The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 27, 2006, at the request of an advocate, acting on the worker's behalf. The panel discussed this appeal following the hearing on February 27, 2006.

Issue

Whether or not there is entitlement to wage loss benefits beyond February 6, 2005.

Decision

That there is no entitlement to wage loss benefits beyond February 6, 2005.

Decision: Unanimous

Background

On November 3, 2002, the worker pulled her right shoulder, arm and wrist when she tried to prevent an IV pole containing five pumps from striking a patient. When seen by a physician for treatment on November 3, 2002, the diagnosis rendered was a strain to the right shoulder girdle. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker for her time loss from work.

In late January 2003, the worker advised the WCB that she returned to work on November 21, 2002 and was okay for a couple of weeks but her condition gradually became worse. She attributed her difficulties to her work activities as a nurse's aide. On February 12, 2003, a WCB adjudicator reinstated the worker's compensation benefits.

The worker was seen by an orthopaedic specialist on February 13, 2003. It was the specialist's belief that the worker "had post-traumatic bursitis of her right shoulder following a sprain of the shoulder and probably subluxation at the glenohumeral joint."

The treatment plan included a right shoulder injection along with shoulder and arm exercises with a review in two week's time. By February 27, 2003, the worker's right shoulder movements were only slightly restricted and slightly painful at the extremes of arm motions. The orthopaedic specialist advised the worker to return to work on March 5, 2003 and to avoid heavy work and overhead activities for several weeks.

On March 12, 2003, it was determined by the WCB that the worker would return to a graduated return to work program for a four week period. By April 10, 2003, it was anticipated that she would be back at full duties.

On April 8, 2003, the worker notified the WCB that her doctor advised her to remain off work 'indefinitely' due to ongoing shoulder problems. The worker's benefits were then reinstated.

In a report dated May 1, 2003, the orthopaedic specialist opined that the worker had a bursitis-tendonitis of the conjoint tendons. In a further report dated May 22, 2003, the orthopaedic specialist noted that the worker complained of pain on the right side of her neck, anterior right shoulder and right index finger.

A physiotherapy report dated May 27, 2003 diagnosed the worker with questionable non-organic pain secondary to nerve traction with a myofascial overlay component.

Following an examination at the WCB's offices on June 17, 2003, a WCB medical advisor opined from the description of the work injury that the worker suffered a dislocation of her glenohumeral joint. An MRI examination was recommended to determine whether there had been a labral, rotator cuff or bicep tendon lesion. On August 15, 2003, the MRI of the right shoulder was considered to be essentially normal with no evidence for rotator cuff tendon or a labral tear.

On September 11, 2003, the examining WCB medical advisor indicated that the worker was fit to begin a graduated return to work program. On September 30, 2003, the worker commenced a graduated return to work program with anticipation that she could return to full duties by October 28, 2003.

On October 8, 2003, an employer representative advised the WCB that the worker was in week 2 of her 4 week graduated return to work program. He noted that the worker saw a specialist and was advised to remain off work pending the results of a shoulder scope.

In a report dated October 9, 2003, an orthopaedic surgeon reported that the worker had "more pain than instability complaints now and has positive impingement signs and a series of intra-articular and peri-articular clicks and clunks can be elicited during examination of the right shoulder, to a greater degree than on the left side. …She may have, nonetheless, a Slap lesion or a defect in her rotator interval secondary to the subluxation episode." The specialist recommended a right shoulder arthroscopy. On October 20, 2003, the WCB accepted financial responsibility for the costs associated with this procedure.

Following surgery on June 9, 2004, the post-operative diagnosis was listed as "Diffuse shoulder laxity without instability, subacromial bursitis, coracoacromial ligament thickening, and subacromial impingement."

In a progress report dated June 22, 2004, the orthopaedic surgeon noted that the early assisted range of motion was improving and that the shoulder appeared to be healing. He stated that the worker did not want to return to her previous job as a nurse's aide. He said the worker was small and that her shoulder would remain at risk. He noted the prognosis for the worker to return to her previous job was somewhat guarded and that vocational rehabilitation was indicated.

In a memo dated June 23, 2004, a WCB medical advisor reviewed the operative report and stated there were some pre-existing conditions that predisposed the worker to her initial injury and possibly prolonged her recovery. On June 29, 2004, the employer was awarded 50% cost relief.

On September 30, 2004, the orthopaedic surgeon indicated that the worker's right shoulder range was mildly restricted but was now functional. He noted that physiotherapy aggravated the worker's neck and back pain. The surgeon indicated that the worker's return to her previous job as a right hand dominant health care aide was not recommended.

In a letter dated February 2, 2005, the WCB advised the worker that based on the medical information on file, she was fit for some form of work and that she should avoid activities of working above shoulder height. This restriction was considered permanent. On the same day, the worker advised her case manager that she elected not to participate in the return to work program as she did not agree with the restriction imposed by the WCB as she felt she was unable to lift over 20 lbs or push/pull objective over 30 lbs.

On February 7, 2005, a WCB case manager advised the worker that wage loss benefits were being suspended effective February 7, 2005, as she elected not to participate in her return to work program.

In a report dated February 18, 2005, the orthopedic surgeon stated that the worker "…has two problems. These are subacromial impingement and bursitis for which she underwent arthroscopic decompression in June 2004. Multidirectional laxity, without gross instability, but contributing to ongoing shoulder pain and disability, not yet responding to conservative treatment." The specialist indicated that "shoulder restrictions would not be limited to overhead work, but to other pushing and pulling, and reaching and lifting activities in a variety of planes and positionings of the shoulder." He noted that laxity was reported at the June 9, 2004 arthroscopy and that the physical findings have not significantly changed.

The worker was assessed by a WCB orthopaedic consultant on April 20, 2005. Following his examination of the worker, the consultant was of the opinion that there were no objective signs of ongoing pathology related to the compensable injury.

In a letter dated April 29, 2005, a WCB case manager advised the worker that based on a review of the medical information received from her orthopaedic surgeon and the results of the April 20, 2005 WCB examination, it was felt that there were no restrictions to her activities related to her compensable injury and subsequent surgery. It was felt that any restrictions required would be related to her pre-existing shoulder laxity as noted by her orthopaedic specialist. Thus, there was no basis to reinstate wage loss benefits.

In correspondence to the case manager dated June 7, 2005, the worker's advocate contended that a relationship existed between the worker's long term restrictions and her work related injury and that her restrictions were not related to a pre-existing condition. It was also the advocate's position that the worker's possible pre-existing condition was enhanced by her work related injury. In support, the advocate provided the WCB with a report from the orthopaedic surgeon dated June 1, 2005.

On June 27, 2005, a WCB sector manager determined that no change would be made to the case manager's decision of April 29, 2005. The sector manager's opinion was that the surgeon's report of June 1, 2005 contained no new evidence to support his opinion. On July 18, 2005, the advocate appealed the WCB's decisions of April 29, and June 27, 2005 to Review Office.

On August 26, 2005, Review Office determined that the worker was not entitled to wage loss benefits beyond February 6, 2005. Review Office indicated there was insufficient evidence to conclude that the worker had any ongoing pathology of the right shoulder as a result of her compensable injury of November 3, 2002. On October 19, 2005, the advocate appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The panel was asked to determine whether the worker is entitled to wage loss benefits beyond February 6, 2005. For this appeal to succeed, the panel must find that the worker suffered a loss of earning capacity as a result of her workplace injury beyond the noted date. In other words the panel must find that the worker was unable to work after February 6, 2005 because of her workplace injury. The panel was not able to make this finding.

Evidence and Argument at Hearing

The worker was represented by an advocate who made a submission on her behalf. The employer was also represented by an advocate who made a submission on the employer's behalf. The worker answered questions posed by her representative and the panel.

The worker's representative acknowledged that the worker has a pre-existing condition affecting her shoulder. He noted the pre-existing condition had been asymptomatic and nonpathologic prior to the workplace injury. He submitted that, on a balance of probabilities, the worker's pre-existing condition had been enhanced by the workplace injury and that WCB Policy 44.10.20.10 (Pre-Existing Conditions) is applicable. He submitted that pursuant to this policy the worker is entitled to benefits.

The worker's representative reviewed the medical information on the file and advised that the worker relies upon the opinion of the worker's treating orthopaedic surgeon.

The worker confirmed the description of the workplace accident. She advised that she had no problems or shoulder pain before the injury. With respect to returning to work, she indicated that she made three attempts and each was unsuccessful. She later corrected her evidence and advised that she had attempted to return to work on two occasions. She declined to return to work in February 2005 because she was being offered the same job she was previously unable to perform.

Regarding her current condition, she advised that it has not improved. When asked whether she could feel her shoulder condition at the hearing, she replied "Because I'm not doing anything, no." She advised that she limits her normal activities and does not carry heavy loads of laundry up and down stairs, do vacuuming or do heavy cleaning.

The worker advised that she found a job with another employer but was only able to work for about one month because of her shoulder condition. She has not recently looked for work because she is pregnant and as well, has been waiting for her employer to find a suitable position. She acknowledged that she has not recently contacted her employer about a job.

The employer's representative advised that the employer agrees with the Review Office decision. She submitted that there is no objective evidence that the worker's pre-existing condition has been enhanced. She submitted further that by electing not to participate in a return to work or following up with other alternate duties, the worker failed to mitigate the effects of the injury. She stated that the employer was able to accommodate the worker's restriction to avoid overhead work when benefits ended in February 2005. The employer's representative reviewed the medical information on file and disagreed with the opinion of the treating orthopaedic surgeon.

Analysis

The panel has considered all the evidence and finds on a balance of probabilities that the worker did not suffer a loss of earning capacity due to her workplace injury after February 6, 2005.

The worker has a pre-existing condition, ligamentous laxity of both shoulders. There is a suggestion by the worker's representative that this pre-existing condition has been enhanced by the workplace accident. The evidence to support this suggestion is temporal in nature as prior to the workplace injury the worker's shoulders were asymptomatic and since the injury the worker has reported right shoulder symptoms.

On the issue of enhancement, the worker's treating orthopaedic surgeon in a report dated June 1, 2005 commented:

"Strictly speaking though, the enhancement would not be from a lesser to greater degree of laxity, but would be from a degree of laxity, across the line of laxity and into the realm of actual instability, without some complete dislocation. That is my working diagnosis for this patient.

Otherwise there is no explanation of her pain, either from a pre-existing condition, or a work-related injury."

However the panel also notes that in the same report the treating orthopaedic surgeon states that objective findings have not changed significantly over time. He noted that at the time of surgery, it was not possible to show definite increased instability on the right side.

The panel has considered all the evidence and finds on a balance of probabilities, that the worker's pre-existing condition has not been enhanced. In arriving at this conclusion the panel notes the operative report from the June 9, 2004 surgery performed by the treating orthopaedic surgeon. This report states "Both shoulders were examined under anesthesia and both have mild multidirectional laxity but neither is more lax than the other and neither is grossly unstable as the shoulders cannot readily be dislocated over the edge of the glenoid." The observation that the right shoulder, which was injured in the accident, is not more lax than the left shoulder supports the panel's conclusion that there has been no enhancement or worsening of the right shoulder condition. The observation that the shoulders cannot be readily dislocated also supports the panel's findings. One might have expected that the right shoulder would be more easily dislocated if the laxity had been enhanced.

The panel also notes that since the workplace injury in November 2002 there is no reported history of subluxations of the right shoulder. This also supports the conclusion that the condition has not been enhanced.

In addition to finding that the worker's pre-existing condition has not been enhanced, the panel also finds that the worker's loss of earning capacity after February 6, 2005 is not caused by her workplace injury. In a report dated February 18, 2005, the treating orthopaedic surgeon notes that "At the February 7, 2005, (sic) it was agreed that she would continue with the conservative approach, with long term restrictions, at least self-imposed, against aggravating activities." This suggests to the panel that restrictions were largely self-imposed and preventative in nature. The preponderance of evidence does not support the imposition of compensable restrictions due to the workplace injury.

The panel notes that the worker was examined by a WCB orthopaedic consultant on April 20, 2005 and accepts the opinion of the consultant regarding the worker's shoulder condition. The consultant found that the worker has some degree of laxity of both shoulders which is pre-existing. He did not feel there were any objective signs of instability of the right shoulder. He concluded that "In my opinion there are no objective signs of ongoing pathology related to her work related injury." This opinion is consistent with the panel's conclusion that the worker's pre-existing condition has not been enhanced and that the worker's loss of earning capacity is not due to the workplace injury.

The worker's appeal 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 25th day of April, 2006