Decision #112/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 25, 2005, at the request of a worker advisor, acting on the worker's behalf. The Panel discussed this appeal on April 25, 2005 and again on June 1, 2005.

Issue

2002 Claim

Whether or not responsibility should be accepted for the worker's left elbow condition beyond May 28, 2003; and

Whether or not responsibility should be accepted for other medical conditions identified by the worker as being related to the November 22, 2002 compensable injury.

2003 Claim

Whether or not the claim is acceptable.

Decision

2002 Claim

That responsibility should not be accepted for the worker's left elbow condition beyond May 28, 2003; and

That responsibility should be accepted for muscular symptomatology in the left shoulder/trapezius as being related to the November 22, 2002 compensable injury; and

That responsibility should not be accepted for any other medical conditions identified by the worker as being related to the November 22, 2002 compensable injury.

2003 Claim

That the claim for injury of October 29, 2003 is not acceptable.

Decision: Unanimous

Background

During the course of her employment as a day care worker on November 22, 2002, the worker slipped and fell on ice injuring her back and both elbows. On December 16, 2002, the claim was accepted by the Workers Compensation Board (WCB) based on the diagnoses of "contused elbows and low back strain" and benefits were paid to the worker from November 26, 2002 to December 9, 2002 inclusive.

On April 24, 2003, the worker advised the WCB that she was having ongoing difficulties with her left arm from her head down her arm to her fingertips along with severe headaches. The worker related these difficulties to the November 22, 2002 compensable injury.

On May 27, 2003, primary adjudication asked a WCB medical advisor to review the file information and to provide an opinion as to whether or not there was a relationship between the worker's present complaints of head, neck, shoulder and wrist complaints to the compensable injury. The medical advisor responded that there was no relationship and was of the view that the worker had fully recovered from her compensable accident. Based on the medical advisor's comments, primary adjudication advised the worker on May 28, 2003 that the WCB was unable to accept responsibility for any possible time loss or treatment related to the worker's present difficulties.

On October 29, 2003, the attending physician diagnosed the worker with a strained neck, left shoulder, left arm and wrist which he related to "lifting heavy child at work". Based on this information, the WCB established a 2003 claim for the worker with the accident date being October 29, 2003.

The Employer's Accident Report dated November 5, 2003 stated, "the employer spoke to the worker. The worker informed her that this is not a new claim. It is from an injury she had last year when she slipped on ice at work. She went to the doctor because her arm was still bothering her. Not sure of the different treatments that the worker received."

On December 8, 2003, the worker advised the WCB that she did not have a specific accident on October 29, 2003 and that her physician's report was submitted in error. She stated that she has had ongoing difficulties performing her job duties of lifting infants and that this medical report was related to her ongoing difficulties and not a specific accident. The worker indicated that she did not have any further symptoms related to her back but did have symptoms related to her left side which included neck, shoulder, arm and elbow to her fingers.

On December 10, 2003, the adjudicator telephoned the employer. The employer stated that the worker complained of left arm difficulties and both she and the worker assumed it was related to the 2002 accident. The employer stated that the worker's complaints were not specific to the left elbow only but rather the entire left arm. She did not complain about her neck.

The Worker's Accident Report dated January 6, 2004, outlined injuries to the worker's neck, shoulder, arm and wrist with the date of accident being October 29, 2003. The description of accident was recorded as follows: "I carried 4 children in the wagon, and I lifted them and put them on a change table to change their diapers, and then I put them into their cribs. This caused more pain to my neck, left shoulder, left arm and wrist."

On January 8, 2004, a different adjudicator contacted the worker to obtain additional information regarding her ongoing symptoms, medical treatment, job history/duties, etc. The adjudicator also spoke with the employer on a number of occasions as well as two co-workers with respect to the worker's ongoing symptoms.

In a decision dated January 19, 2004, primary adjudication determined that the claim for compensation was not acceptable as the worker provided different explanations to account for the onset of her current symptoms and because she repeatedly claimed that her current symptoms were related to her 2002 injury. Based on these factors, primary adjudication was unable to establish a specific or non specific accident to account for the onset of the worker's symptoms. With regard to the worker's November 22, 2002 accident, primary adjudication referred to its decision of May 28, 2003 when it was determined that the WCB would not accept responsibility for the worker's "headaches, shoulder pain down to fingers, left wrist and elbow" as it was felt that these symptoms did not relate to the compensable injury. Primary adjudication stated that a further medical opinion was obtained on January 14, 2004 and it was difficult to establish a work-related causation for these problems given that there was no clear diagnosis on file or a clear mechanism of injury.

On June 9, 2004, a worker advisor provided Review Office with a written submission, outlining her position that the worker had never fully recovered from her November 2002 workplace injury and that there was no other cause for the worker's ongoing symptoms other than the workplace fall.

In a decision dated September 21, 2004, Review Office considered the file evidence on both claims which included medical reports from the treating physician, a hospital emergency facility, the treating physiotherapist and reports from an orthopaedic specialist. The following decisions were reached:
  • that responsibility should be accepted for the worker's left elbow condition up to May 28, 2003 based on medical reports from January to May 2003, which showed that the worker's left elbow condition was symptomatic.

  • that no responsibility should be accepted for the multitude of conditions brought forth by the worker in April 2003. Based on a review of the file information, Review Office noted that the most significant symptoms involved in the November 22, 2002 claim were the low back strain and the swollen and tender left elbow. As the claim progressed, other areas of the worker's anatomy came into play. Review Office stated it was not accepting responsibility for the worker's neck or shoulder symptoms as being compensable conditions.

  • Review Office noted that the worker was adamant that she did not feel she incurred any new accident beyond November 22, 2002 as she related all of her problems to the original injury. Based on this position, Review Office was of the view that the criteria set out in The Workers Compensation Act (the Act) regarding the definition of an accident had not been met and the October 29, 2003 claim was not acceptable.
On February 16, 2005, the worker advisor appealed Review Office's decision of September 21, 2004 and requested an oral hearing. Subsequent to this request, the worker advisor provided the Appeal Commission with additional medical information from an occupational health physician for consideration.

On April 25, 2005, an oral hearing was convened. Following the hearing, the Appeal Panel requested additional information from two of the worker's treating physicians. On May 17, 2005, all interested parties were provided with copies of the medical reports that were received by the Panel from the treating orthopaedic surgeon and physiatrist and were asked to provide comment. On June 1, 2005, the Panel met further to discuss the case and considered a submission by the worker advisor dated May 24, 2005.

Reasons

There were two issues before the panel arising from the worker's November 22, 2002 compensable injury and an issue arising from an incident on October 29, 2003.

The first issue we were asked to determine was whether responsibility should be accepted for the worker's left elbow condition beyond May 28, 2003. For the appeal of this issue to be successful, we must find that the worker's left elbow condition after May 28, 2003 is related to the compensable injury. We found it was not related and that responsibility should not be accepted for the worker's left elbow condition after May 28, 2003.

The second issue was whether responsibility should be accepted for the other medical conditions identified by the worker as being related to the November 22, 2002 compensable injury. For the appeal on this issue to be successful, we must find that the worker's other medical conditions are related to the compensable injury. We found that the worker's muscular symptomatology in the left shoulder/trapezius area is related to the workplace injury but that the other conditions are not related.

Finally, we found that the worker did not have an accident nor suffer a workplace injury on October 29, 2003 and that the claim is not acceptable.

Evidence and Argument at the Hearing

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the Panel.

The employer was represented by its director who attended to provide information to the Panel. The director answered questions posed by the Panel.

The worker described the November 22, 2002 workplace accident. She also described the symptoms she has experienced at various times since that date. She provided information on recent medical appointments.

The worker's representative submitted that the worker never fully recovered from the injuries she sustained as a result of her fall at work. She noted that the worker's co-workers and supervisor were aware that the worker had on going problems. The representative advised that the worker is asking that the Review Office's decision of September 24, 2004 be rescinded and that the worker be awarded full wage loss benefits, retroactively from May 28, 2003 in recognition that all reported conditions are a compensable consequence of her workplace accident. She indicated that responsibility for these conditions should be accepted in accordance with WCB policy 44.10.20.50, Recurring Effects of Injuries.

With respect to the third issue, file information indicates that prior to the hearing the worker's position was that she did not have a new accident. However, at the hearing the worker's representative indicated that it was available to the Panel to determine there was either a recurrence or a new accident on this date.

Analysis

The first issue dealt specifically with the worker's elbow condition. The worker advanced the position that the WCB should accept responsibility for her left elbow which continued to be symptomatic after May 28, 2003 are a result of the compensable injury.

In considering this issue, we acknowledge that the worker injured her left elbow when she fell on November 22, 2002. However, we find that the evidence does not support the worker's complaints of left elbow pain after May 28, 2003 is caused by the compensable injury. In arriving at this conclusion we rely upon the following evidence:
  • the worker missed minimal time from work after the injury which suggests the injury to the left elbow was not significant.

  • x-ray of the worker's left elbow dated November 24, 2002 noted "No joint effusion is seen. There is swelling over the olecranon. No fracture is identified." A later x-ray of the left elbow disclosed no abnormality, as reported by the worker's orthopaedic surgeon in May 2004.

  • physiotherapist report (Therapist Discharge Form) dated March 26, 2003 notes subjective complaints of intermittent left cervical pain and left arm pain. The therapist's diagnosis on completion of assessment does not include the left elbow condition. This contrasts with the diagnosis provided by the therapist upon completion of assessment on December 31, 2002. At this earlier date, the therapist diagnosed "left elbow contused/ mild olecranon bursitis".

  • WCB medical advisor opinion dated May 27, 2005 that worker recovered from the compensable injury. (The Panel accepts this opinion as it applies to the worker's left elbow condition.)
In addition to her elbow pain, the worker has identified other medical conditions which she considers are caused by the November 22, 2002 compensable injury. These conditions include complaints of pain and stiffness in her neck and left shoulder, weakness left hand, pain in back and lower back, tenderness of left wrist, right shoulder, and headaches. The worker's original report of injury notes the area of injury to include both elbows and lower back. The Doctor's First Report includes both elbows and lower back. This report also notes the worker has lower back pain and/degenerative arthritis which may affect recovery.

We have considered all the evidence and find on a balance of probabilities that responsibility should be accepted for the muscular symptomatology in the left shoulder/trapezius area as being related to the November 22, 2002 compensable injury. While the left shoulder was not identified in the first reports of the doctor and worker, the attending physician notes a reduced ROM in the left shoulder in a report dated March 3, 2003. Complaints regarding the left shoulder are generally continuous since that report.

We accept that the muscular symptomatology in the left shoulder is due to the compensable injury. In arriving at this determination, we attach significant weight to the opinion of a physiatrist set out in a report dated May 11, 2005. The physiatrist found, on examining the worker that "The trapezius myofascial taut band referred pain up into her neck showing that she had active trigger points." On a second exam the physiatrist found "…she still had tightness of the trapezius muscle worse on the left than on the right with active trigger points." The physiatrist needled the left trapezius area. We note the physiatrist has reported there is no further follow-up appointment with the worker.

The worker is also being treated by an orthopaedic surgeon who has diagnosed a possible rotator cuff condition. We do not consider this condition to be due to the compensable injury and note that an MRI report dated August 19, 2004 concludes "Normal MR shoulder. No evidence for rotator cuff tendon tear."

As for the other conditions which the worker related to the compensable injury, we find, on a balance of probabilities, that responsibility should not be accepted. These conditions include the worker's neck, left hand and wrist, right shoulder, low back and headaches. We considered the mechanics of the injury, the continuity of symptoms, the medical evidence and the worker's evidence at the hearing in arriving at this conclusion.

With regard to the third issue, we find, on a balance of probabilities that the evidence does not establish that an accident occurred on this date. The description of the worker's activities on this date, provided by both the worker and the employer, do not establish that an accident as defined in the Act had occurred. We also note the worker's view that the symptoms she had on that date are the same as the symptoms she had prior to that date.

The worker's appeal is declined on issues 1 and 3, and is partially accepted on issue 2.

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 7th day of July, 2005

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