The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 15, 2003 at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 15, 2003.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond March 28, 2003.

Decision

That the claimant is entitled to payment of wage loss benefits beyond March 28, 2003.

Decision: Unanimous

Background

The claimant is a 61-year-old healthcare aide. On November 24, 1999, the claimant slipped on a wet floor while at work causing injury to her left arm and shoulder. She was unable to raise her arm and was treated the next day by a physician for contusion and strain. The attending physician indicated an expected return to work by mid December 1999. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the claimant.

The claimant completed physiotherapy treatments with little improvement to her shoulder. She was referred to an orthopedic surgeon who diagnosed a soft tissue strain and ordered an MRI scan. The MRI report dated June 16, 2000 revealed a complete tear of the supraspinatous (rotator cuff) tendon. There was no significant improvement with continued physiotherapy and surgical treatment was considered. In a report dated October 27, 2000, the orthopedic surgeon noted that generally 80% of patients will have improvement in pain control following surgery, however, any improvement in strength and motion can be somewhat unpredictable.

On January 29, 2001 the claimant underwent surgical repair to her rotator cuff tendon with expected recovery in 4 to 6 months. Following surgery, the claimant was treated with physiotherapy. In a report dated April 17, 2001, the physiotherapist noted the claimant had not significantly improved with continued pain and inability to tolerate any movement of her left shoulder. The claimant was taking 5 to 6 Tylenol 3's per day with no relief. The orthopedic surgeon examined the claimant and in his report dated May 14, 2001 noted tenderness in her shoulder with markedly restricted range of motion.

Ongoing physiotherapy and medical reports noted little change in the claimant's pain or weakness in her left shoulder. On August 22, 2001 the claimant was examined by the orthopedic surgeon, who noted in his report that the claimant continued to have markedly restricted range of motion and a lot of soft tissue sensitivity in her left shoulder. The claimant was referred to a physical medicine and rehabilitation specialist (physiatrist) to assess her rehabilitation potential.

On November 5, 2001, a functional capacity evaluation was performed. The claimant was unable to complete the testing due to significant pain response. The WCB medical advisor, WCB physiotherapy consultant and case manager discussed the case and concerns were raised that the claimant exhibited too much exaggerated pain behaviour.

In a letter dated November 14, 2001, Rehabilitation and Compensation Services determined that the WCB was not accepting any further responsibility for the claim. Compensation Services was of the opinion, after consulting with the WCB medical advisor, that the claimant should have recovered from her November 24, 1999 injury and therefore her current difficulties were no longer related to that injury.

The Review Office reconsidered the matter on May 10, 2002, following receipt of an appeal submission from the union representative, which included a report from the orthopedic surgeon dated April 2, 2002. In his report the surgeon noted that when he last examined the claimant on August 22, 2001, her left shoulder function clearly was not normal, indicating permanent disability to that shoulder and that her WCB benefits should therefore continue. He also noted that there was significant restriction and stiffness in her left shoulder that would make any strenuous activity difficult and further improvement after 7 months was unlikely. He noted that he was not aware of any pre-existing factors that would lead to slow recovery. As the claimant had exhibited significant soft tissue pain, he suggested that chronic pain syndrome was a potential diagnosis.

The Review Office was of the opinion that more information was required before a determination could be made regarding the claimant's recovery from her injury. Arrangements were made for the claimant to be assessed by the WCB physical medicine and rehabilitation consultant and by the Pain Management Unit.

The Pain Management Unit determined that the claimant did not meet the diagnostic criteria for chronic pain syndrome. The WCB physical medicine and rehabilitation consultant examined the claimant on June 20, 2002. In his report, the consultant noted that the claimant's primary symptoms appear to be soft tissue and that these have been present since her initial injury. The consultant opined that while the exact cause of soft tissue symptoms is uncertain, as they were present from the outset it is possible that they represent a residual effect of an initial soft tissue strain, in addition to the rotator cuff tear. The consultant explained that the claimant's ongoing protection of movement is a significant factor perpetuating soft tissue symptoms and this guarding of movement likely explains the lack of progress. He recommended acupuncture to improve symptoms with treatments to gradually increase range of movement. He concluded that if the residual soft tissue symptoms are treated and symptomology improves, a better evaluation of any restriction of movement in the shoulder could be made.

On July 12, 2002, the Review Office determined that the claimant's current difficulties were related the November 24, 1999 injury and she was therefore entitled to further benefits. The Review office accepted the WCB consultant's findings of soft tissue symptoms consistent with the medical reports and that these symptoms had been apparent since the beginning of the claim. The Review Office also commented that the claimant was near recovery, requiring limited treatment for the soft tissue injury.

The claimant was treated by a specialist in acupuncture and pain control. In a report dated October 10, 2002, the specialist noted that the claimant's pain had not improved and range of motion in her left shoulder was still less than 50%. Ongoing medical reports from the claimant's physician indicated no change in her complaints of pain.

A WCB medical advisor and WCB physiatrist reviewed the file in February and March 2003, with both noting that the claimant had received appropriate treatment for her injury and her continued difficulties were likely due to pre-existing age-related degenerative changes.

In a letter dated March 24, 2003, Rehabilitation and Compensation Services advised the claimant that her wage loss benefits would end effective March 28, 2003. Compensation Services was of the opinion that given all of the medical and therapeutic treatment the claimant had received, she had recovered from the effects of her compensable injury and her current difficulties were no longer related to that injury. On April 9, 2003, the union representative appealed this decision and the case was forwarded to Review Office.

The Review Office asked the WCB orthopedic specialist to review the file. According to the notes on file dated May 22, 2003, the WCB specialist was asked to consider the issue of whether the claimant had pre-existing degenerative changes in her left shoulder. The WCB specialist was of the opinion that the claimant did not have any pre-existing degenerative changes. When asked what would be her expected recovery period, the specialist advised that normal recovery following rotator cuff surgery is 4 to 6 months. When asked what work restrictions should be imposed, the WCB specialist indicated that lifting of heavy weights over the shoulder level should be limited to no more than 10 pounds.

On June 11, 2003, the Review Office determined that the claimant was not entitled to wage loss benefits beyond March 28, 2003. The Review Office was of the opinion that the length of time that the claimant had been off work since November 24, 1999 could not be explained upon the basis of the accident or subsequent surgery. The Review office was of the view that the April 2002 report from the orthopedic surgeon was no longer relevant as that physician had not examined the claimant since August 2001. The Review Office concluded that the claimant had recovered from the effects of the compensable injury and the restrictions on lifting no greater than 10 pounds would not prevent her continued employment as a health care aide. On July 16, 2003, the union representative appealed the Review Office's decision and an oral hearing was convened.

Evidence at Hearing

A hearing was scheduled before the Panel on October 15, 2003. On October 10, 2003, the union representative filed a new medical report dated September 29, 2003 from the orthopedic surgeon. This report was not filed at least 5 business days prior to the hearing as required by the WCB regulations; however, the employer's representative did not object to its admission at the hearing. The medical report was accepted and considered by the Panel.

In this report, the orthopedic surgeon provided updated information after examining the claimant on September 22, 2003. The orthopedic surgeon diagnosed the claimant with ongoing soft tissue pain and stiffness to the left shoulder to such a degree that she is not capable of returning to work as a health care aide. His report states as follows:

"She has marked restriction in her range of motion in the left shoulder. There is also a lot of pain in the left shoulder during resistive testing. The combination of pain, weakness, and stiffness will give her significant difficulty to fulfill the job description of a health-care aide.She has permanent work place restrictions. I don't think she will be able to perform work that require (sic) repetitive use of the left shoulder, elevation of the left shoulder past 90 degree (sic), or lifting over 15 pounds."

With respect to the claimant's slow recovery given the usual recovery of 4 to 6 months following rotator cuff surgery, the orthopedic surgeon stated the following in his report:

"The current functional disability probably is not related to the rotator cuff tear directly. However, the ongoing soft tissue pain probably is related to the work injury, compounded by the heightened pain sensitivity. It is the ongoing soft tissue pain that gives her the functional disability. Without any past history all of left shoulder problem (sic), I would say that the current soft tissue pain and the resultant dysfunction are a result of the workplace injury."

At the hearing the claimant testified that she continues to have throbbing pain in her arm emanating from her shoulder, preventing her from using her left arm to any great extent. She has been taking as many as 8 to 9 Tylenol 3's per day for the pain. With respect to her duties as a health care aide, the claimant gave evidence that she worked at a senior citizens' facility and was required to complete a range of duties to assist her patients, including lifting them from beds and wheelchairs. The employer's representative advised the Panel that a work restriction of lifting not more than 15 pounds would preclude the claimant from performing her regular duties.

Reasons

Section 39 of The Workers Compensation Act provides that where an injury to a worker results in a loss of earning capacity, wage loss benefits are payable until the loss of earning capacity ends. The claimant in this case suffered a workplace injury to her left shoulder that was accepted by the WCB as a compensable injury. The issue for this panel to determine is whether the compensable injury is continuing to cause a loss in earning capacity. The panel has unanimously determined that it is.

We have reviewed all of the evidence and in our opinion the weight of the evidence, on a balance of probabilities, supports a finding that the claimant had not recovered from her compensable injury by March 28, 2003 and is therefore entitled to further benefits. In reaching this conclusion, we note the following:

• The medical reports from the orthopedic surgeon in April 2002 and September 2003 as well as the WCB physiatrist's report following examination in June 2002 identify the claimant as suffering from a soft tissue strain in addition to the rotator cuff tear. These reports indicate clinical findings of soft tissue symptoms, which were present since the initial injury and which may account for the claimant's ongoing pain and limitation of movement in her shoulder;
  
  
• The Review Office accepted the findings of the WCB physiatrist that the claimant's soft tissue symptoms were consistent with the medical reports on file and existed since the initial injury, thereby concluding in its decision of July 12, 2002 that the claimant's difficulties were related to the November 24, 1999 injury;
  
  
• The evidence did not support a finding that the claimant's condition was related to a pre-existing degenerative condition. When first examined by the orthopedic surgeon in March 2000, the report noted no prior history of left shoulder problems and x-rays were negative. Although WCB consultants raised this possibility in February 2003, when the Review Office subsequently asked the WCB orthopedic consultant for an opinion as to whether there was a pre-existing condition that might account for the slow recovery, the consultant stated that there was no identifiable pre-existing condition in the claimant's left shoulder;
  
  
• The physiotherapy and medical reports consistently referred to marked restrictions in movement and weakness in the claimant's left shoulder. The WCB orthopedic consultant suggested work restrictions of lifting no more than 10 pounds and the orthopedic surgeon who last examined the claimant in September 2003 indicated restrictions of lifting no more than 15 pounds. According to the employer, such restrictions would prevent the claimant from performing the regular duties of a health care aide.

In summary, the Panel is satisfied that the claimant continues to have medical restrictions as a result of the soft tissue injury, which is related to her initial November 24, 1999 compensable injury. These restrictions preclude her from performing her job. She is therefore entitled to wage loss benefits beyond March 28, 2003.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of December, 2003