Decision #63/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s right shoulder condition and her workplace injury. The worker was injured in February 2006. The Workers Compensation Board (WCB) accepted her claim and provided wage loss benefits. However the WCB did not accept responsibility for the worker’s shoulder condition which it considered to be a pre-existing condition unrelated to the accident. The Review Office agreed with the WCB and concluded that the shoulder condition was not related to the workplace injury. The worker appealed to the Appeal Commission and a file review was held on March 21, 2007.Issue
Whether or not the worker is entitled to wage loss benefits beyond July 6, 2006.Decision
That the worker is not entitled to wage loss benefits beyond July 6, 2006.Decision: Unanimous
Background
During the course of her employment as a home care attendant on February 9, 2006, the worker injured her low back and right leg based on the following mechanism of injury, “…I was on his top step, and I slipped on the ice covered with snow, and I grabbed for the railing with my right hand in order not to fall backwards onto the sidewalk. I twisted my lower back, and my right leg. I also am sore in my right hand. I feel pain from my neck muscles downward.”
On the same day of injury, the worker attended a physician for treatment with complaints of right leg, right knee and right hip pain and walking difficulties. She was prescribed medication and was considered disabled from working. The claim was accepted and benefits and services were paid to the worker effective February 10, 2006.
In a telephone conversation with a WCB adjudicator on February 22, 2006, the worker indicated that the doctor she saw on the day of injury did not examine her right arm but she had signs and symptoms from grabbing the railing when she slipped. She also stated that her right foot swelled after walking a lot.
On March 3, 2006, the worker sought treatment from her family physician where she displayed tenderness in her right shoulder, elbow, wrist and leg. The diagnosis rendered was a sprain of the right arm, back and leg. Physiotherapy and medications were prescribed.
A physiotherapy report dated March 7, 2006 revealed that the worker complained of right shoulder, low back and right ankle pain. Eight visits were recommended by the physiotherapist and approved by the WCB.
On May 9, 2006, the worker advised the WCB that her right leg was no longer buckling but she still felt low back pain.
On May 12, 2006, the physiotherapist asked for 3 weeks of additional therapy for the worker which the WCB did not approve. On May 10, 2006, the treating physician reported that the worker still complained of tenderness in her shoulder, low back and ankle.
On June 7, 2006, the worker was examined by a WCB medical advisor and the following comments were made following the assessment:
“…it appeared that [the worker] had a strain type injury of the right shoulder and possibly the back and right ankle in the injury of February 2006. [the worker’s] current spectrum of symptoms and physical signs including diffuse symptoms involving complete extremities can not be accounted for on an anatomic/pathophysiological basis in relationship to the Feb 2006 workplace accident. This was substantiated by evidence of abnormal pain behaviors, the presence of a number of Waddell signs, and several inconsistencies…It is difficult to postulate how the current reported symptoms could be related to the initial relatively moderate sprain/strain type of injury. The current presentation with diffuse pain, fatigue and sleep disturbance is more in keeping with a fibromyalgic type presentation, though atypical in the presence of one-sided distribution of symptoms. There were no apparent relevant pre-existing conditions identified.”
On June 30, 2006, the case manager informed the worker that he was unable to establish a relationship between her February 9, 2006 workplace injury and her ongoing condition and that wage loss benefits would be issued to July 6, 2006 inclusive. The worker disagreed and submitted an appeal to Review Office.
On July 21, 2006, Review Office confirmed that the worker was not entitled to wage loss benefits beyond July 6, 2006. Its decision was based mainly on the opinion expressed by the WCB medical advisor following his examination of the worker on June 7, 2006.
At the request of the family physician, the worker was seen by an orthopaedic specialist regarding her right shoulder condition. In a report dated October 6, 2006, the specialist noted that submitted radiographic x-rays showed some calcifications anteriorly in the region of the subscapularis insertion. An MRI was ordered to rule out the possibility of a rotator cuff tear injury.
An MRI was completed on November 11, 2006. The results revealed “…a 5 mm focal tear, nearly full thickness, of the supraspinatus tendon adjacent to its anterior insertion. There is associated tendinosis. There is a possible focal anterior labral tear.”
On December 1, 2006, the orthopaedic specialist sought permission from the WCB to perform surgery to repair the worker’s rotator cuff tear. On December 11, 2006, the WCB medical advisor outlined his opinion that the rotator cuff tear noted on the MRI was likely degenerative in nature and was not, on a balance of probabilities, materially related to the event of February 9, 2006.
Based on questions posed by Review Office, a WCB orthopaedic consultant reviewed the file and commented as follows on January 11, 2007:
“The miniscule defect in the rotator cuff and calcification on x-ray and MRI would indicate this represents a pre-existing degenerative tear as does the lack of focused symptoms on the shoulder.”
On January 16, 2007, Review Office advised the worker that no change would be made to its earlier decision to deny wage loss benefits beyond July 6, 2006. Review Office made reference to the WCB orthopaedic consultant’s opinion that the worker’s rotator cuff tear was a pre-existing degenerative tear and was not related to the accident that occurred on February 9, 2006. The worker disagreed with Review Office and submitted an application to appeal to the Appeal Commission. A file review was then arranged.
Reasons
Worker’s Position
The worker made a written submission in support of her appeal. She noted that before her accident she was physically able to do her job without pain or discomfort. She described some of the work tasks that she could perform before the accident. She stated that she was involved in other activities including hunting, walking, playing with her dogs and grandson, gardening and cutting grass. She stated that she is now very limited in what she can do.
The worker noted that an MRI confirmed that she has a shoulder problem. She disagreed with the WCB position that she did not initially report a shoulder injury. She referred to her report of injury which notes “pain from my neck muscles downward.” She explained this reference included her shoulder. She also noted that the first physician she saw was providing services on a short term. When she saw her regular family physician, he looked more into her problems and the shoulder symptoms were better documented.
In addition to considering the worker’s written submission, the panel had access to the full claim file which included correspondence from the worker to the WCB and medical information.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond July 6, 2006. For the appeal of this issue to be successful, the panel must find that the worker’s loss of earning capacity beyond July 6, 2006 was caused by her workplace injury. In other words, the panel must find that the condition which is preventing the worker from working was caused or aggravated by the workplace accident. The panel was not able to make this finding. The panel finds that the worker is not entitled to wage loss benefits beyond July 6, 2006.
The panel finds that the worker reported the shoulder injury in her report of injury to the WCB, albeit indirectly as a reference to “pain from my neck muscles downward.” However the panel finds there were no significant shoulder symptoms reported at the outset of the claim. The panel also notes that the worker’s right shoulder was found to have full range of motion at an April 2006 examination by a physiotherapist but was found to be restricted at a June 2006 examination by a WCB medical consultant. The panel notes that the shoulder symptoms seemed to have progressed after the workplace accident but is unable to attribute this progression to the workplace accident.
After considering the worker’s submission and the evidence on the claim file, the panel finds, on a balance of probabilities, that the worker’s symptoms beyond July 6, 2006 are not related to the workplace injury. In reaching this conclusion the panel places significant weight upon the opinion of the WCB medical consultant who examined the worker in June 2006 and reviewed the worker’s file in December 2006. Regarding the relationship of the worker’s symptoms and the MRI findings to the workplace accident, the consultant commented on December 6, 2006 that:
“In view of:
1. the high prevalence of degenerative rotator cuff tears in the general population after age 40-50 and older, in the absence of specific injury,
2. the presence of tendinosis of [the worker’s] rotator cuff tendon as seen on MRI,
3. the presence of calcifications about [the worker’s] rotator cuff insertion noted on x-ray, most likely reflective of a prior degenerative process,
4. the fact that acute rotator cuff tears are typically associated with significant trauma such as a fall onto the shoulder or arm, and that in this case there was no such injury,
5. the minor nature of the reported injury, if any to the right shoulder, on the date of the reported incident; and
6. the lack of reported right shoulder symptoms in the days to weeks immediately following the February 2006 incident”,
it is concluded that the rotator cuff tear noted on the MRI, is on balance likely degenerative in nature and not materially related to the event of February 9, 2006. Based on my assessment of [the worker] in June 2006, it seems doubtful that any ongoing right shoulder symptoms are related to the incident of February 2006.”
The panel also relies upon the opinion of the WCB orthopedic consultant from January 2007 that the tear shown on the MRI is a pre-existing degenerative tear.
The worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 11th day of May, 2007