Decision #33/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 30, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 30, 2002.Issue
Whether or not the claimant is entitled to wage loss benefits for the period May 2, 2000 to May 5, 2000;
Whether or not the claimant is entitled to wage loss benefits for the period August 1, 2000 to August 9, 2000;
Whether or not the claimant is entitled to wage loss benefits in relation to her sporadic time loss beyond October 17, 2000;
Whether or not the claimant is entitled to wage loss benefits beyond April 20, 2001; and
Whether or not the claimant has recovered from the compensable injury as of May 30, 2001.
Decision
That the claimant is entitled to wage loss benefits for the period May 2, 2000 to May 5, 2000;
That the claimant is entitled to wage loss benefits for the period August 1, 2000 to August 9, 2000;
That the claimant is entitled to wage loss benefits in relation to her sporadic time loss beyond October 17, 2000;
That the claimant is entitled to wage loss benefits beyond April 20, 2001; and
That the claimant has recovered from the compensable injury as of May 30, 2001.
Background
The claimant sustained an injury to her right elbow on October 26, 1999 from deboning chicken breasts during the course of her employment as a labourer. The claimant was then placed into a different job (the linko line) but her elbow condition worsened. When seen by her attending physician on January 7, 2000 the diagnosis rendered was lateral epicondylitis. The Workers Compensation Board (WCB) accepted the claim and compensation benefits were paid for three days of time loss between January 7, 2000 and March 31, 2000.
In January 2000, the claimant was placed into a different position which entailed padding foam trays. Between April 14th and May 1, 2000, the claimant was authorized time off work by her attending physician and physiotherapist due to increased swelling in her elbow.
On May 2, 2000 the claimant spoke to a WCB adjudicator. The claimant said she returned to work on May 1st but was having trouble taking the trays out of the bags. The claimant said she did not return to work on May 2, 2000 because her arm was very sore.
On May 5, 2000, the WCB arranged for a work site visit to review the claimant’s job functions. It was determined that the tray padding job was light and that it met the claimant’s current restrictions, i.e. to avoid using the right elbow particularly with pronation/supination movements.
In a May 8, 2000 decision, primary adjudication determined that the claimant was not entitled to full wage loss benefits effective May 1 to May 5, 2000, as it was felt the claimant was capable of performing the modified duties offered by her employer based on the weight of evidence. Between May 8, 2000 and May 22, 2000, the claimant was expected to perform the modified duties of padding foam trays.
On May 17, 2000, a WCB physiotherapy consultant assessed the claimant. At the time of assessment, the claimant complained of ongoing discomfort at the lateral aspect of the right elbow. Examination findings were largely unremarkable and range and strength were normal.
In a July 4, 2000 letter, primary adjudication advised the claimant that a WCB medical advisor had reviewed her case. It was the medical advisor’s opinion that there were no clear objective clinical signs to support the claimant’s inability to graduate to her pre-accident job duties within the next five weeks. A return to work schedule was outlined and it was anticipated that the claimant would be capable of returning to her pre-accident job duties effective August 2, 2000.
On August 3, 2000, the claimant contacted the WCB and indicated that she had a cortisone shot on August 1, 2000 and was off work until August 9, 2000. The claimant indicated she returned to work padding foam trays again after her holidays. She also took some time off work to seek medical treatment and asked that the WCB pay for her hours missed from work. An August 1st progress report from the attending physician noted that the claimant had a Depo Medrol local injection into the lateral epicondyle and that she was totally disabled between August 1st and August 9, 2000.
On August 9, 2000 the claimant appealed the adjudicator’s decision to deny wage loss benefits between May 1 and 5, 2000.
Following a WCB call-in examination on August 23, 2000, the examining medical advisor noted that the claimant was making a satisfactory recovery from her epicondylar injury, however there was some muscular dysfunction involving the right shoulder. The medical advisor referred the claimant to a physical medicine and rehabilitation specialist (physiatrist) for further treatment and management of her right shoulder status.
On September 8, 2000, Review Office confirmed the adjudicator’s decision that the claimant was not entitled to wage loss benefits between May 2nd to May 5, 2000 inclusive. According to Review Office, there was no file evidence to take the position that the claimant was unable to perform the modified employment task of tray padding during the above period. This decision was reached after reviewing a videotape of the May 5, 2000 work site visit.
The claimant was assessed by the physiatrist on October 17, 2000. The physiatrist injected the right shoulder over the A/C joint, the right anterior and posterior capsule areas and the right lateral epicondylar area. It was noted that by the time the claimant left the room she had minimal pain. The claimant was provided with an information sheet on prolotherapy and was to take note of the effect of her injection until her next appointment.
On November 9, 2000, the WCB advised the claimant that she was not entitled to wage loss benefits for her time loss from work between August 1st to 9, 2000 and since her October 2000 appointment with the physiatrist. Primary adjudication indicated that the claimant’s ongoing difficulties with her right arm was not disputed, however, she [the claimant] was still considered capable of performing the modified duties that were made available to her by the employer.
In a memo to file dated November 10, 2000, a WCB adjudicator noted that he spoke with the claimant’s physiatrist who said it was okay for the claimant to return to work provided she only use her unaffected arm. The specialist was concerned that the employer had the claimant doing more than she should and that the claimant would develop problems with her unaffected arm due to overuse in modified duties. The claimant was to undergo another injection on November 14, 2000 and he believed she would have a very painful reaction to the injection for approximately 3 days and recommended that she have time off of work.
In a follow-up report dated November 14, 2000, the physiatrist noted that the claimant read over the information on prolotherapy and was prepared to have a trial of it. The specialist stated that he told the claimant there were no guarantees that the treatment would work and of the potential risks involved.
On November 7, 2000, a WCB physical medicine and rehabilitation consultant reviewed the case with regard to the value of prolotherapy. The consultant indicated that the treatment was developmental and that the claimant had received some treatments. “I would suggest she will complete the treatments although not authorized.”
In a letter dated November 23, 2000 primary adjudication confirmed that effective November 23, 2000, the claimant would return to work performing a combination of a Quality Control and Tray Padding duties.
On March 21, 2001, the claimant contacted the WCB to state that she had been suspended from work (i.e. March 21, 22 and 23, 2001). The claimant said she was padding trays and that the line stopped for a brief moment. Her supervisor asked if she would put products onto trays and she refused the request as this was a two handed job.
A WCB adjudicator contacted the employer on March 21, 2001. The employer indicated that the job of putting wings on trays was a 2 handed job but could be done one handed.
Following a work site visit on April 4, 2001, primary adjudication informed the claimant by letter that the modified duty job had been reviewed. Given there were no production requirements, it was felt that the job could have been done with one hand and that it fell within her work restrictions. As it was considered that the modified duties were appropriate, the WCB would not pay wage loss benefits for the time missed between March 21 and March 23, 2001.
On April 20, 2001, the case was considered by Review Office at the request of the claimant’s union representative. Review Office determined the following:
That the WCB would not accept responsibility for the time loss for the period of May 2 to May 5, 2000 or from August 1 to August 9, 2000.
Review Office found no medical evidence to lead to the rescinding of its September 14, 2000 decision regarding the time loss between May 2nd and May 5, 2000. For the period August 1st to August 9, 2000, Review Office did not feel there was any medical evidence on file which would lead one to a conclusion that the claimant should not be at work in the modified duty position arranged through the WCB and the employer.
That the WCB does not accept responsibility for the sporadic shifts missed after the October 17, 2000 medical appointment, other than the shifts missed which the WCB had already accepted responsibility for.
Review Office was of the opinion that the claimant was not functionally impaired from performing the modified duties involved with the claim and therefore confirmed the decision of primary adjudication. Review Office could not find medical evidence of any condition which would functionally impair the claimant from performing the modified duties offered by the employer.
On April 23, 2001 the claimant contacted the WCB to state that she was off work again due to her cortisone injection from last Tuesday and that she was going to see a chiropractor.
In a memo to file dated April 24, 2001, a WCB adjudicator noted that he spoke with the WCB’s physical medicine and rehabilitation consultant regarding prolotherapy. The consultant indicated that the problem with this type of treatment was that it could create scar tissue which served the purpose of tightening the ligaments. It also decreased the elasticity of the ligaments in the process. The consultant said that prolotherapy was still developmental and that several injections could be done at 1 visit depending on the size of the treated area. These injections can cause increased pain which can result for weeks.
In a letter to the claimant dated April 27, 2001, primary adjudication stated that the WCB was unable to accept responsibility for her prolotherapy treatment or any time loss that resulted from the effects of that treatment. The claimant was advised that the WCB would reimburse time loss from April 18 to 20, 2001 as it had been established that this was the likely recovery time after receiving a Xylocaine injection. The WCB was unable to accept responsibility for any time loss beyond this date as it was the direct result of the non-approved prolotherapy treatment the claimant was receiving. The WCB would not be accepting any responsibility for time loss to attend appointments with the physiatrist.
Following a WCB call-in examination on May 7, 2001, the claimant was advised that it was the medical advisor’s opinion that no ongoing cause-effect relationship existed between the original accident and her current reported symptoms. Preventative restrictions of no lifting more than 25 lbs. with the right upper limb and to avoid excessive and/or repetitive right wrist flexion were outlined. The claimant was informed that in the opinion of Rehabilitation & Compensation Services, she was considered to be recovered from the effects of the compensable accident of January 6, 2000.
On June 29, 2001 a union representative appealed a number of decisions on the claim and the case was referred to Review Office.
In an August 31, 2001 decision, Review Office determined that the claimant had made a sufficient recovery from the effects of her compensable injury based on the absence of clinical evidence and the prolongation of the claim despite numerous treatment modalities. It appeared that the claimant’s symptoms were perpetuated by factors unrelated to the compensable injury and by treatment that was not considered a WCB responsibility.
With respect to the prolotherapy treatment, Review Office indicated that it was clear that this treatment was not providing the claimant with a cure or relief from her symptoms and that no responsibility could the accepted for this treatment or for any associated time loss.
Review Office ultimately determined that:
- there was no entitlement to wage loss benefits after April 20, 2001, except for any time loss to attend the WCB examination of May 7, 2001;
- the claimant had recovered from her compensable injury by May 30, 2001; and
- there was no entitlement to medical aid benefits after May 30, 2001.
On November 6, 2001, the union representative appealed Review Office’s decisions and an oral hearing was convened.
Reasons
Chairperson Sargeant and Commissioner Day:
This case involves a worker who, in January 2000, incurred a workplace injury to her right elbow, specifically, lateral epicondylitis. Her claim for compensation was accepted and benefits paid accordingly.
Between the time of her injury and the end of May 2001, the claimant missed a number of days of work because of this injury and/or because of her reaction to treatment for the injury. While wage loss benefits were paid for some of these days, there were a number of missed days for which the board would not accept responsibility. Her appeal to this Commission is in respect of those days, as well as the board decision that she had recovered from the workplace injury as of May 30, 2001.
The Panel was presented with five different issues for its consideration, as listed above. For her appeal to succeed in respect of the lost time, the Panel would have to determine that her time loss was a result of the compensable injury. To succeed on the last issue, the Panel would have to find that she was not able to return to work at modified duties, within prescribed restrictions.
Our findings, in respect of each issue, follow.
Issue 1 – Entitlement to wage loss benefits for the period May 2 to May 5, 2000
The Panel was unanimous in concluding that she was entitled to compensation for her loss of wages during this period.
For two weeks prior to this period, her doctor had kept her off work to rest her elbow and allow it to heal. She was to return to work on May 1 on modified duties and remain at this for three weeks. When she did return to work, she found she did not receive the assistance she had expected. As a result, by the end of the day, her elbow was very painful.
She was also under the impression that her adjudicator was to meet her at the jobsite on her first day back to assess the modified duties. Late on that day, her supervisor informed her that the meeting had been postponed to Friday, May 5th.
We conclude that it was not unreasonable for the claimant to remain off work until the matter of modified duties was cleared up, which occurred with the adjudicator’s visit on the 5th.
Accordingly, the appeal on this issue is allowed.
Issue 2 – Entitlement to wage loss benefits for the period August 1 to August 9, 2000
We were unanimous in concluding that she was entitled to compensation for her loss of wages during this period.
We note that on August 1, 2000, the claimant visited her doctor who gave her an injection of Depo Medrol into her elbow. At that time, he indicated, in his progress report to the board that she would be totally disabled from work until August 9th.
We are of the view that it is incumbent upon a claimant to follow the advice of her doctor in respect of treatment.
Therefore, we would allow the appeal on this issue.
Issue 3 – Entitlement to wage loss benefits for sporadic time loss beyond October 17, 2000
We came to a split decision on this issue, with the majority concluding that she was entitled to compensation for her loss of wages during this period.
The time loss in question in this issue was related to her inability to return to work following “prolotherapy” treatment. On most occasions, she was negatively affected for four or five days, for which the board would usually pay her wage losses for only two days.
From our review of the file, it seems that the board’s reasons for this is that it does not recognize prolotherapy as a legitimate treatment and does not authorize or pay for its use. The majority of the Panel is cognizant of this board practice. However, we note that it was a board medical advisor who recommended that the claimant be referred to a particular specialist, who is well known for using prolotherapy.
We are of the view that the board must accept responsibility for having made this referral. While there are certainly instances where a claimant should question proposed treatment, we feel that it was not at all unreasonable for the claimant here to follow the treatment recommended by the specialist to whom the board referred her.
Therefore, the majority would allow the appeal on this issue.
Issue 4 – Entitlement to wage loss benefits beyond April 20, 2001
We also came to a split decision on this issue, with the majority concluding that she was entitled to compensation for her loss of wages during this period.
Our reasons in respect of this decision are similar to those in Issue 3. On April 17, 2001, the same specialist expressed the opinion that a gradual return to work was not appropriate at that time. He felt that it would get her into more trouble and inhibit her recovery. A week later, on April 24, he wrote that he thought she would be unable to cope with being back at work.
It was based on this medical advice that she did not return to work. We again feel that she was correct to follow the advice of her treating physician.
Therefore, the majority would allow the appeal on this issue.
Issue 5 – Has the claimant recovered from the compensable injury as of May 30, 2001
We were unanimous in concluding that she had recovered by May 30, 2001.
In coming to this decision, we place considerable weight on the report of a board medical advisor who examined the claimant on May 7, 2001, as well as on opinions he subsequently expressed to the case manager.
In his examination, he found no active problems in the area of her injury, other than pain complaints. He did not believe there was an ongoing causal relationship between her symptoms and the compensable injury. He was of the further opinion that she would be able to return to work on a gradual basis, working within restrictions. In fact, he felt a return to work would be advisable.
Accordingly, we would dismiss the appeal on this issue.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of March, 2002