Decision #24/06 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 18, 2006 at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.Issue
Whether or not responsibility should be accepted for the worker's headaches, neck and/or right shoulder problems;Whether or not the worker is entitled to wage loss benefits between August 20, 2004 and September 6, 2004;
Whether or not physiotherapy treatments should be extended; and
Whether or not the worker has recovered from the effects of her compensable injury.
Decision
That responsibility should be accepted for the worker's headaches, neck and right shoulder problems;That the worker is entitled to wage loss benefits between August 20, 2004 and September 6, 2004; and
That the worker has not recovered from the effects of her compensable injury.
That the issue of extending physiotherapy treatments is a matter to be decided by the WCB based on an assessment of what, if any, medical aid is appropriate for treating the worker's current condition.
Decision: Unanimous
Background
On May 27, 2004, while performing her duties as a meat packer, the worker tripped over a box of meat and fell to the floor injuring her right elbow, forearm and wrist. She was taken to the hospital emergency department for pain, bruising and swelling of her right forearm. An x-ray of her right forearm and wrist revealed no fracture, dislocation or other abnormality.The worker was seen later that day by her physician who diagnosed the injury as a sprain and soft tissue injury to the right elbow, forearm and wrist. The worker returned to work on May 31, 2004 performing light duties.
On June 2, 2004, the Workers Compensation Board ("WCB") accepted the worker's claim for compensation related to the diagnosis of soft tissue injury to her right elbow, forearm and wrist.
The worker was examined again by her physician on June 7, 2004. At that time the worker was complaining of neck muscle spasms in addition to pain and discomfort in her right arm. In his report dated June 10, 2004, the physician noted tenderness and swelling in the worker's right trapezius muscle. When next seen on June 14, 2004, the physician noted that the worker is still not able to do any work with her right arm and that she is restricted from performing repetitive work or any heavy lifting.
The worker was assessed by a physiotherapist on June 21, 2004. The therapist noted that the worker complained of pain in her elbow, shoulder, neck and arm. The therapist's diagnosis was right subscapularia tendonitis, right acromion clavicular ligamentous sprain and myofascial pain.
When next seen by her physician on July 12, 2004, the worker complained of worsening neck muscle spasms and tenderness and swelling was noted in her right trapezius muscle. Work was restricted to light duties with no heavy lifting.
An x-ray dated August 9, 2004 of the worker's cervical spine and right shoulder noted no abnormalities in the shoulder and minor osteoarthritic changes in the mid cervical region.
On August 10, 2004, the worker's physician wrote to the WCB indicating that since the accident the worker had developed severe shoulder pain and chronic neck muscle spasms that were not improving despite regular physiotherapy and anti-inflammatory medication. The physician asked that the worker be examined by a doctor specializing in musculoskeletal injuries.
When next examined on August 19, 2004, the worker's physician noted that in addition to complaints of right shoulder and right sided neck muscle spasms, the worker had developed tension headaches secondary to the neck muscle spasms. The physician indicated that the worker was not capable of modified duties.
In a report dated August 26, 2004, the physiotherapist noted that the worker complained of severe tension in her neck muscles with headaches and decreased movement in her neck. The physiotherapist requested authorization to continue treatments for five weeks. A WCB medical advisor recommended against this request on the basis that there was no evidence of sustained benefit on review of the medical reports. Continued physiotherapy was denied by the WCB.
The worker stopped working on August 20, 2004 due to continuing headaches. She advised a WCB case manager that she had suffered a migraine headache on August 26, 2004 requiring a Demerol shot at the hospital. She was taking muscle relaxants and pain killers and was continuing to suffer from headaches with pain between her shoulders going up into her neck. The worker advised that she had never suffered from headaches or migraines prior to the May 27, 2004 work injury.
The worker returned to modified duties on or about September 7, 2004 with continued restrictions not to use her right arm, no repetitive work or heavy lifting.
On September 14, 2004, the worker described the workplace accident to a WCB case manager. The worker explained that she could not recall falling or hitting the floor but remembered "flying through the air". She said she got up and went to the office and found a big lump on her forearm and scrape marks. The worker stated that her current problem is her headaches that began after the accident and have been with her ever since.
The worker was examined by a sports medicine specialist on September 27, 2004 who noted that the worker complains of pain traversing her right shoulder into her neck and back, headaches at the back of her head on the right side and that when her shoulder becomes tense her headaches worsen.
The specialist was of the opinion that the worker was suffering from a mild neck strain and a mild right rotator cuff strain with some mild symptoms of impingement and that she may also be suffering from post concussion. The specialist was of the view that the worker's neck and shoulder symptoms were not disabling and recommended that the worker participate in a graduated return to work program and her neck and shoulder symptoms would be expected to improve.
The worker was examined by a neurologist on October 20, 2004 respecting her headaches. The neurologist's report describes the headaches as starting two weeks following the accident. The neurologist was unable to find a neurological cause for the worker's headaches. A CT scan of the brain revealed no abnormalities.
A WCB medical advisor reviewed the file on November 22, 2004. The medical advisor was asked whether there remains an ongoing cause-effect relationship between the workplace injury and the worker's current symptoms. The medical advisor answered that the worker appears symptomatic but there is no clear evidence of impairment. When asked to indicate the diagnosis, the medical advisor noted neck strain and shoulder impingement. When asked if the worker's headaches were related to the workplace injury, the medical advisor wrote that they may or may not be related. The medical advisor also noted that there was no evidence of any pre-existing condition impeding recovery.
The same WCB medical advisor reviewed the file again on December 6, 2004 and a memorandum to the file states as follows:
"Based on mode of injury and described findings this claimant (sic) has now recovered from any effects of her compensable injury. Any residual complaints are considered to be pre-existing."By letter dated December 15, 2004, the worker was informed that the WCB would not accept responsibility for time loss from August 20 to September 6, 2004. The WCB case manager was of the opinion that the worker had recovered from the right shoulder/neck strain she suffered at work and any residual complaints were related to a pre-existing condition.
The worker's union representative appealed the decision to Review Office arguing that the worker had not recovered, that her headaches were related to her injury and that physiotherapy treatments should have been continued.
The Review Office noted that the initial injuries were described as relating to the right elbow, forearm and wrist and there did not appear to be an investigation or decision on file as to whether the shoulder and neck problems were related to the injury. The Review Office referred the matter back to primary adjudication requesting an investigation and decision as to whether the shoulder and neck problems as well as the worker's headaches were related to the workplace injury.
The WCB case manager obtained the triage notes from the worker's hospital visit at the time of the injury, contacted the worker to discuss the onset and nature of her symptoms and requested that a WCB medical advisor review the file.
The WCB medical advisor who reviewed the file was of the opinion that the mechanism of injury involving a fall onto the right arm and resulting abrasion/contusion was inconsistent with a neck sprain, noting that there was no mention of shoulder, neck or headaches until twelve days after the accident. The advisor was of the view that on the balance of probabilities the neck problems were not related to the injury and were more likely related to cervical osteoarthritis noted on the x-ray. The medical advisor diagnosed the accident injury as a soft tissue injury to the right elbow, forearm and wrist that typically takes four to six weeks to recover and that the worker was capable of participating in the modified duties offered by the employer.
By letter dated May 6, 2005, the WCB case manager advised the worker that the WCB only accepts responsibility for claims related to the soft tissue injury of the right forearm, wrist and elbow and not for claims related to her shoulder, neck and headache difficulties. The WCB case manager held that the worker had recovered from the effects of her injury and was not entitled to wage loss benefits when she stopped working in August 2004 until she returned to work in September 2004.
The union representative appealed the decision of the WCB case manager to the Review Office.
The Review Office rendered its decision on June 3, 2005 upholding the decision of the WCB case manager. The Review Office found as follows:
- That no responsibility would be accepted for the worker's headaches, neck or right shoulder problems. The Review office noted the opinion of the WCB medical advisor that there was no evidence of these problems on file until twelve days after the accident and the mechanism of injury was not consistent with a neck strain;
- That the physiotherapy treatments should not be extended as there was no evidence of sustained benefit on treatment;
- That the worker was not entitled to wage loss benefits for the period of August 20 to September 6, 2004 as she missed work due to her headaches that were unrelated to the accident;
- That the worker has recovered from the effects of her work related injury, namely the soft tissue injuries to her right wrist, elbow and forearm.
Evidence at Hearing
At the hearing the worker described how the accident occurred. She testified that she was working on an assembly line packing meat into boxes and that the boxes were backing up and some fell to the floor. She recalls that as she turned to place a box of meat on the conveyor belt her foot hit something on the floor and she started to fall forward. The next thing she remembers is finding herself on the floor. She testified she was confused and didn't know how long she had been lying on the floor or if she had hit anything when she fell.
The worker testified that when she got up her whole right side hurt and she had scrapes and swelling down her lower arm. She testified that there was blood on her arm around the abrasions and there was a large black bruise, approximately six inches long on her forearm. She put ice on her arm but the swelling and bruising did not improve and she asked a co-worker to take her to the hospital.
The worker testified that when she arrived at the hospital, she told the nurse that she couldn't recall how she fell or if she hit anything. Before seeing a doctor, an x-ray of the worker's arm was ordered. The worker explained that she had told the nurse that her neck and shoulder hurt and was advised that this was likely due to the trauma and she should discuss it with her doctor.
The worker further testified that when she saw her doctor on the day of the accident she told him that her neck hurt and he examined her shoulder and neck and advised that it was likely trauma from the fall. The doctor provided a note for her to give to the employer indicating she should not work that day and requesting light duties. She was told to make a follow-up appointment and was given the earliest available date of June 7, 2004.
The worker testified that when she saw her doctor on June 7, 2004, she told him she was having headaches and her shoulder hurt and he referred her for physiotherapy. There was a delay in obtaining physiotherapy because she had to wait until the treatments were authorized by the WCB.
The worker returned to work following the accident with instructions from her doctor that she was not to use her right arm or do repetitive work or heavy lifting. She testified that the alternate duties she performed included sorting and boxing meat and that she often was required to use both hands when taking meat off the assembly line if the line was moving fast. She testified that she continued working, that the jobs she was doing often made her dizzy, that her headaches were getting worse, that she was having difficulty sleeping and the pain in her shoulder and neck was not improving.
The employer confirmed at the hearing that most of the jobs at the plant were repetitive and time sensitive as the worker had described. The employer did not dispute the worker's description of her light duties.
During this time until August 20, 2004, the worker testified that her headaches were increasing in severity and she was taking up to six anti-inflammatory pills a day without relief leading to a severe migraine requiring a Demerol shot at the hospital. On August 20, 2004, her doctor advised her to stay off work for two weeks to see if her condition would improve. When she returned to work, she remained on light duties for approximately one year trying a number of different jobs all of which were repetitive and often involved the type of sorting and meat packing she had been doing at time of the accident.
The worker testified that she still suffers from pain that starts at her neck and right shoulder and goes down her arm for which her doctor has recommended physiotherapy. She continues to suffer from headaches everyday and they increase in severity as her work day progresses.
Reasons
The first issue to be determined by this Panel is whether the worker's shoulder and neck problems as well as her headaches are, on a balance of probabilities, related to the accident she suffered at work on May 27, 2004. The WCB was of the view that only the worker's soft tissue injury to her elbow, wrist and forearm were related to the accident.After considering all of the information on file and the evidence at the hearing, the Panel is of the opinion that the worker's headaches, neck and right shoulder problems are, on a balance of probabilities, related to the workplace accident.
In arriving at this decision, the Panel notes that the accident suffered by the worker on May 27, 2004 was particularly jarring, resulting in her falling to the floor with serious bruising and contusions. The Panel is of the view that such an injury could lead to neck and shoulder problems as well as associated headaches.
The Panel accepts the evidence of the worker that following the accident her whole side hurt, and that she complained of neck and shoulder pain to the nurse on duty at the hospital and to her physician later that day. This is consistent with the physician's report following examination on June 7, 2004, which noted that the worker's right shoulder muscle was tender and swollen and further refers to continuing symptoms related to her neck as follows:
"Pt still experiencing significant pain/discomfort in right elbow, forearm, wrist associated neckmusclespasms (sic)".The Panel notes that the medical and physiotherapist reports during the period from June 7, 2004 until August 19, 2004 consistently refer to continuing complaints of neck muscle spasms with noted tenderness and swelling in the worker's right shoulder.
The Panel also accepts the evidence of the worker that she experienced headaches from the time of the accident that worsened as she continued to work and that her physician told her to stop working for two weeks during the period of August 20 to September 6, 2004 to see if her condition would improve. This is supported in the physician's report dated August 20, 2004, which states that the worker developed tension headaches "secondary to neckmusclespasms (sic)".
The Panel is of the view that both the described injury and subsequent medical and physiotherapy reports support a conclusion that the worker's neck, shoulder and headaches are related to the May 27, 2004 workplace injury.
In light of our decision that the headaches are related to the worker's injury, it follows that the worker is entitled to wage loss benefits for having been off work due to her headaches during the period between August 20, 2004 and September 6, 2004.
The Panel is also of the view, based on the medical reports on file and the worker's evidence at the hearing, that the worker continues to suffer from headaches and pain in her neck and shoulder is related to her workplace accident.
The Panel notes that at the end of September 2004 the sports medicine specialist diagnosed the worker as having a mild neck strain and right rotator cuff strain with symptoms of impingement and recommended a graduated return to work with expected improvement in her symptoms. However, the evidence from the worker and the employer confirm that the light duties performed often required the worker to use both hands and to do repetitive lifting while sorting and packing meat on the assembly line. It is likely that the nature of the worker's job duties aggravated her symptoms and prevented her full recovery.
In light of the Panel's conclusion that the worker's current symptoms are related to the workplace injury, the Panel refers this matter back to the WCB to determine what, if any, medical aid is appropriate for treating the worker's ongoing condition.
With respect to the issue raised by the union representative in their submission as to whether or not physiotherapy should have been extended in August 2004, the Panel is of the view that this question is moot given that more than sixteen months have passed. The issue of whether physiotherapy should be provided at the present time is a matter to be considered by the WCB in light of their determination of what medical aid is appropriate for treating the worker's current condition.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
M. Thow - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of February, 2006