatomy, specifically her right shoulder area. On November 29, 2000, the union representative appealed Review Office's decision and an oral hearing was convened.
Reasons
This is the case of a woman who suffered an injury to her lower back, neck and right shoulder while cleaning the underside of a bed in the course of her employment with a hospital.
Her claim for wage loss benefits was initially denied on the basis that her injuries did not arise out of and in the course of her employment as required by section 4(1) of The Workers' Compensation Act. As noted above, in the "Background", this decision was overturned by the Review Office, which accepted her lower back and neck injuries as work related.
A second decision by the Review Office extended payment of wage loss benefits to October 12, 1999. The issue under appeal to the Commission is whether or not she is entitled to benefits beyond that date.
In order for the claimant to succeed in this appeal, the Panel must determine two things: first, that her shoulder injury was related to the compensable injury of August 4, 1999 and, second, that this injury caused a loss of earning capacity beyond October 12, 1999.
We have concluded that the shoulder injury is related to her compensable injury and, thus, did arise out of and in the course of employment. We have further concluded that this injury did prevent her from returning to work until the spring of 2000.
In coming to our decision, we carefully reviewed all of the evidence - particularly, the medical evidence - contained in her file. As well, we had the benefit of hearing from the claimant in an oral hearing. The employer also participated in this hearing.
The claimant testified before the panel that, while bent down and reaching under the bed to clean it, she suddenly felt sharp pains throughout the right side of her back, from her waist area to her neck.
In the previous decision, which did not accept responsibility for her shoulder injury, considerable weight was placed on the fact that she did not report her shoulder problems to her attending physician until August 31, 1999, her third visit to the doctor after the accident. She testified that she did mention to her doctor - on the first visit - problems with her shoulder, but because the pain in her lower back and neck were most severe, he focussed his attention on those areas. She also described her pain as starting in her neck and radiating toward her shoulder and to the outside of her right upper arm.
On reviewing the doctor's notes of her first few visits, we note that on her first visit, he recorded that she reported pains to her lower and upper back. On the second visit, on August 16, 1999, we note that the doctor does make mention of subjective findings about "neck, shoulder and lower back." In his report of her August 31st visit, he makes an objective finding of "tender to R shoulder."
On September 21, 1999, she was notified by the WCB that her claim was not accepted, as they could not establish a relationship between her low back and neck difficulties and an accident arising out of and in the course of her employment. This decision was subsequently overturned by the Review Office on December 17, 1999.
However, because her claim was not accepted for four and a half months, her treatment fell into 'limbo'. As there was no body covering costs, she did not receive any physiotherapeutic treatment, even though her doctor had first identified "physio" in his notes of her 2nd visit. This lack of treatment only compounded her problems.
By September 14, she was prepared to consider a return to work program and, by October 12, her doctor felt she was ready for such a program. But, because she was not covered by either WCB or the hospital's LTD program, she was not eligible for a return to work program. Owing to the lack of physiotherapy, her shoulder worsened so that, by early December, she felt she was not able to return to work, even on a graduated basis.
After her claim was accepted by the board, she began physiotherapy in January 2000. Initially, progress was very slow. She testified that it helped very little, until acupuncture was applied. By late April, her doctor felt she was able to begin a graduated return to work program, now available to her through the hospital's LTD plan. This commenced on May 29, 2000 and, on July 24, 2000, she returned to her normal duties, full-time.
It is apparent to us that had she been given physiotherapy when first identified by the doctor, she would have been able to return to full duties much sooner. We feel the attending physician was remiss in not finding an alternate method for her to receive physiotherapy when her claim was not accepted by the WCB.
In concluding that her shoulder problem did arise out of and in the course of employment, we were considerably persuaded by the analysis of the board's orthopedic consultant, who, on October 17, 2000, wrote that the diagnosis of her injuries was "Musculo ligamentous strain to lower back and neck. The shoulder symptoms could also be muscular or referred from the neck." We further note that he also wrote that such strains would normally heal in 6 - 8 weeks. Her attending physician, on July 12, 2000, wrote: "General impression, strain of right shoulder, slowly resolving with medical management." We note that the claimant's description to us of her neck and shoulder symptoms mirrors one of the diagnoses suggested by the board's orthopaedic consultant.
These comments lead us toward a diagnosis of a muscular strain in her neck/right shoulder, which arose out of the incident at work. We are of the view that, if she had had physiotherapeutic treatment, beginning in August 1999, she may well have healed in a 6 - 8 week timeframe.
Therefore, we conclude that the claimant is entitled to wage loss benefits from October 12, 1999 to July 23, 2000, when she returned to work full-time.
Accordingly the appeal is allowed.
Panel Members
T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of April, 2001