Decision #67/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for right shoulder, knee and back pain that occurred on February 1, 2005. The worker related his symptoms to his 30 years of labour intensive work which caused him to develop osteoarthritis. The claim for compensation was accepted by an Appeal Panel on August 24, 2006. It found that the worker’s right shoulder symptoms were causally related to his work duties and that the mechanism of injury was consistent with an aggravation of the worker’s pre-existing osteoarthritis.
In August 2007, the WCB received additional medical information from the worker’s treating physicians. On September 4, 2007, the worker was advised that the WCB was unable to relate his current back difficulties to the February 1, 2005 accident nor was he entitled to further benefits. The decision was upheld by Review Office on December 3, 2007. The worker appealed the decision to the Appeal Commission and a file review was held on April 22, 2008.
Issue
Whether or not the worker’s upper back and right shoulder complaints from August 2007 have a relationship to the February 2005 claim; and
Whether or not the worker is entitled to wage loss benefits beyond June 16, 2005.
Decision
That the worker’s upper back and right shoulder complaints from August 2007 have no relationship to the February 2005 claim; and
That the worker is not entitled to wage loss benefits beyond June 16, 2005.
Decision: Unanimous
Background
As noted in the pre-amble, the worker’s claim for compensation was accepted by an Appeal Panel who found that the worker’s right shoulder difficulties were related to his work duties and that the mechanism of injury was consistent with an aggravation of the worker’s pre-existing osteoarthritis. The worker was then paid wage loss benefits between March 25, 2005 to June 16, 2005 inclusive. In a letter dated September 28, 2006, the worker was advised that the decision to pay him wage loss for this time period was based on the opinion expressed by a WCB medical advisor who commented that an aggravation of a pre-existing condition should resolve within 12 weeks time.
In August 2007, the worker’s treating physician reported that the worker had chronic neck, right shoulder and upper back pain which intensified with activity. The worker also suffered from right hand weakness and numbness and had difficulty sleeping because of his chronic pain. He had tender right-sided upper back muscles and pain on movement of his right shoulder. His strength and sensation remained within normal limits. The physician made reference to x-ray and CT scan examinations that were carried out in January and April 2007. They revealed degenerative narrowing of the C5-T1 discs and the right AC joint and posterior disc bulging and degenerative spurring of the Luschka joints. The physician commented that according to the worker, his symptoms began following his initial injury at work while climbing scaffold in 2004 and that his right shoulder pain intensified in 2005 while carrying heavy steel at work.
A chiropractor’s first report dated August 28, 2007 diagnosed the worker’s condition as cervicothoracic facet syndrome and right subacromial bursitis. Objective findings were listed as stiffness and pain in the neck and upper back, right shoulder pain that was constant and aggravated by certain movements and difficulty with sleeping.
On August 31, 2007, a WCB medical advisor discussed the case with a WCB adjudicator. He stated that his attention was drawn to the CT scan report of April 24, 2007 and that he was asked whether the findings could be directly ascribed to the workplace injury. He indicated that the report of the study indicated multilevel degenerative changes that would be considered a pre-existing condition.
On September 4, 2007, the worker was informed of the WCB’s position that after reviewing the new medical information, no responsibility would be accepted for his current back difficulties as being related to his workplace injury of February 1, 2005. The letter indicated that an opinion had been obtained from a WCB medical advisor who was of the view that the medical information was consistent with the degenerative progression of osteoarthritis but did not offer evidence relating the back symptoms to his work activities. The worker was advised that he would not be entitled to any additional benefits in this regard.
On December 3, 2007, the case was considered by Review Office as the worker disagreed with the WCB’s decision outlined on September 4, 2007. Review Office decided that the worker’s upper back and right shoulder complaints from August 2007 did not have a relationship to the February 2005 claim and that wage loss benefits were not payable beyond June 16, 2005. Review Office indicated that it reviewed the Appeal Commission transcript and the worker’s representative had indicated that the worker’s condition had settled. It therefore took the position that as the worker had no longer been working, any further flare-ups of his osteoarthritic condition would not be related to his work activities but to other factors such as the aging process. It felt that the original 12 weeks of wage loss coverage was reasonable for an aggravation of an underlying condition occurring in the workplace. On December 18, 2007, the worker disagreed with Review Office’s decision and an appeal was filed with the Appeal Commission.
Reasons
Applicable Legislation
The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and by policies made by the WCB’s Board of Directors. This appeal deals with provision of ongoing benefits on an accepted claim. 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.
While the WCB is not generally responsible for loss due to pre-existing conditions, the WCB’s Board of Directors made WCB Policy 44.10.20.10, Pre-Existing Conditions, which provides that the WCB is responsible to pay wage loss benefits where the loss of earning capacity is due to a combination of a pre-existing condition and the workplace injury.
Worker’s Position
This appeal proceeded by way of a non-oral hearing or file review. In his Appeal of Claim Decision Form dated December 18, 2007, the worker disagreed with the WCB determination that there was no relationship between his current symptoms and his 2005 claim. He submitted that the symptoms are from the 2005 injury. He stated that when he injured his back and right shoulder he also injured his spine. He also disagreed with the WCB decision to pay him only 12 weeks of benefits.
Analysis
There were two issues before the panel.
The first issue before the panel was whether the worker’s upper back and right shoulder complaints from August 2007 have a relationship to the February 2005 claim. For the appeal of this issue to be successful, the panel must find that the 2005 injury is the cause of the 2007 complaints. The panel was not able to make this finding.
The panel notes that the 2005 injury was accepted by the Appeal Commission as an aggravation of the worker’s pre-existing condition. In its 2006 decision accepting the claim the Appeal Commission wrote:
“The evidence is that the worker suffers from pre-existing osteoarthritis. Prior to 2004, the worker was symptomatic. However, his symptoms did increase in the later part of 2004 to the point that he needed pain medication and was unable to sleep with the pain.
The mechanism of injury, namely the weight on the shoulder and the repetitive use of the shoulder in climbing the scaffolding, is consistent with an aggravation of the worker's pre-existing osteoarthritis. In this regard, we accept the WCB medical advisor's commentary in his June 20, 2005 memorandum as well as the occupational health physician's report of November 16, 2005.
This aggravation of a pre-existing condition is also supported by the worker's resolving symptoms since March, 2005. In these circumstances, we find that the worker’s claim is acceptable.”
The panel notes that at the hearing on June 8, 2006, the Appeal Commission accepted evidence that the worker’s injury was resolving. The worker’s representative stated that “…the shoulder has come back to pre-accident status.” The panel notes that the evidence does not support a finding that the worker’s pre-existing condition was permanently affected (or enhanced) by the March 2005 injury.
The panel also notes that a CT scan performed on April 24, 2007 identified significant degeneration of the worker’s spine consistent with his pre-existing condition.
Given the above evidence, the panel does not find a relationship between the worker’s ongoing symptoms and the 2005 injury which was accepted as a temporary aggravation of a pre-existing condition. The worker’s appeal on the first issue is denied.
The second issue before the panel is whether the worker is entitled to wage loss benefits beyond June 16, 2005. For the appeal of this issue to be successful, the panel must find that the worker suffered a loss of earning capacity after June 16, 2005 as a result of the 2005 workplace injury or in other words, was not able to work after June 16, 2005 due to the 2005 workplace injury. The panel was not able to make this finding.
The panel notes that subsequent to the 2006 Appeal Commission decision, the worker was paid wage loss benefits for the period from March 25, 2005 to June 16, 2005. This payment was based upon the opinion of a WCB medical advisor who commented that an aggravation of a pre-existing condition should resolve within 12 weeks. The decision to pay wage loss benefits until June 16, 2005 was consistent with the 2006 Appeal Commission decision which noted that the worker’s condition had been resolving since March 2005 and with evidence at the hearing that the worker’s condition “has come back to pre-accident status.”
Finally, the panel notes from file information that the worker has not worked since March 2005, and finds that any symptoms after June 2005, (the date by which his temporary aggravation had resolved) were not caused by subsequent work duties, but rather by the worker’s degenerative condition.
The worker’s appeal on the second issue 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 22nd day of May, 2008