Decision #117/10 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board ("WCB") for a repetitive strain injury that she related to her job duties as a cashier. The claim for compensation was accepted and wage loss benefits were paid to June 15, 2008 which is the date by which it was determined by the WCB that the worker had recovered from the effects of her right shoulder strain. The WCB also determined that the worker was not entitled to partial wage loss benefits in her new position as a hostess, as it was felt that her change to this position was not required because of the effects of her injury. The worker disagreed with the decisions and filed an appeal with the Appeal Commission. A hearing was held on November 10, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond June 15, 2008; and
Whether or not the worker is entitled to partial wage loss benefits in her new position.
Decision
That the worker is not entitled to wage loss benefits beyond June 15, 2008; and
That the worker is not entitled to partial wage loss benefits in her new position.
Decision: Unanimous
Background
On December 21, 2007, the worker filed a claim with the WCB for a repetitive type injury that she related to her employment duties as a cashier. The worker reported that shifting from right to left and the handling of heavy grocery items over the scanner was the cause of her injuries. The worker reported that she had soreness in her right shoulder up to her neck, shoulder blade and to her midback and right knee.
On December 27, 2007, the employer's accident report stated that the worker had been gradually placed back on cash since September 2007 and that this could possibly be a continuation of a previous claim.
A report from a physiotherapist dated December 21, 2007 stated that the worker had been attending for treatment for a repetitive strain injury of the right upper back, mid back and right shoulder region. The worker had a chronic right knee strain that was recently aggravated. The worker was instructed to take time off work and to gradually progress her return to work on light duties. The physiotherapist stated that cashier duties were too strenuous for the state of her right shoulder girdle.
The attending physician provided the WCB with a copy of his chart notes from September to December 2007 regarding the worker's right knee and right shoulder status.
When speaking with a WCB adjudicator on January 17, 2008, the worker stated that she performed light duties from 2004 until April 2007 and was unemployed from April 2007 to September 2007. On September 11, 2007, she returned to work performing a combination of light duties in express cash and regular duties in regular cash. The worker noted that she was working full regular duties from the end of November to December 20, 2007. She could not recall one specific injury occurring but noted that the turkeys and potatoes were hard to lift.
The worker was of the view that her general job duties of cashing at the regular register are what caused her to stop work. It was her right knee and her right shoulder (bicep, blade, top) that was keeping her from work at this time. She stated that she has been off work since December 21, 2007 and attending physiotherapy.
In a progress report dated March 27, 2008, the treating physician noted that the worker complained of right shoulder pain and right knee pain when seen for an examination on February 13, 2008.
In a note to file dated April 9, 2008, the adjudicator accepted the worker's claim for a repetitive strain injury noting that historically, there is an increase in workload for cashiers during holiday season.
On April 9, 2008, the adjudicator called the worker to advise that her claim had been approved based on the diagnosis of right shoulder/neck and right knee strain. In further correspondence dated April 21, 2008, the adjudicator clarified that the worker's claim was accepted for her right shoulder only and that further medical information was being requested concerning the right knee.
On May 26, 2008 a WCB medical advisor assessed the worker's current medical status at a call-in examination. The examination notes stated there were no objective findings to currently support a diagnosis involving the right shoulder. The worker had full range of motion, full strength, no instability, negative impingement signs and a normal neurological examination. It was felt that the worker appeared to have recovered from the strain. The medical advisor stated that these findings were similar to those found in the Functional Capacity Evaluation from August 2007 where there were multiple areas reported as painful but no clinical findings. The medical advisor noted that the worker presented with bilateral knee pain that had been present for years but there was no history of a workplace accident.
In a decision dated June 9, 2008, a WCB case manager informed the worker that based on the May 26, 2008 examination findings, it was felt that she had recovered from her right shoulder strain and no work restrictions would be required. The worker was advised that she was not entitled to wage loss benefits beyond June 15, 2008.
In a second decision dated June 9, 2008, the WCB advised the worker that a relationship between her right knee difficulties starting December 2007 and her work duties could not be established.
On August 18, 2008, a representative for the accident employer appealed the adjudicator's decision of April 9, 2008 to accept the worker's claim and pay wage loss benefits from December 21, 2007 to March 13, 2008. The representative submitted that the worker did not suffer a personal injury on December 20, 2007 that arose out of and in the course of her employment. He noted that the worker had significant pre-existing problems that were not given due consideration when the claim was allowed.
In a September 4, 2008 decision, Review Office confirmed the acceptance of the worker's claim based on the diagnosis of a right shoulder strain. Review Office also confirmed that the WCB was not accepting responsibility for the worker's bilateral knee difficulties. With regard to the right shoulder, Review Office felt that the sudden stress and job expectations placed on the worker's upper torso while working the cash duties leading into the Christmas season (the increased volume of product being handled) could produce a strain in an individual who was already deconditioned.
Subsequent to the Review Office decision, the WCB received a report from a physical medicine and rehabilitation specialist who diagnosed the worker with rotator cuff tendinopathy. He felt the worker was capable of a job that involved no overhead work, no lifting over 10 pounds and no repetitive pushing, pulling or reaching with her right arm.
On October 29, 2008, the accident employer offered the worker a new position as a Loss Prevention Host.
On November 4, 2008, the worker's union representative advised the WCB that the new job placement as a Host with the employer paid less than the worker had been making earlier and was of the view that the worker was entitled to top up of wage loss benefits.
A WCB adjudicator spoke with the worker on December 3, 2008 in regard to her ongoing right shoulder symptoms. The worker noted that as a hostess, her job involved greeting customers and providing assistance. She sometimes wrapped flowers and picked up baskets used by the customers. The worker indicated that she still had the same symptoms in the same area of her right shoulder.
On December 8, 2008, the treating physician diagnosed the worker with the following work related injuries:
- Right shoulder bursitis/tendonitis
- Bilateral knees chondromalacia
- Chronic pain syndrome
- Secondary: sleep disorder
- Stress related disorder
The physician outlined the following work restrictions for the right shoulder: no work overhead, no repetitive reaching and no repetitive pulling/pushing. He also outlined work restrictions for both knees.
The worker underwent an MRI of the right shoulder on July 19, 2008. There was no evidence of a rotator cuff tendon tear. The MRI was considered to be "essentially normal."
In a January 23, 2009, decision, the adjudicator advised the worker that following a review of the MRI results, it was felt that her shoulder symptoms and objective findings were not related to her claim. It was indicated that the WCB was not responsible for any ongoing treatment or the need for work restrictions involving her right shoulder. No change would be made to the June 9, 2008 decision.
On November 17, 2009, the worker appealed the WCB's decisions dated June 9, 2008 and January 23, 2009 to Review Office.
In a decision dated February 16, 2010, Review Office determined that the worker, as of June 16, 2008, had recovered from her right shoulder strain condition of December 2007 and that wage loss benefits were not payable beyond June 15, 2008.
Review Office outlined the opinion that based on the MRI findings, there was no clinical objective medical evidence to support that the worker incurred anything beyond that of a strain condition when she returned to work on December 20, 2007. It felt that the six months of WCB coverage for a strain condition of the right shoulder was reasonable taking into consideration all of the factors and evidence available on the claim.
It also determined that the worker's assignment to her new position with the employer did not have a relationship to the claim and therefore the WCB was not responsible for topping up her wages in the new position. The worker disagreed with Review Office's decision and an appeal was filed with the Appeal Commission.
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(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 resulting from the accident ends.
The Worker’s Position
The worker was self represented at the hearing and was accompanied by a friend/advocate. At the hearing, the worker provided information regarding her medical condition from December 2007 to mid-2008 by referring to her handwritten journals which were made at those times. Overall, the worker's position was that she had been injured at work and that since then, she had suffered both physically and financially. The whole situation had been extremely stressful for her and she felt she had suffered undue hardship.
The Employer’s Position
Legal counsel appeared on behalf of the employer at the hearing. It was acknowledged that the worker, unfortunately, was dealing with a whole litany of other medical issues superimposed on her compensable right shoulder problem. It was submitted that the preponderance of medical evidence did not substantiate the proposition that on or after June 15, 2008, the worker suffered a wage loss that was a consequence of her compensable injury. In support of its position, the employer relied on evidence regarding the typical reasonable healing time for soft tissue injuries, the MRI results, the findings by the WCB medical advisor at the call-in examination of May 26, 2008 and noted deficiencies in the medical reporting from the worker's attending physicians. It was submitted that the only reasonable conclusion was that the soft tissue shoulder injury which was deemed compensable in this claim was no longer materially contributing to the worker's wage loss.
Analysis
The issues before the panel are whether or not the worker is entitled to wage loss benefits and services beyond June 15, 2008 and whether or not the worker is entitled to partial wage loss benefits in her new position. We will deal with each issue separately.
Entitlement to wage loss benefits beyond June 15, 2008
In order for the worker's appeal on this first issue to be successful, the panel must find that by June 15, 2008, the worker had not recovered from the effects of the injury she sustained in the December 2007 workplace accident. We are not able to make that finding.
In the panel's opinion, the cashier duties which the worker performed in December 2007 caused her to sustain a soft tissue strain injury to her right shoulder. The medical reports from the treating physiotherapist dated December 21, 2007 and the worker's family physician dated February 13, 2008 support this diagnosis.
The weight of the evidence supports on a balance of probabilities that the worker recovered from the right shoulder strain by June 15, 2008. In coming to this conclusion, the panel relied primarily on the findings from the call-in examination conducted by the WCB medical advisor on May 26, 2008. After performing a comprehensive physical examination, the WCB medical advisor was not able to find any physical evidence to support an ongoing diagnosis for the worker's right shoulder given findings of full range of motion, full strength, no instability, negative impingement signs and a normal neurological exam. The medical advisor concluded that the worker had recovered from the strain injury and noted that her findings were similar to those noted during the functional capacity assessment conducted in August, 2007.
The panel also relies on the MRI findings from July 19, 2008. The test results determined the worker's right shoulder to be essentially normal with no evidence for rotator cuff tendon tear. It is notable that there was no focal atrophy of the rotator cuff musculature, and the rotator cuff tendons appeared intact with no evidence for tendinosis or tearing.
In the panel's opinion, the May 26, 2008 call-in examination notes and the July 19, 2008 MRI report are the most reliable indicators of the worker's physical condition as of June 15, 2008. They both provide objective findings regarding the worker's condition at a point in time which is fairly close to the date when the worker's benefits ended. They constitute the best medical evidence available with which to assess the worker's medical condition.
The panel was referred to other medical reports, in particular, medical reports from a sports medicine physician dated August 26, 2008, a narrative report from the family physician dated December 8, 2008, and reports from an occupational health physician dated March 31, 2009 and October 13, 2010. Since these reports were prepared at a later period in time, we feel that they are a less accurate reflection of the worker's shoulder condition as at June 15, 2009, and therefore we place less weight on these reports. The panel also notes that the reports provide little in the way of objective examination findings, which make them less useful in assessing the worker's condition at the relevant time.
Overall, it is the panel's finding that the right shoulder soft tissue strain injury which the worker suffered in December 2007 was relatively short term in nature and had fully resolved by June 15, 2008. Accordingly, there is no compensable loss of earning capacity after that date. It is therefore the panel’s decision that the worker is not entitled to wage loss benefits beyond June 15, 2008. The appeal on the first issue is dismissed.
Entitlement to partial wage loss benefits in new position
In view of the panel's findings on the first issue that the worker had recovered from her December 2007 soft tissue strain by June 15, 2008, it follows that the worker is not entitled to further wage loss benefits in the form of partial "top-up" wage loss benefits to make up the difference between what she was earning prior to the December 2007 accident and what she was earning after.
At the hearing, the worker expressed apprehension about the risk of re-injury should she resume her pre-accident cashier duties. Unfortunately, apprehension of what "could" or "might" occur if the job duties are resumed does not give rise to an enforceable right to wage loss benefits. Subsection 39(1) of the Act only requires wage loss benefits to be paid where an actual loss of earning capacity resulting from the workplace accident continues.
Further, and in any event, there is evidence suggesting that the worker's right shoulder injury was not the reason why the worker never returned to a position where she could earn her pre-accident wage rate. The worker had been offered job duties in a self-scanning area; however, her placement in that position did not work out for reasons unrelated to her shoulder. The file indicates that there were a number of other non-compensable medical issues facing the worker and these issues are more probably responsible for her change to the new position which in turn led to her reduced income.
Overall, the panel is not satisfied that the worker's initially compensable right shoulder condition was what caused her to permanently change jobs to the new position. As a result, the worker is not entitled to partial wage loss benefits in her new position. The appeal on the second issue is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 7th day of December, 2010