Decision #11/09 - Type: Workers Compensation

Preamble

The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (WCB) which determined that her ongoing difficulties were not related to her compensable injury of April 21, 2003. A hearing was held on November 19, 2008 to consider the matter.

Issue

Whether or not the worker’s current problems are related to the April 21, 2003 compensable injury.

Decision

That the worker’s current problems are not related to the April 21, 2003 compensable injury.

Decision: Unanimous

Background

The worker has a prior claim with the WCB for a right shoulder injury, diagnosed as a cervical-thoracic subluxation sprain/strain, which occurred on September 12, 2001. The worker was paid WCB benefits to February 3, 2002 inclusive, as a result of her injury.

On April 25, 2003, the worker contacted the WCB’s call centre to report injuries to her right arm, shoulder and low back which she related to her work duties on April 21, 2003 as an operating room (OR) attendant.

In a telephone conversation with a WCB adjudicator on April 29, 2003, the worker indicated that she worked April 18, 2003 to April 20, 2003 without any breaks. Prior to April 21, 2003, she had pain in her legs, hip, low back and upper body. On April 21, 2003, she was required to gather, clean, sterilize and reset a hip replacement system kit. The kit involved a lot of pans and instruments. She had to carry the instruments from the table to the sink and then from the sink to the washer. She had to place the instruments in a basket to have them washed. By April 22, 2003, her whole body ached. She tried to work on April 23, 2003 and was not required to lift anything. She had not worked since that date as her right arm, upper back and neck were still sore. She started to limp but did not know why. The worker advised that she had a 2000 WCB claim for a shoulder injury and was presently experiencing right shoulder and arm pain. She felt that one of her shoulders was higher than the other one.

The WCB accepted the worker’s claim based on the diagnosis of a right shoulder musculoligamentous injury. Following a five week graduated return to work program, the worker returned to her regular duties on July 7, 2003 and wage loss benefits were paid to July 6, 2003 inclusive.

On January 2, 2006, the worker’s representative provided the WCB with a letter from a physician dated December 12, 2005. The representative noted that the worker was diagnosed with fibromyalgia in 2003. He stated that the worker received employment insurance benefits and had been in receipt of Long Term Disability (LTD) benefits through her employer since November 2003. The representative indicated that the LTD adjudicators and the worker believed that her ongoing shoulder problems were due to her April 2003 work related accident and that it prevented her from returning to work as an OR attendant. It was argued that the WCB should accept responsibility in the form of wage loss benefits and a suitable vocational rehabilitation program.

In the report dated December 12, 2005, the treating physician noted that the worker came to see her on July 1, 2004 regarding her fibromyalgia pains and that she complained of right shoulder pain. The physician noted that on examination, the shoulder had full range of motion with tenderness of the soft tissue of the right shoulder region, specifically the deltoid and anterior shoulder joint line. The worker was sent for a right shoulder x-ray and it was inconclusive for pathology. Between September 2004 and November 2005 the worker was seen for her right shoulder complaints and was eventually referred to an orthopaedic specialist. An MRI of the shoulder (taken October 19, 2005) revealed a small subacromial spur causing mild impingement and there was also a small bursitis in the deltoid region. The treating physician believed that the worker’s shoulder problem was caused by her work duties as an OR attendant.

Following consultation with a WCB medical advisor on January 26, 2006, a WCB case manager advised the worker that the finding of the subacromial spur noted on the MRI report was the cause of her impingement symptoms and would not be related to her work injuries. Based on this factor and other information, the case manager concluded that the worker had recovered from her work injuries of September 2001 and April 2003 and that she was not entitled to further wage loss benefits.

In a February 23, 2006 report to the treating physician, the orthopaedic specialist stated that the worker had some right shoulder pain with impingement and possibly some degree of bursitis. He stated she had some degree of depression as well as fibromyalgia. He noted that a subacromial injection of cortisone was suggested but was declined by the worker.

On March 27, 2006, the WCB case manager advised the worker that after review of the orthopaedic specialist’s report, no change would be made to the decision of February 2, 2006.

On August 22, 2006, a second orthopaedic specialist reported that the worker complained of pain in her right shoulder, right side of neck, right arm and right elbow. She complained of pain when lifting with her right hand and when typing on a computer. She noted numbness about the right shoulder. Another injection was suggested, however the worker declined the procedure.

On May 30, 2007, a worker advisor appealed the WCB’s decision of February 2, 2006 on the worker’s behalf. It was contended that the worker was totally disabled and that the worker was seeking wage loss benefits from November 3, 2003. Attached to the submission were a number of medical reports for consideration.

A WCB medical advisor reviewed the new information on June 25, 2007. It was noted that the worker’s pain complaints were widespread. It was felt that the diagnosis of fibromyalgia could account for the worker’s chronic pain and that it was not related to the compensable injury or her work duties. The medical advisor noted that the physiotherapist’s diagnosis of median nerve tension was not related to the mechanism of injury. Based on these findings, the WCB case manager determined on June 28, 2007 that there were no clinical findings to support that the worker’s current right shoulder difficulties were related to the April 2003 workplace injury.

On August 14, 2007, the case was considered by Review Office and it was confirmed that the worker’s current problems were not related to her compensable injury. Review Office considered the following information when arriving at its decision:

  • the worker resumed her regular work duties on July 7, 2003 without further problems after she completed a five week graduated return to work program;
  • the worker indicated that the reason she stopped work in November 2003 was due to fibromyalgia;
  • the treating physician indicated that the worker’s disability effective November 2003 was due to fibromyalgia, chronic myofascial pain and moderate anxiety disorder;
  • the two orthopaedic specialists both advised that the worker had full range of motion and mild impingement and that the worker suffered from fibromyalgia and depression; and
  • the opinion of a WCB medical advisor that the worker’s widespread symptoms were due to fibromyalgia and that the diagnosis of median and ulnar nerve tension was not causally related to her compensable injury.

In August 2008, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

This is an appeal to determine whether the worker’s current problems are related to her April 2003 compensable injury of a right shoulder sprain/strain.

The worker represented herself at the hearing and no employer representative attended. In addition to the worker’s evidence at the hearing, the panel has relied on the written file documentation in arriving at its decision.

The worker confirmed that she hurt her shoulder while performing her duties as a result of lifting and transporting trays of surgical instruments. She further confirmed that she was able to return to work in June 2003 as part of the employer’s return to work program and then resumed her full/regular duties in July 2003. She remained at work until November 2003 at which time she was having difficulty continuing and described to the panel that “I wasn’t feeling good. I was in total body pain.”

Regarding treatment for her shoulder condition, the worker said she tried physiotherapy but could not sustain it without massage. The worker left work in November 2003 with a diagnosis of fibromyalgia and anxiety.

After November 2003, there is a file gap until early 2006 when the worker made contact with the WCB through her union representative indicating she had ongoing symptoms relating to her right shoulder. She confirmed that she had been away from the workplace because of a non work related medical condition and had not suffered a new shoulder injury in the interim. She was not ready for light duties with her employer at that time as she had concerns regarding right arm numbness. The worker attended two orthopedic specialists in 2006, her family physician, and a physiotherapist. Flowing from these visits were some additional tests and recommendations for treatment. Other than some physiotherapy in 2007, the worker confirms she declined the recommended treatments, including the injections recommended by the orthopedic specialists and her family physician.

Analysis:

The issue for the panel to decide is whether the worker’s difficulties after July 2003 relate to her compensable injury of a right shoulder musculoligamentous strain/sprain. The panel finds that the worker’s ongoing difficulties are not related to her April 2003 compensable injury, but instead to a non-compensable fibromyalgia-like condition that has kept her away from her pre-accident employment. The panel finds no connection between this condition and her April 2003 compensable injury.

In reaching our decision, we have placed weight on the following:

  • Following her 2003 injury, the worker returned to full duties and worked at them until she went off work in November 2003 for non compensable reasons.
  • The worker applied for and was successful in obtaining LTD and other benefits for her fibromyalgia. She considered herself unable to work because of this condition.
  • The worker did not seek further medical attention for her shoulder condition until September 2004. Following this the family physician suggested other referrals and notes on February 26, 2007 that “she was sent to two orthopedic surgeons for further management and they both felt that she would benefit from the steroid injections but she refused.”
  • An exam by an orthopedic specialist on February 23, 2006 notes she has been diagnosed as having fibromyalgia. Regarding her shoulder, he says “clinically, there is no wasting of the shoulder. Range of motion is full. By and large she is strong.” He further notes that an MRI shows a small spur on the mid acromion for which he recommends physiotherapy and an injection which was declined by the worker.
  • A second orthopedic specialist in June 2006 notes that she has good range of motion, and her strength is normal. He said the amount of pain she describes does not match the physical findings.
  • A WCB medical advisor reviewed the file on June 25, 2007 and noted that fibromyalgia accounted for the worker’s chronic pain and was not related to her work duties.

In conclusion, the panel finds the thread that flows throughout this file is a fibromyalgia type condition that has taken this worker away from her duties. The worker had returned to work following her shoulder injury in June 2003 and then left six months later with a condition that had no connection to her compensable injury. The medical evidence as noted in 2006 also does not support any diagnosis within the right shoulder consistent with or a sequela to her original right shoulder compensable injury. In fact, the shoulder appears to have good range of motion and strength suggesting to the panel a full recovery from the 2003 compensable injury.

We therefore find, on a balance of probabilities, that it is the fibromyalgia that limits her work capacity rather than her April 2003 shoulder injury and consequently deny her appeal.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 15th day of January, 2009

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