Decision #113/06 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on June 22, 2006, at the worker's request. The worker and his wife presented evidence. The panel discussed this appeal on June 22, 2006.Issue
Issue 1: Whether or not responsibility should be accepted for chiropractic treatment beyond December 19, 1991; andIssue 2: Whether or not the Permanent Partial Disability rating in regard to the worker's left knee should be implemented; and
Issue 3: Whether or not the left knee range of motion should be used as a comparison in determining the Permanent Partial Disability rating of the right knee; and
Issue 4: Whether or not surgery and ongoing treatment of the left shoulder is related to the 1981 compensable injury; and
Issue 5: Whether or not the worker's myocardial infarction is related to the 1981 compensable injury.
Decision
Issue 1: That responsibility should not be accepted for chiropractic treatment beyond December 19, 1991; andIssue 2: That a Permanent Partial Disability rating in regard to the worker's left knee should not be implemented; and
Issue 3: That the left knee range of motion should be used as a comparison in determining the Permanent Partial Disability rating of the right knee; and
Issue 4: That surgery and ongoing treatment of the left shoulder is not related to the 1981 compensable injury; and
Issue 5: That the worker's myocardial infarction is not related to the 1981 compensable injury.
Decision: Unanimous
Background
IntroductionThis worker has had a number of claims with the Workers Compensation Board (the "WCB"). This appeal deals essentially with two claims - one in 1981 and one in 1992.
The August 25, 1981 accident (the "1981 accident)
On August 25, 1981, the worker was on a ladder cleaning out eavestroughs when he received an electrical shock and was thrown 6 to 7 feet to the ground. He landed on his right side suffering injury to his right knee and shoulder. He also suffered electric shock trauma, neck and back strain and myositis.
The worker says that since this accident he has not been the same as the injuries to his body have never completely resolved or have created stress on other parts of his body that have had to compensate for these injuries.
The May 14, 1992 accident (the "1992 accident")
On May 13, 1992, the worker fell four feet off a ladder, landing onto his right shoulder with the ladder on top of him. He later underwent surgery to repair a massive rotator cuff tear on the right side.
The worker has appealed five issues which were denied by Review Office. These issues and the relevant evidence dealing with these issues are dealt with below.
Reasons
Issue 1: Whether or not responsibility should be accepted for chiropractic treatment beyond December 19, 1991Shortly after the 1981 accident, the worker requested and was approved chiropractic treatment for his right shoulder.
Chiropractic reports from the worker's treating chiropractor at that time reveal that the worker was treated for both the right shoulder and the upper back in the T10 to L5 area. Treatment was given several times per week. The reports from 1985 indicate that the worker was progressing well and able to work his regular duties with some flare-up. On May 15, 1985, the chiropractor discharged the worker from his care as he found him recovered from his injuries.
Chiropractic treatment resumed approximately one year later for recurring shoulder, neck and back pain. This time the treatments were on an as needed basis, which was approximately once per month.
The chiropractic reports from February 27, 1987 onwards indicate that the treatment was for permanent injury to the worker's right shoulder. A January 4, 1988 report clarified that the chiropractic treatments allowed the worker to maintain joint mobility at a relatively pain-free state.
On November 6, 1991, the WCB advised the worker that responsibility for chiropractic treatment would no longer be accepted given that he was also seeing a family physician.
The worker's chiropractor took issue with this position. In a November 25, 1991 report he said that he was treating the worker for areas not treated by the family physician. He also wrote:
"The [worker] has been examined on several occasions in the neck, middle back and lower back. His lower back examination reveals a gradual improvement from previous injuries…At the present time [the worker] is still being treated for ongoing lower back symptoms as his right shoulder complaints are no longer within the realms of chiropractic care. I have advised [the worker] that he will require intermittent and ongoing chiropractic are for the foreseeable future on a symptomatic basis. This is not a maintenance care but rather re-constructive care for his neck and lower back regions."A chiropractic consultant to the WCB disagreed. He noted that there was no mention of low back pain for years and no continuity of signs and symptoms that could be established to directly relate the chiropractic treatment to the compensable injury.
On December 19, 1991, the worker was advised by his adjudicator that his ongoing chiropractic treatment was considered maintenance or preventative in nature and that these types of treatments were not payable by the WCB.
The worker's chiropractor once again wrote in support of the worker's position that his care was not for maintenance. A March 18, 1992 report states in part:
"…it is my belief at this point that [the worker] is undergoing ongoing chiropractic care for an injury previously deemed compensable and therefore I feel that he is still receiving treatment for such. The treatments are primarily necessary to maintain and manage a less painful lifestyle for him.
[The worker] has indicated to me on several occasions since 1985 that he undergoes intermittent periods of painful shoulders, neck and lower back regions. He feels that these areas become painful with his regular work activities as well as his regular household activities, and thus chiropractic care is necessary on an intermittent basis to reduce areas of irritation and to increase the musculature balance on either side of his spine to further reduce unnecessary wear and tear.
…he, at the present time, is suffering from intermittent bouts of enhanced discomfort to pre-existing injuries and receives intermittent relief on a temporary basis through chiropractic care."
Review Office confirmed the adjudicator's decision on June 5, 1992, indicating that chiropractic care, so many years after the compensable injury, was not, on a balance of probabilities, related to the compensable accident.
A subsequent report from the treating chiropractor dated October 13, 1992 was forwarded to Review Office. This report states in part:
"When [the worker] first began chiropractic care at this clinic in 1985, he began with complaints of lower back pains as well as right shoulder pains. Since the beginning of the onset of care and each and every treatment thereafter, the care provided has always been for flare-ups that have occurred due to the type of work that he has been engaged in. The wording that was used in my reports, was perhaps, somewhat misleading, as I mentioned 'that the treatments were primarily necessary to maintain and manage a less painful lifestyle for him'. The wording should have said 'that with each time that [the worker] presented himself to this clinic, he was in a considerable amount of discomfort, and the purpose of the chiropractic care provided was to decrease or partially eliminate the source of the irritation, thus maintaining a less painful lifestyle for him. However, there has never been any regular program of care ever set out for [the worker]."Review Office still maintained its decision on November 27, 1992.
In 2002, the worker asked Review Office to reconsider this decision. In support of his request, he submitted a new medical report dated November 27, 2002 from his new chiropractor. This report indicates that the worker was treated for the lumbosacral area, sacrospinalis, quadratus lumborum, gluteus and left sacroiliac L4 L5. The new chiropractor had seen the worker since 1996. He noted that since 1993, the worker had also required chiropractic care four times in 1995. It was his opinion that the worker's signs and symptoms were consistent since 1981.
On January 24, 2003 Review Office found, in part, that no responsibility should be accepted for the worker's ongoing chiropractic care beyond December 19, 1991.
The worker appealed Review Office's decision to the Appeal Commission. The worker's position was that his chiropractic treatment was related to his compensable injuries and that the WCB should cover his chiropractic treatments.
We are unable to accept this position.
Subsection 24(1) of The Workers Compensation Act (the "Act") in effect at the time of the 1981 accident provides that medical aid may be provided to a worker if the WCB considers it necessary to cure and provide relief from an injury resulting from a workplace accident.
On the basis of the medical evidence, we find on a balance of probabilities that the worker's ongoing chiropractic care after December 19, 1991 was not related to the 1981 compensable injury. The reports are clear that the chiropractor considered the worker recovered from his neck and back symptoms as of May 15, 1985. We also note that the initial treatment to the worker's back was for the T10 to L5. All treatment after 1986 relates solely to the worker's right shoulder with the exception of the occasional adjustment to the worker's low back. Subsequent treatment which began in 1996 by the new chiropractor appears to be related to a different area of the worker's back.
For these reasons, the worker's appeal for chiropractic treatment beyond December 1991 is denied.
Issue 2: Whether or not the Permanent Partial Disability rating in regard to the worker's left knee should be implemented; and
Issue 3: Whether or not the left knee range of motion should be used as a comparison in determining the Permanent Partial Disability rating of the right knee
Subsequent to the 1981 accident, the worker suffered 2 injuries to his left knee - one in 1982 and one in 1987.
On April 14, 1982 the worker lost his footing and slipped down a ladder and landed with both knees on a bar of the ladder. He was diagnosed with hematoma and skin abrasion and was paid nine days of time loss.
On September 1, 1987, the worker was at work on a ladder when he felt a pain in his right knee. When he went to relieve the pain, he struck his left knee on the rung of the ladder. He was diagnosed with an abrasion. Six days of wage loss benefits was awarded to the worker.
Responsibility was accepted for these accidents under separate claims.
These injuries are relevant to the appeal before the Appeal Commission for the following reasons:
The worker was examined by an impairment awards medical advisor on January 20, 2004 to establish a PPD rating for his right knee condition. The examining medical advisor measured the range of motion in both knees. The left knee range of motion was found to be 130 degrees and range of motion in the right knee was 110 degrees. The expected range of motion for a knee was 150 degrees. The loss in range of motion of the right knee was initially obtained by comparing the range of motion of the left knee to that of the right knee (i.e. 130-110= 20 degrees) in accordance with WCB policy 44.90.10.02 (Permanent Impairment Rating Schedule).i) whether the left knee should be used as a comparison in establishing the permanent partial disability ("PPD") rating for the worker's right knee;
ii) whether the left knee should receive a PPD rating under the 1981 accident.
The worker expressed concerns with the impairment award medical advisor comparing his left knee with his right knee when determining his loss in range of motion of his right knee. The worker contended that he has had two left knee injuries in the past and that his left knee had been affected by compensating for his right knee over the years.
In a letter dated June 21, 2004, a WCB manager stated, "Your left knee range of motion is lower than that expected, but there is no evidence relating this loss to any sort of specific trauma at work or otherwise. As such, it was appropriate to use the left knee for comparison purposes."
However, the impairment awards medical advisor reviewed the matter further and decided to call the worker in again to determine whether there was any rateable impairment to the left knee. His memorandum of October 21, 2004 notes:
"At the time of my examination for PPI (sic) on January 15, 2004, that was carried out to assess his right knee, it was my understanding that the claimant was anxious to proceed with a review for a possible PPI (sic) award. At the time of my examination and the taking of a history, no mention was made about a problem or any symptoms relating to the left knee and in particular there was no mention made in the history of the injury to this knee. In my examination, note was made of a range of motion of the left knee of 130º. I interpreted this as an indication of the expected age-related changes from a 'normal' of 150º in a gentleman of the claimant's age."The worker was seen on December 14, 2004. The impairment awards medical advisor found the same results compared with the earlier assessment. However, this time he calculated the rating based on what an expected range of motion would be, in other words, he found a loss of range of motion of the right knee equal to 150 (expected) - 110 (existing) = 40 degrees, and a loss of range of motion of the left knee equal to 150 (expected) - 130 (existing) = 20 degrees.
This new rating was never implemented by the WCB. The WCB in fact took the position that the appropriate PPD rating was 20 degrees for the right knee and that no PPD rating should be implemented for the left knee. This decision was upheld by Review Office in a decision dated November 17, 2005.
The worker takes the position that the 1981 accident caused a right knee injury which has subsequently caused injury to his left knee. As the left knee is injured it should not be used as a comparison for the right knee, and should, because it is injured receive a PPD.
We do not agree with this position.
A review of the worker's medical file reveals that on December 4, 1981, just over 3 months after the 1981 accident, the worker's left knee had a range of motion of 135 and the right knee, 125. Though the impairment examination revealed a right knee range of motion of 110, which shows some decrease since 1981, the left knee range of motion is essentially same as it was in 1981 despite the subsequent two accidents of 1982 and 1987 and the worker's assertion of overcompensation for the right knee. Because the left knee was essentially at the same degree of range of motion between 1981 and 2004, we find it reasonable and appropriate to use the left knee as a comparison.
In these circumstances, we find on a balance of probabilities that:
Accordingly, the worker's appeal is denied with respect to these two issues.i) it was appropriate to use the worker's left knee as a comparison for the right knee, and
ii) that it is not appropriate to implement a PPD for the left knee.
Issue 4: Whether or not surgery and ongoing treatment of the left shoulder is related to the 1981 compensable injury
On June 21, 2004 the worker attended an orthopaedic surgeon with complaints of left shoulder pain which presumably started after pushing at his job as a repairman of trucks and tractors. An MRI revealed a rotator cuff injury. The orthopaedic surgeon related the worker's shoulder complaints to his 1981 compensable right shoulder due to overcompensation.
The worker was referred to a second orthopaedic surgeon who, in a March 2, 2005 report concurs that the left shoulder is due to overuse as a result of the 1981 right shoulder injury.
The case was referred to a WCB medical advisor to review the file information and to comment on the status of the worker's current left shoulder problems. In a response dated April 15, 2005, the medical advisor stated, "In this case much more likely causes of rotator cuff tear would be degenerative disease due to aging and known gout. We note that he had extensive degenerative disease in the R [right] shoulder also. Normal use in the presence of the above condition could have resulted as the pathology demonstrated. I see no reason for the proposed surgery being considered WCB responsibility or work related."
On May 31, 2005, the case manager documented that the worker's left shoulder condition would not be considered related to his right shoulder injury and therefore surgery and treatment would not be the WCB's responsibility. The worker disagreed and filed an appeal with Review Office.
On March 22, 2006, Review Office documented that the worker was awarded a 30% impairment rating for his right shoulder and that he had permanent restrictions. Review Office reviewed the file evidence to establish a history of the worker's left shoulder complaints. It showed to Review Office that the worker's initial reporting of left shoulder difficulties commenced November 10, 2004.
Review Office referred to WCB policy 44.10.80.40 Further Injuries Subsequent to a Compensable Injury when it determined that the worker's left shoulder difficulties were not related to the right shoulder injury. It also placed significant weight on the WCB medical advisor's opinion of April 14, 2005.
On April 14, 2006, the worker appealed Review Office's decision to the Appeal Commission.
In reviewing the medical evidence we are unable to accept the worker's appeal on this issue.
While the worker's left rotator cuff could have been caused by overuse, we do not find that this was the case with the worker. The worker's right shoulder injury was in 1981. X-rays of both shoulders on October 30, 1981 show irregularity of the articular margin of the left clavicle consistent with osteoarthritis. The worker continued asymptomatic with his left shoulder until 2004. We note that this was approximately 3 years after the worker retired from his eavestroughing business. The October 22, 2004 MRI confirms arthrosis in the left shoulder and reveals a small complete tear of the supraspinatus. In our opinion, the arthritis and tear are not, on a balance of probabilities related to the worker's 1981 accident.
Accordingly, his appeal is denied on this issue.
Issue 5: Whether the worker's myocardial infarction is related to the 1981 compensable injury.
As a result of the 1992 accident the worker underwent a course of physiotherapy. When pulling 80 lb. weights at physiotherapy he suffered a heart attack which the WCB accepted as causally related to the 1992 accident.
The worker disagreed and took the position that his heart attack was instead caused by the 1981 accident as he was functionally limited since that date.
Review Office determined on November 17, 2005, that the worker's myocardial infarction was not related to his 1981 compensable injury. It noted that the worker injured his right shoulder on May 13, 1992 when he jumped off a ladder when it started sliding off the eaves. There was no evidence to suggest that this injury was in any way caused by the injuries he sustained on August 25, 1981 and by connection, there was no relationship between the August 25, 1981 compensable injury and the myocardial infarction sustained while undergoing treatment for his right shoulder injury.
The worker appealed this decision to the Appeal Commission.
We are unable to accept the worker's appeal. The medical evidence on file indicates that the worker suffered a heart attack while doing weights during a course of physiotherapy prescribed as a result of the 1992 accident. While there is a reported history of functional symptoms since the 1981 accident, there is no evidence that the worker's heart attack in 1993 was caused by a gradual accumulation of stress on his heart in the intervening years between 1981 and 1992. For these reasons, we do not find, on a balance of probabilities that the worker's heart attack was caused by or related in any way to the 1981 accident.
Accordingly the worker's appeal is denied on this issue.
Panel Members
L. Martin, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Martin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of August, 2006