Decision #106/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board
("WCB") which determined that he had recovered from his compensable injury of September 28, 2007 and that his ongoing left shoulder difficulties were not related to his compensable injury.
A hearing was held on June 13, 2011 via teleconference to consider the matter.
Issue
Whether or not responsibility should be accepted for recurrence of left shoulder difficulties in relation to the compensable injury of September 28, 2007.Decision
That responsibility should not be accepted for recurrence of left shoulder difficulties in relation to the compensable injury of September 28, 2007.Decision: Unanimous
Background
In October 2007, the worker filed a claim with the WCB for left shoulder pain that came about in approximately September 2007 which he related to his work activities as a butcher. The worker's claim for compensation was accepted based on the diagnosis of a left rotator cuff strain and benefits were paid to the worker.
On November 21, 2007, the WCB made the determination that no responsibility would be accepted for the worker's right leg condition/diagnosis in relation to his left shoulder compensable injury.
On February 11, 2008, the worker was discharged from physiotherapy treatment and had returned to his regular full time duties by February 4, 2008.
On May 5, 2009, the worker asked the WCB to cover physiotherapy treatment that he received in relation to his left shoulder. The worker reported that he sustained another injury to his left shoulder in July 2008 but did not report it nor did he seek medical treatment. He noted that he had been laid off work in August 2008 from the accident employer.
In a decision dated May 5, 2009, primary adjudication denied responsibility for the worker's physiotherapy treatment as the worker did not report an injury in July 2008.
On February 25, 2010, the worker contacted the WCB again to advise that he continued to have problems with his left shoulder which he related to his 2007 compensable injury. The worker noted that he could not find employment between September 2008 and October 2009. When he did return to work, his left shoulder pain returned after a week or so while performing repetitive type job duties. The worker noted that he continued to work for another 3 months but was not hired past the probationary period due to his left shoulder status.
A worker advisor called the WCB on April 1, 2010 on the worker's behalf. The worker advisor noted that the worker did seek medical treatment for his left shoulder from February 29, 2008 to May 2009. Based on this information, primary adjudication obtained additional medical information in relation to the worker's left shoulder.
In a letter to the WCB dated April 21, 2010, the treating physician reported that the worker was seen on February 28, 2008 by a medical resident. The worker mentioned that he had pain in his left shoulder with arm movements. The pain was at a minimal level and he was tolerating full duties at work. The next mention of left shoulder pain was from a visit on January 15, 2009. The worker reported that he had been essentially pain-free since he finished a course of physiotherapy treatment in 2008. The worker reported that he had a recurrence of left shoulder pain for the previous two weeks. The diagnosis rendered was recurrent shoulder tendonitis. The physician noted that the worker did some welding during a training course which involved some overhead work and repetitive arm movements. It was felt that the recurrence of left shoulder tendonitis/impingement syndrome could have been related to those training activities.
Physiotherapy reports showed that the worker was discharged from physiotherapy treatment on February 11, 2008 for his left shoulder injury. He was next seen for an initial assessment on May 27, 2009 and the diagnosis rendered was left rotator cuff tendonitis. The worker was discharged from treatment on his seventh appointment and was given a home exercise program.
An x-ray report of the left shoulder dated October 23, 2009 stated that the undersurface of the acromion was flattened and sclerotic, suggesting impingement. No other abnormality was shown.
On February 3, 2010, a physician from British Columbia ("BC") reported that the worker "…mentions being on WCB in Winnipeg for left shoulder capsulitis as well as right wrist tendonitis/carpal tunnel syndrome. Patient has been working in Vancouver as a butcher but complaining of difficulties performing tasks due to previous injuries…Imp: left shoulder capsulitis and right wrist tendonitis/carpal tunnel syndrome."
On June 10, 2010, a WCB adjudicator spoke with a case manager from Work Safe B.C. The case manager noted that the worker filed a claim in BC for a left shoulder tendonitis condition and for CTS but it was unlikely that the claim would be accepted. The case manager noted she contacted the worker's employer in BC where the worker was employed for four months. The employer confirmed that the worker was able to complete all of his duties except for one day (not work related). He did not report any injuries either to his left shoulder or bilateral wrists and he did not make any complaints with respect to his left shoulder. After the four month probationary period, the worker resigned from employment.
On June 15, 2010, the worker's BC claim for CTS and left shoulder was denied.
In a decision dated July 13, 2010, primary adjudication advised the worker that it was unable to accept responsibility for a recurrence of his left shoulder difficulties in relation to his compensable injury of September 28, 2007. The decision was based on medical findings which showed that the worker had been discharged from treatment for his September 2007 injury and had returned to his full time regular duties. The worker reported being pain free since being discharged from physiotherapy in February of 2008 until January 15, 2009. On June 15, 2010, the worker appealed this decision to Review Office.
On September 8, 2010, Review Office determined that the worker's current left shoulder difficulties should not be accepted. Review Office outlined its position that there was insufficient evidence to conclude that the worker suffered a recurrence of his left shoulder compensable injury of September 28, 2007. On October 1, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held.
Reasons
Applicable Legislation
The Appeal Commission is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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.
The issue before the panel is whether the WCB should accept responsibility for the recurrence of left shoulder difficulties in relation to the compensable injury of September 26, 2007. As the issue concerns a possible recurrence, WCB policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (Recurrences) may be applicable.
Worker's Position
The worker participated in the hearing by teleconference. An interpreter attended the hearing and interpreted the panel's comments and questions and the worker's replies and statements. The worker answered questions from the panel.
In answer to a question about physiotherapy treatment, the worker responded that he received relief from the treatments but that "… the physiotherapy was still fairly recent and it was a momentary relief from the pain." The worker acknowledged that the plant closed in 2008 and commented that when he was finishing the physiotherapy, he kept having to do the same repetitive work so that "my recovery was never full."
The worker was asked about the welding course he was taking and responded that it was a welding techniques course. He said the work wasn’t very repetitive. It was a very simple course, not physical. It was welding techniques with the right hand because he was right-handed.
He was asked what he would be doing with his left hand and he responded through the interpreter: "Nothing. No, I wasn’t doing anything with my left hand at all. That was surprising to me as well that I was having problems on my left side because I wasn’t doing anything with the left hand."
The worker denied that he advised his physician that he was working with his left hand or doing repetitive overhead movements.
The worker was asked whether he recalled an April 24, 2008, visit to his physician where the physician mentions that he saw the worker for medical issues unrelated to his shoulder and advises that he asked the worker how he was doing regarding the shoulder pain, and the worker responded that things were working out okay for him working full time. The worker advised that he recalls this conversation. He advised the panel that his employer was making people who didn’t have as much seniority work a lot of extra overtime that they didn’t want to at the time as well and that was starting to bother him a little bit.
He said that at the end of the physiotherapy, there was a momentary relief in the pain, but it didn’t last.
The worker denied that he was injured in July 2008 performing modified duties and states that he was on vacation at that time.
Regarding his current condition the worker commented "…2007, they said I had a rotator cuff injury. Now they are saying it’s a shoulder impingement for which there is no surgery and I am seeing two specialists right now for that."
The worker advised that when he moved to British Columbia, he found work in a meat processing plant cutting meat. He began work in late 2009 and worked for 3 months. The worker said he tried working full-time but he had a lot of pain in his shoulder and could not keep it up. He advised that he has not worked since February 2010.
Regarding his pain levels, the worker said that in June 2008 his pain was 2 out of 10, June 2009 a little more severe, on and off, about 4 out of 10, June 2010 about 6 out of 10, and around the end of June 2010 to current time about 8 out of 10. He said the pain is permanent and does not go away. He said that when he does not move his arm the pain is less, but that it is impossible for him to not move his arm.
The worker expressed concern that the WCB did not send him to a specialist and that he never received a diagnosis from a doctor at the WCB.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether responsibility should be accepted for the recurrence of left shoulder difficulties in relation to the compensable injury of September 28, 2007. For the appeal to be successful, the panel must find that the worker's current loss of earning capacity is related to his September 2007 workplace injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker recovered from the September 2007 workplace injury and that his current difficulties and loss of earning capacity are not related to the September 2007 workplace injury.
In making this decision the panel notes that:
- contemporaneous medical information on the worker's file shows that the worker's compensable injury had resolved by February 4, 2008 when he returned to full duties. This is supported by the medical report from the worker's physiotherapist dated February 11, 2008 which notes "resolving L R.C. (left rotator cuff) lesion" and "Returned to Full Duties Last Week."
- there is no continuity of symptoms from February 2008 to May 2009. This is supported by the treating physiotherapist's narrative report dated April 13, 2010 which notes that "After WCB discharge (last physiotherapy treatment February 11, 2008), [worker's] next appointment at our clinic was for an initial assessment on May 27, 2009."
- in January 2009, the worker reported to his treating physician that he had been essentially pain-free since he finished a course of physiotherapy in 2008, approximately one year previous. During this time the worker worked full-time, without problems from February 2008 until September 2008 when the plant closed. He then enrolled in a welding course from October 2008 to April 2009 with no reported injuries.
- the worker was able to move to British Columbia in July 2009 and secure a job in November 2009 as a meat cutter. One week after starting as a meat cutter, the worker had left shoulder symptoms which were diagnosed as adhesive capsulitis of the left shoulder. This new diagnosis for the left shoulder symptoms differs from the earlier diagnosis and suggests a new injury. The panel is not able to relate the worker's current symptoms and related findings to the compensable injury diagnosed as a rotator cuff strain, given that there were no impingement findings in January/February 2008 when he returned to full duties.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 27th day of July, 2011