Decision #37/08 - Type: Workers Compensation
Preamble
This appeal deals with two separate claims to the worker’s upper extremities. The worker initially injured his right arm and subsequently injured his left shoulder. The Workers Compensation Board (“WCB”) accepted the claims and paid wage loss benefits but eventually discontinued benefits. The worker appealed to the Review Office which found that the worker had recovered from the injuries. The worker then appealed to the Appeal Commission and a hearing was held on January 24, 2008 at the request of a worker advisor, acting on behalf of the worker.Issue
Whether or not the worker is entitled to benefits beyond May 15, 2005; and
Whether or not the worker is entitled to benefits beyond August 15, 2006.
Decision
That the worker is not entitled to benefits beyond May 15, 2005; and
That the worker is not entitled to benefits beyond August 15, 2006.
Decision: Unanimous
Background
2004 claim:
In July 2004, the worker filed a claim with the WCB for right shoulder and arm difficulties that he related to his job activities as a service technician. The attending physician diagnosed the worker’s condition as overuse injury/cuff tendinitis in the right shoulder and an element of frozen shoulder.
The worker attended a physiotherapist for treatment at the advice of his treating physician. On July 13, 2004, the physiotherapist’s diagnosis was chronic right shoulder tendonitis with positive shoulder impingement.
In a progress report dated August 6, 2004, the attending physician noted that the worker ruptured his biceps tendon.
A WCB medical advisor reviewed the file in early October 2004. He concluded that the current diagnosis was impingement syndrome right shoulder and biceps tendon rupture. He said the biceps tendon rupture was related to the original compensable injury.
On November 22, 2004, an orthopaedic specialist suspected that the worker suffered from impingement of the shoulder and a possible rotator cuff tear. He said this would certainly be in keeping with a ruptured long head of the biceps tendon. An MRI investigation was arranged and took place on January 11, 2005. It confirmed that the worker had torn the long head of the biceps tendon.
On February 7, 2005, the orthopaedic specialist considered the results of the MRI and noted there was no evidence of rotator cuff pathology. The worker had full range of motion of the shoulder and no signs of impingement. There was significant wasting around the musculature of the shoulder in keeping with disuse. Repeat physiotherapy with reconditioning was suggested.
In a report dated March 7, 2005, the orthopaedic specialist reported that the worker continued to have a dull ache in the anterior aspect of the arm which increased with activity. He recommended that the worker return to part time modified duties as of April 1 and if he tolerated this well, he could then return to his full duties.
As the employer was unable to accommodate the worker with modified duties on a part time basis, arrangements were made for the worker to undergo a Functional Capacity Evaluation (“FCE”). The FCE report dated April 26, 2005 indicated that the worker passed 2 out of 5 validity checks. The worker still lacked shoulder range of movement and strength to return to all aspects of his job. He demonstrated some pain magnification and pain focused behaviors.
On May 3, 2005, a WCB medical advisor reviewed the FCE results and opined that the worker should be able to return to his full time duties given the length of time that he had been off work.
In a decision dated May 12, 2005, the WCB determined that the worker had recovered from his injury and was fit to return to work as of May 16, 2005.
2005 claim:
The worker returned to work after May 15, 2005.
On September 9, 2005, he filed a claim with the WCB for a left shoulder and arm injury that he related to his work duties as a service technician. He stated that because his right arm was weak and not back to normal, it forced him to use his left arm more than usual.
An x-ray of the left shoulder taken September 20, 2005, showed minor degenerative changes about the acromioclavicular (“AC”) joint. A spur was present within the inferior aspect of the clavicle at the junction between the first half and distal portion.
A doctor’s first report dated October 3, 2005, diagnosed the worker with left rotator cuff tendonitis.
Following discussion with the worker about the mechanism of injury, the onset of his left shoulder symptoms and consultation with the WCB’s healthcare branch, the claim for left shoulder difficulties was accepted on the basis of a left rotator cuff tendonitis.
On March 21, 2006, an orthopaedic specialist recommended a steroid injection as a form of treatment for the worker’s left shoulder rotator cuff tendinitis which the worker refused at this point. The specialist noted that the worker would have flare up of symptoms if he returned to his regular job and that a change of occupation would likely be required.
A narrative report was received from the treating physician dated May 23, 2006. It was his view that the worker’s left shoulder diagnosis was rotator cuff tendonitis and that he was limited in active range of motion and passive range of motion was full. He noted that the worker did not have any problems related to his left shoulder prior to September 2005. He felt there was a direct causal relationship to the work activities of moving and lifting heavy copy machines. The treating physician indicated that the worker’s shoulder problems would in all probability continue to recur and that a change in occupations would be best. He said the worker could return to a form of work that did not put repetitive strain on his shoulders.
On July 21, 2006, a WCB sports medicine specialist examined the worker’s shoulders. He stated that the diagnosis related to the compensable injury was unclear. “Although [the worker] may have had evidence of a rotator cuff tendonitis/tendinopathy in his examinations by the orthopaedic surgeon (March 21,06 (sic)) and his family physician (May 23, 2006) there appeared to be no evidence of this diagnosis at this examination. As such, with no apparent diagnosis on a pathoanatomical basis, one can not relate [the worker’s] presentation to the compensable injury.”
In a decision dated August 11, 2006, it was determined by a WCB case manager that there was no longer a causal relationship between a workplace injury to the left shoulder and any difficulties currently experienced by the worker. The case manager based her decision on the opinion expressed by the WCB medical advisor on July 21 2006, and from a review of surveillance information that was taken in April 2006 and July 2006. This decision resulted in the worker’s benefits being paid to August 15, 2006, inclusive with respect to his left shoulder claim. The case manager also determined that the evidence did not support reconsideration of the May 12, 2005 decision made on the worker’s claim for right shoulder/arm difficulties.
Review Office decisions on the 2004 and 2005 claims:
On April 24, 2007, a worker advisor appealed the decisions that were made by the WCB with regard to the worker’s two compensation claims. The worker was of the view that he had not recovered from either compensable injury and had compensable restrictions preventing him from returning to his normal work duties. As a basis for his opinion, the worker referred to the opinions expressed by the orthopaedic specialist on March 21, 2006, the treating physician’s report of May 23, 2006, and a FCE report dated November 10, 2006.
On May 31, 2007, Review Office determined that the worker had recovered from the compensable injury to his right shoulder and arm as of May 15, 2005, and that he was not entitled to benefits beyond this date. Review Office considered certain medical information to support its position. This included the results of the reconditioning program which showed that the worker did not provide a full voluntary effort, the video surveillance showing the worker’s capabilities were significantly higher than his portrayed level of disability and the July 2006 WCB medical examination which noted multiple inconsistencies and findings that could not be accounted for and concluded that no diagnosis could be made on a pathoanatomical basis.
With regard to the worker’s left shoulder/arm difficulties, Review Office noted that the treating orthopaedic specialist stated that the worker suffered from tendonitis and that the treating physician reported that the worker’s symptoms would likely recur if he returned to his current occupation. It pointed out that the WCB examination of July 2006 failed to find any objective evidence of this diagnosis or that the worker continued to suffer from any condition related to his work activities. It noted that the worker never returned to work to establish whether he would have a subsequent flare-up of tendonitis. Based on these findings, Review Office concluded that the worker had recovered from his September 9, 2005, compensable injury and was not entitled to benefits beyond August 15, 2006. In June 2007, the worker appealed this decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission is bound by The Workers Compensation Act (the “Act”) and the policies of the WCB’s Board of Directors. This appeal deals with the provision of benefits for two accepted accidents. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends. Subsection 27(1) provides that the WCB may provide a worker with medical aid to cure or provide relief from a workplace injury.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on his behalf. He answered questions posed by his representative and the panel.
At the outset of the hearing, the worker’s representative advised that with respect to the right arm injury, wage loss benefits were paid until May 15, 2005, and that the worker is not seeking any specific wage loss beyond the May 15, 2005, period. However, the worker is asking that responsibility be accepted for his continuing medical condition which he asserts is preventing him from returning to work for the employer.
With respect to the left shoulder injury, the worker is seeking wage loss benefits after August 15, 2006. The worker is also seeking any vocational rehabilitation assistance and any further treatment that may be required for either of the left or right conditions.
The worker described his duties with the accident employer. He worked as a service technician repairing office machinery. At the time of his right sided injury the worker was moving a large photocopier when he felt pain shooting down his arm. He described the pain as a dull, throbbing pain radiating down the shoulder into his hand. He did not initially seek medical attention because he thought it would improve. Ultimately the injury was diagnosed through an MRI as a tear of the of the bicep tendon.
Regarding the problem with the right arm, the worker advised that activity can cause the arm to spasm. Regarding function of the arm he advised that he can do very little with his right arm. He said that turning a door knob, washing his hands, having a shower and getting dressed can cause the muscle to contract. He advised that “…once the muscle starts to contract like that, it hurts and it won’t stop, it takes hours and hours for it to finally stop doing it.” At a later point in the hearing the worker was asked about the right side again, he commented that “I still don’t have that ability to lift it much further above my shoulder, but like I said I’m not concerned with it, it doesn’t cause me a problem pain-wise, so for doing things with my right arm, or right shoulder is no problem, I can do a lot of stuff.”
The worker advised that he returned to work in May 2005. He stated that he returned to regular duties but with a restriction against lifting greater than 20 pounds. He also noted that he was a floater and did not have a specified territory. The worker stated that he used his left arm to compensate for the right arm.
In August and September 2005, the worker was assigned to work on fax machines rather than photocopiers. This increased the pace of his duties. He advised that his left arm was fine when he started these duties but he began to put too much demand on his left shoulder and it started to hurt. He eventually stopped work at the end of October 2005. He received wage loss benefits for the left shoulder injury until August 15, 2006. He then applied for and received private disability insurance.
Regarding the condition of his left shoulder, he advised that he cannot do repetitive work with his left shoulder, can’t lift heavy weight, and can’t do a lot of pushing and pulling. He expressed concern that the pain will flare up if he performs repetitive work.
The worker’s representative asked the worker to comment on the activities shown on a surveillance video. The worker noted that the video showed him wiping down his car after it was washed. He stated that he only used his left arm on one occasion. He also stated that his right bicep muscle was not used. Regarding the scenes that showed him moving a boat with another person, he explained that the other person was doing the lifting and pushing and that he was simply holding the end of the trailer, helping to guide the trailer. The worker indicated that with his right arm he can lift “a lot of weight” as long as he keeps his right arm perfectly straight. He advised that he showed the video to his physician who commented that with his limitations he should be able to do the activities, except lift the boat.
Regarding his ability to return to work, the worker advised that he knows his limitations and knows that he cannot go back to work and do his job. The worker provided information regarding attempts to find other employment.
The worker advised that he has not sought medical attention for either injury since approximately early fall 2006. He also advised that he is not taking any medications for the injuries.
Employer’s Position
The employer was represented by its Branch Service Manager.
The employer representative advised that he is not aware of other workers who have sustained similar injuries while performing employment duties for the employer. He advised that the service technician job is not highly stressful or physically stressful, although workers may have to move machines.
The employer representative confirmed that the last duties the worker performed involved servicing fax machines which he described as the lightest duties in their local business.
Analysis
2004 Claim
The first issue concerns the 2004 injury to the worker’s right arm and shoulder area which was accepted as an impingement syndrome of the right shoulder and biceps tendon rupture. The panel was asked whether the worker is entitled to benefits beyond May 15, 2005. For the worker to be awarded wage loss benefits, the panel must find that the worker suffered a loss of earning capacity after this date as a result of his workplace injury. In other words, the panel must find that the worker was unable to work after this date because of the 2004 injury. The panel did not reach this conclusion.
In making its decision on the issue of wage loss for the 2004 injury, the panel notes that the worker was able to return to work after the 2004 injury and was ultimately accommodated by the employer in a lighter duty full time position servicing fax machines and received his pre-accident wages. The worker did not cease working at this position because of his 2004 injury. The panel finds that the evidence does not establish that the worker’s loss of earning capacity after May 15, 2005 is related to the 2004 injury.
With respect to medical evidence regarding the worker’s condition, the panel attaches significant weight to the opinion of the WCB sports medicine specialist who examined the worker in July 2006. This specialist conducted numerous tests to assist with diagnosing the worker’s condition. He found many of the test results were negative and that some could not be explained on a pathoanatomical basis.
At the hearing the worker provided information regarding current symptoms related to his right arm and restrictions regarding its use. The panel attaches little weight to the worker’s evidence and finds that the video surveillance evidence demonstrates that the worker has greater use of his right arm than he has represented to the WCB and to the panel. The panel attaches greater weight to the latter evidence. The panel finds this evidence supports a conclusion that the worker is capable of performing the job duties he last performed with the employer.
For the worker to be eligible for further medical aid in relation to the 2004 injury, the panel must find that the worker continues to have medical symptoms from the injury. The panel notes that although the WCB has accepted that the 2004 injury resulted in a tear of the right bicep tendon, the worker has not sought medical attention or received any treatment for this condition since the fall of 2006. At this time, there is no medical evidence as to the need for medical aid for this condition. As such, there is no basis to provide medical aid benefits.
The worker’s appeal on the first issue is declined.
2005 Claim
The second issue arises from the 2005 claim for injury to the worker’s left shoulder. This claim was accepted by the WCB as left rotator cuff tendonitis. The issue before the panel was whether the worker is entitled to benefits beyond August 15, 2006. For this appeal to be successful, the panel must find that the worker continued to have a compensable medical condition as of that date or later which leads to a compensable loss of earning capacity or ongoing medical aid. The panel was not able to make this finding.
The panel has considered all the evidence, including the evidence provided by the parties at the hearing, and finds, on a balance of probabilities, that the worker has recovered from this injury and accordingly is not entitled to benefits beyond August 15, 2006. The panel relies upon the report of the WCB’s sports medicine specialist who examined the worker on July 21, 2006. The panel notes that the specialist conducted a variety of tests to assist with diagnosis of the worker’s condition and concluded there was no evidence of left rotator cuff tendonitis/tendinopathy at this examination. He also remarked that there is no apparent diagnosis on a pathoanatomical basis to relate the worker’s presentation to the compensable injury.
The panel also notes the worker’s physician’s report dated May 23, 2006 which found the worker’s passive range of motion to be full.
The panel also notes that the worker expressed fear that his condition will flare up upon a return to work but has not worked at any occupation since August 2005 and maintains that he continues to suffer symptoms from the injury. As well the panel notes that the worker has not received treatment for this injury since the fall of 2006.
Given the panel’s findings of medical recovery by August 15, 2006, the worker’s appeal on this issue is declined.
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 March, 2008