Decision #64/11 - Type: Workers Compensation

Preamble

This case was the subject of an appeal panel hearing on April 4, 2011 based on the worker's request. The worker submitted that he was entitled to temporary total disability benefits beyond November 2, 2009 as well as costs associated with chiropractic treatment due to his right shoulder condition. He also submitted that his post-accident deemed earning capacity had not been correctly determined.

Issue

Whether or not the worker is entitled to temporary total disability benefits beyond November 2, 2009;

Whether or not the worker's post-accident deemed earning capacity has been correctly determined; and

Whether or not responsibility for chiropractic treatment beyond March 23, 2009 should be accepted.

Decision

That the worker is not entitled to temporary total disability benefits beyond November 2, 2009;

That the worker's post-accident deemed earning capacity has not been correctly determined; and

That responsibility for chiropractic treatment beyond March 23, 2009 should not be accepted.

Decision: Unanimous

Background

On August 3, 1990, the worker suffered an injury to his right shoulder in a work related accident. His claim for compensation was accepted and various types of benefits and services were paid to the worker.

On December 18, 2008, the worker called the WCB to advise that since his 1990 compensable injury, he had never been pain free and was always experiencing some level of pain in his right arm. While working on January 16, 2008, the worker reported that he was using both hands to push when he heard a loud snap in his right shoulder and felt immediate pain. The worker felt that the January 16, 2008 injury was a recurrence of his 1990 compensable injury.

In a decision dated March 12, 2009, primary adjudication determined that there was no cause and effect relationship between the worker's current difficulties and the August 3, 1990 accident. The worker appealed the decision to Review Office. On September 23, 2009, Review Office determined that a causal relationship did exist between the worker's original compensable right shoulder injury of August 3, 1990 and his injury of January 16, 2008 based on WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury.

On November 2, 2009, the worker was assessed by a WCB medical advisor in relation to his right shoulder. The medical advisor indicated that the worker's clinical presentation was most consistent with a rotator cuff tendinopathy. It was suggested that the worker undergo a course of physiotherapy treatment focusing on strengthening and mobility. Work restrictions were outlined to avoid repetitive resisted pushing/pulling with the right arm, no over-the-shoulder work with the right arm, and no work outside the body border. The medical advisor also was of the opinion that further surgical intervention did not appear to be medically necessary.

On November 16, 2009, primary adjudication made the following determinations:

  1. That the WCB would not cover ongoing chiropractic treatment as it was not providing any long term improvement and was not required to enhance recovery from the compensable injury;
  2. The worker was not totally disabled and was fit for work within the restrictions outlined by the WCB medical advisor on November 2, 2009. Temporary total disability benefits were authorized up to April 10, 2008.
  3. As of April 11, 2008, partial wage loss benefits would be paid based on a deemed earning capacity in NOC 2232 (Mechanical Engineering) at $566.06 per week.

On November 20, 2009, the worker appealed the above decisions to Review Office. The worker submitted that he was not capable of any form of employment due to his shoulder and that his post accident deemed earning capacity was incorrect. The worker argued that he should be entitled to chiropractic treatment as it relieved his shoulder pain.

In a decision dated January 20, 2010, Review Office determined that the worker was entitled to temporary total disability ("TTD") benefits to November 2, 2009. Review Office noted that until the WCB examination on November 2, 2009, there was no indication from any physician that the worker was capable of modified or alternate duties. It found that the worker was entitled to TTD benefits up until the restrictions were outlined by the WCB medical advisor on November 2, 2009.

Review Office determined that limited responsibility should be accepted for chiropractic treatment. In making this determination, Review Office referred to WCB policy 44.120.10, Medical Aid. It was of the opinion that chiropractic treatment the worker received subsequent to the January 16, 2008 injury was the responsibility of the WCB. However, on March 23, 2009 the treating chiropractor stated: "The worker has a chronic problem with a poor prognosis for recovery. Focus of treatment should be on palliative management to maintain some of level of function." Review Office noted that maintenance care was not the WCB's responsibility and that responsibility for chiropractic treatment should only be accepted to March 23, 2009.

Review Office further determined that the worker's post-accident earning capacity had been correctly determined. Review Office noted that the worker's current restrictions were similar to the previously imposed restrictions on which the worker's vocational rehabilitation plan was developed (National Occupational Classification 2232, Mechanical Engineering Technician). It was concluded that the worker had the physical capacity to obtain and keep employment in NOC 2232. As the worker chose not to participate in the vocational rehabilitation plan, Review Office concluded that the worker's TTD benefits should be reduced by the deemed earning capacity that was expected at the completion of the vocational rehabilitation plan.

On February 8, 2010, Review Office provided the worker with clarification concerning its decision that his post-accident earning capacity had been correctly determined. Review Office stated:

"The information on file indicates you discontinued the vocational rehabilitation plan due to non-compensable issues. Although you were seeking medical treatment for your right shoulder there is insufficient medical evidence on file to support that you were not capable of participating in the vocational rehabilitation plan due to your right shoulder difficulties."

On August 20, 2010, the worker appealed the decisions made by Review Office to the Appeal Commission and an oral hearing was held on April 4, 2011.

Reasons

Applicable Legislation

This case arises from a 1990 workplace injury. As a result The Workers Compensation Act (the Act) as it existed at that time is applicable. This includes subsections 4(1), 27(1), 27(15), & 27(20) and section 22.

Worker's Position

The worker attended the hearing and provided a written submission to the panel which he reviewed at the hearing. He also included a written submission with his notice of appeal. He answered questions posed by panel members. The worker expressed concern regarding poor communications among the various care providers and the WCB.

Issue 1: Whether or not the worker is entitled to temporary total disability benefits beyond November 2, 2009.

The worker submitted that he is totally disabled from working. He reviewed medical information on the file and concluded that "Multiple different orthopaedic surgeons have all failed to identify any pathology that would likely be remedied with surgery. There's nothing in there that they can surgically repair. It's inoperable. It's done. It's over."

Regarding his ability, the worker advised that "This is my dominant arm, it is my right arm. Using a keyboard hurts, using a mouse, hammering a nail, using a screwdriver, these are all actions that cause the rotator cuff, the deltoid to flare-up."

The worker described his current condition as a right shoulder impingement and deltoid detachment. He indicated that all five surgeons who have seen him advised that his deltoid is detached.

He indicated that the surgeons agree that he is not able to work.

Issue 2: Whether or not the worker's post accident deemed earning capacity has been correctly determined.

In his written submission the worker wrote that:

"It is my belief that the boards priorities were not for my health but rather to get me off the system. They felt that the computer Engineering Technology Program or the Information System Technology Program would not help eliminate their financial responsibility so they decided that I would be better suited as a Mechanical Engineer. As a Mechanical Engineer I would never be able to perform those duties with all the damage that has happened and is still ongoing in my shoulder, neck and now spine…"

He noted that seven restrictions are in place today and that these are permanent restrictions.

He wrote further that "Mechanical Engineer with the restrictions that were placed on my shoulder back then. The boards own specialist strongly suggests that. If you add the restrictions that the board has added, it would be physically impossible for anyone to fulfill the job requirements without further injury to the shoulder, neck and spine. The evidence just shows that the board was setting me up for failure or worse more injury…"

The worker was asked whether he would be able to perform the MET (Mechanical Engineer Technologist) job. He responded that if you consider the physical job evaluation information, he would not be able to do the job with his restrictions.

The worker was asked whether, to the best of his ability he could do the MET job with the restrictions that were in place on November 2, 2009. He replied that he could not do the MET job.

Issue 3: Whether responsibility for chiropractic treatment beyond March 23, 2009 should be accepted.

The worker referred to subsection 22(1) of the Act which provides that workers must take all reasonable steps to reduce or eliminate any impairment or loss of earnings from an injury. He indicated that chiropractic treatment provides relief from pain. He acknowledged that it is not a cure.

The worker advised that his arm pops out and the chiropractor is able to put it back in place. In answer to a question he said that since 2008 his shoulder has been dislocating.

In his written submission the worker noted that the WCB medical advisor suggested physiotherapy would be beneficial, yet all surgeons and the chiropractor agree that physiotherapy would be too aggressive due to the damage in the shoulder but that chiropractic treatments would be passive in nature and not cause more damage.

Analysis

Issue 1: Whether or not the worker is entitled to temporary total disability benefits beyond November 2, 2009.

For the worker's appeal to be successful on this issue the panel must find that the worker is unable to work after November 2, 2009. The panel is not able to make this finding.

At the hearing the worker advised that he is totally disabled and that he cannot work. He identified the diagnosis of his current condition as right shoulder impingement and deltoid detachment. He indicated that five surgeons agreed with this diagnosis. The panel finds, however, on a balance of probabilities, that the medical information on file does not support the worker's position that he has a detached deltoid and that he is not able to work.

In reaching this conclusion, the panel relies upon the findings and the report of an orthopedic specialist dated November 30, 2010. The orthopedic specialist examined the worker and found "the deltoid is palpable at its insertion to the acromion with no evidence of re-tearing or defect noted." The physician's impression was that the worker has right shoulder pain of unclear etiology with no surgical pathology and a small labral tear which is likely not the root cause of his pain. Regarding the worker's ability to work, the physician commented that he encouraged the worker to explore options, other than jobs that require heavy or repetitive use of his arm either above or below shoulder level that he might be able to tolerate, and that do not involve the use of his right arm.

The panel also relies upon the report of the WCB sports medicine consultant who examined the worker on November 2, 2009. The consultant concluded that the worker's presentation appeared to be most consistent with a rotator cuff tendinopathy. He noted that the rotator cuff appeared to be intact clinically. He also noted that there appears to be atrophy of the deltoid and infraspinatus. The consultant outlined restrictions and opined that "there would be no medical contraindication to return to work within the noted restrictions. In fact, a return would aid in some functional recovery."

The panel also notes that the worker had an MRI on May 24, 2009 and that the report of the MRI notes no impingement found.

The worker's appeal on this issue is therefore dismissed.

Issue 2: Whether or not the worker's post accident deemed earning capacity has been correctly determined.

For the worker's appeal of this issue to be successful, the panel must find that the WCB over assessed the worker's post accident deemed earning capacity. The panel finds that the worker has no loss of earning capacity as a result of the original injury and subsequent injury.

The panel notes that in 2001 the worker was assessed with restrictions arising from the original injury but that the Appeal Commission in decision 84/02 determined there were no restrictions and that the worker had no further loss of earning capacity. Therefore we place no reliance on any restrictions that were in place prior to decision 84/02.

The panel notes that the worker was examined by a WCB sports medicine consultant who assessed temporary restrictions on the worker to be reviewed after a course of physiotherapy and further medical treatment. However, the panel notes that these restrictions were recommended as a result of pain complaints from the worker and finds the worker's evidence to be unreliable.

The panel notes the file attributes 3 different descriptions of the mechanism of injury of the 2008 recurrence to the worker; one which he was pushing a heavy object, another that he was pulling downward on a resisted object, and a third that he was throwing a heavy object above and over a high load. The worker denies that he is responsible for this conflicting information.

In considering the validity of the restrictions the panel finds there is a considerable and unsupported difference between the worker's self-reported pain complaints and level of disability on the one hand, and the current diagnostic and lack of clinical findings to support a compensable diagnosis on the other. We place significant weight on:

1. The MRI report of the worker's right shoulder, dated may 24, 2009, which found "There is no impingement. Very minor increased signal is noted in the supraspinatus near the insertion which may relate to a partial labral tear but there is no atrophy of the supraspinatus or infraspinatus. Minor atrophy is noted in the teres minor."

2. The opinion of the WCB sports medicine consultant that "…further surgical intervention aimed at a single pathoanatomic lesion was unlikely to be beneficial. The focus on treatment in light of this would be aimed at increasing function, rather than finding a specific pathoanatomic pain generator."

3. The opinion of the orthopedic specialist, dated November 30, 2010, which stated "It is difficult to identify the etiology of these symptoms…I do feel referral to surgical specialists are likely to be futile…I did recommend the transitioning of his focus from finding a cause that would be helped with surgery to focusing more on pain control and rehabilitation of the shoulder in the effort to improve function and find an alternative vocation that would not exacerbate his symptoms."

The panel finds that the worker has no restrictions arising from the 2008 injury, is fit to return to his pre-injury (2008) duties and has no loss of earning capacity as a result of the 2008 injury. The appeal on this issue is denied.

Issue 3: Whether or not responsibility for chiropractic treatment beyond March 23, 2009 should be accepted.

For the worker's appeal of this issue to be successful, the panel must find that the chiropractic treatment is intended "…to minimize the impact of the worker's injury and to enhance the worker's recovery to the greatest extent possible" as provided by Board policy 44.120.10- Medical Aid.

The panel notes the chiropractor's report of March 23, 2009 which notes "the worker has a chronic problem with a poor prognosis for recovery. Focus of treatment should be on palliative management to maintain some level of functions." The panel finds that the treatments provided by the chiropractor are aimed at maintenance care which is not the responsibility of the WCB.

The worker's appeal on this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 31st day of May, 2011

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