Decision #51/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 8, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on February 8, 2005.Issue
Whether or not the worker is entitled to wage loss benefits after April 9, 2002.Decision
That the worker is entitled to wage loss benefits after April 9, 2002.Decision: Unanimous
Background
In November 1999, the worker submitted a claim to the Workers Compensation Board (WCB) for injuries to her left rotator cuff, shoulder and upper arm due to the nature of her employment activities as a data entry clerk.During the initial stages of the claim, the worker was diagnosed with tendonitis and bursitis to the left shoulder along with left rotator cuff syndrome and myofascial pain. On December 8, 1999, responsibility for the claim was accepted by the WCB and various benefits and services were paid to the worker.
On August 29, 2000, a WCB medical advisor reviewed the file information and diagnosed the worker with a left shoulder impingement, regional myofascial pain syndrome and supraspinatus tendonitis. In the interim, the worker attempted a graduated return to work program while receiving treatment but had to discontinue the program on a number of occasions due to a flare-up of symptoms.
On April 5, 2001, the worker was examined by a WCB medical advisor with respect to her left shoulder difficulties. Following the assessment, the medical advisor concluded that the worker presented with chronic overloading to the shoulder girdle and shoulder-girdle musculature on the left side. The examination also revealed that the worker suffered from mild impingement syndrome suggesting a lesion to the supraspinatous musculature and anterior cuff irritation. Myofascial pain syndrome was still evident around the mid cervical spine level and there were no abnormalities to the hand.
On August 10, 2001, an MRI left shoulder arthrogram was carried out. It revealed no evidence of a rotator cuff tear or tendinopathy and no atrophy was identified. Based on the absence of a lesion identified on the MRI results, a WCB medical advisor suggested an examination at the WCB's Pain Management Unit (PMU).
The worker was assessed at the WCB's PMU on November 6, 2001. Based on this assessment, the PMU determined that the worker did not meet diagnostic criteria for chronic pain syndrome (CPS). It was suggested that the worker would likely benefit from counseling to deal with pain management and other issues which may constitute a barrier to a return to work.
On December 4, 2001, a WCB case manager provided the worker with details of her graduated return to work program which commenced on November 19, 2001 and was to run until January 14, 2002. Upon completion of the program, it was expected that the worker would have fully recovered from the effects of her compensable injury.
In January 2002, the worker advised the case manager of ongoing difficulties she was experiencing with pain in her shoulder and arm and that she was finding it difficult to sit still at her work terminal. The case manager asked a WCB medical advisor to review the case and to comment on a diagnosis. The medical advisor stated that a diagnosis was uncertain as the worker's complaints seemed to be more related to her cervical spine paraspinals which was a different description from the last call-in examination. The medical advisor further commented that the evidence on file did not support time loss beyond the graduated return to work schedule.
On February 19, 2002, a union representative wrote to Review Office and appealed the WCB's decision that the worker had recovered from the effects of her compensable injury. The union contended that the worker continued to suffer from the effects of a repetitive strain injury and asked for retroactive benefits to January 14, 2002.
Prior to rendering a decision with respect to the above issue, Review Office arranged for the worker to be assessed by a WCB physical medicine and rehabilitation consultant (physiatrist) with a view to determining a diagnosis and to comment on the relationship between the worker's symptomatology and the work injury. This examination took place at the WCB's offices on April 9, 2002. In brief, the physiatrist commented that the worker's current clinical examination suggested symptoms primarily of soft tissues. It was felt that the worker was an appropriate candidate for some acupuncture-type directed needling to the current most symptomatic areas including biceps, the lateral chest and medial scapular areas.
On May 21, 2002, Review Office determined that the worker had not fully recovered from the effects of her compensable injury and was entitled to compensation benefits beyond January 6, 2002. In arriving at its decision, Review Office placed weight on the WCB's physiatrist's findings of April 9, 2002. Review Office said it was clear from the file evidence that the worker had some residual minor findings attributable to the 1999 compensable injury and endorsed the physiatrist's recommendations for time limited treatment. Following the time limited treatment, Review Office believed that the worker would have received the appropriate treatments for her soft tissue muscle injury and that there was no evidence to support any continuing functional impairment insofar as the work injury was concerned. Based on Review Office's decision, the worker was paid wage loss benefits to April 9, 2002 inclusive, the date that the worker was assessed by the WCB physiatrist consultant.
On November 12, 2002, a worker advisor provided additional medical information for primary adjudication's consideration. The worker advisor contended that these reports supported the position that the worker had not recovered from the repetitive strain injury and its associated symptoms complex and that work related restrictions prevented the worker from returning to her regular employment. As the new information constituted a difference of medical opinion, a Medical Review Panel (MRP) was requested. The MRP was later granted and it took place on November 24, 2003. In brief, the MRP determined the following:
- left rotator cuff tendonitis was the diagnosis of the worker's left shoulder and arm condition on November 4, 1999;
- left rotator cuff tendonitis and secondary myofascial pain syndrome was the current diagnosis. The MRP felt that the worker had not yet recovered from these conditions.
- the worker required permanent physical work restrictions as a result of her work related injury.
In a decision dated March 5, 2004, Review Office determined that the worker had not recovered from the effects of her compensable injury but was fit for work within the proposed physical restrictions outlined by the MRP in its report. Review Office outlined its position that the worker's job duties of a data entry clerk were within the physical restrictions as outlined by the MRP and that the worker did not have a loss of earning capacity beyond April 9, 2002.
On July 22, 2004, the worker advisor asked Review Office to consider the case again based on further medical reports received from the worker's treating physician dating March 26, 2004 through to June 30, 2004. The worker advisor commented that the treating physician was of the view that the worker would not be able to return to her prior employment even with the modifications that were put in place.
In a decision dated November 6, 2004, Review Office stated that no change would be made to its previous decision that the worker was not entitled to wage loss benefits after April 9, 2002. Review Office stood by its former position that the worker's job duties of data entry were within the physical restrictions recommended by the MRP and that this opinion had been previously supported by the WCB's physiatrist and more recently by the physiotherapy consultant. The worker's job duties were performed below the shoulder level and would not be outside the accepted physical restrictions. Review Office concluded that the worker was capable of returning to her former work despite her shoulder pathology. On November 23, 2004, the worker advisor appealed Review Office's decision and an oral hearing was then arranged.
Reasons
The worker underwent an examination by a MRP on November 24, 2003. Following its examination the MRP concluded that the diagnosis of the worker's current condition includes left rotator cuff tendonitis and secondary myofascial pain syndrome, that the worker's current condition is causally related to her work duties prior to November 1999 and that the worker has not recovered from her condition.The tendonitis and myofascial pain syndrome diagnoses were also acknowledged earlier on in the file by a WCB medical advisor in a memorandum to file dated August 29, 2000. In addition, the worker's treating pain and injury specialist reported on August 12, 2002 as follows: "On palpation, there were some myofascial trigger points in the left infraspinatus, producing radiation down the arm, upper trapezii, the sternomastoid". On examination the MRP found as well: "Tenderness of the left trapezius supraspinatus and infraspinatus muscles. No significant taut bands of these muscles but on pressuring the trigger points of the left infraspinatus and supraspinatus there was the referred pain pattern towards the left forearm and the elbow."
We note that the MRP concluded the worker required physical work restrictions as a result of her injury. "The restrictions should include avoidance of repeated elevation of the left arm, of rotation, flexion, extension and abduction at the shoulder and of working at any time with the left arm over her head. These restrictions should be considered permanent."
The evidence reveals that the worker's data entry duties involved her moving a ruler with her left arm to highlight information approximately 500 times each hour. The worker demonstrated her left arm movements (forwards, backwards, up and down) for the Panel. We are satisfied based on the weight of evidence that the movements of flexion, extension and reaching with her left arm did, on a balance of probabilities, violate her workplace restrictions and thus ultimately prevented her from performing her job duties.
After having weighed all of the evidence and having determined that the permanent physical restrictions did, in fact, prevent the worker from performing her usual job duties, we therefore find that the worker is entitled to wage loss benefits after April 9, 2002. Accordingly, the worker's appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of March, 2005