Decision #57/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that her physical condition after June 17, 2009 was not related to her compensable injury of December 12, 2006. A hearing was held on April 11, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond June 17, 2009.

Decision

That the worker is entitled to full wage loss and medical aid benefits from June 17, 2009 to May 4, 2011; and

That the worker is entitled to partial wage loss benefits beyond May 4, 2011 based on an appropriate graduated return to work plan (as determined by the WCB).

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her left arm, hand, shoulder and neck that occurred on December 12, 2006. The worker described the accident as follows:

I went in by the BBQ and I slipped on grease and my left knee went down and my left arm slammed into a bucket of grease (liquid grease) and my knee is fine and it hurts from the palm of left hand all the way up to the left side of neck.

When speaking with a WCB adjudicator on December 19, 2006, the worker confirmed that she had a prior left shoulder claim with the WCB and that her claim had been closed as of November 1, 2006. She had been performing her full regular duties for about 2 to 3 weeks prior to the December 12, 2006 accident. The worker said she was still having some pain and swelling in her left shoulder from her prior injury.

With regard to the December 12, 2006 accident, the worker attended a physician for treatment on December 12, 2006 and was diagnosed with an acute left neck, upper back and entire left arm contusion.

X-rays of the left shoulder, humerus and left hand taken on December 29, 2006 revealed no fractures.

The worker underwent an MRI of the left shoulder on February 9, 2007. The results showed post surgical changes related to the acromioplasty and there was no evidence of a rotator cuff tendon tear.

The worker had an MRI of the medial left shoulder on February 6, 2008. The results showed no anatomic correlate for areas of clinical swelling. Clinical follow up was recommended.

On March 13, 2008, the worker advised the WCB that she was unable to complete her scheduled shifts due to shoulder symptoms and headache. On March 28, 2008, a WCB medical advisor noted to the file that there did not appear to be any medical reason at present, beyond the worker's reported symptoms, not to increase her work hours as the injury was soft tissue in nature (strain/contusion) and a pathoanatomic/structural reason for continued disability had not been identified.

At a PMU case conference held on March 27, 2008, it was documented that the worker did not meet the criteria for chronic pain syndrome. It was documented that the worker should be able to fully participate and successfully complete her return to work.

On April 7, 2008, an orthopaedic surgeon reported that the worker was seen on April 1, 2008 and her right shoulder had good range of pain free movements. There was tenderness around the left acromion with limited range of flexion and abduction. Both elbows and wrist joints showed no significant abnormality. The February 9, 2007 MRI of the left shoulder revealed evidence of post surgical changes related to the acromioplasty with no evidence of further injury to the rotator cuff structures.

On April 8, 2008, the WCB medical advisor noted to the file that the April 7, 2008 orthopaedic surgeon's reported findings appeared to support the contention that the worker was now fit to attempt to increase her workplace duties and hours as noted in the March 28, 2008 memo.

On April 16, 2008, the worker was advised by her WCB case manager that she was considered fit to gradually increase her hours at work commencing April 20, 2008, and by May 11, 2008 she would be fit to work her full 25 hours per week, with no need for any physical restrictions.

In a note to file dated April 25, 2008, the WCB case manager recorded that the worker was still experiencing swelling in her neck area in two spots and "…once this flares up she cannot get her left arm to do anything…She states she has tried increasing her hours but has not been able to do this."

On June 18, 2008, the worker advised her WCB case manager that she cannot perform her work duties due to her injury. The worker noted that her shoulder is fine and it was her neck that was bothering her.

A pain management specialist reported on February 4, 2010 that the worker had been suffering with a chronic myofascial pain syndrome predominantly involving her left paracervical muscles and left pectoralis muscle. The occipital headaches were likely secondary to the hypertonic muscles identified. The specialist outlined treatment recommendations.

On March 15, 2010, the worker's union representative asked the WCB to reconsider its decision to terminate the worker's wage loss and medical aid benefits based on the findings outlined in the February 4, 2010 report from the pain management specialist.

On June 28, 2010, a WCB medical advisor reviewed the February 4, 2010 report. She stated that the diagnosis of myofascial pain syndrome was a somewhat controversial diagnosis in that many experienced clinicians do not support its existence. In the worker's case, the worker was known to have tenderness in the left neck area in 2007/2008 but it would not be in a consistent area. When examined by the WCB medical advisor, no trigger points were noted and this was supposed to be the hallmark of myofascial pain. There was no medical continuity with consistency in findings to support that any one particular area remained related to the compensable injury. The findings on the February 4, 2010 report of much more widespread tenderness, extending to the left chest and right neck, made it unlikely that this would be related to the previous localized left neck pain.

On June 29, 2010, the WCB case manager advised the worker that based on the medical opinion outlined on June 28, 2010, the WCB remained of the opinion that the worker's symptoms and objective findings were not related to her claim. Therefore the WCB was not responsible for any ongoing treatment or need for work restrictions involving her left arm/shoulder and neck.

On July 22, 2010, the worker's union representative submitted to Review Office that the report from the pain management specialist provided an explanation for the worker's failed return to work efforts and her lengthy period of pain and disability. Review Office was requested to reverse the decision to terminate the worker's WCB benefits and to provide her with wage support and treatment to enable her to return to the workforce.

A submission from the accident employer's advocate dated August 26, 2010, outlined the position that the WCB medical advisor opinions on file were clear that the effects from the December 12, 2006 work related medical condition had concluded by April 2008 and that the medical evidence did not give evidence of a work-related chronic pain syndrome. A rebuttal submission was received from the worker's union representative dated September 15, 2010.

The next reports on file are from a physical medicine and rehabilitation specialist who saw the worker between February 2009 and June 2009. In the June 17, 2009, report, the specialist's examination findings were as follows: "…she had no tightness of any of the trapezius muscles bilaterally. The scalene muscle was slightly tight. The sternomastoid did not have a taut band. When palpating the levator scapula, she actually flew across the room for about 5-7 feet because she said this was excruciating pain…On examining her left upper limb she still has limited mobility of her shoulder, she still had restricted range of movement in all range except for external rotation. Because the muscles are no longer the problem, but actually the left shoulder mobility I have referred her to physiotherapy."

On November 16, 2010, a WCB physical medicine and rehabilitation specialist reviewed the above reports and stated "No current physical or pathoanatomic diagnosis has been identified."

On November 29, 2010, Review Office determined that the worker was entitled to partial wage loss and medical aid benefits to June 17, 2009. Review Office noted the following in its decision:

  • It accepted that the worker sustained a strain type injury to her neck and left arm/shoulder as a result of the December 12, 2006 accident.
  • It was unable to relate the EMG findings of left carpal tunnel syndrome to the compensable injury. The EMG findings were negative for a left cervical radiculopathy or brachial plexus lesion.
  • The workplace accident of December 12, 2006 was no longer contributing to the worker's left shoulder difficulties based on the negative clinical findings at the June 12, 2008 orthopaedic examination and negative findings on MRI studies of the left shoulder. By June 2008, the worker reported her left shoulder was fine.
  • On a balance of probabilities, the worker continued to have neck/left trapezius difficulties from April 26, 2008 up to June 17, 2009 based on the treating physiatrist's findings of June 17, 2009.
  • Review Office was unable to relate the worker's difficulties with left shoulder mobility in June 2009 to her workplace injury given the June 12, 2008 orthopaedic surgeon's assessment and negative MRI studies. The physiatrist noted that the worker demonstrated pain behaviors inconsistent with clinical findings.
  • There was no evidence offered to indicate the worker was unable to perform work in any capacity after April 26, 2008. The modified work was appropriate and was within the worker's restrictions based on the January 2008 worksite assessment.
  • Review Office was unable to relate the diagnosis of chronic myofascial pain syndrome involving the left paracervical muscles and the left pectoralis muscle given the findings of the physiatrist from February to June 2009. The medical evidence supported that the worker's neck/left trapezius condition in relation to her workplace injury had resolved by June 17, 2009.
  • The November 16, 2010 WCB physical medicine specialist's opinion that there was no current physical or pathoanatomic diagnosis that appeared related to the workplace injury of December 12, 2006.

On September 23, 2011, the worker's union representative asked Review Office to reconsider the above decision based on further medical information from the family physician, the pain management specialist and a hospital physiotherapy department. The representative contended that the medical supported the position that the worker's left shoulder condition deteriorated to the point where she was unable to perform her modified duties.

In a response dated November 14, 2011, Review Office indicated that it considered the clinical findings reported by the orthopaedic specialist and physical medicine specialist in comparison with the new medical information. On a balance of probabilities, Review Office indicated that it was unable to establish a relationship between the diagnosis of chronic myofascial pain syndrome involving the left paracervical muscles and the left pectoralis muscle and the difficulties with left shoulder mobility to the December 12, 2006 compensable accident. Review Office found that the worker's left shoulder and neck/trapezius condition in relation to the compensable injury had resolved by June 17, 2009. On January 19, 2012, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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(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 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.

Worker's Position

The worker was represented by a union representative. The representative explained the worker's appeal and provided a written submission. The worker answered questions from her representative and the panel.

The representative noted that the worker attempted 3 graduated returns to work beginning in mid-2007 and that none were successful. He advised that the worker is currently participating in a graduated return to work which began on February 23, 2012. The worker said the return to work is going well and she is hoping to have all restrictions removed in the near future so that she can return to her regular duties and hours.

The worker's representative disagreed with the Review Office decision. He reviewed the medical information on the worker's file and submitted the medical evidence establishes that the worker suffered from myofascial pain syndrome caused by the accident.

The representative noted that in April 2008 the treating physician diagnosed the worker with "cont'd residual myofascial pain." The representative said this report confirms that the worker had this condition for some time.

The worker was then treated by a physiatrist who diagnosed the worker's left shoulder and neck pain as being due to myofascial pain disorder. The physiatrist saw the worker on three occasions, one of which she used needling therapy on the worker's left trapezius. In June 2009, the physiatrist referred the worker to physiotherapy for acupuncture and range of motion therapy. She did not commence physiotherapy until January 2010 and did not see the physiatrist again.

In 2010, the worker was referred to a pain management specialist who diagnosed the worker with chronic myofascial pain syndrome and linked her condition to the workplace injury in December 2006. The representative said that the worker was not able to take the treatments recommended by the specialist as she was not covered by the WCB and could not afford the cost. The worker commenced treatments with the specialist in March 2011. The specialist noted new symptomatology had developed since 2010 and also that the worker's left shoulder had deteriorated. He opined that the worker was not capable of any work activity. By May 2011, after 6 treatments, the specialist found the worker had recovered sufficiently to resume work on modified duties. The representative stated that this was the first time since the workplace injury in December 2006, that the worker was physically able to return to work.

The worker said that she feels she has recovered and demonstrated her ability to move her arms and shoulders.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits beyond June 17, 2009. For the worker's appeal to be successful, the panel must find that the worker continued to suffer a loss of earning capacity and required ongoing medical services as a result of her compensable workplace injury. In other words, the panel must find that the worker's inability to work and need for medical services is medically and causally related to her December 12, 2006 injury.

The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical services after June 17, 2009, as a result of the workplace injury.

The panel finds that the worker developed a myofascial pain disorder as a result of the workplace injury and that this condition prevented the worker from returning to work. The panel finds that the worker is entitled to full wage loss benefits until May 4, 2011, the date the treating specialist found her 50% clinically improved and fit to return to work in respect of her left shoulder. The worker is entitled to partial wage loss benefits after this date based on an appropriate graduated return to work plan, to be determined by the WCB.

In arriving at this decision we place significant weight on the opinion of the specialist who first assessed the worker in February 2010 and re-assessed her condition in March 2011. Specifically, we rely on the specialist's report of September 6, 2011. The specialist opined that the myofascial pain symptomatology demonstrated by the worker in February 2010 was related to her compensable accident on December 12, 2006.

While Review Office found that the worker had recovered after receiving treatment from the physiatrist in 2009, the panel feels that the worker's pain behaviours and chronicity of her condition suggest that the condition required more than the one treatment that was provided by the physiatrist in the spring of 2009. We note that the physiatrist did not find that the worker had recovered at that time and that she referred the worker for physiotherapy. She indicated that she did not make a follow-up appointment because she did not know when the worker would receive physiotherapy. Unfortunately, the worker did not receive physiotherapy until six months later and did not see the physiatrist again. In our view, the worker's ongoing myofascial pain disorder in February 2010 was not a new condition, but rather, a continuation of the worker's prior difficulties in that same anatomical area. The worker received further treatments in 2011 which assisted with her recovery from the diagnosed condition.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of May, 2012

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