Decision #07/10 - Type: Workers Compensation
Preamble
The worker appealed a decision made by Review Office of the Workers Compensation Board (“WCB”) that he was capable of working full time as of September 6, 2008 and that he was not entitled to additional wage loss benefits. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. An appeal panel hearing was held on November 24, 2009, to consider the matter.
Issue
Whether or not the worker is entitled to further wage loss benefits.
Decision
That the worker is entitled to further wage loss benefits from September 6, 2008 to December 9, 2008.
Decision: Unanimous
Background
The worker reported to the WCB that he injured his lower and upper back areas on May 1, 2006 while performing “fast shoveling” duties during the course of his employment as a production and forklift operator. He initially reported an injury to his mid to lower back, and subsequent file records indicate that the worker sought medical treatment from his family physician for his back, neck, left shoulder and arm pain. He was treated with physiotherapy.
On June 23, 2006, an x-ray of the worker’s cervical spine revealed mild degenerative narrowing at C5-C6 with osteophyte formation of moderate severity both anteriorly and posteriorly. No other abnormality was identified. On August 24, 2006, a CT scan of the cervical spine showed left paracentral disc protrusion with suspected involvement of the left C8 nerve root.
A WCB medical advisor reviewed the file on September 11, 2006. In his opinion the current compensable diagnosis was a back strain in the presence of pre-existing degenerative disc disease of the cervical spine, and probably similar changes in the thoracolumbar spine. He noted that the worker had upper arm complaints from the outset that were presumably related to the cervical disc. He concluded that the worker’s symptoms were a combination of his pre-existing condition and his workplace injury. He noted that while recovery for a strain would usually be a few weeks, that was compromised by the extreme pre-existing degenerative changes.
When seen by a neurosurgeon on December 7, 2006, it was reported that the worker’s clinical presentation was suggestive of some mechanical cervical pain, but was mainly an arthropathy of the left shoulder secondary or associated with an injury to the left biceps. Obvious signs of a radiculopathy were not detected.
On January 6, 2007, an MRI of the cervical spine revealed multilevel left sided disc pathology including a small posterolateral disc protrusion at C4-5, C5-6 and C6-C7.
The neurosurgeon reassessed the worker on February 2, 2007 and, after reviewing the MRI of the cervical spine concluded that most of the worker’s symptoms were probably arthropathic.
On February 20, 2007 the worker was examined by a WCB orthopaedic consultant who concluded that the diagnosis was unclear. In his opinion it was possible the worker had a degree of rotator cuff tendonopathy. While he found no definite evidence of a rotator cuff tear, the worker had developed a moderate degree of frozen shoulder. The consultant observed “significant pain behaviour and symptom amplification during this examination”. He concluded that the worker was a “long way” from returning to his previous occupation and indicated that work restrictions would require the worker to avoid lifting the left upper limb from waist to shoulder or above for a six month duration.
A left shoulder MRI dated March 19, 2007 showed an “essentially normal MRI shoulder” and no evidence of a rotator cuff tendon tear.
The worker was seen by an orthopaedic surgeon on April 3, 2007, who reported that the worker demonstrated signs and symptoms consistent with a frozen shoulder but that his “reaction to the examination was not in keeping with this finding”. He noted that the MRI reported an essentially normal MRI shoulder, with no evidence of rotator cuff tear, and only a finding of very mild AC joint arthrosis. While the surgeon was unclear as to the exact etiology of pain, he did note marked restriction with range of motion of the shoulder. Surgical intervention was not indicated given the clinical findings and MRI investigation.
On July 16, 2007, the worker commenced modified duties with the accident employer.
On September 27, 2007, the treating physiotherapist reported that the worker presented with a left frozen shoulder with associated myofascial pain and general hypersensitivity. He noted that the worker had completed six weeks of physiotherapy treatments that he attended twice weekly, and had shown improvement in range of motion and function. While the worker felt his range of motion had improved, recently his pain levels had increased. The physiotherapist opined that further physiotherapy treatment would not improve the worker’s range of motion or function. He recommended that the worker avoid overhead use, reaching, repetitive activities with the left arm, and carrying more than five pounds with the left arm.
On October 29, 2007, the treating physician noted that the worker continued with neck and left shoulder pain and limitation of left shoulder movement. The physician indicated that the worker was capable of alternate modified work.
The worker was assessed by a WCB orthopaedic consultant on November 20, 2007. The consultant indicated that the worker complained of pain and loss of strength and range of motion in the left upper limb, particularly at the elbow. The consultant noted that:
“The presenting symptoms are bizarre, but there appears to be some limitation of active/passive range of motion in the left shoulder joint. The diagnosis of this loss of range of movement is not clear. . .
There continues to be significant symptom amplification, and there is no obvious explanation for the claimant’s apparent use of an abnormal left upper limb posture as described. This itself may contribute to stiffness.”
While he concluded that there was no actual clinical or pathological diagnosis of a condition arising out of the workplace injury to explain the persistent pain and restricted range of motion in the shoulder, there appeared to be a continuing cause-effect relationship with the workplace injury.
The WCB arranged for the worker to undergo massage treatment to assist with range of motion issues.
In January 2008, a meeting was held to discuss modified duties that the worker had been performing. It was decided that the employer would accommodate the worker with different modified duties that involved working in a control booth. On February 7, 2008, the worker performed a task that was outside of his restrictions and suffered a flare up of some symptoms and time loss from work.
In a letter to the worker dated February 22, 2008, the WCB case manager indicated that he would not be covering any additional time loss from work without specific objective medical evidence supporting total disability. The case manager indicated in the decision that based on available information, the worker demonstrated marked improvement with respect to his range of motion and function and that he was prepared to approve further treatment to support his return to work. The worker was advised that he was to avoid overhead lifts with his left arm.
On March 10, 2008, the worker reported that he was standing on a ladder at work in order to move a heavy box when he felt a sharp pain in his right shoulder. He did not seek treatment until March 24, 2008, at which time he was authorized to miss time from work. He was advised by his WCB case manager to file a new claim with the WCB for his right shoulder injury.
On April 9, 2008 the worker injured his back while reorganizing shelves in his employer’s store. He reported that when lifting a 20 to 25 pound plate he felt a pain in his back. He filed a claim with the WCB which was accepted as a low back strain. The WCB did not accept responsibility for a left shoulder injury in relation to the April 9, 2008 injury.
In an April 18, 2008 report, the treating massage therapist reported that the worker was regaining functional use of the left arm, his pain was less, and his range of motion increased. She requested 8 additional treatments for the worker due to the second injury sustained on February 7, 2008, which caused an increase in loss in range of motion, tissue sensitivity and pain in his left arm. On April 23, 2008, the WCB wrote to the massage therapist to advise that the WCB was unable to approve the extension request.
The worker returned to work with restrictions on June 23, 2008. On June 30, 2008, the worker advised the WCB that he was told by his treating physician to stay off work for 2 weeks. He had radiating pain around his neck, in the left shoulder and going down the left side into his back. The worker indicated that he had stayed within his restrictions both at work and at home but that his pain had increased from working four hours per day.
On July 7, 2008, the employer’s representative advised the WCB that they had tried moving the worker through a variety of light duty positions within his restrictions but they could not get him to stay at work. The modified duties given to the worker were monitoring a furnace and checking body temperatures of co-workers, which involved walking as well as holding and writing on a clipboard.
On July 9, 2008, the treating physician reported that the worker was unable to work because of his left shoulder and not because of his back. He stated that the worker could not perform the task of holding or writing on a clipboard.
A WCB orthopaedic consultant reviewed the file on August 13, 2008. The consultant noted that the worker continued to complain of pain and loss of movement and strength in the left shoulder. Based on the two WCB call ins and the MRI examination, the consultant found no clear pathoanatomical diagnosis of the workplace injury to the left shoulder to explain the continuing symptoms and claimed loss of function. Nonetheless, he said there appeared to be a continuing cause-effect relationship between the workplace injury and the worker’s stated current pain and loss of function. The permanent restrictions flowing from a physiotherapy assessment on September 27, 2007 of avoiding overhead use, repetitive activities of the left arm including repetitive lifts over 5 pounds continued.
In a letter dated September 5, 2008, the worker was advised that in the opinion of the WCB, he was fit for modified duties with the following permanent work restrictions: to avoid overhead use, reaching, and repetitive activities with the left arm and repetitive lifts over 5 pounds with the left arm. The letter stated that the employer agreed to provide the worker with duties of a forklift operator. The worker was “not to change the propane tank or free up wheel jams.” It was indicated that the employer would train the worker in records or ask him to perform safety observations. The case manager acknowledged that the worker may have some pain in his left arm when he started the return to work program but as long as he stayed within his restrictions, he was not at risk for further injury to his left arm.
The worker briefly returned to work on September 5, 2008, but was sent home as he was operating the forklift truck with only one hand. He then told his WCB case manager that he was advised to stay off work by his treating physician until he saw the orthopaedic specialist.
In a letter dated September 22, 2008, the WCB case manager provided rationale to support the position that the worker was capable of working modified duties as a forklift operator/wheel cleaner and that wage loss benefits were being suspended. The case manager stated, in part, that the compensable diagnosis was a strain to the left shoulder and that the WCB was unable to accept responsibility for his frozen left shoulder.
On October 23, 2008, the worker was examined by an orthopaedic surgeon who noted the left shoulder was quite stiff with tenderness over the rotator cuff. He diagnosed the worker with a frozen shoulder.
The worker returned to modified duties for four hours per day, commencing on October 27, 2008. He worked only until November 3, 2008 when the employer identified safety concerns again arising from the worker driving a forklift with only one hand, although his restrictions permitted him to drive with two hands.
The WCB orthopaedic consultant referred the worker to the WCB’s pain management unit, and he was interviewed on November 6, 2008. It was concluded from this evaluation that the worker did not meet the criteria for chronic pain syndrome as the disability was not proportional in all areas of functioning. It was also determined that the worker did not appear to be suffering from a mood disorder.
On November 25, 2008, the family physician responded to a letter from primary adjudication. He indicated that the worker was able to perform light duties but that he had recommended that he not use his left upper limb (shoulder) and that he work only four hours per day as of September 14, 2008. He noted that the worker had been diagnosed with cervical spondylosis and was having ongoing spasms of his mid back aggravated by neck and shoulder movement.
The worker was examined on November 26, 2008 by the same orthopaedic specialist who had diagnosed a frozen shoulder in October 2008. He had by then reviewed the results of an MRI scan which indicated that there was no evidence of any structural damage to the worker’s left shoulder. There was a loss of abduction of the glenohumeral joint of about 20 degrees and difficulty with rotating the shoulder; however, the external and internal rotation movements were about the same on either side. The worker was advised to continue with physiotherapy treatment. The worker had conveyed to the specialist that his “work people told him that it was not safe to continue working,” to which the specialist commented “I do not know if I agree with this safety assessment”.
On December 9, 2008, the file was reviewed by the WCB orthopaedic consultant. The consultant indicated that the orthopaedic report of November 26, 2008 ruled out the diagnosis of a left frozen shoulder and confirmed that there was no definite evidence of significant structural abnormality of the shoulder arising out of the workplace injury. He revised the work restrictions to permanently “avoid repetitive strenuous overhead activities, left upper limb.” He considered the family physician’s recommendations that the worker was restricted to light duties only four hours per day with no use of the left shoulder, and concluded they were not appropriate.
On December 9, 2008, the worker was advised by primary adjudication that based on the opinion of the WCB orthopaedic consultant following a review of medical information from the orthopaedic specialist, there would be no change to the decision made on September 5, 2008. The case manager confirmed that the worker was capable of working the forklift/wheel cleaner position on a full time basis without needed assistance for prying wheels or changing the propane tank.
The employer offered the worker a return to his regular employment on December 23, 2008; however, he refused and subsequently resigned from his employment on February 20, 2009.
The worker was seen again on January 28, 2009 by the orthopaedic specialist who noted that he was doing “quite well” with his shoulder. An examination indicated that “only the last few degrees” of the abduction were limited in the left shoulder and that the internal rotation was also limited. The physician noted that he “thought she (sic) might be able to go back to his work without any restrictions but, he told me that he is going to retire anyway”.
Based on an appeal by the worker, the case was considered by Review Office on April 30, 2009. Review Office confirmed that the worker was not entitled to further wage loss benefits. In making its decision, Review Office referred to various medical reports on file as well as the job positions that were offered to the worker. Review Office found that the weight of evidence established on a balance of probabilities that the worker was capable of performing on a full time basis the work made available to him by his employer as of September 6, 2008. On June 19, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
Subsection 4(1) of The Workers Compensation Act states that:
Where in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following sections.
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.
Worker’s Position
The worker appeared at the hearing and was assisted with his submissions by a co-worker. A representative of the employer was also in attendance. The worker responded to questions from the panel as to his duties both pre-and-post-accident, the mechanism of the injury, and the nature and extent of his ongoing symptoms.
In his submissions the worker advised the panel that he was continuing to suffer from neck and shoulder pain, mid back spasm, unresolved back pain and hip pain. He described ongoing pain ranging from the bottom of his shoulder blades, and extending to his low back and left hip.
The worker relied upon the October 23, 2008 report of the orthopaedic specialist in which he diagnosed a frozen shoulder, and argued that the condition remains in effect.
Analysis
For the worker to be successful on this appeal, the panel must find that his loss of earning capacity resulting from his workplace injury continued after September 5, 2008. We were able to make this finding.
While the worker’s original claim included injury to his back, we note that when examined by the WCB orthopaedic consultant on November 20, 2007, his complaints were limited to his left arm and neck. In response to questions from the panel, he attributed his ongoing back pain to the April 2008 injury which occurred while performing light activities and standing on a ladder when reshelving products in the employer’s store. However, the appeal only deals with the worker’s May 2006 claim and any difficulties attributable to the injuries sustained by the worker in his April 2008 claim are beyond the jurisdiction of this panel, at this point in time.
As to the diagnosis of a frozen shoulder, we are, however, persuaded by the opinion of the worker’s orthopaedic specialist on November 26, 2008 in which, after reviewing the MRI, he concluded that there was no definite evidence of significant structural abnormality of the shoulder arising out of the workplace injury. This finding was endorsed by the WCB's orthopaedic consultant on December 9, 2008, who was of the opinion there was no problem related to the compensable injury. Their findings are consistent with the previous MRI on March 19, 2007 which showed an “essentially normal shoulder” and as well, no evidence of a rotator cuff tendon tear.
While the worker may have continued to suffer from some pain or limited restriction in motion in his neck and shoulder subsequent to December 9, 2008, we are mindful of the worker’s “significant symptom amplification” as reported by the WCB orthopaedic specialist in 2007. We are not satisfied that the worker’s symptoms prevented him from returning to work in December 2008. In fact, even the worker’s own physician was of the opinion that the worker could return to work as of September 14, 2008 with reduced hours and work restrictions.
Notwithstanding the opinion of the worker’s physician, the panel notes that medical investigations continued beyond September 2008, to determine what, if any, compensable medical condition was in place, and what the appropriate compensable conditions would be. By December 2008 the orthopaedic specialist and the WCB orthopaedic consultant were in agreement that the worker was capable of returning to work with restrictions. By January 28, 2009 the orthopoaedic consultant found the worker to be doing “quite well” and he would have removed even those restrictions.
Based on these findings we therefore find, on a balance of probabilities, that the worker did have ongoing symptoms beyond September 6, 2008 coupled with uncertainty as to diagnosis that impacted his ability to work, but that as of December 9, 2008, it was conclusively determined that the worker had recovered from his May 1, 2006 workplace accident to the point it was no longer contributing, to a material degree, to any loss of earning capacity. By this point, there was agreement amongst the medical specialists as to the nature and degree of the worker’s restrictions. We accept that the worker was capable of returning to work in December 2008 with the only restrictions in place being to avoid repetitive strenuous overhead activities of the left upper limb. This restriction would not have precluded the worker from returning to his regular job duties at that time.
The worker’s appeal is, therefore, allowed and the worker is entitled to benefits for the period from September 6, 2008 to December 9, 2008.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
Signed at Winnipeg this 20th day of January, 2010