Decision #141/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 30, 2002, at the request of a union representative, acting on behalf of the claimant. Following that hearing, the Panel requested additional information from the claimant's treating physicians. The Panel discussed the appeal and rendered its decision on October 30, 2002.

Issue

Whether or not the worker has recovered from the effects of her October 26, 2000 compensable injury; and

Whether or not the worker is entitled to partial wage loss benefits beyond July 13, 2001.

Decision

That the worker had recovered from the effects of her October 26, 2000 compensable injury; and

That the worker is not entitled to partial wage loss benefits beyond July 13, 2001.

Decision: Unanimous

Background

During the course of her employment as a nursing assistant in October 2000, the claimant injured her right shoulder while repositioning and lifting patients. The diagnosis rendered on October 30, 2000, was tendonitis/soft tissue inflammation. The Workers Compensation Board (WCB) accepted the claim on the basis of tendonitis and the claimant was paid wage loss benefits for October 27, 2000 and October 30, 2000 along with physiotherapy and prescription costs.

In a December 19, 2000 memo, a WCB adjudicator noted that the claimant discontinued working as of December 2, 2000 as the constant lifting and boosting of patients aggravated her shoulder. There was no new injury but her shoulder condition gradually worsened. When speaking with the attending physician on December 21, 2000, the adjudicator documented that the diagnosis was tendinitis that likely aggravated the bursa sac. The WCB accepted the claim as a recurrence and wage loss benefits were reinstated effective December 2, 2000.

In January 2001, the claimant began a graduated return to work program with her employer which was authorized by her attending physician. It was expected that the claimant would be able to return to regular duties by February 5, 2001. Subsequent file records showed, however, that the claimant experienced increasing pain at work with decreased function. On March 12, 2001, a WCB medical advisor assessed the claimant to determine her present physical status.

In the examination report dated March 14, 2001, the WCB medical advisor provided details regarding right shoulder difficulties which the claimant had experienced since 1995. The medical advisor found that the claimant was suffering from myofascial pain syndrome with taut bands and trigger points in a number of muscle groups around the shoulder girdle. The claimant was also suffering from minor sleep disturbance.

The medical advisor suggested that the claimant was not fit for full duties but could continue with her graduated return to work program. Restrictions were outlined to avoid any lifting overhead, no lifting greater than 10 pounds, no pushing or pulling over shoulder level and no excessive repetitive use of the right shoulder. The restrictions were to be imposed for a 3 month period and then reviewed. Recommendations were also made for a course of acupuncture treatment.

On May 12, 2001, the physician specializing in acupuncture treatment noted that the claimant was treated 5 times as of May 11th and her pain complaints were much improved and she no longer had any pain down the arm. There was still myofascial activity in the posterior shoulder girdle which should be treated a few more times. A course of physiotherapy was recommended to concentrate on strengthening the right shoulder prior to a return to work.

In a letter dated June 21, 2001, a WCB case manager confirmed to the claimant that it was the opinion of the WCB that she sustained a soft tissue injury as a result of her work activities. It was also the WCB's opinion that following a course of treatment, the claimant would be recovered from the effects of the work injury by July 13, 2001. The letter further stated, "You advised that you had taken a course on your own initiative and received a .7 position within the facility. As I advised, WCB will pay wage loss benefits to July 13, 2001 inclusive and final. Should you take the .7 position which starts on June 25, 2001, WCB will pay partial wage loss benefits to July 13, 2001 inclusive and final."

On July 9, the Claimant's physio-therapy treatments which consisted of assessment, education, thermotherapy and manual therapy were concluded.

On July 24, 2001, the physician specializing in acupuncture treatment noted that the claimant was treated for the 10th time on July 23, 2001. The specialist indicated that the claimant's pain complaints reduced a lot and she was working as a ward clerk. The specialist noted that the claimant would not need any physical therapies. He did not identify any permanent restrictions in the claimant's capacity to work or any further restrictions beyond that date.

On August 13, 2001, a WCB case manager advised the claimant that no change would be made to the June 21, 2001 decision. Following consultation with a WCB health care advisor, it was the WCB's position that as there were no findings which would preclude the claimant from full time work.

On October 15, 2001, a union representative appealed the above decision to Review Office. The union representative commented that the attending physician and consultants involved in the case all agreed that the claimant was unable to work full time hours. "Although primary adjudication states there are 'no findings' which preclude Ms. [the claimant] from working full time, our review of the medical information and opinion on her file strongly suggests otherwise. She is able to manage working with the continued effects of her compensable injury to a maximum of 0.7 Full Time Equivalent hours. Because of this, it is our position that she continues to be entitled to receive partial wage loss benefits."

Prior to considering the appeal, Review Office sought the medical advice of a WCB physical medicine and rehabilitation consultant. In his November 28, 2001 response to questions posed by Review Office, the consultant provided the following opinions:
  • He would not expect any current diagnosis related to the October 26, 2000 reported injury;

  • On a balance of probabilities, there were no findings to support a continued cause and effect relationship between the claimant's symptoms and the compensable injury;

  • There was no evidence to suggest any other restrictions related to the compensable injury;

  • The consultant suggested pre-existing muscle involvement onset with the 1995 non-WCB injury to the right shoulder. There were intermittent symptoms noted since 1995 to the right shoulder area and he would have expected resolution of the muscle involvement with the treatments received including directed needle treatment and time to date now greater than one year post onset of the claim.
On November 30, 2001, Review Office determined that the claimant had recovered from the effects of her October 26, 2000 compensable injury and that she was not entitled to partial wage loss benefits after July 31, 2001. Review Office was of the view that the claimant sustained nothing more than a soft tissue injury at the time of her workplace event for which she received considerable treatment which included physiotherapy, acupuncture and medication.

In the view of the Review Office, the claimant had experienced a lengthy time loss and had essentially recovered from the effects of the compensable injury by July 13, 2001, some 9 months post-injury. Review Office found no medical evidence to support any ongoing effects from the compensable injury after July 13, 2001. This decision was supported by a review of the file evidence and the opinions of the WCB's medical advisor and physical medicine consultant. On February 15, 2002, the union representative appealed the Review Office's decision and an oral hearing was arranged.

On May 30, 2002, following the hearing and discussion of the case, the Panel requested additional information from the claimant's treating physicians. Additional information was provided by her family doctor in a letter dated August 19, 2002 and by a specialist in Physical Medicine and Rehabilitation in a series of letters dated August 16, 2002, September 5, 2002, September 18, 2002 and October 1, 2002.

Of particular note is the letter from the specialist in Physical Medicine and Rehabilitation dated August 16, 2002 in which he noted a history of intermittent pain in the claimant's right shoulder, right side of her chest and right side of her back, since 1995. Her current complaints related to pain in a number of areas including her upper limbs, hands, medial fingers, chest, and back as well as her neck and shoulders.

The specialist in Physical Medicine and Rehabilitation identified taut bands or active trigger points in the trapezius, the rhomboid, the levator scapulae, the pectoralis major, the right infraspinatus as well as in the paraspinal muscle in her mid-back area. Subsequent treatment involved needling, spraying as well as stretching of some of the affected areas.

On October 10, 2002,the interested parties were provided with copies of the medical reports that were received by the Panel. Both parties provided written comments. On October 30, 2002, the Panel met to give its final decision taking into consideration the record and the submissions from the claimant's representative and the employer's advocate.

Reasons

This is a situation where the claimant had a long history of difficulties with her back, shoulder and chest dating to 1995. In October, 2000 the claimant suffered a work related injury to her right shoulder which, for a time, restricted her ability to work and her earning capacity.

However, she received treatment for this injury and by July 13, 2001, was recovered from her compensable injury. Without in any way seeking to minimize the claimant's continuing pain and discomfort, the Panel finds that her current condition cannot be traced to the compensable injury of October, 2000.

In making its decision, the Panel places some weight on the evidence of the claimant's difficulties dating back to 1995. It places particular weight on the report of the physician specializing in acupuncture treatment dated July 24, 2001 in which he noted that "her pain complaints have reduced a lot" and that "she would not need any physical therapies". The Panel notes that no restrictions were placed upon the claimant in terms of her capacity to work. It would also note that her physical therapy regime was also concluded in July 2001.

The Panel's view is strengthened by its review of the material from the specialist in Physical Medicine and Rehabilitation. He noted that the claimant had a long standing history of problems dating to 1995 and identified ongoing problems in a number of areas which cannot be related to her compensable injury.

In short, the claimant had recovered from the effects of her October 26, compensable injury by July 13, 2001. Beyond that date, there was no loss of earning capacity related to the compensable injury. As a consequence, the claimant is not entitled to partial wage loss benefits beyond July 13, 2001.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of December, 2002

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