The Appeal CommissionThe Workers Compensation Act of Manitoba

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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

The worker’s position:

The worker was assisted by a worker advisor and a friend at the hearing. It was submitted that a continued relationship existed between the worker's accident arising from her workplace duties, her compensable left shoulder injury, her ongoing symptoms and diagnosis prior to March 6, 2009 and beyond March 6, 2009. The worker identified the cause of her left shoulder pain as duties which included repeatedly opening and closing an airplane door (with the door sometimes being frozen and hard to open), carrying trays of coffee with the left arm, lifting airplane stairs up and down and closing overhead bins. At the hearing, it was submitted that the worker's compensable diagnosis was that which was set out by the treating sports medicine specialist as: "a continued diagnosis of rotator cuff tendinopathy with positive impingement, with positive Hawkin's and Neer's signs." As at the date of discharge from the work hardening program in March 2009, these injuries limited the worker from working more than a light level strength demand, whereas her occupation was classified at medium strength level.

It was submitted that in this case, wage loss benefits were terminated on the speculation that upon completion of the work-hardening program, the worker would be able to return to her full regular duties. At the end of the program, however, the facts were that the worker was not able to meet the medium physical demands of her occupation. As the employer was unable to accommodate the worker with alternate or modified duties, there was a loss of earning capacity beyond March 6, 2009.

Analysis:

The issue before the panel is whether the worker is entitled to wage loss benefits beyond March 6, 2009. The key question concerns whether the worker’s ongoing left shoulder difficulties were related to the workplace accident of December 7, 2007. In order for the appeal to be successful, the panel must find that by March 6, 2009, the workplace injury had not yet resolved and continued to disable the worker. After reviewing the evidence as a whole, we find on a balance of probabilities that the worker’s left shoulder injury sustained in the December 2007 accident did not continue to impair her earning capacity beyond March 6, 2009 and accordingly, the worker is not entitled to wage loss benefits beyond that date.

At the hearing on June 23, 2011, the worker's evidence was that from day one, the pain in her shoulder felt like a pinched nerve feeling. It was deep inside the shoulder that was "untouchable" in the sense that she was not able to massage it to make it feel better. On a pain scale, the worker stated that initially, the pain was at 8.5 out of 10. About one month after the reconditioning program, she felt it was at 7 out of 10. By the time of the hearing, she felt it was generally at about 4 out of ten, depending on what she was doing. If she were to exert herself or twist her arm the wrong way, the pain would be triggered and she would get a tingling sensation. She also indicated that her shoulder "clicks and grinds and it hurts."

Following the hearing, the panel was unsure as to the diagnosis of the worker's upper extremity shoulder pain. The orthopaedic surgeon who performed a diagnostic arthroscopy on January 15, 2010 was contacted and asked for his opinion on diagnosis and prognosis. In a letter dated July 14, 2011, the surgeon advised: "It is unclear on history and clinical examination what was the exact source of her symptomatology and her preoperative MRI was read as normal. We performed a diagnostic arthroscopy and examination under anesthesia and found no specific abnormality. Unfortunately, I am not sure what the etiology of her shoulder symptoms is and for that reason I am not able to comment on what her prognosis might be."

The panel then arranged for the worker to undergo an independent medical examination by a specialist in musculoskeletal and rehabilitation medicine. On December 13, 2011, the examination was conducted, and a 5 page report dated December 15, 2011 was provided to the panel. The independent specialist reached the following conclusion:

Based on the medical information on the file, the claimant sustained an overuse injury with gradual onset of the left shoulder pain, with no evidence of acute musculoskeletal injury. There are multiple different diagnoses on the file, from rotator cuff tendonitis to myofascial pain syndrome. With the combination of negative MRI, no response to corticosteroid injections, and no abnormal findings in shoulder arthroscopy, it is unlikely that any significant structural damage was done to her left shoulder after the incident report of December 2007. However, it is a possibility that as a result of overuse soft tissue injury of the left shoulder, she might have experienced episodes in favour of left frozen shoulder with continuous pain and limitation of range of motion. Occasionally, frozen shoulder can continue over periods of 6 months to a couple of years and it usually resolves with no specific treatment.

The report went on to state:

At this point, [the worker's] physical examination findings are within normal limits. Her symptoms have improved and she doesn't have any abnormal findings in favour of any pathology in her left shoulder.

It was encouraging to hear that the worker has essentially recovered from her injury and no longer complains of any shoulder pain, tingling or numbness in her left upper extremity. The independent specialist's report indicated that in achieving this recovery, the worker had not taken any medications or received any type of therapy for a couple of years.

On review of the medical evidence as a whole, it would appear that despite the worker's complaints of continuing symptoms beyond March 6, 2009, there is no evidence that there was any significant structural damage to her left shoulder. The treating sports medicine specialist suggested that the worker had impingement and multi-directional instability related to the incident, but the panel is of the view that the worker's current recovery achieved without any therapy or medical intervention would negate this as a diagnosis.

The independent specialist stated that it was possible that as a result of overuse soft tissue injury, the worker may have experienced episodes of pain and limitation of range of motion. This condition would be expected to resolve in 6 months to a couple of years. The panel accepts this opinion and we find that the worker's compensable injury was limited to an overuse soft tissue injury. The worker received compensation until March 6, 2009, which represented 15 months of benefits. The Work Hardening Program Discharge Report from March 2009 opined that there was no medical reason to restrict the worker from performing her job duties as a flight attendant at that time. The report also referenced concerns regarding somatic complaints and perceived inability to use the left arm as the worker's biggest barrier to rehabilitation. The panel has considered the job duties required of the worker as a flight attendant and in view of the diagnosis of overuse soft tissue injury, the absence of any structural damage to the shoulder and the 15 month period of recovery, we accept the opinion outlined in the Discharge Report and find that as of March 6, 2009, the worker was capable of her pre-accident duties.

With respect to the worker advisor's argument that the pre-accident employment required medium strength yet the worker only demonstrated a strength ability of "light strength level" at the end of the program, the panel notes that the discharge report also referenced less than full participation in the program and identified this behaviour as a barrier to the worker gaining the full benefits of her rehabilitation program. The overall vocational recommendation was that the worker was fit for an immediate, unmodified return to pre-injury employment and we accept this recommendation.