Decision #53/08 - Type: Workers Compensation
Preamble
In January 2003, the worker filed a claim with the Workers Compensation Board (“WCB”) for left shoulder difficulties that she related to the mechanics of her job duties. The claim for compensation was accepted and the worker was provided with various types of benefits and services which included vocational rehabilitation. On April 27, 2006, it was determined by primary adjudication that the worker had recovered from the effects of her workplace injury and that benefits would be paid to July 17, 2006 inclusive. This decision was confirmed by Review Office on January 12, 2007. The worker disagreed and filed an appeal with the Appeal Commission. A hearing was held on March 6, 2008 at the request of legal counsel, acting on behalf of the worker.Issue
Whether or not the worker is entitled to benefits beyond July 17, 2006.Decision
That the worker is not entitled to benefits beyond July 17, 2006.Decision: Unanimous
Background
The worker filed a claim with the WCB in January 2003 for left shoulder pain that she related to her work duties which involved lifting and pulling boxes weighing approximately 30 kg. each. The WCB accepted the claim for compensation based on the diagnosis of a left shoulder bursitis and the worker was referred to a course of physiotherapy treatment. On January 22, 2003, the treating physiotherapist diagnosed the worker with a Grade II bicep strain and left median nerve impingement. In a further report dated March 20, 2003, the physiotherapist’s diagnosis was a left supraspinatus tendonitis.
As the worker continued to experience ongoing left shoulder difficulties despite physiotherapy treatment, the worker was referred to an orthopaedic surgeon by her treating physician. In his report of May 4, 2003, the surgeon noted that the worker had a degree of underlying instability in the shoulder and a possible labral tear. He stated that she should have shoulder restrictions against her regular duties, but that she was able to do modified and light duties.
A subsequent left shoulder MRI arthrogram was carried out on August 5, 2003 and the results revealed a type I acromion, a normal AC joint and an unremarkable rotator cuff. The overall impression was that of a normal study.
The worker continued to experience pain in her shoulder with radiation into her neck. The orthopaedic specialist reported on September 7, 2003 that the worker was scheduled for a left shoulder arthroscopy and decompression surgery. This procedure took place on September 22, 2003. The pre-operative diagnosis was “Chronic tendonitis and bursitis left shoulder, rule out instability or other intraarticular lesion.” The post-operative diagnosis was “Same, plus sublabral hole and type I SLAP left labrum”.
On November 18, 2003, a WCB medical advisor reviewed the operative report and commented that there were multiple pathologies found at surgery and that some of the pathology may be related to the effects of the compensable injury.
In January 2004, the worker attempted a post-operative return to work on a graduated basis. She was unable to progress past four hour work days due to the pain.
In February, 2004, the orthopaedic surgeon reported that the worker’s shoulder was subjectively much improved from her pre-operative status in terms of the pain and crepitus. On physical examination, she had excellent range of motion, persistent pain at end of range and well-healed portals. It was noted that the worker, however, was not doing well on her graduated return to work. The surgeon indicated that there was nothing else that could be done surgically to improve the shoulder and extended physiotherapy and vocational rehabilitation were recommended.
By March 1, 2004, she stopped working because of the pain.
In March 2004, a WCB medical advisor stated that the worker’s ongoing left shoulder complaints were related to her compensable injury and subsequent surgery. She further indicated that the worker had nearly full range of motion and good strength but her function remained limited. Impingement signs remained strongly positive. A PPI assessment was suggested for the fall of 2004 due to the worker’s scarring from the surgery and a slight loss of range of motion.
On July 29, 2004, a sports medicine physician diagnosed the worker with tendinopathy and AC joint pain/regional myofascial pain. X-rays taken July 28, 2004 showed no significant bone or joint abnormalities.
In a progress report dated September 15, 2004, the sports medicine physician reported objective findings of mild left chest wall tenderness and left axilla tenderness and masses. A referral to a physiatrist was suggested.
In the meantime, a vocational rehabilitation plan had been developed for the worker and in January 2005, the worker commenced taking courses to become a medical office assistant. She excelled in the early parts of the schooling and achieved honor roll marks.
A report from the physiatrist dated May 12, 2005 outlined examination findings between March 9, 2005 and May 13, 2005. A series of superficial dry needling treatments were performed on her trapezius and scalene muscles. He stated that after the treatments were finished, there had been a reduction in the overall pain intensity around the left shoulder, although the pain still waxed and waned. The worker had ongoing restriction in abduction and flexion with pain over the anterior aspect of the joint. The specialist commented that he would see the worker again in 4 to 5 months if her condition worsened.
Although the worker had done well in the early stages of her schooling, in the fall the courses transitioned to more computer work and the worker began to experience increased difficulties.
On September 20, 2005, the treating physician stated, “Chronic L shoulder and neck pain with headaches worsening last 3 weeks since started working at computer desk at school. Under stress panic attack?” He noted that the worker was regularly attending massage treatment and was having poor sleep and pain.
A senior WCB medical advisor stated in a memo dated October 18, 2005, that there were significant psychological issues going on such as panic attacks, poor sleep and that abnormal pain behavior was a significant factor given the constantly spreading symptoms affecting the whole upper extremity area. A referral to the WCB’s Pain Management Unit (“PMU”) was suggested.
The worker was assessed by the PMU on November 22, 2005. At a subsequent PMU case conference held on December 15, 2005, it was indicated that the worker did not meet the diagnostic criteria for chronic pain syndrome as the disability was not proportional in all areas of functioning. The worker appeared to be experiencing Major Depression – mild and had been started on medication by her attending physician. It noted that the worker would benefit from psychological counselling but this had been offered in the past and was declined by the worker.
On December 19, 2005, the worker experienced a brief psychotic episode for which she attended a local hospital. She was prescribed medication and discharged with instructions to follow up with her own doctor.
On January 19, 2006, the treating physician requested that counselling be arranged for the worker. A referral had been faxed to a mental health facility, but as it was a WCB claim, the matter was sent back by that agency. The problems listed by the treating physician were chronic pain from work injury, anxiety/depression, on anti-depressants, and lots of problems at home.
A referral to a psychologist was arranged for the worker but she failed to attend the scheduled appointments.
The worker was assessed by a WCB physiatrist on January 26, 2006. He stated, in part, “the claimant reports ongoing difficulty with activity and inability to progress in strengthening; however, on the current clinical examination, there was a relatively unremarkable neurological and musculoskeletal examination with identification of no definite pathoanatomical diagnosis to explain her current symptomatic complaints. There was no evidence of any of the prior diagnoses, specifically, currently no evidence of any significant impingement or rotator cuff involvement. There was no evidence of any soft tissue syndrome. No evidence of any cervical or peripheral nerve root involvement…The current clinical examination did not suggest the presence of any structural or any physical cause for impairment or any physical cause currently suggested for any restrictions…There does not appear to be a requirement for any further investigations or treatment on a physical basis.”
A CT scan of the cervical spine (C3-T1) dated February 16, 2006 showed multi-level minimal disc protrusions without evidence of nerve root involvement and no spinal stenosis.
File information indicated that the worker was having difficulties with her course of studies. She had several absences and was frequently falling asleep in class. The worker attributed her drowsiness to the increased medication she was taking. Her vocational rehabilitation plan was amended to extend the completion date to June 16, 2006. In February 2006, the worker’s benefits were suspended briefly due to failure to participate in her vocational rehabilitation plan.
Throughout March, the worker continued to attend school but was still frequently falling asleep in class. On March 17, 2006, she wrote her last exam but missed passing by one point. She rewrote the exam the following week and passed. She therefore completed the academic component of her vocational rehabilitation.
Video surveillance was taken of the worker’s activities on March 20, 21 and 25, 2006.
On March 29, 2006, the worker was interviewed by medical advisors from the PMU. At a subsequent case conference held on April 13, 2006, it was confirmed that the worker did not meet the diagnostic criteria for chronic pain syndrome. It further stated that the worker had responded to treatment and her Major Depression appeared to be in remission.
On April 17, 2006, the worker secured a work experience practicum with a clinic. By April 25, 2006, the work practicum was terminated by the clinic.
In a decision dated April 27, 2006, the worker was advised by her WCB case manager that as they were unable to identify any physical or psychological factors that would necessitate the need for further restrictions, the WCB was unable to accept further responsibility for wage loss benefits. The worker was advised that WCB coverage would be extended to July 17, 2006 inclusive. This decision was based mainly on the opinions expressed by the WCB physiatrist and the WCB’s PMU. Also considered was the video surveillance taken on March 25, 2006 which the case manager said had showed the worker participating in usual daily activities with no evidence of pain complaints and the worker being observed using her left arm in a usual manner without guarding or bracing.
In a report dated July 24, 2006, the worker’s massage therapist reported that the worker’s back and left shoulder were “feeling alright, since starting up the treatments again on April 26, 2006 and ending on July 14, 2006.” It was reported that it was mainly muscle tightness that caused her pain and that during this course of treatment, there was no mention of her original problem of nerve pain. It was noted that the worker no longer came in over-medicated and that with the work that had been done, only general maintenance was now needed, which could be kept up on her own.
On September 21, 2006, the worker appealed the case manager’s decision to Review Office. The worker noted that she depends on medication to cope and keep up with her chronic pain and discomfort. She said she experiences muscle spasms on the left side of her upper quadrant and that her neck flexes and stays flexed. Standing and shopping or walking triggers her condition which consists of sharp painful spasms, radiating pain from left shoulder into her neck and pain in her ribs, shoulder blade and pectoralis.
At the end of October 2006, the worker was seen by a WCB impairment awards medical advisor and was awarded a 1% cosmetic PPI award for scarring related to her previous surgery.
On November 20, 2006, a new family physician indicated that she saw the worker on two occasions in October and November 2006. The worker complained of severe symptoms of anxiety and depression worsened by her disagreement with the WCB. The worker further complained of severe neck and left shoulder pain secondary to her work related injuries which had been previously diagnosed as left shoulder bursitis and tendonitis. It was the family physician’s belief that the worker suffered from myofascial pain syndrome secondary to her work related injury.
In a decision dated January 12, 2007, Review Office confirmed that there was no entitlement to benefits after July 17, 2006 based on its review of the following file evidence: the opinion expressed by the massage therapist in July 2006, the WCB examination findings in July and October 2006, the examination by the WCB physiatrist in January 2006, the PMU findings and the March 2006 video surveillance findings.
On October 19, 2007, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Worker’s submission:
The worker was represented by legal counsel who submitted that the worker remains disabled by her compensable injury, which consists of physical symptoms of pain and tenderness, as well as some depression. She has been diagnosed as suffering from myofascial pain syndrome, with associated left paracervical myofascial hypertonicity and dystonia. Her condition has not markedly improved since she had surgery in September 2003 and she has been fully cooperative in terms of treatment and in her participation in an attempted return to work and vocational rehabilitation program. There have been no intervening events; it has been a continuous problem from the time she injured her shoulder until the present. The injury has never healed and it was submitted that the panel should conclude that the worker’s current condition is as a result of the compensable injury. Benefits for income replacement and medical aid were sought.
Employer’s submission:
The employer was represented by an advocate who made a submission on the employer’s behalf. It was submitted that the worker’s compensable diagnosis was chronic bursitis, following a sprain/strain type injury in 2003. Reliance was placed on the January 2006 examination by a WCB physiatrist who found that there was no structural or physical cause for impairment and that there did not appear to be a requirement for any further investigations on a physical basis. The employer’s advocate noted that although the worker is now seeking medical treatment for the diagnosis of myofascial pain, she had, on more than one occasion, been given the opportunity to have a treatment program addressing the pain, but she refused to continue with the treatment. As well, psychological counseling had been offered but declined. The employer’s advocate raised the issue of mitigation and questioned whether the worker satisfied her obligation and responsibility to mitigate the effects of her injury. It was submitted that everything that could possibly have been done to assist the worker with respect to having no loss of earning capacity and resolving her compensable bursitis was done. Given the WCB physiatrist’s indication that there were no ongoing problems and no permanent restrictions, the worker was not entitled to any further benefits.
Applicable Legislation:
Pursuant to section 37 of The Workers Compensation Act (the “Act”), where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury resulting from an accident.
Analysis:
To find that the worker is entitled to benefits after July 17, 2006, we must find on a balance of probabilities that the worker continued to suffer a loss of earning capacity or required medical aid as a result of her compensable injury. We are unable to make those findings. In the panel’s opinion, by July 17, 2006, the worker had recovered from the effects of her compensable injury and the present condition being complained of by her is not related to the duties she performed at her former workplace.
In coming to our decision, the panel places significant reliance on the following medical evidence:
- The January 2006 clinical examination by the WCB physiatrist, during which the physiatrist was unable to identify any definite pathoanatomical diagnosis to explain the worker’s current symptomatic complaints. He could find no evidence of any of the prior diagnoses, specifically, no evidence of any significant impingement or rotator cuff involvement, any soft tissue syndrome, any cervical or peripheral nerve root involvement, or depressive symptoms. The panel accepts the conclusion that the physiatrist’s clinical examination did not suggest the presence of any structural or physical cause for impairment or any physical cause currently suggesting the need for restrictions.
- The report of the treating massage therapist dated July 24, 2006 which indicates that at that time, there was no mention by the worker of her original problem with nerve pain and that it was mainly muscle tightness that was causing her pain. At the completion of treatment on July 14, 2006, the worker was feeling “alright” and all that was needed was general maintenance by the worker in following her homecare of self massage and stretching.
The evidence is that the original mechanism of the injury was caused by exertion of the shoulder. The worker’s accident report indicates that on January 3, 2003, she was lifting and pulling 30 kg boxes on a conveyor belt when she first started to notice something in her shoulder. She was initially diagnosed with a sprain, which progressively got worse over the next two weeks. By January 20, 2003, the diagnosis was changed to bursitis and she was taken off work. At the hearing, the worker indicated that when she first injured herself, there was a pull right along the top of her shoulder, straight at her neck. She stated that: “Oh, that was all in my shoulder blade and the top of my shoulder when I originally hurt myself, but when they went in for surgery, they went into the shoulder joint.”
A left shoulder acromioplasty and debridement was performed in September 2003, for which responsibility was accepted by the WCB. Following the surgery, the orthopedic surgeon reported reduced pain and crepitus, and excellent range of motion, with persistent pain at end of range. In the surgeon’s opinion, there was nothing else that could be done surgically to improve the shoulder. At the hearing, the worker’s husband confirmed that following the surgery, the “grinding” in the worker’s shoulder stopped and she regained use of her arm, although the pain was still reported to be present.
Although the worker reports consistent pain in her shoulder since the time of the original accident, the panel finds that there has been changes in the nature and extent of her complaints. In the early part of 2005, after the completion of the needling treatments by her physiatrist, the worker was reported to have a reduction in overall pain intensity in her left shoulder, with the pain waxing and waning. During this period of time, the worker was able to function reasonably well, achieving honor roll grades at college and driving herself to and from classes, which entailed a 45 minute drive each way.
A few months later, in September, 2005, the worker again began experiencing increased pain. There was also a spreading of symptoms affecting the whole upper extremity area. It was at this time that the file also begins to reflect that the worker was dealing with significant psychological issues including stress, panic attacks, poor sleep, anxiety/depression and problems at home.
The current symptoms being complained of by the worker have been diagnosed as myofascial pain syndrome by her new family physician. At the hearing, the worker indicated that her pain and problems come from her neck, the top of her shoulder, her shoulder blade, her pectoral area and her ribs. She stated that the areas are all connected together and as soon as the pain starts in one area, the rest seem to follow. When asked about her work capacity, she indicated that she did not know what she could do as she felt that she was never going to be pain-free again. She felt that all she could do was to rely on her medication and try to do what she could each day. When questioned on how the pain disables her, the worker testified that the muscles in her neck and the top of her shoulder flex so hard and won’t let go. This pain cripples her so much that she cannot get out of bed. The worker also indicated that she cannot walk for long periods of time. When going shopping, she has to sit down frequently as the weight of her body causes her pain level to increase. Conversely, she is not able to sit for very long periods of time as this will cause pain in her lower back on the left-hand side, just underneath the shoulder blade. The worker’s husband indicated that they have had to leave movie theatres as she is unable to tolerate sitting for an hour and a half. The worker also has difficulty standing in a line-up for five to ten minutes and will need to go sit down. Her family physician had authorized a handicapped parking pass based on the worker being unable to travel for more than 50 metres on a level surface without resting in order to obtain relief from inordinate fatigue or pain. As for household chores, the worker’s husband indicated that the worker attempts to do many of the household duties, including cooking, vacuuming, laundry and shoveling the walkway. Some of the duties she cannot complete on her own and if she attempts to do them, she may not feel the effects immediately, but two hours later she will be in extreme pain.
When asked whether she has attempted to find employment since July, 2006, the worker indicated that she had attempted a housekeeping job where she could work at her own pace, but found that this increased her level of pain. Similarly, she attempted a cleaning position at a library, which involved dusting shelves and maintaining the bathrooms, but found that being on her feet for four hours was too overwhelming, again due to increased pain levels. She has not applied for any other clerical or sedentary jobs because she states she knows how long she is capable of functioning, and does not feel she could perform these jobs for eight hours.
We have considered the worker’s activities recorded on video surveillance. The activities demonstrated on surveillance of pulling a shopping cart and loading items into the van with her left arm do not appear consistent with the pain and disability claimed by the worker. Similarly, the length of time the worker spent in the stores (approximately one hour in a hardware store and one hour in a building supplies store) is not consistent with the level of disability described at the hearing. We acknowledge, however, that the video surveillance captures only one isolated excursion and at the hearing, the worker testified that she has some good days and some bad days. We therefore place relatively limited weight on the surveillance footage.
The panel’s overall impression is that the worker is experiencing intermittent pain which does, on occasion, incapacitate her. We are unable, however, to attribute the pain symptoms to the worker’s original shoulder strain injury and bursitis. The nature of the original injury does not appear to relate to her current pain caused by muscle tightness. There is indication on the file that postural and pre-existing scapular issues may be the cause of her current muscular tightness. Further, the CT scan demonstrated some bulging discs in the paracervical areas which are part of her current complaints of pain which would also not be causally related to the original workplace injury. Finally, the panel notes that the worker has, more than once, been recommended to seek counselling and assistance for psychological issues. Overall, the worker appears to have pain and pain management issues which are multi-factorial in origin. Given the lack of medical evidence linking the cause of the worker’s pain to the original compensable injury, we are unable to find for the worker.
On a balance of probabilities, we find that the worker’s current symptoms are not related to the original compensable injury or surgery. We find that by July 17, 2006, the worker no longer suffered a loss of earning capacity or required medical aid as a result of her compensable injury and therefore she is not entitled to benefits beyond that date. The appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 21st day of April, 2008