Decision #138/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on August 13, 2003, at the claimant's request. The Panel discussed this appeal on August 13, 2003 and again on October 28, 2003

Issue

Whether or not wage loss benefits are payable beyond December 19, 2002.

Decision

That wage loss benefits are not payable beyond December 19, 2002; and

That the claimant is entitled to further medical treatment in relation to her right shoulder difficulties.

Decision: Unanimous

Background

The claimant contacted the call centre at the Workers Compensation Board (WCB) to report soreness in her right shoulder and legs which she attributed to heavy lifting and pushing/pulling grocery carts during the course of her employment as a clerk. The date of accident was recorded as August 22, 2002.

A Doctor's First Report dated August 18, 2002, noted that the claimant complained of right shoulder pain from pushing/pulling carts. The diagnosis rendered was a right rotator cuff injury and the claimant was prescribed medication and physiotherapy treatments. In a further report by the physician dated October 15, 2002, the claimant's range of motion in her right shoulder was almost full and she complained of right triceps pain. The physician stated that the claimant was advised to return to modified duties and that she avoid pushing/pulling and to limit carrying with her right arm to a maximum of ten pounds.

During a telephone conversation on October 25, 2002, a WCB adjudicator advised the claimant that her claim was being accepted based on the diagnosis of a muscular strain injury to her right shoulder and that she was entitled to partial wage loss benefits. In a decision dated November 8, 2002, the claimant was advised that the WCB was unable to establish a relationship between her leg difficulties and her compensable injury.

In a memo to file dated November 8, 2002, a WCB case manager noted that the claimant was working two hour shifts, twice per week. The modified duties consisted of price checking and put aways.

On December 4, 2002, the claimant advised the case manager that she continued to have pain in her right shoulder and that she was working 4 hours per week. She stated that the pain wasn't bad when she wasn't doing anything but if she was pushing, pulling or lifting she had pain in her right shoulder.

On December 12, 2002, a WCB case manager advised the claimant that her case had been reviewed by a WCB medical advisor and that there were no medical findings to support that she should continue to work at reduced hours. The case manager noted that a physiotherapy report on file showed that the claimant had normal range of motion and muscle power and that there was no other information from her treating physician which supported ongoing reduced hours. On December 12, 2002, the claimant was notified in writing that it was the WCB's position that she had recovered from the effects of her work place injury, based on a balance of probabilities, and that she was capable of resuming her pre-accident duties effective December 20, 2002.

In a progress report dated January 8, 2003 (date of examination was December 16, 2002), the attending physician reported that the claimant had full range of motion in her shoulder but still complained of pain at extremes. He stated that the claimant's recovery was incomplete and that the claimant should continue with home exercises. Restrictions were outlined to limit pushing/pulling and carrying with use of her right shoulder.

On January 29, 2003, a WCB medical advisor reviewed the additional medical information and commented that there was no objective medical information to support a change to his previous opinion. On January 31, 2003, the claimant was informed by her case manager that it was still the WCB's position that she had recovered from the effects of her August 22, 2002 right shoulder injury and was capable of her pre-accident duties. In February 2003, the claimant appealed this decision to Review Office.

On April 11, 2003, Review Office considered the claimant's appeal along with a submission from the employer dated April 4, 2003. Review Office confirmed that the claim was acceptable and that wage loss benefits were not payable to the claimant beyond December 19, 2002. Review Office's rationale for these decision were as follows:
  • with respect to the initial acceptance of the claim, Review Office was of the opinion that the handling of carts could produce a shoulder strain in a middle aged woman. Review Office agreed with the employer that there had been no objective evidence to support the rotator cuff diagnosis rendered by the attending physician and it agreed with the WCB adjudicator's acceptance of the claim based on a right shoulder strain.

  • Review Office noted that since the claimant was on modified duties and was working reduced hours, she was not putting a significant strain on her right shoulder. Whatever was producing subjective complaints of pain in the claimant's right shoulder beyond December 19, 2002, was not related to the handling of carts in the summer of 2002.

  • Review Office took into consideration the medical evidence on file when the claimant's benefits had been terminated. It showed that the claimant had full range of motion with normal strength in her right shoulder. Therefore, a loss of earning capacity did not exist and in the opinion of Review Office, she was capable of performing her regular duties.
On August 13, 2003, an oral hearing was held at the Appeal Commission as the claimant disagreed with Review Office's decision regarding her entitlement to further benefits beyond December 19, 2002. Following the hearing and discussion of the case, the Appeal Panel requested additional information from two of the claimant's treating physicians. Reports by these physicians were later received and were forwarded to the interested parties for comment. On October 28, 2003, the Panel met further to discuss the case and render its final decision with respect to the issue under appeal.

Reasons

This case involves a worker who filed a claim, in August 2002, for injuries to her right shoulder and legs, arising out of her workplace. Responsibility was accepted for a muscular strain injury to her right shoulder, but not for any leg problems. Benefits were paid accordingly.

Benefits were terminated as of December 19, 2002, as it was determined that she had recovered sufficiently to return to her pre-accident duties. This decision was upheld upon reconsideration by Review Office. She has appealed that decision to the Appeal Commission.

For her appeal to be successful, we would have to find that she continued to suffer a loss of earning capacity after December 19, 2002, as a result of her compensable injury. We did not come to that finding. We did, however, conclude that she is entitled to further medical benefits.

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 and the representative of the accident employer. Subsequent to the hearing, we sought further information from two physicians who had treated her shoulder.

At particular issue in this case was her ability to perform modified duties.

The claimant is employed as a courtesy bagger by a large grocery store. Hers was a part-time position, averaging about 16 hours a week. This position involves a number of different duties. Among these duties is bringing grocery carts in from the parking lot to the store. It was in performing this task, in August 2002, that she incurred the injury to her shoulder.

The initial diagnosis was of a rotator cuff injury. This was later modified to be a muscular strain in her shoulder. From the outset, her attending physician expressed the opinion that she could continue to work at modified duties. Her employer was able to provide her with such duties. However, she found she was unable to work for more than 2 hours per day, even at the modified work.

By December 2002, a board medical advisor concluded that, based on the medical and physiotherapy reports on the file, she had recovered from the effects of the compensable injury. Although her family doctor reported that she continued to have ongoing pain in her shoulder, beyond December 2002, he still was of the opinion that she could perform light duties.

In a letter to the Appeal Commission, the claimant's family doctor, who has treated her since 1981, reported that she had had no problems with her shoulder prior to the claim. He noted that her complaints have continued for over a year. And, he reported that he was optimistic that "with aggressive therapy and possible cortisone injection, there will be some reduction in her symptoms and signs." He could not predict a timeframe for recovery.

The claimant was also seen by a specialist in sports medicine, who reported the following:
  • "There were no complaints of parasthesia. There was no evidence of any rotator cuff tear or gross weakness."

  • "My diagnosis … was of right rotator cuff tendonopathy. Upon probabilities, there is a direct cause and affect relationship regarding the claimant's shoulder pain and her [work] duties …"

  • "A large majority of rotator cuff tendonopathies do resolve. A combination of physiotherapy, modified duties, occasional corticosteroid injections are the most typical treatment plans."
He added that minor cases will resolve in 2 - 3 months, with some cases taking longer.

Our consideration of the foregoing evidence leads us to conclude that the claimant has not completely recovered from the effects of her workplace injury. However, we are of the view that she has recovered sufficiently to perform modified or alternate duties, with reasonable restrictions; and that this was the case as of December 19, 2002.

Therefore, she had no loss of earning capacity beyond that date and is not entitled to wage loss benefits. But, it is also our conclusion that she is entitled to receive further medical benefits.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of December, 2003

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