Decision #75/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 4, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not responsibility should be accepted for wage loss benefits beyond January 1, 2000; and

Whether or not responsibility should be accepted for the surgery of September 14, 2000.

Decision

That responsibility should not be accepted for wage loss benefits beyond January 1, 2000; and

That responsibility should not be accepted for the surgery of September 14, 2000.

Decision: Unanimous

Background

On February 12, 1999, the worker reported that she pulled the muscles in her left shoulder and upper arm region when she attempted to put a seatbelt around a resident who was in a wheelchair. Initial medical information revealed that the worker was tender over the acromioclavicular joint. The diagnosis rendered was a muscle strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on February 16, 1999.

In March 1999, the worker was assessed by an orthopaedic specialist who felt that the worker suffered a soft tissue strain to her left shoulder involving the anterior tendons. It was felt that her problem would settle down spontaneously and that the worker should attend physiotherapy treatments. On April 14, 1999, the attending physician advised the worker that she could return to work for six hours a day and to gradually increase her hours until she was working full time.

On June 17, 1999, the orthopaedic specialist noted that the worker returned with her left shoulder tendonitis which was a little better but was preventing her from getting back to full time work. It was suggested that the worker consider retraining to a job that did not involve overhead activity or heavy pushing and pulling. She was not a candidate for surgery at this point in time.

On June 21, 1999, following a WCB call-in examination, the medical advisor noted that the worker's symptoms were consistent with improving left bicipital tendonitis with the absence of myofascial features. It recommended the worker continue with modified duties.

In August 1999, the orthopaedic specialist reported that the worker felt a snap in her shoulder when she pointed out something to her mother. She now had more pain in her shoulder area and tingling in her left hand. It was recommended that the worker continue with modified duties, physiotherapy and exercises. Medication was also prescribed.

The worker underwent a Functional Capacity Evaluation (FCE) in September 1999 to determine her present capabilities. The results, however, were considered to be inconsistent.

In October and November 1999, the worker was assessed at the WCB's Pain Management Unit. Following these assessments, it was determined that the worker did not meet the diagnostic criteria for Chronic Pain Syndrome (CPS).

On December 30, 1999, the worker worked a full day of modified duties but as the day progressed, she began to experience pain and spasm along with uncontrolled spastic flinging motions of her arm. This was the last date on which the worker worked at this workplace.

On January 14, 2000, the orthopaedic specialist noted that the worker experienced the onset of a spasmodic feeling in the muscles of her left shoulder. She had uncontrolled flinging motions of the shoulder where the arm would thrust sideways. The specialist outlined his opinion that the spasmodic flinging motions of the left arm were unrelated to the worker's work injury. It was recommended that the worker see her family doctor for investigations for such things as seizure or metabolic disorders. He stated that rotator cuff injuries never cause these symptoms and therefore the problem is due to another cause. As far as the shoulder rotator cuff was considered, the worker was fit to return to work.

In a decision letter dated February 3, 2000 the worker was advised by the WCB that further responsibility could not be accepted for time loss after January 1, 2000 as it was determined from the medical evidence that her latest symptoms to her shoulder, namely the spasmodic flinging motions of her left arm, were unrelated to the compensable injury.

On May 11, 2000, a neurologist reported that he saw the worker on April 5, 2000 and his impression of her condition was as follows:
  1. "Local myofascial pain.
  2. No neurologic impairment.
  3. Movement disorder as described sounded possibly psychogenic.
  4. Would think she should carry on with Dr. [name] as planned at Pan Am. Reassured + + re movement disorder unlikely to recur."
In a report dated May 26, 2000, an orthopaedic surgeon reported that the worker exhibited tenderness subacromially and over the AC joint. She had a positive impingement sign, positive supraspinatus stressing sign and pain with cross body adduction. X-rays showed a Type II acromion with lateral downsloping. He felt the worker was a good candidate for surgery as she responded temporarily to injection. The surgeon also reported that there was a loud pop with stressing of the supraspinatus and questioned whether or not there was a tear of the rotator cuff of a partial or complete degree.

On June 29, 2000, the worker's medical status was evaluated by a WCB medical advisor. The medical advisor reported that the medical assessments up to January 14, 2000 did not suggest the presence of a surgical lesion of the rotator cuff. The spasmodic flinging motions of the left upper extremity that developed on December 30, 1999 and which occurred intermittently to date were not accounted for on the basis of the work related left rotator cuff strain.

The medical advisor further stated, "An intervening injury of the rotator cuff associated with the recurrent and prolonged (and on at least one occasion resisted) uncontrollable movements of the left upper extremity, with a subsequent deterioration of status, may account for the difference in clinical impressions between those physicians who saw Ms. [the worker] up to January 2000 and the orthopaedic surgeon who saw her in late May 2000. From this perspective, proposed surgery, including to assess for a partial or complete rotator cuff tear, would be in relation to the non accident related injurious forces through the shoulder associated with the (resisted) spasmodic flinging motions of the left upper extremity. On this basis, it is recommended that proposed shoulder surgery not be accepted as a financial responsibility of the WCB."

In August 2001, a worker advisor, acting on behalf of the worker, submitted new medical information for primary adjudication's review. This included a report from the worker's treating orthopaedic surgeon dated July 18, 2001 along with an operative report dated September 14, 2000.

On November 13, 2001, the new medical evidence was reviewed by the medical advisor who had previously examined the worker. He noted that the worker underwent arthroscopic left shoulder surgery on September 14, 2000 and that no specific pathology was reported in the surgical report. There was no evidence of a rotator cuff tear inferiorly. Based on this evidence, the medical advisor concluded that no change would be made to the opinions cited in the discussion section on pages 7 and 8 of his June 29, 2000 examination notes. This information was relayed to the worker advisor on November 30, 2001. On February 5, 2002, she appealed the decision to Review Office.

Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant on January 17, 2002. The consultant stated that the worker suffered from a left shoulder strain following the February 12, 1999 incident and that there was no change in diagnosis pre-surgery. The consultant commented that a shoulder strain does not require surgery and in his opinion, the surgery was unrelated to the compensable injury.

On January 18, 2002, the Review Office determined that no responsibility could be accepted for wage loss following January 1, 2000 or for the surgery of September 14, 2000. It was the Review Office's opinion that there was no evidence to conclude that the impingement of the worker's left shoulder and related surgery would be considered a direct result of her compensable injury. This decision was reached based on a review of the initial medical information on file along with the findings of the orthopaedic specialists dated March 8, 1999, August 5, 1999 and January 14, 2000.

On April 14, 2003, a Medical Review Panel (MRP) was held. The results of the MRP are contained in a report dated May 7, 2003.

In a decision dated July 25, 2003, Review Office advised all interested parties that no change would be made to its previous decision of January 18, 2002 based on a review of the MRP's report. This decision was clarified by Review Office in a further letter dated November 28, 2003. On December 12, 2003, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

In arriving at our decisions on the issues we have reviewed the full claim file and conducted an oral hearing. The worker, her advocate, and two employer representatives attended the hearing. The worker provided evidence and answered questions. As well her advocate made a submission and closing statement. The employer representatives also provided evidence, answered questions and made a submission and closing statement. We commend both parties for their helpful submissions.

Issue #1

The first issue to be determined is whether responsibility should be accepted for wage loss benefits beyond January 1, 2000.

For the worker to be successful on this appeal, we must determine that the worker's wage loss after January 1, 2000 was causally related to her compensable injury or, in other words, that the compensable injury was preventing the worker from returning to work. We were not able to make this determination.

After the worker's injury on February 12, 1999 she participated in a return to work program. The return to work program involved modified duties and graduated hours of work. At the hearing the worker described her role in defining the return to work program:
"I had an active role because they were telling me I had to be doing some form of work and they were not giving me different jobs that I could be doing in order to be there. I had to do something."
The worker in referring to the modified duties told the panel that "…And for the most part, I actually had to come up with things I could do on my own and suggest it to them."

On December 22, 1999, the WCB Adjudicator advised the worker that the WCB Healthcare Advisor was of the opinion that she should be capable of duties with the restrictions of no overhead work and no lifting greater than 30 pounds. These restrictions were put in place for 6 weeks and then to be reviewed.

The last date the worker participated in the graduated return to work program was December 30, 1999. The worker's evidence at the hearing was that she was required to perform full duties on this day. While working the spasms in her left shoulder/arm appear to have become most prominent and to have developed into an uncontrolled flinging motion of her left arm. Upon leaving work she attended at a local health centre due to these spasms and returned to the workplace later that evening with a note from the health centre. She has not returned to work since this date.

With respect to the duties performed by the worker on December 30, 1999 we note that the health centre which the worker attended on December 30, 1999 reports "…starting back to work program. Currently moderate duties." We also note, information in the file confirms that modified duties were available on and after December 30, 1999.

At the hearing the employer representative advised that after December 30, 1999 the worker kept them informed of her status, but did not return to work. He noted that the last meeting between the worker and the employer was in March 2000. The employer representative confirmed that the employer was still offering the worker light duties in March 2000.

We find that the worker removed herself from her employment on December 30, 1999 which caused her loss of earning capacity. The employer made available modified duties both on and after December 30, 1999, and had been paying wages to the claimant up to that date, but the worker chose not to return to her employment. We are satisfied that this modified work was suitable given the worker's active role in defining the duties. By not returning to her employment, the worker failed to mitigate the consequences of the accident as required under Section 22 of the Workers Compensation Act.

As noted above, we were not able to find that the worker's wage loss after January 1, 2000 was causally related to her compensable injury. In addition to finding that the worker removed herself from her employment after December 30, 1999, we find, on a balance of probabilities, that the worker had recovered from her compensable injury by January 14, 2000, and that any on going difficulties she experienced were not due to her compensable injury . Implicit in our decision is our determination that that the flinging movement of the worker's left arm is not related to the compensable injury. We place significant weight upon the following:
  • August 5, 1999 report by first treating orthopaedic surgeon that "on examination there is fair range of cervical spine movement in all directions. There is some tenderness of the left shoulder anteriorly and at the point of the shoulder. There is no obvious external deformity. The biceps tendon and muscle is normal, and I see no edema." He noted that Feb 15th x-rays of the shoulder, humerus and elbow are normal. He recommended the worker continue to work.

  • December 18, 1999 review by WCB Healthcare Advisor who comments that the worker "Should be able to RTW modify duties and progress as possible." This physician also comments that the worker should have recovered by this time.

  • January 14, 2000 report from first treating orthopaedic surgeon noting that the worker attended with different symptoms in her left shoulder, specifically uncontrolled flinging motions of the shoulder. He commented that "These spasmodic flinging motions of the left arm are not related to any work injury." He commented further that "As far as the shoulder rotator cuff is concerned, she would be fit for return to work."

  • April 5, 2000 report from neurologist. He found the worker had no neurologic impairment and describes the worker's movement disorder in her shoulder/arm as "possibly psychogenic".
We note that a Medical Review Panel was convened in April 2003. We make the following observations on the MRP:
  • The MRP report suggests the MRP had difficulty dealing with this claim more that four years post accident. The MRP unanimously agreed that the probable diagnosis of the worker's injury following the accident of February 12, 1999 was soft tissue injuries of the left shoulder but noted there were no findings in the record, and no specific information obtainable at their examination to give a more specific diagnosis. They noted further that "There is nothing in the records which is helpful in making the diagnosis, with the exception of complaints of pain about the shoulder."

  • With respect to the September 14, 2000 surgery, the MRP was not able to agree on whether this surgery was related to the February 12, 1999 accident. The worker's nominee found that the surgery was related. He notes there is a historical relationship and that complaints are continuous. The employer's nominee stated that any soft tissue injury would have healed prior to the surgery. The Chair concluded there was a "historical relationship" but that there was no evidence of a continuing physical condition that can be related to the original injury.

  • The MRP also did not agree on whether the claimant's current left shoulder condition was a result of the workplace injury. They did agree that at the time of their examination the worker had recovered, except for complaints of pain. They also agreed that "…there is clear evidence…that the continued complaints of pain about the shoulder and the complaints of flinging motions of the left arm cannot be explained in a purely physical basis."

  • We were unable to attach significant weight to the MRP report given the concern over the lack of evidence and the lack of agreement on key issues. We prefer the evidence of the physicians noted above who examined and treated the worker at the relevant time.
Accordingly, we find on a balance of probabilities that the worker is not entitled to wage loss benefits beyond January 1, 2000. The worker's appeal on the first issue is denied.

Issue # 2

Whether or not responsibility should be accepted for the surgery of September 14, 2000?

For the worker's appeal on this issue to be successful, we must find that the surgery was required because of her compensable injury of February 12, 1999. We were not able to make this determination.

The worker's advocate argued there is a direct cause and effect relationship between the surgery and the compensable injury. She noted a continuation of symptoms from the accident date to surgery date. She relies upon the opinion of the second treating orthopaedic surgeon who performed the surgery. She also notes that the majority of the MRP members agreed there was a relationship.

After an examination of all the evidence, we find there is not a direct cause and effect relationship between the surgery and the compensable injury. We find that responsibility should not be accepted for the surgery. In seeking approval for the exploratory surgery the second treating orthopedic surgeon undertook to see if there has been a rotator cuff tear. His operative report of September 14, 2000 proposes preoperative diagnoses of left shoulder impingement and possible rotator cuff tear. The postoperative diagnosis is left shoulder impingement syndrome. A rotator cuff tear was not found.

In arriving at our decision on this issue we rely upon the evidence noted under Issue #1 above and the following evidence:
  • March 8, 1999 examination by first treating orthopaedic surgeon found impingement sign was negative.

  • June 17, 1999 report by first treating orthopaedic surgeon that the worker was not a candidate for surgery at that time.

  • June 21, 1999 examination by WCB Healthcare Advisor reports impingement testing to be negative.

  • June 29, 2000 examination by WCB Healthcare Advisor who notes that assessments up to January 14, 2000 do not suggest the presence of a surgical lesion of the rotator cuff. On examination he found "Mobility of the left shoulder was mildly limited versus the right in abduction, forward flexion and internal rotation but in general, was functional and did not have the characteristics suggestive of significant rotator cuff pathology"

  • September 14, 2000 operative report by second treating orthopaedic surgeon which found no rotator cuff tear.

  • November 13, 2001 review by WCB Healthcare Advisor notes that "No specific pathology was reported in the surgical report."

  • January 17, 2002 WCB review by an orthopaedic consultant provides diagnosis of original injury as left shoulder strain. He comments that "A shoulder strain does not require surgery. In my opinion the surgery is not related to the C.I. (compensable injury)."
We find, on a balance of probabilities, that the surgery was not related to the worker's compensable injury of February 12, 1999 and that responsibility should not be accepted for the surgery of September 14, 2000. The worker's appeal on this issue is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of June, 2004

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