Decision #07/08 - Type: Workers Compensation

Preamble

This appeal deals with whether or not the worker is still suffering from the effects of her compensable shoulder and neck injury sustained in a work related accident. In the opinion of both primary adjudication and Review Office, it was felt that the worker had recovered from the effects of her compensable injury and was not entitled to further wage loss or medical aid benefits. The worker disagreed and appealed to the Appeal Commission. A hearing was held on November 27, 2007.

Issue

Whether or not the worker is entitled to benefits beyond July 6, 2007.

Decision

That the worker is not entitled to wage loss benefits beyond July 6, 2007 but is entitled to limited medical aid benefits.

Decision: Unanimous

Background

The worker filed a claim with the WCB for left shoulder, back and neck pain that she related to two separate work related accidents. The worker indicated that she struck her left shoulder on a rack on May 8, 2006 but continued working although her shoulder was a bit sore. Then on July 27, 2006, she slipped and fell on a wet and soapy floor. She continued working and took Tylenol for the pain. On August 22, 2006, she could not move her left shoulder or neck and went to a doctor for treatment.

Following verification with the employer concerning the worker’s description of accident events, primary adjudication accepted the claim for compensation. The worker was issued wage loss benefits for her time away from work. The accepted compensable diagnosis was a neck and left shoulder muscle strain.

The worker subsequently underwent several laboratory investigations which included an MRI of the cervical spine and an MRI of the left shoulder. The cervical spine MRI dated September 23, 2006 showed mild kyphosis and scoliosis. No disc herniations were identified at C1 through T1 levels. A hemangioma was seen within the T1 vertebral body. The MRI of the left shoulder dated October 18, 2006 showed mild AC joint arthrosis and infraspinatus tendinosis with no cuff tear.

In view of the above test results, the treating physician reported on November 23, 2006, that the worker was capable of modified duties but would not be capable of her regular work duties as it involved pulling, pushing, lifting and repetitive type of work. He noted that a cortisone injection to the left shoulder was done on November 2, 2006 and that the worker would be seen in two weeks time for follow up.

On November 27, 2006, the worker was assessed by a WCB medical advisor to confirm a diagnosis and to determine work capabilities. The medical advisor noted that the worker presented with left shoulder pain secondary to contusion and strain. She had decreased range of motion and tenderness in all planes of her shoulder and alternation of grip strength of a significant magnitude was noted. The medical advisor felt that based on the reported mechanism of injury, an anatomic explanation for these findings was difficult to arrive at. He said the imaging studies failed to reveal serious pathology although there was mild abnormalities at both the AC joint and tendinosis of the infraspinatus tendon. He felt that further investigations were not warranted and that the worker was not totally disabled. He indicated a return to work with restrictions would be appropriate for approximately four weeks. He also felt the AC arthrosis found on the MRI was not contributing to the worker’s current presentation.

The worker did not return to modified duties as the employer had no modified duties available.

On February 14, 2007, an orthopaedic surgeon reported that the worker’s main symptoms were muscular in nature and massage therapy was recommended for a six week period.

On June 7, 2007, the worker advised her case manager that she resigned from her employment with the accident employer effective June 4, 2007 and was going to work for her husband.

The worker was seen again by a WCB medical advisor on June 8, 2007. The worker presented with shoulder strain and nonspecific shoulder girdle muscle discomfort. There was no impingement, no ongoing evidence of rotator cuff tendinosis nor other demonstrable shoulder pathology. Range of motion was limited and appeared to be related to her willingness to move rather than specific muscle weakness or loss of neurologic function. Neurological examination of the upper extremities was symmetrically normal. The medical advisor concluded that the worker’s complaints of pain were not, on a balance of probabilities, related to the reported workplace injuries of May and July 2006. He felt the worker could perform duties consistent with her pre-accident status but recommended short-term restrictions given that the worker had been away from work for nine months.

In a letter dated June 28, 2007, the WCB case manager advised the worker that in accordance with the WCB medical advisor’s examination of June 8, 2007, she was considered to be recovered from the effects of her compensable injury and that the WCB was unable to accept further responsibility for any medical treatment or wage loss benefits. The worker disagreed with the decision and appealed to Review Office.

In the interim, the worker was assessed by a pain management specialist on August 29, 2007 for complaints of left sided shoulder and neck pain. His impression of the worker’s condition was chronic mechanical neck pain and shoulder pain syndrome with associated myofascial hypertonicity. Treatment recommendations consisted of diagnostic myofascial trigger point injections to the left upper trapezius muscle. If she sustained temporary symptomatic relief from this treatment, then a series of weekly therapeutic myofascial trigger point injections combined with a graduated active exercise program was recommended.

On September 7, 2007, Review Office agreed with primary adjudication that the worker had recovered from the effects of her compensable injury and was not entitled to benefits after July 6, 2007. Review Office based its decision on the findings that the laboratory investigations failed to show that the worker’s pre-existing conditions were contributing to her disability, the worker received a significant amount of treatment to assist in her recovery, the June 2007 examination findings of the WCB medical advisor and the fact that the worker was unable to resume her pre-accident employment as she resigned from her position in order to work at her husband’s place of employment. On September 19, 2007, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Worker’s Position

The worker explained her position to the panel and answered questions asked by the panel.

The worker described her workplace injuries and symptoms. She indicated that her symptoms affected her neck and shoulder. She provided information on recent medical treatments. She advised that a physician at a pain clinic wanted to give her injections but was not able to do so because the WCB refused to cover treatments. In answer to a question, the worker advised that her condition has not changed since June 2007. She indicated that she can work but not perform heavy tasks and specifically cannot perform the sanitation duties that she performed previously.

The worker denied that she had resigned her position with the accident employer. She explained that she could not return to work for the accident employer because she could not perform any heavy lifting and was told that light duties were not available. She advised that she returned her uniform and fob because the employer sent a letter asking for the items. In answer to a question the worker acknowledged that when she returned her uniform she was intending to work in a business that her husband was buying.

Regarding the business, the worker advised that her husband was buying a business and that she helped at the business. She described her duties as cashiering. She advised that she only worked two to three hours per day. There was no heavy lifting involved. She did not work every day. She advised that she assisted during the months of June and July 2007 and that ultimately the purchase did not proceed.

The worker advised that she has not worked nor looked for work since the business purchase was terminated.

Employer’s Position

The employer was represented by its Human Resource Manager. The employer’s representative advised that she met the worker only once at which time the worker returned her uniform and fob. She said the worker advised her that she was resigning so she could work with her husband at his new business.

The representative confirmed that the employer had no light duties employment at its facility.

Analysis

Wage Loss Benefits

The issue before the panel is whether the worker is entitled to benefits beyond July 6, 2007. For the worker to be entitled to wage loss benefits, the panel must find that the worker’s loss of earning capacity after this date is due to her workplace injuries.

The worker’s departure from her employment with the employer is central to this issue. She states that her employer had no light duties and that she was required to return her uniform, etc. The worker denies that she resigned her position. The employer acknowledges that it had no light duties but says the worker resigned from her employment to work at her husband’s business.

The panel finds, on a balance of probabilities, that the worker resigned from her employment. The panel accepts the employer representative’s evidence that the worker stated she was resigning to work at her husband’s business. The panel notes that the business commenced operation in June 2007 which coincided with the date/time of the worker’s departure from employment and that the worker did work at the business in June and July 2007 until the business closed. In reaching this conclusion, the panel also notes the worker acknowledged, at the hearing, that when she handed in her uniform and keys to the employer she intended to work at her husband’s business.

The panel finds that at the time of her resignation, the worker was fit to perform her regular duties. The panel relies upon the opinion of the WCB medical advisor who examined the worker in June 2007. The medical advisor stated “in my opinion, the claimant should, on history and mainly on today’s examination as well, be able to perform duties which would be consistent with her pre-accident status.” The medical advisor recommended restrictions for four weeks followed by her return to work in an unrestricted fashion. The panel finds that but for the resignation from her employment, the worker would have been able to return to her duties with the employer.

Medical Aid Benefits

With respect to entitlement to medical aid benefits, the panel finds that the worker is entitled to limited medical aid benefits. The panel notes that the WCB medical advisor found that the worker presented with left shoulder pain and limited range of motion in the shoulder but found that on balance, the pain was not related to the workplace injuries.

The panel also notes that a pain specialist, in a report dated August 29, 2007, provided the impression that the worker is suffering with a chronic mechanical neck pain and shoulder pain syndrome with associated myofascial hypertonicity. The specialist recommended that the worker undergo one set of diagnostic myofascial trigger point injections using long-acting local anesthetic.

The panel finds that the proposed diagnostic testing is reasonable and that the WCB should accept responsibility for such tests. Upon the completion of the testing, the WCB can determine whether the resulting diagnosis is related to the workplace injures.

The worker’s appeal is partially allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of January, 2008

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