Decision #115/09 - Type: Workers Compensation

Preamble

The worker has a compensable claim with the Workers Compensation Board (“WCB”) for a right shoulder injury that occurred during the course of her employment as a healthcare aide. The worker is presently appealing decisions made by Review Office which determined that her left shoulder problems were not related to her original compensable injury, and that she was capable of employment under NOC 6623, Other Elemental Services. A hearing was held on October 13, 2009 to consider these matters.

Issue

Whether or not the worker’s left shoulder problems are related to the compensable right shoulder injury; and

Whether or not the vocational rehabilitation plan is appropriate.

Decision

That the worker’s left shoulder problems are not related to the compensable right shoulder injury; and

That the vocational rehabilitation plan is appropriate.

Decision: Unanimous

Background

While caring for a resident on July 8, 2004, the worker reported that she wrenched her right shoulder and right upper arm when the resident fell against her and she fell to the floor after grabbing onto a toilet safety bar.

Following the July 8 accident, the worker sought medical treatment and was diagnosed with a soft tissue injury. Further medical investigations led to the diagnosis of a right rotator cuff tear as well as AC joint arthrosis. On May 5, 2005, the worker underwent surgery to repair the rotator cuff tear and she was treated with physiotherapy.

In September 2005, the worker re-injured her right shoulder when lifting a bag of sugar. An MRI of the right shoulder taken in February 2006 revealed a partial tear of the rotator cuff. The WCB accepted responsibility for the worker’s shoulder problem as being related to her original compensable injury.

File records indicate that the worker presently has the following permanent compensable right shoulder restrictions:

· No lifting over ten pounds with her right arm

· No lifting above right shoulder height

· No repetitive right arm use.

In August 2006, the worker was referred to the WCB’s vocational rehabilitation branch for an initial vocational assessment. The worker’s vocational rehabilitation plan was later discontinued due to the worker’s complaints of shoulder pain. In February 2008, the case was referred back to the vocational rehabilitation branch to assist the worker with a return to work program.

At a meeting held to explore occupational options on March 26, 2008, the worker told a WCB vocational rehabilitation consultant (“VRC”) that she was having pain in her left shoulder due to constant overuse compensating for her right arm immobility. The worker stated that she tried to limit the use of any pain medications.

On June 5, 2008, the worker advised her VRC that she was in constant pain when she did any activity and that her left shoulder was getting worse due to over compensating with her right shoulder. The worker considered herself unemployable based on her compensable right shoulder and worsening left shoulder conditions. The worker noted that she had a medical condition that caused dry mouth and she was unable to talk for any length of time.

On October 15, 2008, the family physician reported that the worker now had a supraspinatus tear in her left shoulder which resulted from overcompensating for the problem she had in her right shoulder.

It was subsequently determined by the VRC that NOC 6623, Other Elemental Sales, was the only viable occupation where the worker could be considered employable. In a memo to file dated December 17, 2008, the VRC indicated that she discussed the physical nature of this occupation with a WCB employment specialist and it was determined that jobs in this occupation (customer service, front desk, call centre work) would be within the worker’s physical restrictions. A Vocational Rehabilitation Plan under the occupational goal of NOC 6623 was developed for the worker with a start date of March 10, 2009 and an end date of July 25, 2009.

On February 26, 2009, a WCB case manager advised the worker that based on the following medical opinion by a WCB sports medicine consultant, he was unable to accept that her current left shoulder difficulties were related to overuse based on her right shoulder compensable injury. He stated:

“The left shoulder diagnosis based on the medical information available appears to be a rotator cuff tendonopathy. The findings on the MRI which include very small partial thickness tears at the insertions of the supraspinatus and infraspinatus tendons as well as mild supraspinatous muscle atrophy represent degenerative changes that may be incidental in a 54 year old female.

As above, the findings on MRI likely represent on the balance of probabilities incidental findings of degenerative change present in 54 year old females.”

On March 10, 2009, the worker appealed the above decision to Review Office. The worker believed that her left shoulder injury was directly related to her workplace injuries of her right shoulder and that this opinion was supported by her family physician. The worker indicated that she had constant discomfort/burning/pain in her right shoulder/arm as soon as she tried to do any daily activities. She could not lift and carry a 4 litre milk jug with her right arm. She felt that her left shoulder injury was due to her use of it because she could not use her right arm.

On March 23, 2009, the worker appealed the decision made by the VRC that she was capable of employment under NOC 6623, Other Elemental Sales. The worker claimed that she was unemployable in this occupational field because:

· She had an unrelated medical condition which caused her mouth to be dry and made it difficult for her to talk;

· the use of certain medication made her lethargic and drowsy; and

· daily activities such as personal and household chores caused burning and pain around her shoulders.

In decision dated April 7, 2009, Review Office determined that the worker’s left shoulder problems were not compensable, that the vocational rehabilitation goal was appropriate and that a deemed post accident earning capacity should be minimum wage.

With regard to the worker’s left shoulder complaints, Review Office agreed with the medical advisor’s opinion that the degenerative changes in the left shoulder were not the result of anything other than the normal aging process. Review Office accepted that the worker’s increased reliance on her left arm could result in some symptomology in the left shoulder however, it felt that these would be indistinguishable from those related to the non compensable degenerative changes and would not limit her to a consequential degree or require specific treatment.

Review Office accepted that the worker was limited in what work she could do but also agreed that the worker was capable of full time work within her compensable restrictions. Review Office noted that the medication “which the worker continues to take despite significant side effects is usually comparatively benign (it is available over the counter in the United States).”

Review Office noted that NOC 6623 covered a broad spectrum of positions which pay minimum wage and that the worker had the skill set required to work at minimum wage on a full time basis. However, in recognition of her limitations, Review Office considered that the worker’s deemed post accident earning capacity should be set at minimum wage. The worker subsequently appealed Review Office’s decisions to the Appeal Commission and a hearing was arranged.

Reasons

There are two issues under appeal before the panel. We will address each one separately.

1. Whether or not the worker’s left shoulder problems are related to the compensable right shoulder injury

The first issue concerns whether the difficulties the worker is now experiencing in her left shoulder are related to the right shoulder injury. The worker’s position is that since the time of the accident, she has had to use her left arm to do everything. Aside from writing and eating, she tends to use her left hand as much as possible. At the hearing, the worker also informed the panel of an incident where she was lifting a 4 litre jug of milk from her truck and felt a sharp pain in her left shoulder. Since that time, she has been experiencing increased pain in her left shoulder. The worker could not recall when this incident occurred, but said that when she spoke to her physician about the pain in her left shoulder he sent her for an MRI. As the medical records show that the left shoulder MRI was performed on October 3, 2008, the worker surmised that the milk jug lifting incident occurred in approximately September, 2008.

An employer advocate was present at the hearing, and the employer’s position on this issue was that while they acknowledged that the worker sustained a significant right shoulder injury as a result of a workplace accident, it would appear that the left shoulder complaints are attributable to degeneration and the normal aging process. With respect to the lifting of the milk jug, it was submitted that this was a specific non-work incident which was triggered a pre-existing degenerative problem. As the left shoulder injury was unrelated to her work, responsibility should not be accepted for this condition.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

In order for the worker’s appeal to be successful, the panel must find that the left shoulder difficulties are predominantly attributable to the compensable injury. On a balance of probabilities, we are unable to reach that conclusion.

The panel considered the worker’s assertion that her left shoulder is now injured and causing pain due to increased use of her left arm. The worker was asked about the type of activity she has engaged in since the time of her accident, and it would appear that she lives a relatively sedentary lifestyle. The types of tasks that she performs with her left arm includes some light cooking, washing dishes, dusting, and laundry (but only a few articles at a time). She did not perform any sweeping, vacuuming, or heavy lifting and did minimal yard work. She might reach for something on a shelf with her left arm, but nothing heavier than a can of soup. In the panel’s opinion, the worker’s compensatory left arm use does not demonstrate the type of activity which would cause injury to her left shoulder. There was no heavy lifting, minimal reaching above the shoulder, and no repetitive actions. There was nothing onerous which the panel feels would cause a left shoulder injury to develop. We therefore find that the compensatory use of her left arm did not cause the difficulties she is now experiencing.

With respect to the incident where the worker was lifting the jug of milk, as this was in a non-work setting, any injury resulting from this action would not be compensable. Further, the assertion that the worker would not normally have lifted the milk jug with her left arm is only speculative. To say that the right shoulder injury caused her to use her left arm which then caused her to injure her left shoulder is too tenuous a connection. It does not satisfy the standard set out in the Further Injuries Policy which requires the subsequent injury to be “predominantly attributable” to the compensable injury.

For the foregoing reasons, we find that the worker’s left shoulder problems are not related to the compensable right shoulder injury. The worker’s appeal on this issue is dismissed.

2. Whether or not the vocational rehabilitation plan is appropriate

The second issue concerns the appropriateness of the vocational rehabilitation plan. The WCB provided the worker with vocational rehabilitation assistance aimed at re-employing the worker in NOC 6623 Other Elemental Sales. The worker’s position was that she was not fit for any kind of work due to the pain in her shoulder. She said that she does not even have to lift anything and she will get burning pain and discomfort in her shoulder. She felt that she should not to have to work with that physical state.

The employer took no position on this issue as it characterized the vocational rehabilitation plan as a plan put together between the worker and the WCB jointly, upon which the employer declined to comment.

Pursuant to subsection 27(20) of The Workers Compensation Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

WCB Policy 43.00, Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Voc Rehab Policy states that: “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.” The Voc Rehab Policy also provides that: “The WCB will help the worker as much as possible to be as employable as she/he was before the injury or illness. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.”

In order for the worker’s appeal on this issue to be successful, the panel must find that the vocational rehabilitation assistance provided to the worker did not reasonably take into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests. On reviewing the facts of this case, we are unable to make that finding. In the panel’s opinion, the rehabilitation plan devised for the worker was appropriate. The worker is not totally disabled from working in any job, as is alleged by her. Her evidence given at the hearing was that on a daily basis, she is able to get up and out of bed, sit upright for extended periods of time, go for short walks and engage in light duties around the house. She is able to drive for short distances (up to ½ hour) and visit friends and family. Although she told the panel that she does not generally do much standing, she did not indicate that she had any problems with standing.

The WCB employment specialist provided the worker with job listings in her identified NOC (including listings as a sales associate in a card shop, front desk clerk, and receptionist) which the panel believes could have met the worker’s restrictions and abilities, despite the worker’s views to the contrary. Unfortunately, the fact that the worker declined to follow up on or apply for any of the job leads provided to her by the employment specialist means that we are unable to assess how she actually would have fared in these positions. Nevertheless, there is no medical evidence which would suggest that she could not maintain a job in NOC 6623 or an equivalent minimum wage employment position, given her compensable physical restrictions. With respect to the worker’s unrelated medical condition, the panel feels that while the condition may impede her ability to work in telemarketing, it should not prevent her from working in other customer service positions which do not require constant, fast paced oral communication.

In the panel’s opinion, the vocational rehabilitation plan was appropriate, and therefore the worker’s appeal on this issue is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of November, 2009

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