Decision #123/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (WCB) on March 16, 2007 for a work related event that occurred on October 2, 2006. The claim for compensation was accepted and the worker was paid medical aid and wage loss benefits to October 12, 2006. It was determined that any further difficulties experienced by the worker beyond that date were not related to the compensable accident. The decision was confirmed by Review Office on December 17, 2007. The worker disagreed and a worker advisor filed an application to appeal with the Appeal Commission and a hearing was held on April 24, 2008.Issue
Whether or not the worker is entitled to wage loss benefits beyond October 12, 2006.Decision
That the worker is not entitled to wage loss benefits beyond October 12, 2006.Decision: Unanimous
Background
As a result of an assault that took place at work on October 2, 2006, the worker advised the WCB that she injured her left arm and shoulder, the left side of her face, her low back, cracked a tooth, was kicked in the stomach and broke her eyeglasses.
On October 4, 2006, the worker attended a hospital emergency facility for treatment. The diagnosis at this time was a soft tissue injury and the worker was given a sling for her left arm.
On April 10, 2007, the worker attended her family physician for a nagging pain into her neck and left arm since the work related incident. Over the past 3 days, the worker had a suboccipital headache that was quite intense. The physician’s diagnosis was a suboccipital neuralgia and the worker was provided medication and advised to follow up in couple of day’s time.
In a decision dated April 30, 2007, the WCB accepted responsibility for the worker’s soft tissue injury to her left arm, the broken tooth and damaged eye glasses. The worker was informed that she would receive wage loss benefits for the period October 6, 2006 to October 12, 2006 based on the evidence provided in the emergency report. It was further indicated that the worker was not entitled to wage loss benefits beyond October 12, 2006 as she had not sought further medical treatment until April 10, 2007. It was felt there was insufficient evidence to support a causal relationship between the worker’s current difficulties and her compensable injury.
The worker provided the WCB with a letter from the client’s foster parent to confirm that she was injured on October 4, 2006. In a letter dated May 31, 2007, the case manager informed the worker that she was unable to establish that the worker’s current complaints were related to the October 4, 2006 incident as there was no continuity of symptoms between October 4, 2006 and April 10, 2007 which would establish this relationship.
On April 30, 2007, the worker appealed the above decision to Review Office. On July 18, 2007, Review Office referred the file back to primary adjudication to obtain additional information. Review Office made reference to a telephone conversation that took place on April 24, 2007 wherein the worker reported to the WCB that she had been seeing a gynecologist on a monthly basis with respect to another medical condition and that the gynecologist examined her torso in relation to the compensable event.
In a report dated November 8, 2007, the gynecologist reported that he saw the worker on a monthly basis and he recalled the worker mentioning that she injured her right shoulder, neck and back in October of 2006. As this continued to be a problem, the specialist advised the worker to see her doctor as this was not a gynecological problem.
In a further letter to the WCB dated November 13, 2007, the gynecologist reported that when he saw the worker on October 16, 2006, she indeed had bruising and swelling on her arm. The worker advised him that the injury happened at work and that it was not a result of a trauma at home.
On November 28, 2007, the case manager advised the worker that in the opinion of the WCB, there was no further medical evidence to support her contention of any ongoing disability related to her compensable injury of October 4, 2006. Although the worker had made complaints of her work related injury to the gynecologist, the gynecologist could not recall what the complaints were and did not document them. Given the lack of ongoing medical evidence to support the contentions of disability related to the compensable injury, the claim for ongoing entitlement to benefits was not accepted. The worker appealed the decision to Review Office.
On December 19, 2007, Review Office determined there was no entitlement to wage loss benefits beyond October 12, 2006. Review Office noted that the worker delayed in reporting her injuries to the WCB as she thought it would have a negative impact on the client who assaulted her and she was not able to attend for physiotherapy as there was no coverage. Review Office accepted this as being reasonable but noted that no explanation had been provided as to why the worker did not attend her physician from October 2006 to April 2007. It stated that since the worker did not seek any treatment between when she was seen at emergency until April 2007, there was no medical evidence on file to support a continuity of signs and symptoms from October 2006 to April 2007. Without the confirmation of the continuity of signs and symptoms, there was no evidence to support a causal relationship between the worker’s current difficulties and the October 4, 2006 compensable injury which was diagnosed as a soft tissue injury.
On January 2, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission on the worker’s behalf. On April 15, 2008, the worker advisor submitted new information for the panel’s consideration. This consisted of several medical reports, a physiotherapy report and a memorandum from the worker’s boyfriend.
Following the hearing, the appeal panel requested additional information from two physicians prior to rendering a decision on the issue under appeal. They consisted of a report from the family physician dated May 2, 2008 and from the gynecologist dated June 27, 2008. This information was forwarded to the interested parties for comment. On August 11, 2008, the panel met to further discuss the case and considered a final submission by the worker advisor dated August 1, 2008.
Reasons
Applicable Legislation
The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act) and by policies made by the Board of Directors of the WCB.
This appeal deals with provision of wage loss 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.
Worker’s Position
The worker was represented by a worker advisor who made a presentation on her behalf. The worker answered questions from her representative and the panel.
The worker advised that she was assaulted while working as a support worker. She described the assault and the resulting injuries. She explained that she delayed seeing her family doctor and reporting the assault to the WCB. She explained that she did not want to create problems for the client who assaulted her or for the care program. She went to emergency shortly after the assault and about one month later she saw her family doctor. She said that she was also being seen by her gynecologist for another problem and that he checked her and provided medication.
Regarding the medical attention between October 2006 and April 2007, the worker advised that she saw her gynecologist every month for an unrelated condition. She was asked whether the gynecologist actually examined her. She replied “Yes he did. He checked my neck, he checked my back.”
The worker also indicated that the gynecologist provided a prescription drug for the injury. She was asked whether the gynecologist provided this drug for her unrelated condition before the workplace injury. She responded “no”.
The worker’s representative submitted that the WCB placed too much emphasis on the fact that there wasn’t ongoing specific medical with either an orthopaedic specialist or someone of that nature rather than her gynecologist. He noted the worker’s explanation that she was hopeful she would get better and when this did not happen, she did see her family doctor and has since gone for proper treatment.
The representative advised the worker’s current diagnosis is soft tissue pain syndrome in her neck and shoulder and that she has not recovered. He advised that she is seeking further treatment and coverage for all the areas that were involved in the injury, including back, left shoulder, left arm, neck, eye, and a broken tooth. She is also seeking wage loss benefits from October 12, 2006.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond October 12, 2006. The worker submitted that she was unable to work after this date due to the workplace injury. For the appeal to be successful the panel must find that the worker’s loss of earning capacity after this date is a result of her workplace injury or in other words, that the worker’s ongoing inability to work was caused by her workplace injury.
The panel is not able to find, on a balance of probabilities, that the worker’s loss of earning capacity after October 12, 2006 was caused by the workplace injury and concludes that the worker is not entitled to wage loss benefits beyond October 12, 2006. In making this decision, the panel finds that the evidence does not support a causal relationship between the workplace injury, diagnosed in October 2006 as a soft tissue injury, and the worker’s ongoing symptoms and inability to work. The panel finds there is a lack of medical information to support the continuity of symptoms between the worker’s attendance at the emergency ward on October 4, 2006 and the medical treatment in April 2007.
The worker indicated that she had attended her family physician in October 2006 regarding her workplace injury. The chart from the clinic was examined by her current treating physician. He advised that “The visit that corresponded in the nearest fashion to the date was on October 23, 2006. On review of the clinical note, there was no discussion on that clinical visit regarding musculoskeletal injuries or orthopedic issues.”
The worker also indicated that her gynecologist examined her arm and shoulder and prescribed medication for her injury. This information was not confirmed by the gynecologist. The panel wrote to this physician who advised that the worker complained about her shoulder and neck pain on more than one occasion, but that he did not examine or treat the worker’s neck and shoulder. He also advised that with respect to medication, he prescribed analgesics mostly for pelvic pain but that the worker also used the analgesics for treatment of the pain in her neck and shoulder. The panel does not find this evidence to be sufficient to confirm continuity of the various symptoms which the worker considers related to the workplace injury.
The worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerR. Koslowsky, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of September, 2008