Decision #82/12 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that she did not have a loss of earning capacity related to her compensable right shoulder injury. A hearing was held on March 19 and June 14, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond December 8, 2010.

Decision

That the worker is not entitled to wage loss benefits beyond December 8, 2010.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a work-related injury that she suffered on May 18, 2010 when repositioning a client. The compensable diagnoses related to the claim were identified as right wrist tendonitis, aggravation of carpal tunnel syndrome ("CTS") of the right hand and strain of the right shoulder.

On October 19, 2010, the WCB arranged for the worker to undergo a reconditioning program with the goal of returning her to her pre-accident occupation. On November 19, 2010, the worker was notified that her three week reconditioning program was scheduled to run from November 8, 2010 to November 26, 2010 and at the completion of the program, it was expected that she would be capable of returning to her regular hours and work duties.

In a memo to file dated November 21, 2010, a WCB case manager documented a meeting that she had with the treating rehabilitation specialist and the worker. The rehabilitation specialist indicated that the worker was doing well in the program and he was happy with her progress. The worker, however, said she was in significant pain but was not comfortable with reporting her pain to the staff. The worker had pain in her right shoulder radiating up into her neck and the right side of her head. The worker was unable to sleep at night and had trouble breathing. The worker was advised to see her family physician regarding her breathing difficulties and was told that the symptoms she was experiencing in her shoulder and neck were normal as per her injury.

By letter dated November 23, 2010, the worker advised the WCB that she was being referred for an x-ray and ECG by her treating physician and that he instructed her to stop the reconditioning program until the test results were in.

On November 30, 2010, the treating physician reported that all test results were normal and that the worker could continue with her reconditioning program. He noted that the chest wall pain could possibly be related to the right shoulder strain.

On December 8, 2010, the WCB case manager spoke with the worker to advise her that her test results were normal and that she could return to the rehabilitation program as was indicated by her physician. The worker became upset and stated that she was still having chest pain, headaches and a fever. The worker indicated that she would go back to the program but not immediately, as she was leaving the country the next day and would be back on January 16, 2011.

On December 9, 2010, the worker was advised that wage loss benefits would be paid to December 9, 2010, as it was anticipated that at the conclusion of her restarted reconditioning program, she would have recovered from the compensable injury and would no longer be entitled to wage loss benefits. On January 19, 2011, the worker appealed the decision to Review Office. The worker noted that she was unable to use her right hand and shoulder and that the rehabilitation program caused her excruciating pain which caused her to lose sleep at night. The worker indicated that no one at the WCB told her that going away to visit her mother and family at Christmas would jeopardize her claim or her benefits.

In a decision dated February 14, 2011, Review Office determined that there was no entitlement to wage loss benefits beyond December 9, 2010. Review Office noted that the worker stopped attending the reconditioning program on November 22, 2010 as she had developed chest pains and was advised by her physician to discontinue the program until the test results were reviewed. As of November 30, 2010, the physician's report indicated that the test results were normal and the worker could continue with the reconditioning program. There was no indication on file that the worker contacted the reconditioning program facility or her case manager to advise that she was again capable of participating in the program. It was not until December 8, 2010 that the worker contacted her case manager to advise she was too ill to attend the program and that she was leaving the province on December 9, 2010.

Review Office stated that there was no evidence on file to support that the worker was unable to participate in the program due to difficulties related to the compensable injury. Had the worker returned to the program on December 1, 2010 she would have completed the program prior to her leaving the province on December 9, 2010. Review Office found that the evidence on file including the diagnosis, treatment rendered and time that has passed did not support a causal relationship between the worker's current difficulties and the May 18, 2010 compensable injury.

On November 4, 2011, the Worker Advisor Office provided Review Office with new medical reports to support the position that there was a causal relationship between the worker's ongoing difficulties in her right shoulder area, the diagnosis, and the workplace accident.

In a decision dated January 6, 2012, Review Office noted that the new information did not alter its decision that there was no entitlement to wage loss benefits beyond December 8, 2010. Review Office noted that at the time the reconditioning program was authorized, the worker's right shoulder symptoms were considered mild to moderate. The intake assessment indicated that the worker only required a 3 week reconditioning program in order for her to return to her pre-accident duties. It stated that the submitted medical reports did not provide any clinical findings to support the diagnosis of myofascial pain or that the worker required work restrictions.

On January 17, 2012, the Worker Advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on March 19, 2012. At the hearing, the panel determined that it required additional information which included a separate WCB claim for CTS. The additional information was provided to all interested parties and the hearing reconvened on June 14, 2012.

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(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.

Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted that there was a continued relationship between the worker's muscular/myofascial injuries to her right shoulder and neck and the workplace accident of May 18, 2010. Based on a call-in examination, the WCB medical advisor accepted that the worker's right shoulder findings of pain and swelling to the right trapezius levator scapular area and pinpoint tenderness of the supraspinatus muscle were related to her workplace accident. It was submitted that the same muscular areas continued to disable the worker, as was confirmed by subsequent medical examinations by multiple medical practitioners. The medical evidence as a whole supported that myofascial pain syndrome injuries to the right shoulder girdle and neck area were the result of the workplace accident and that these injuries continued to contribute to the worker's inability to return to her pre-accident duties.

Employer’s Position

Two representatives from the employer were present at the hearing and one also attended the reconvened hearing. The employer did not take a position on the appeal, but indicated that they understood why the worker could not return to work in her present condition. Unfortunately, the employer was not able to offer the worker any light duties, and as a result, the worker was not able to return to her pre-accident position.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond December 8, 2010. In order for the worker’s appeal to be successful, the panel must find that at that time, the worker continued to suffer from the effects of her workplace injuries. We are not able to make that finding.

The original hearing of this appeal was adjourned to allow the panel to review another WCB claim which occurred almost concurrently with the present claim. The claim was for CTS of the right wrist with an accident date of May 21, 2010. The CTS claim was accepted by the WCB and benefits were paid to the worker until August 26, 2011, at which time it was determined that she had recovered from the right wrist CTS surgery which was performed on April 20, 2011. In the panel's opinion, the information contained on the CTS claim does not significantly impact our deliberations on this appeal and the matters at issue in this appeal can be decided based on the evidence given at hearing and from the WCB claim file.

In the panel's opinion, the evidence supports the finding that by December 8, 2010, the worker had recovered from her compensable right wrist and shoulder injuries. In coming to this conclusion, the panel relied on the following:

  • The mechanism of injury was an acute soft tissue injury suffered by the worker while physically exerting her right arm. As a result of the accident, the worker suffered a sprain/strain type of injury, the natural progression of which should be to resolve over time.
  • The worker was in receipt of benefits for a period of almost seven months.
  • The worker reported that in early January 2011, when she returned from her 5 week trip to visit her family overseas, she felt "really good" and was ready to get "back to normal life". While she was away, she engaged in swimming and massage therapy every day. These treatments gave her almost complete relief of her symptoms. Unfortunately, soon after her return to Manitoba, the worker began to experience difficulties again.
  • Although the medical reports continue to report pain symptoms beyond December 8, 2010, the panel is unable to relate these complaints to the worker's original workplace injuries. While tenderness was noted in some of the same muscle groups as was originally reported at the time of the injury in May, 2010 (ie. the shoulder girdle area), there were also a number of new areas of symptomatology. The worker described the pain extending up her neck and around her head towards her ear and cheekbone, and down her collarbone into her chest. This increase in areas of symptomatology arose despite the fact that the worker never returned to the workplace. We therefore have difficulty accepting a causal link between the ongoing and spreading pain and the workplace accident in May 2010.
  • At the hearing, the worker referred to a diagnosis of frozen shoulder. This is a new diagnosis that was not investigated in the WCB file nor was there any medical opinion proposing a link between this condition and the workplace accident. In the absence of more definitive evidence regarding this diagnosis, the panel does not accept that the worker suffered a frozen shoulder as a result of the workplace accident.

In the circumstances, the panel is not convinced on a balance of probabilities that the ongoing and expanding pain complaints reported by the worker beyond December 8, 2010 can be related to the original workplace injuries. We therefore find that the worker is not entitled to wage loss benefits beyond December 8, 2010. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 18th day of July, 2012

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