Decision #168/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on November 22, 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 the worker is entitled to payment of wage loss benefits beyond June 3, 2004.Decision
That the worker is not entitled to payment of wage loss benefits beyond June 3, 2004.Decision: Unanimous
Background
In July 2003, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral elbow symptoms that she related to the nature of her work activities as a bartender. Subsequent medical information confirmed a diagnosis of bilateral epicondylitis. The claim was initially denied by primary adjudication but the decision was reversed on September 17, 2003. Effective August 28, 2003, wage loss benefits were extended to the worker.During the course of the claim, the worker was treated with physiotherapy and was assessed by her family physician, a sports medicine specialist and jointly by a specialist in acupuncture and a certified athletic therapist.
On April 14, 2004, the worker was assessed by a WCB medical advisor to determine whether or not she was capable of returning to work. The medical advisor summarized that the worker had symptoms and signs of bilateral lateral epicondylitis and very mild bilateral medial epicondylitis. It was also reported that the worker had other potential reasons for her prolonged recovery which included pre and co-existing depression, sleep disturbance and excessive narcotic usage. The medical advisor opined that the worker was capable of a graduated return to work over a two week period with restrictions.
On May 20, 2004, primary adjudication advised the worker of the medical advisor's opinion that she was capable of returning to work on a graduated basis over a two week period even though she continued to have symptoms of epicondylitis. As the worker did not have a job to return to, the WCB would continue to pay wage loss benefits for the length of the graduated return to work program, i.e. up until June 3, 2004 inclusive and final. On June 9, 2004, the worker appealed this decision to Review Office, stating that she was still having difficulties with both elbows and that she was "not much further ahead now then (sic) I was when the injury was at its worst."
Prior to considering the worker's appeal, Review Office referred the case to a WCB orthopaedic consultant to obtain his medical opinion as to whether or not there was any medical evidence to support the worker's contention that she could not work because of her tennis elbow condition. In a response to Review Office dated June 24, 2004, the consultant stated the following:
"There certainly is no contraindication to R.T.W. [return to work] with temporary restrictions as outlined by the medical advisor in examination report of Apr. 14/04. If work was the provocative factor in the development of elbow problems then it should have resolved/improved with this lengthy lay off from work."On June 30, 2004, Review Office confirmed that the worker was not entitled to payment of wage loss benefits beyond June 3, 2004. Review Office accepted the opinions expressed by the WCB medical advisor and by the WCB orthopaedic consultant and found that the worker had recovered from the effects of her work-related epicondylitis condition to the extent that she was capable of returning to her pre-accident line of employment. Review Office noted that the claimant had several other medical problems in addition to the bilateral epicondylitis condition which may be preventing her from returning to work.
In a submission dated August 20, 2004, a worker advisor, acting on the worker's behalf, asked Review Office to reconsider its previous decision based on new medical information dated July 29, 2004 and August 19, 2004.
On July 29, 2004, a sports medicine physician outlined his opinion that the worker should not do heavy lifting or repetitive firm grasping and that repetitive use of her wrist, as is required in bartending, could aggravate her symptoms.
In a report dated August 19, 2004, the treating physician outlined her opinion that the worker had not recovered from her bilateral medial and lateral epicondylitis and that she was still symptomatic. The physician commented that the worker's pre-existing depressive illness was prolonging her recovery and that it was not in the worker's best interest to remain off work indefinitely. A work hardening program was suggested.
On August 31, 2004, Review Office again confirmed that the worker was not entitled to payment of wage loss benefits beyond June 3, 2004. Review Office stated that all physicians involved in the worker's care agreed that the worker had restrictions and that she was capable of employment. Review Office reiterated its previous opinion that non-compensable medical factors may be at play. Review Office did not authorize a work hardening program as suggested by the treating physician as the worker did not have a job to go back to. On September 20, 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.
Reasons
The issue before us was whether the worker is entitled to wage loss benefits beyond June 3, 2004. For the worker's appeal to be successful we must find that the worker's loss of earning capacity after June 3, 2004 was due to her compensable workplace injury. We were not able to arrive at this conclusion.Evidence at the Hearing
The worker attended the hearing and was represented by a worker advisor. The employer was not represented at the hearing.
The worker answered a series of questions posed by the worker advisor and Panel members. She described the onset of symptoms. She advised that as the symptoms worsened she reduced her hours of work and finally stopped work because of the pain in her arms. She said the symptoms were at first right-sided but later moved to her left side. She believes this was due to over using her left side to compensate for the pain on her right side.
The worker attributed the injury to her employment, and specifically to lifting and piling beer cases. She described her duties which included both kitchen and bar duties. She noted that shortly before she laid-off work it was particularly busy at work.
The worker provided information on the current state of her injury. She said her arms are still tender with a dull ache. She expressed concern about a reinjury and said she was "scared to overdo it again." She advised that she has given some consideration to finding employment but has not actively looked for work nor discussed work or restrictions with her doctors.
The worker advised that she is undergoing further tests and that an MRI is to be scheduled.
Analysis
We were not able to find that the worker's loss of earning capacity after June 3, 2004 was caused by her workplace injury. In support of our position we note that:
- a WCB medical advisor assessed the worker on April 14, 2004 and commented that "…she is capable of working within the following restrictions: no lifting/pushing/pulling > 20 lbs. and no repetitive firm grasping; for a duration of 8 weeks." He recommended that "She should return on a graduated basis, beginning at four hours and increasing by 2 hours every week until full shifts are worked."
- a WCB orthopedic consultant reviewed the file on June 24, 2004 and agreed with the medical advisor's assessment. He also commented that the worker's elbow condition should have resolved/improved with the lengthy lay-off from work.
- in a report dated August 12, 2004, the worker's family physician commented that while the worker had not recovered from the bilateral medial and lateral epicondylitis, the worker's pre-existing depressive illness was prolonging her recovery. She commented further that "… it would be reasonable to attempt to get her back to work with restrictions…"
- the sport medicine physician who treated the worker commented in July 2004 that "I would agree that she should not do heavy lifting or repetitive firm grasping but I also think that the repetitive use of her wrist that would be required in bartending could aggravate her symptoms." He noted that he had not seen her since November 2003 and stated "I would not say these restrictions are permanent as once her symptoms resolve she could look at returning to bartending."
- the sports medicine physician examined the worker again on October 27, 2004 and commented in a report dated November 2, 2004 that "At this time I think light duties are a better option than a work hardening program as it appears that repetitive grasping will just flare her symptoms."
At the hearing the worker advised that she has not actively sought employment. She also advised that she is limited in the activities she can perform on daily basis. However she described some of the activities she has performed around her home including cutting the grass with a riding lawn mower which takes approximately nine hours, painting three rooms in her house and assisting her husband with the installation of eaves troughs on their garage. Participation in these activities plus the medical evidence noted above supports our finding that the worker is fit for suitable employment and that her loss of earning capacity is no longer due to the workplace injury.
The worker's appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerP. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of December, 2004