The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her ongoing neck and shoulder complaints were not related to the compensable accident of November 15, 2011 and therefore she was not entitled to benefits beyond December 7, 2011. A hearing was held on May 15, 2013 to consider the matter.

Issue

Whether or not the worker's ongoing neck and shoulder complaints are related to the November 11, 2011 compensable accident; and

Whether or not the worker is entitled to wage loss benefits after December 7, 2011.

Decision

That the worker's ongoing neck and shoulder complaints are not related to the November 11, 2011 compensable accident; and

That the worker is entitled to wage loss benefits after December 7, 2011 to January 3, 2012.

Decision: Unanimous

Background

On November 15, 2011 the worker filed a claim with the WCB for a neck and upper back injury that occurred at work on November 11, 2011. The worker reported that she and two other co-workers were helping a patient to the bathroom when the patient became uncooperative and slid to the floor. In the process, the patient pulled them as she slid down. The patient weighed approximately 220 pounds.

Following the accident, the worker attended a physician for treatment and was diagnosed with a sprain/strain of the left neck and shoulder and a referral was made for physiotherapy treatments.

The claim for compensation was accepted by the WCB and the worker was paid wage loss benefits to December 7, 2011 when she was cleared to return to modified duties by her treating physician and the physiotherapist.

As of December 8, 2011, the worker was to commence a graduated return to work program as a charge nurse but the return to work was placed on hold. By mid January 2012, the worker returned to work as a charge nurse and was to increase her hours until she was back at full time hours.

In a doctor's progress report dated March 7, 2012, it was noted that the worker's neck pain was recurring and she had pain in her left shoulder and upper arm. A WCB assessment was suggested.

On April 3, 2012, the worker advised her WCB case manager that she was experiencing ongoing difficulties at work which she related to her compensable injury. In particular, the worker had limited mobility and could not lift her arm up past shoulder height.

On April 12, 2012, the treating physician reported that the worker had pain extending into her entire left arm and her neck and upper back were worsening. On April 17, 2012 the worker was diagnosed with adhesive capsulitis versus a left rotator cuff tear.

The worker was seen on May 8, 2012 by a WCB sports medicine consultant. An MRI of the neck and left shoulder was recommended on an expedited basis. The MRI of the cervical spine and left shoulder was later carried out on May 22, 2012.

On June 5, 2012, the family physician reported that the worker discontinued working in March 2012 due to the diagnosis of adhesive capsulitis. As of May 31, 2012, the worker was advised to obtain a job that did not require repetitive use of her left shoulder and arm.

In a memo dated June 8, 2012, the WCB sports medicine consultant outlined the opinion that the current diagnosis was nonspecific neck/left shoulder pain. She indicated that the natural history of strain-type injuries for functional improvement was two to six weeks and that the current presentation was no longer reflective of a strain-type injury.

The WCB sports medicine consultant also reported that the May 22, 2012 imaging study did not identify a structural lesion in the neck/left shoulder caused by the workplace injury which would account for the current reported symptoms and clinical findings. The consultant's opinion was that the worker was not totally disabled and there was no medical requirement for work restrictions.

On June 14, 2012, the worker was advised that based on the call-in examination findings of May 8, 2012 and the recent MRI results, her ongoing difficulties of nonspecific neck/left shoulder pain were not related to the November 11, 2011 workplace injury and there was no medical requirement for restrictions.

On October 15, 2012, the worker's union representative wrote Review Office outlining the position that the medical evidence supported that the worker developed adhesive capsulitis as a result of the November 11, 2011 accident and that she was entitled to further compensation benefits. The union representative referred to the WCB's findings that the MRI of May 22, 2012 did not demonstrate a structural lesion in the neck/left shoulder. Based on a submitted medical report dated August 22, 2012, the representative opined that an MRI would not detect inflammation in the joint capsule and was not necessarily diagnostic of adhesive capsulitis. She also submitted a medical article to support that risk factors for frozen shoulder were shoulder injury or trauma.

In the August 22, 2012 report, the treating specialist stated that an MRI arthrogram may show decreased volume in the joint capsule but was not necessarily diagnostic of adhesive capsulitis. He also stated: "Because an adhesive capsulitis can develop spontaneously, and because there is no objective evidence of any structural problem of the shoulder on MRI, it is impossible to say whether the current shoulder problem is due to the injury in November 2011."

On December 7, 2012, the employer's representative submitted to Review Office that based on the medical evidence on file, there was no reason to change the adjudicative decisions dated December 7, 2011 or June 14, 2012.

On December 14, 2012 Review Office determined that the worker was not entitled to wage loss between December 8, 2011 and January 3, 2012 as her loss of earning capacity was related to issues unrelated to her work injury.

Review Office also determined that the worker's ongoing neck and left shoulder issues were not related to the November 11, 2011 compensable injury. Review Office indicated that the facts on file do not point to the worker having or developed adhesive capsulitis after or in relation to her compensable injury. Review Office felt that the most likely diagnosis was a non-specific left shoulder pain which was multi-factorial and could not be explained by the November 2011 accident. On January 15, 2013, 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.

The worker has an accepted claim for a workplace injury. She is appealing WCB decisions regarding the relationship of symptoms to the injury and the payment of wage loss benefits.

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) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. Subsection 60(2) (b) provides that the WCB has exclusive jurisdiction to determine whether any injury has arisen out of or in the course of employment.

Worker's Position

The worker was represented by union representatives, one who serves as a WCB specialist, and another union officer.

The worker's representative made a submission on behalf of the worker. The worker answered questions posed by her representative and the panel. The worker's representative submitted that the worker's ongoing neck and shoulder issues are related to her workplace injury of November 11, 2011 and that the worker is entitled to benefits after December 7, 2011.

The worker advised that she is a nurse and primarily works the evening shift. She said 75 % of the patients are returning from surgery and many are on high doses of analgesics. She said that each nurse has between four and seven patients. Duties include performing physical assessment of each patient and attending to all of their needs, helping them move their legs, changing their dressings, repositioning patients, and providing medications.

The worker said she was injured while transferring a very heavy patient with the assistance of other staff. She said she was helping the patient onto a commode and after when positioning the patient in bed. She said that initially she did not have symptoms other than a feeling of fatigue but filled in an accident form. She worked the balance of the evening and on the next shift she started to develop a significant amount of stiffness. That night she had difficulty with sleeping and turning her head and the next evening, she called in sick because of the accident.

With respect to her request for wage loss benefits after December 7, 2011, the worker acknowledged that she was to return to work on December 7, 2011 but did not return until January 4, 2012. She said the return to work date was tentative and based on her family physician and the physiotherapist’s approval to come back on that date. She said that she did not return because her doctor did not approve her to return on that date. She said that she was having an extreme amount of pain and was having a difficult time coping with the injuries. She did not feel physically ready. The worker advised that she ultimately returned to a modified position.

The worker explained that after her return to work she continued to have shoulder problems. She said that when doing any kind of charting, her arm and full upper shoulder girdle was up at a little bit of a higher placement. She said that initially the strain was primarily noticed in her neck and that going to physiotherapy the acute neck strain started to decrease. She said that she didn’t even pay attention to the shoulder or arm issues at the time because her neck was so significant. As it started to ease, she started to notice a lot more pain in her upper back and into her shoulder. She advised that by a process of exclusion, adhesive capsulitis or frozen shoulder was diagnosed.

The worker's representative submitted that the worker never fully recovered from her injury. She said that in hindsight the worker’s attempts to modify her duties may not have been appropriate and likely contributed to the development of her frozen shoulder. She submitted that on a balance of probabilities, the development of secondary frozen shoulder is related to the workplace injury based on the temporal relationship to the injury from which she never fully recovered.

The worker's representative said that the worker's time loss after December 7, 2011 and the worker's ongoing neck and shoulder difficulties are related to the workplace injury.

Employer's Position

The employer was represented by an advocate who made a presentation on behalf of the employer.

Regarding the worker's entitlement to wage loss benefits after December 7, 2011, the employer advocate noted that information about non-compensable emotional stressors was provided independently to the doctor, the WCB and the employer. There were December 8, 2011 claim notes documenting a conversation the adjudicator had with the employer, indicating that the worker would not divulge the specific reasons why she would not come back to work even though the plan was supported by her physiotherapist and the WCB. She also noted that her doctor indicated on December 7, 2011 that recovery was satisfactory but impeded by "stress unrelated to work injury."

She submitted that this absence from work until January 2, 2012 was due to non-compensable issues of stress. Therefore, there was no basis upon which to provide wage loss benefits for that time period.

Regarding whether the worker's ongoing neck and shoulder complaints are related to the November 11, 2011 compensable accident, the employer advocate noted that the January 18, 2012 doctor’s progress reported "Much better. Return to work in regular duties was to take place gradually over the next 14 days." As well, the worker's physiotherapist discharge report noted "Greatly improved. Currently working charge nurse duties. Will continue to gradually transition to regular duties."

She submitted that, at that time all the indications were that the worker was progressing well but then, without further precipitating factors, despite the fact that she was accommodated in charge nurse duties, the worker reported increasing pain spreading down her arm and, in fact, she stopped working on April 10, 2012. The treating physiotherapist did not support going off work.

The employer advocate noted that an MRI was ordered, which was carried out on May 22, 2012 which did not show any evidence of a rotator cuff tear or any structural abnormalities. She noted that the worker was examined by a WCB medical advisor who concluded that based upon the results of the call-in exam showing no upper extremity neurological deficits and the MRI results, that she could not account for the findings in relation to the compensable injury occurring seven months earlier. The employer advocate noted that the worker was subsequently diagnosed with adhesive capsulitis which she described as an idiopathic condition. She noted that the worker's own physician commented that adhesive capsulitis can develop spontaneously and that "it is impossible to say whether the current shoulder problem is due to the injury in November 2011."

The employer advocate submitted that the worker's adhesive capsulitis and ongoing neck and shoulder complaints are not related to compensable accident.

Analysis

Issue 1: Whether or not the worker's ongoing neck and shoulder complaints are related to the November 11, 2011 compensable accident.

For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker's ongoing neck and/or shoulder complaints are related to the workplace accident. The panel was not able to make this finding.

The panel notes, based on the worker's evidence and the medical information on file, that for the most part the worker has few complaints about her neck and that these complaints do not interfere with the worker's ability to perform her duties. The panel finds that the worker has recovered from the November 11, 2011 injury to her neck.

However, the worker continues to have complaints about her left shoulder. At least two diagnoses have been provided for the worker's ongoing neck and shoulder complaints. The worker's treating specialist has described her condition as adhesive capsulitis while the WCB sports medicine consultant has described the worker's condition as non-specific neck/left shoulder pain. The panel finds that neither of the diagnosed conditions is related to the workplace injury.

The panel places greater weight upon the opinion of the WCB sports medicine consultant and finds that the most likely diagnosis is non-specific neck/left shoulder pain. The medical advisor noted that "Initial diagnoses offered by both treating physician and physiotherapist were that of a left shoulder/neck strain. The natural history of strain-type injuries is anticipation for function improvement in 2 to 6 weeks. The current presentation is no longer reflective of a strain-type injury." The medial advisor also noted that the May 22, 2012 MRI study did not identify a structural lesion in the neck/left shoulder caused by the workplace injury which could account for the current reported symptom. She commented that the evidence does not support that these pre-existing changes were materially affected by the workplace injury.

As noted above, the treating specialist has diagnosed the worker's condition as adhesive capsulitis. While it is possible that the condition is adhesive capsulitis, the panel finds that this condition is idiopathic and not likely related to the workplace injury. The panel also finds that the condition of adhesive capsulitis was not as a sequela, or a secondary injury. The panel notes the opinion of the treating specialist that "Because an adhesive capsulitis can develop spontaneously, and because there is no objective evidence of any structural problem of the shoulder on MRI, it is impossible to say whether the current shoulder problem is due to the injury in November 2011."

The panel notes that the treating chiropractor has referred to the condition as left-sided cervicothoracic myofascial/joint irritation with an anterior shoulder capsulosis. He noted that these problems are "possibly" from the workplace injury. The panel finds that, on a balance of probabilities, the condition is not related to the workplace injury.

The worker's appeal of this issue is denied.

Issue 2: Whether or not the worker is entitled to wage loss benefits after December 7, 2011.

For the worker's appeal of this issue to be successful the panel must find, on a balance of probabilities, that the worker was not able to work after December 7, 2011 as a result of the workplace injury. The panel was able to make this finding. Specifically, the panel finds that the worker sustained a loss of earning capacity after December 7, 2011. The worker is entitled to wage loss benefits from December 7, 2011 to January 3, 2012.

The panel notes that the November 22, 2011 "Tentative Graduated Return to Work Program" was subject to the worker's physician's approval. However, the physician did not provide approval. The worker's physician provided a sickness certificate on December 7, 2011 indicating that the worker will be off work from December 7, 2011 to January 1, 2012. On December 28, 2011, the physician completed a Doctor Progress Report authorizing a return to work on January 4, 2012 with restrictions. The panel finds there was no medical support for the return to work on December 7, 2011.

The panel notes references to the worker suffering from stress during this time period. At the hearing the worker explained that she was feeling stressed but that the stress was related to the workplace injury. She said "That was the number 1 main stressor. That’s why I went to EAP. Yes, it's complicated by other home stressors, definitely." The panel notes that the worker and WCB case manager discussed this issue on December 8, 2011. The case manager wrote that "She indicated that she is having some pain management problems with her injuries but mostly it is stress related. She stated that her injury is making coping much harder and she is having a really hard time right now…She did feel that her pain issues related to her injury was part of the problem."

Finally the panel notes medical evidence shows that the worker was suffering from physical issues during this time.

The worker's appeal of this issue is accepted.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 4th day of July, 2013