Decision #89/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 24, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being July 21, 2003.Issue
Whether or not the worker is entitled to wage loss benefits effective January 10, 2001;Whether or not the right shoulder surgery which took place on August 28, 2001, is a sequela of the claimant's two compensable accidents; and
Whether or not the worker is capable of returning to his pre-accident duties.
Decision
That the worker is entitled to wage loss benefits from January 10, 2001 to January 17, 2001 inclusive;That the right shoulder surgery which took place on August 28, 2001, is a sequela of the claimant's December 9, 1999 compensable accident; and
That the worker remained incapable of returning to his pre-accident duties, as of the date of the hearing.
Decision: Unanimous
Background
In September 1999, the claimant filed an application for compensation benefits when he was involved in a motor vehicle accident during the course of his employment as a "Utility D Building Maintenance" worker. The claimant slammed his left shoulder into the driver's door and supporting frame and sustained injuries to his left shoulder, neck and back. The diagnosis rendered by the attending physician was musculoligamentous injures to the neck, left shoulder and upper back and arrangements were made for physiotherapy treatments. The claimant did not miss time from work as a result of the accident, other than to attend medical appointments.On December 9, 1999, the claimant sustained an injury to his right shoulder and arm while removing a squirrel cage from a furnace unit in a confined space. In a subsequent statement, the claimant advised that his right shoulder injury was a result of overcompensating with his left shoulder and that he ceased work on January 26, 2000 at the advice of his physician.
In a report dated February 9, 2000, the physician noted that the claimant complained of shoulder pain more severe on the right than the left side. The claimant was instructed to stay off work until February 10, 2000 and to increase his physiotherapy sessions to four times per week. On February 14, 2000, the claimant returned to modified duties.
On March 8, 2000, a WCB medical advisor reviewed the information on file and was of the opinion that the claimant's December 9, 1999, right shoulder injury caused him to cease work on January 27, 2000 rather than the left shoulder injury that occurred on September 7, 1999. The diagnosis at the time of the January 2000 incident was a rotator cuff strain.
A WCB medical advisor assessed the claimant on May 17, 2000. The medical advisor suggested that the claimant undergo an MRI examination to rule out a rotator cuff tear and possible labral tear of the right shoulder. It was felt that the claimant could continue with light duties and that restrictions should be in place for 3 months. On July 4, 2000, the claimant underwent an MRI right shoulder arthrogram. The impression revealed, "No evidence for rotator cuff or glenoid labral tear.
In a July 11, 2000 report, an orthopaedic surgeon reported that the claimant suffered from rotator cuff impingement of the right shoulder. The claimant was instructed to continue with his injections over the next couple of months and if his pain persisted, consideration for a shoulder arthroscopy and arthroscopic surgery would be given.
In a follow-up report dated November 6, 2000, the orthopedic surgeon noted that the claimant continued to experience discomfort in his right shoulder area which was made worse with overhead activities and repeated supination which he was forced to do as part of his job. Due to the claimant's failure to improve with ongoing conservative management, a shoulder arthrogram with acromioplasty and resection of the acromioclavicular joint was recommended.
Between November 2000 and January 2001, up-dated progress reports were submitted by the claimant's attending physician regarding his right shoulder status.
In January 2001, the claimant contacted his adjudicator stating that he went off work effective January 10, 2001, because of pain in his left shoulder. The claimant advised that he worked light duties (i.e. in the lock shop) on January 8, 2001 and that his shoulder was okay. During the night of January 9, 2001, he must have slept funny on his shoulder because when he awoke on January 10th he felt increasing pain and a twinge in his left shoulder. Medical information confirmed that the claimant attended his physician on January 11, 2001 with complaints of new left shoulder pain and spasm. The physician also noted that the claimant could return to work by January 15, 2001. File information revealed, however, that the claimant did not return to work on January 15th due to pain.
In a progress report dated January 15, 2001, the attending physician noted pain in both shoulders. The diagnosis was reported as left shoulder tendonitis and cervical disc disease. A cervical spine x-ray dated January 11, 2001, noted "minimal narrowing at C5-C6 is suspected."
On January 16, 2001, a WCB medical advisor discussed the case with a WCB adjudicator and provided the following recommendations:
-right shoulder surgery was authorized as the claimant failed conservative treatment.
-the diagnosis with respect to the left shoulder was likely a sprain or soft tissue problem. The attending physician did not mention any rotator cuff impingement signs.
-physiotherapy treatments to both shoulders was authorized while the claimant was awaiting right shoulder surgery.
-the claimant would be able to perform modified duties with restrictions until he undergoes surgery for the right shoulder.
-based on a progress report from the attending physician dated January 15, 2001, the claimant was not totally disabled and could go back to work.
-the case was discussed with the attending physician and he agreed that the claimant should be able to return to modified duties.
On January 17, 2001, a WCB adjudicator spoke with the claimant. The claimant indicated that he saw his attending physician on January 17th and was given authorization to be completely off work for two weeks. The claimant advised that he could not perform modified duties as his shoulders were always in constant pain, he was always putting heat and ice on them, he couldn't wear a seatbelt to drive, had difficulty shoulder checking and even had difficulty with getting dressed. Subsequent file records showed that the attending physician completed a "Certificate of Illness" dated January 24, 2001, which indicated that "due to reoccurrence of symptoms involving this patient's previous injury he will be off work from January 10th until February 12, 2001".
In a decision letter dated February 9, 2001, the claimant was advised by primary adjudication that the WCB would cover physiotherapy treatment with respect to his aggravated left shoulder condition. The WCB, however, would not accept responsibility for any time loss incurred by the claimant commencing January 10, 2001, as it was felt that he was capable of performing the modified duties of working with keys even with his left shoulder flare-ups. These decisions were based on the following factors:
- the medical information between November 2000 to the beginning of January 2001 did not mention left shoulder symptoms;
- the claimant's left shoulder was feeling okay prior to the January 10, 2001 incident; when the claimant awoke from sleeping he had increased pain and symptoms in his left shoulder that resulted in him going off work.
- the claimant's attending physician and WCB medical advisor both agreed that the claimant was capable of performing modified duties even with his recent left shoulder flare-ups.
On June 14, 2001, the claimant was informed that the WCB was unable to relate his current symptoms to an accident at work and that it was believed he was fit for a gradual return to his pre-accident work due to the following factors:
- the WCB's sports medicine specialist was unable to find a cause for the claimant's difficulties and did not support the proposed right shoulder surgery;
- MRI and EMG tests were normal;
- the WCB's orthopaedic specialist was unable to substantiate a diagnosis, he did not support right shoulder surgery and felt that the claimant was fit to gradually return to his pre-accident work;
- the videotape surveillance demonstrated that the claimant was quite active over a 2 day period and did not exhibit any loss of neck, shoulder or arm function.
On December 1, 2001, the WCB orthopaedic consultant reviewed the operative report regarding the right shoulder dated August 28, 2001. The consultant commented that the tear at the rotator cuff was a very minor lesion that was not identified on the MRI and considering that such lesions may exist in the general population causing no symptoms, signs or loss of function, he could not accept that it arose out of the workplace injury. The consultant stated that the findings at surgery were not directly related to the workplace injury nor could they be considered a cause of symptoms or loss of function.
The employer's representative provided a submission to the WCB dated February 18, 2002 which included the opinion expressed by an independent orthopaedic specialist dated February 5, 2002. The specialist commented that the claimant sustained what sounded like a strain to the right shoulder in December 1999. According to the specialist, this was a very minor injury and he could not see how this would produce a rotator cuff tear. The specialist disagreed with the opinion noted on file that the findings found at surgery were consistent with the December 9, 1999 work related injury. The specialist was also of the opinion that there was nothing physical that would have prevented the claimant from continuing with the light duty position that he began in August 2000.
On February 22, 2002, Review Office determined that the claimant's left shoulder symptoms and wage loss commencing January 10, 2001 were not acceptable. Review Office also determined that the right shoulder surgery should not have been accepted and that the weight of evidence supported that the claimant was capable of returning to his pre-accident employment.
Review Office found that the findings on the surveillance videotape were inconsistent with the claimant's presentation on examination and in telephone conversation with WCB representatives. The weight of evidence supported that the claimant had recovered from his September and December 1999 accidents to the extent that he was capable of participating in a graduated return to work on regular duties. Review Office found that the claimant's left shoulder difficulties commencing January 10, 2001 were not related to his work activities as the claimant stated himself that his shoulder was okay at the end of his light duty shift on January 8, 2001. On May 17, 2002, the claimant's union representative appealed Review Office's decision and an oral hearing was held on July 24, 2002.
Following the hearing and discussion of the case, the Panel requested that additional medical information be obtained from several of the claimant's treating physicians and from the medical consultant and physiotherapist with the employee's benefit provider. The Panel also requested a complete job description outlining the duties and physical requirements of the modified duties performed by the claimant since approximately February 2002. On October 3, 2002, all parties were provided with the information that was received by the Panel, minus a report from the claimant's family physician.
On October 29, 2002, the Panel met again to discuss the case along with submissions from the employer's representative and the claimant's union representative. At this meeting, the Panel decided that additional information was required from the claimant's family physician prior to discussing the case further. On May 27, 2003, all interested parties were provided with a copy of the family physician's report dated May 23, 2003 and were asked to provide comment.
At a further Appeal Panel meeting that took place on June 16, 2003, the Panel decided that it was necessary to add a third issue to its deliberations in this case. The new issue was worded as follows: "Whether or not the right shoulder surgery which took place on August 28, 2001, is a sequela of the claimant's two compensable accidents." Both the union and employer representatives were invited to provide final submissions to the Panel with respect to this issue. Submissions from both parties were later received dated June 25, 2003 and June 26, 2003 and were provided to the Panel. On July 21, 2003, the Panel met again to discuss the case and render its final decisions with respect to the issues under appeal.
Reasons
This case involves a worker who, in two separate workplace accidents incurred injuries to both shoulders, one in each incident. Both injuries were accepted as compensable claims. As noted above, a number of issues flowed from these injuries, for some of which benefits were paid and for others benefits were denied.Three of these issues were before the Appeal Commission.
In respect of the first issue, for the appeal to succeed, the Panel would have to determine that he was not able to work as of January 10, 2001, as a result of his compensable injuries. We did make that determination, as set out below.
The appeal on the second issue would succeed if the Panel found that the need for the surgery to his right shoulder was causally related to one or both of his compensable shoulder injuries. We did determine that the surgery was necessary due to the December 1999 injury.
The third issue would succeed if we found that he was not capable of returning to his pre-accident work, as a result of his compensable injuries. We did make that determination, as well.
In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing, at which we heard testimony from the claimant, his advocate and a representative of the employer. Subsequent to the hearing, we sought further medical evidence. As noted above, subsequent to the hearing, we also added a third issue (noted in this decision as the second issue).
Issue #1 - Was the claimant entitled to wage loss benefits effective January 10, 2001?
This matter related to his left shoulder injury. The claimant reported that when he awoke on the morning of January 10, 2001, he had considerable pain in his left shoulder, such that he was unable to go to work. Benefits were denied as it was held by the board that this was not a work-related incident. Both the adjudicator and the Review Office noted that he had had no problem with this shoulder at work on the previous day.
The panel was persuaded by the fact that the claimant had incurred a compensable injury to this shoulder sixteen months before this incident, in September 1999. While he had minimal time loss as a result, he did receive medical treatment, including physiotherapy for a number of months. Indeed, he was still completing the physiotherapy for the left shoulder, when he received the injury to the right shoulder in December 1999.
We recognize that the immediate cause of his shoulder pain in January 2001 may well have been due to an awkward sleeping position. However, we are of the view that but for the previous injury, he would not have had the problem that arose on January 10. The sleeping position aggravated the previous injury. There is also recent evidence from the claimant's attending physician that the claimant had been complaining of soreness in the left shoulder for a number of months prior to the January 2001 exacerbation. This was attributed to compensatory use of the left arm because of the claimant's ongoing problems with his compensable right shoulder injury.
In considering the duration of benefits after January 10, 2001, we note that there is conflicting evidence on the file as to whether or not he was capable of performing modified duties. We also note that, prior to January 10, 2001, he was on modified duties, as a result of the right shoulder injury incurred in December 1999.
His family physician, in his reports submitted to the WCB, checked off the box stating he was not capable of modified or alternate duties. In a memo to file, dated January 16, 2001, a board medical advisor wrote that, in a telephone discussion, the family doctor agreed that the claimant could return to his already modified duties. The family doctor agreed to advise the claimant of this the next day, at a scheduled visit.
Whether or not the doctor so advised the claimant we do not know. But based on our understanding of the tasks associated with these modified duties and the fact that the worker performed them for over a year as well as the board medical advisor's memo, we are of the view that the claimant was capable of performing the modified duties. We conclude that wage loss benefits should be paid up to and including January 17, 2001, the date the doctor was to advise the claimant.
Issue #2 - Was the surgery a sequela of the compensable injuries?
In considering this issue, we looked at the medical evidence on file for a number of months leading up to the operation in August 2001. We note that the board had accepted the claim for his right shoulder injury. As this injury was slow to heal, a number of different examinations and tests were conducted by a number of different doctors. We found the following reports to be persuasive in our deliberations:
- May 17, 2000 - The claimant was examined by a WCB physician, who noted the possibility of a rotator cuff tear and/or a labral tear. He recommended an MRI to determine if either was correct.
- May 29, 2000 - He was examined by a specialist in physical medicine and rehabilitation, who reported that he had some rotator cuff impingement, as well as some myofascial pain in his shoulder.
- July 4, 2000 - The MRI examination found no evidence of a rotator cuff tear or a glenoid labral tear.
- July 11, 2000 - He was seen by an orthopaedic surgeon, who also believed he was suffering from rotator cuff impingement. He felt that if there was no improvement over the next couple of months that arthroscopic surgery might be in order.
- August 9, 2000 - The board doctor who had examined the claimant in May wrote, in a memo, that the diagnosis was rotator cuff impingement. In his view, this was related to his compensable injury.
- November 6, 2000 - The orthopaedic surgeon, seen in July, recommended surgery.
- January 16, 2001 - The board medical advisor recommended acceptance of the surgery, since the claimant had not responded to conservative treatment.
- January 19, 2001 - The board medical advisor put the surgery acceptance on hold, pending a re-examination by a board specialist.
- February 23, 2001 - The claimant was examined by a board specialist in sports medicine, who was unable to determine the cause of the claimant's problems. He referred the claimant for additional MRI and EMG testing.
- February 27, 2001 - The sports medicine specialist wrote to the orthopaedic surgeon requesting that he re-examine the claimant. He also wrote that the board would not accept the costs of the proposed surgery at that time.
- March 7, 2001 - The orthopaedic surgeon recommended delaying the right shoulder surgery until the problems with the left shoulder had settled down.
- April 30, 2001 - The board sports medicine specialist wrote in a memo that it was his opinion that surgery would not likely be efficacious.
- May 29, 2001 - The claimant was examined by a board specialist in orthopaedic surgery, who concluded that surgery was not indicated for his right shoulder problems.
- August 28, 2001 - Surgery was performed. A partial tear to the rotator cuff was found and repaired.
In a memo dated December 1, 2001, the board orthopaedic specialist affirmed his position that the claimant's rotator cuff problem was not related to the compensable injury. In support of this position, he noted that such lesions exist in the general population, often with no signs, symptoms or loss of function.
This doctor also provided two references from recent literature to the effect that partial rotator cuff tears are relatively common in the general population. We also note that the claimant's union representative noted that the literature, for the most part, studied persons somewhat older than the claimant. One of the articles states that 30% of persons over 40 - the age range of the claimant - will have cuff tears. While this may be so, we are of the view that, given the nature and mechanism of injury of the accident, we are inclined to find that the accident caused the claimant's tear.
The panelists viewed videotapes of the claimant engaging in some everyday activities. These tapes were the result of surveillance carried out by the board in May 2001. The board orthopaedic consultant viewed these tapes on May 31 and wrote that the activities seen on the tapes were "not consistent with the symptoms and signs demonstrated at call-in examination of May 29, 2001."
The videotape evidence was one of the factors used by the board in determining that the claimant was capable of returning to his previous employment. This was relayed to the claimant in a June 14, 2001 letter.
Our conclusion in respect of the videotape evidence is that it showed the claimant to be engaged in very light duty activities, that he was quite tentative in his actions and that none of them exceeded the restrictions that had been placed on the claimant early in the course of this injury.
The employer's representative submitted comments made by an orthopaedic specialist consulted by the employer. This specialist did not examine the claimant, but reviewed the medical file. It was his opinion that the claimant sustained what "seems to be a very minor injury" and that he could not "really see how this would produce a rotator cuff tear." He disagreed with the orthopaedic surgeon and a neurologist who had expressed the opinion that the right shoulder findings were consistent with the work related injury.
We do not agree with the employer's medical consultant. We find that the evidence of the claimant and of more than one of his treating physicians is more credible. In this regard, we find that the mechanism of injury is consistent with the diagnosed rotator cuff tear.
Given the foregoing evidence, we have concluded that - at least on a balance of probabilities - the claimant's surgery to his right shoulder, on August 28, 2001, was a sequela of his December 1999 injury to that shoulder.
Issue #3 - Is the claimant capable of returning to his pre-accident duties?
We would note that our decision on this issue relates to the time of the hearing, which was held on July 24, 2002. It is our conclusion that, while he had largely recovered by the time of the hearing, the recovery was not yet complete. At that time, he was receiving treatment that was expected to lead to his being able to return to his pre-accident duties not long after.
In coming to this conclusion, we relied upon a report from his orthopaedic surgeon, the result of a Functional Capacity Evaluation (FCE) conducted by a physiotherapist and a report from the physician employed by the employer to manage return to work efforts.
In response to a query from the Panel, his orthopaedic surgeon responded that he had not seen the claimant for six months. At the last visit, the claimant had reported some ongoing pain in his shoulder, particularly with repetitive use. While there was full range of motion, there were still subacromial clicking and positive impingement signs. The doctor had recommended physiotherapy and home exercise. He also recommended that the claimant return to work at light duties, with a goal of returning to his previous duties in the near future.
The physiotherapist reported the following findings in the FCE:
- "The shoulder impingement has resolved, however, he has increase resting muscle tension …. He demonstrates decreased stability in the right shoulder during range of motion."
- " [He] is able to lift 55 lbs safely from the waist to floor at a low frequency during the day. He is safe to handle 25 lbs more frequently."
- "The client would benefit from 3 weeks of physiotherapy treatment twice a week …."
- "After the initial week of physiotherapy treatment, [the claimant] is able to return to work within the lifting restrictions noted above."
In June, following the FCE, the team again met with him to discuss the possibility of his participating in a rehabilitation program, which, it was hoped, would lead to his returning to his pre-accident position. This was to commence in early September 2002. The claimant was quite willing to do this.
These recent medical reports have led us to conclude that, as of the date of the hearing, the claimant was not yet capable of returning to his pre-accident duties.
Conclusion:
The following is a summation of our conclusions:
- Issue #1 - Was the claimant entitled to wage loss benefits effective January 10, 2001?
Yes, but only up to and concluding January 17, 2001.
- Issue #2 - Was the surgery a sequela of the compensable injuries?
Yes. Ergo, he is entitled to benefits, to be determined by the board.
- Issue #3 - Is the claimant capable of returning to his pre-accident duties?
No, as of the date of the hearing.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of August, 2003