Decision #83/10 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that there was insufficient evidence to conclude that her right shoulder complaints were related to the accident she sustained on August 8, 2010 while employed as a licensed practical nurse (“LPN”). A file review was held at the Appeal Commission on June 24, 2010 to consider the matter and at the request of the panel, an oral hearing was later held on July 13, 2010.

Issue

Whether or not the worker’s right shoulder complaints are related to the compensable injury of August 8, 2009; and

Whether or not the worker is entitled to wage loss benefits beyond August 28, 2009.

Decision

That the worker’s right shoulder complaints are related to the compensable injury of August 8, 2009; and

That the worker is entitled to wage loss benefits beyond August 28, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB on August 12, 2009 for injuries she incurred on August 8, 2009. The worker indicating that she was assisting a resident into a wheelchair when the resident threw herself backwards onto the bed. The worker tried to protect the resident from hitting her head on the side rail which was at the back of the bed, and in so doing she was pulled on top of the resident. The worker reported that she felt a pull in her low back and a knot in her right buttock and hip.

The worker advised that the incident happened around 11:00 a.m. and she finished her shift. She was limping and guarding her right side. She was very sore the next morning but she worked the next two days by hobbling. She felt pain in her shoulder a couple of days after the injury and could not lift her arm past ninety degrees.

Medical reports showed that the worker sought medical treatment on August 11, 2009 for back pain and a pulling sensation in her right hip.

When speaking with a WCB adjudicator on August 13, 2009, the worker said she was hobbling and guarding her right side between the date of accident and August 11, 2009. The areas affected were the right buttock, right hip, low back, outer aspect of her right leg, right shoulder, right bicep/tricep, elbow and neck. The worker noticed right shoulder and arm pain after her initial physiotherapist appointment. Her arm was sore and she could not wave or lift it above ninety degrees. The worker attributed this to the accident.

The worker saw a doctor on August 25, 2009 for low back and right shoulder girdle strains.

On August 31, 2009, the treating physiotherapist advised a WCB adjudicator that the worker first mentioned right shoulder pain on August 12, 2009, not on her initial visit. The physiotherapist noted that the worker had her arms on the resident when she got pulled so it made sense that her right shoulder was sore.

In a progress report dated September 1, 2009, the treating physiotherapist added a right shoulder girdle strain to the worker's diagnosis and reported that the worker's hip felt good but that her right shoulder and cervical spine was "++ achy". The physiotherapist felt that the worker would remain disabled from working her regular duties for another three weeks.

On September 2, 2009, the worker was advised that her claim for compensation was approved for her back and hip only and not her right shoulder or neck. The adjudicator noted that the worker’s shoulder symptoms were not reported on the medical information dated August 11, 2009. Therefore a relationship between the development of the worker’s shoulder condition and her employment activities on August 8, 2009 had not been established.

On September 9, 2009, the worker appealed the above decision to Review Office. The worker submitted that the pain and limited range of motion in her right shoulder, triceps, biceps, right elbow and back of neck were directly related to the August 8, 2009 work incident. She indicated that the discomfort in her shoulder was not mentioned when she first sought medical treatment as the pain in her right hip, low back and buttocks were a priority as she was unable to walk.

In a decision dated September 17, 2009, Review Office determined that no responsibility should be accepted for the worker’s right shoulder complaints or wage loss benefits beyond August 28, 2009. Review Office noted that the worker had been able to complete her shift on August 8, 2009 and worked two more days afterward without experiencing shoulder pain of any description. As the worker continued to perform the rigorous duties of an LPN on August 9 and 10, 2009 without any evidence of shoulder pain or discomfort, Review Office was unable to conclude that the worker’s right shoulder complaints were caused by the incident at work on August 8, 2009.

On November 18, 2009, the worker appealed Review Office’s decision to the Appeal Commission and she submitted a medical report dated October 13, 2009, in support of the position that her shoulder injury was consistent with the mechanism of injury on August 8, 2009.

A file review was held at the Appeal Commission on June 24, 2010. It was decided by the panel that an oral hearing was warranted to assist with its deliberations of the issue under appeal. The panel also requested that information be obtained from the worker's treating physiotherapist relative to the worker's shoulder complaints.

An oral hearing was held at the Appeal Commission on July 13, 2010. On July 24, 2010, the worker was provided with a copy of the physiotherapist's report dated July 8, 2010 and was asked to provide comment. On July 28, 2010, the panel met to render its final decision on the issues under appeal.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Analysis:

The issue before the panel is whether the worker's right shoulder complaints are related to the compensable injury of August 8, 2009 and whether the worker is entitled to wage loss benefits beyond August 28, 2009. In order for the worker’s appeal to be successful, the panel must find that the worker suffered injury to her right shoulder during the August 8, 2009 workplace accident. On a balance of probabilities, we are able to make that finding.

This appeal was originally scheduled as a file review, but at the request of the panel, an oral hearing was convened. At the hearing, the panel heard testimony from both the worker and the worker's supervisor, to whom the worker reported the injury. After hearing a more detailed account of the worker's activities between the date of the accident on August 8, 2009 and the first report of shoulder pain to the physiotherapist on August 12, 2009, the panel is satisfied that the right shoulder pain can be attributed to the workplace accident. In particular, the panel notes the following evidence:

  • More detail regarding the mechanism of injury was described by the worker at the hearing. She indicated that she was helping a resident get up from her bed and into a wheelchair. Although the resident was only about 5'5", she was a large person, weighing over 200 pounds. The worker was assisting the resident into an upright seated position by placing her hands on either side of the resident under her arms and guiding her up. While the worker's arms were on either side of the resident, the resident suddenly threw herself backwards onto the bed. The side guard rail on the opposite side of the bed was up and the worker did not want the resident to hit her head on the rail so she tried to stop her from going down. She was unable to do so and the worker got pulled forward. Her feet came off the ground and she landed on top of the resident. Her right hand up to her wrist got pinned underneath the resident. The worker cried out to the resident that she was hurting her, and the resident immediately sat up and the worker was able to remove herself. The worker immediately felt a pulling sensation in her lower back and when she put weight onto her legs, she felt pain in her right hip and buttock. In the panel's opinion, it is plausible that the worker also hurt her shoulder when she was abruptly pulled down by the resident.
  • The supervisor confirmed that approximately an hour and a half after the incident, when it came time to fill out the injury report, the worker specifically indicated that her right shoulder was starting to hurt, and that her whole right side was feeling sore. The supervisor described the worker as rubbing the top part of her shoulder while she was making the comment about her shoulder.
  • Although the worker continued to work for two days following the accident, she was very limited in the types of activities she performed. She was basically limited to handing out medications to residents and performing desk related duties such as answering the phone and paperwork. Because of the injury to her hip, she was barely able to walk. More importantly, she was also unable to do many of her other duties which involved using her shoulder, such as assisting with treatments for residents and restocking supplies. She still assisted with feeding residents, but did so with her left arm.
  • It is also notable that the worker had to modify her pill crushing duties as a result of pain in her right shoulder. The worker is right hand dominant and would usually crush pills for residents by using a hammer in her right hand. After the accident, the worker stated that she used the hammer with her left hand and described the process as taking much longer since she was not adept with her left hand. The supervisor confirmed that she observed the worker using her left hand to crush pills. In the panel's opinion, a modification of this nature is sufficient to satisfy us that the worker was experiencing right shoulder pain prior to the first report of this type of pain to the physiotherapist on August 12, 2009.
  • The attending physician's August 25, 2009 diagnosis of right shoulder girdle strain is consistent with the mechanism of injury and could reasonably be considered to have been caused by the workplace accident.
  • The worker's evidence was that immediately prior to the workplace accident, she did not have any restrictions with respect to her right shoulder.

Overall, the panel is satisfied on a balance of probabilities that the worker's right shoulder complaints are related to the compensable injury of August 8, 2009. Based on the treating physiotherapist's report of September 1, 2009, the panel finds that the worker was disabled from performing her regular duties at that time because of her right shoulder injury. It therefore follows that the worker is entitled to wage loss benefits beyond August 28, 2009. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of September, 2010

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