Decision #135/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits beyond January 22, 2013 in relation to his compensable injury of July 5, 2012. A hearing was held on September 12, 2013 to consider the matter.Issue
Whether or not the worker is entitled to benefits after January 22, 2013.Decision
That the worker is entitled to benefits after January 22, 2013.Decision: Unanimous
Background
The worker reported injuries to his right arm, shoulder and back from a work-related accident that occurred on July 5, 2012. The worker described the accident as follows to the WCB's call centre:
My boss had lifted up a bunch of 35 foot microlam. He had the forks up over the roof. 3 of us had to move it about 5 feet in the air. We had to take the weight of it on us off the forklifts. The one guy let it go right in the middle and the other had it torn out of his hand. It was bouncing and it came to my end and did considerable damage to my right arm, shoulder and back.
Information received from the employer dated July 17, 2012 stated:
[Worker] was carrying a micro lam with two other employees…
[Worker] told the middle guy to move out of the way, that they had it and as … stepped out of the way, the micro lam slipped out of … hands and slid down [the worker's] arm. When it hit the ground the micro lam bounced up and hit inside of arm. [Worker] continued to work for another hour saying everything was okay but favored his arm. There was a mark on inside of [the worker's] arm according to…
The worker's claim for compensation was accepted based on the diagnoses of a right arm and right shoulder girdle contusion/strain and a probable strain of the upper back and neck.
On September 19, 2012, the worker was seen by a WCB medical consultant at a call-in examination. In response to questions posed by the WCB case manager, the consultant commented as follows:
- What is/was the probable diagnosis as related to the injury of July 5, 2012?
Based on the reported mechanism of injury and initial documented clinical findings, the initial diagnosis appears to have been a contusion/strain of the right shoulder girdle region and right arm. There was also a probable strain affecting the upper back and neck. The reported mechanism of injury does not appear to account for the currently reported lumbar pain and bilateral hip girdle pain.
- There are at least 3 different diagnoses on file, what are the medical findings to support these diagnoses?
A July 9, 2012 physician report provides a diagnosis of blunt trauma to shoulder, upper arm, lower arm and wrist. This diagnosis appears to be based on associated objective findings of bruising and tenderness along the shoulder and arm, presumably this is the right side.
July 16, 2012 sports medicine assessment provides a diagnosis of right arm contusion, shoulder girdle/back strain. This appears to be based on clinical findings including absence of swelling, residual arm abrasion and mild range of motion restriction (it is unclear as to which body part demonstrated restricted range of motion). There is also report of tenderness to the right trapezius and erector muscles. Reflexes were assessed as normal.
A cervical/lumbar sprain/strain was the diagnosis provided by the initial treating physiotherapist's July 18, 2012 assessment. This appears to be based on reported discomfort at end range of cervical extension and mild decrease in range of motion in cervical rotational movements, as well as discomfort reported at end range of lumbar flexion.
- Are the diagnoses medically accounted for in relation to the work place injury?
As indicated in #1, the diagnoses of contusion/strain of the neck/upper back, right shoulder girdle and right arm would appear to relate to the described mechanism of injury.
The medical consultant outlined temporary restrictions for the worker based on a 4 to 6 week period. Treatment suggestions included an active-based functional exercise program directed at the neck, upper back and right upper extremity.
A doctor's progress report dated November 5, 2012 indicated that the worker continued to have pain primarily in his thoracic region secondary to his work accident. An MRI was pending. The physician stated: "may end up needing retraining to a desk job."
On November 14, 2012, the worker began a four week physiotherapy program.
The next progress report dated November 20, 2012 stated that the worker had increased pain in his back, neck, shoulder and hip. The physician noted that the worker was being referred to a specialist once the MRI results were available.
The MRI examination report dated November 18, 2012 revealed widespread degenerative changes along with possible L4 spondylolysis.
On December 3, 2012, the worker was advised that the WCB was unable to accept further responsibility for his claim and that wage loss benefits would be paid to December 10, 2012 inclusive. The worker was advised that his claim was accepted based on a contusion/strain of the right shoulder girdle region and right arm and also a probable strain affecting the upper back and neck. It was felt that the typical recovery norms for soft tissue injuries were within six to eight weeks. The WCB was not responsible for his current reported lumbar and bilateral hip girdle pain as it was felt that this was not related to the mechanism of injury.
In a submission dated December 12, 2012, the worker indicated that he was appealing the decision that his back condition was not part of the initial claim. The worker referred to the early reports from his treating physician and physiotherapist to show that he did complain of low back pain after the accident which he described as a "significant jarring force." The worker felt that he had not yet recovered from his work-related accident and asked the WCB to assist him with getting back into the workforce.
In January 2013, updated medical reports were received from the treating physician and physiotherapist. On January 15, 2013, the WCB medical consultant stated:
The current lumbar symptoms/signs and MRI noted changes are on balance, not related to the workplace injury. A lumbar injury is not accounted for by the reported mechanism of injury. The MRI changes at the low back are degenerative in nature. Although a lower lumbar spondylolysis is suspected, this is not accounted for by the workplace injury.
Although neck soreness is reported by the treating physician on a January 11/13 report, there are no documented objective findings in relation to same. The January 3/13 physiotherapy finding of taut trapezius musculature is a nonspecific finding and is not reflective of ongoing impairment from the workplace injury. A neck strain is anticipated to functionally improve in 1-6 weeks. The current reported neck symptoms do not appear to be related to a neck strain and are probably not related to the workplace injury.
The reduction in right shoulder motion reported on January 11/13 does not appear to be accounted for on the basis of a shoulder strain, now over 27 weeks post injury. Findings at the time of the September 2012 call-in examination were not reflective of an intra-articular injury (i.e. labrum, rotator cuff, glenohumeral joint etc).
On January 16, 2013, the worker was advised that the additional information provided by his treating physician did not change the decision of December 3, 2012. It was felt that his difficulties were not a result of his July 5, 2012 workplace accident based on the WCB medical opinion outlined on January 15, 2013.
The worker appealed the January 16, 2013 decision to Review Office. On March 7, 2013, Review Office accepted that the worker sustained a low back strain in relation to his compensable injury and held that he was entitled to benefits up to January 22, 2013.
Review Office accepted the worker's accident description of the microlam scraping the inside of his arm and that he felt a pull in his back from the resistance. Review Office stated it was likely that the worker sustained a low back strain as a result of the accident which was consistent with the diagnosis provided by the treating physician and physiotherapist.
With respect to entitlement to benefits, Review Office found that the evidence did not support the worker's reports in August and September 2012 that the microlam hit the side of his head. There was no mention of the head being involved in the initial file documentation.
Review Office found that the compensable injury resulted in strains to the right shoulder, upper back/neck and low back as well as right arm contusions. This was in accordance with the medical information received from the worker's healthcare providers.
Review Office accepted the WCB medical opinion outlined on January 15, 2013. It determined that as the worker continued to attend physiotherapy treatment after December 3, 2012 and the status of the worker's compensable injury was not known at that time, it was reasonable to extend the worker's entitlement to benefits after December 10, 2012 to January 22, 2013 inclusive. After January 22, 2013, Review Office determined that the worker's difficulties were not medically accounted for in relation to his compensable injury.
On April 30, 2013, the worker's advocate appealed Review Office's decision to the Appeal Commission and an oral 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(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.
Worker’s Position
The worker was assisted by an advocate at the hearing. The position put forward on behalf of the worker was that he was entitled to further WCB benefits as a result of a compensable workplace injury. The evidence confirmed that on a balance of probabilities, the accident and/or the accident in concert with the worker's pre-existing condition was causing his ongoing loss of earning capacity. Reference was made to reports from the worker's family physician which supported that the worker's current condition and his inability to work was related to the injuries he sustained in July of 2012. A report from an occupational health physician also supported that the worker was significantly impaired such that he was not capable of returning to his pre-injury work and that this was related to the July 2012 work injury.
Employer's Position
The employer did not participate in the appeal hearing.
Analysis
The issue before the panel is whether or not the worker is entitled to benefits after January 22, 2013. In order for the worker’s appeal to be successful, the panel must find that after that date, the worker continued to suffer from the effects of his compensable injuries. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker described how the accident occurred. The worker's evidence was that he and two co-workers were unloading beams off a forklift. The beams were 35 feet long and it was estimated that they weighed about 300 pounds each. While moving a beam, the co-worker holding the middle of the beam lost his grip and dropped it, which caused the co-worker at the far end to also lose his grip. When they dropped the beam, it was sitting on the worker's shoulder, and upon the far end hitting the ground, the beam then: "bounced up, knocked my hard hat off and then slammed back under the side of my head, hit my shoulder and jarred all my shoulder, stripped all my arm, all down in through here, and my elbow, of course." The worker stated that he believed that his end of the beam bounced up about one foot above his shoulder as it was high enough to strike the side of his head, graze his ear, and come back down to his shoulder. The worker's evidence was that prior to the injury, he never had any problems physically. Since the accident, he had to move out of his third floor apartment and give up his dog as he could no longer care for it. He had a hard time walking anywhere or sitting or standing for any periods of time. He now took medications which he never required previously.
The panel accepts that the mechanism of injury described by the worker involved a significant blunt trauma which caused injury to the worker's neck and upper right extremity. In our opinion, the evidence supports on a balance of probabilities that as of January 22, 2013, this injury had not yet resolved and continued to cause the worker to suffer a loss of earning capacity in that he could not yet return to the heavy construction job duties he performed pre-accident. In particular, the panel notes that the physiotherapist's report of December 17, 2012 indicated a degree of ongoing symptoms and restricted function, including palpable tautness to the trapezius, increased muscular tension bilaterally to the erector spinae and 4/5 weakness upon overhead lifting in the flexion and abduction planes. Further strengthening was recommended. There are no medical reports subsequent to January 22, 2013 which indicate that the shoulder and neck injury had resolved. Rather, both the family physician and the occupational health specialist confirm ongoing impairment of function and pain in the neck and right shoulder.
With respect to the worker's complaints of pain in the low back, the panel does not accept that the worker's lumbar symptoms and bilateral hip pain beyond January 22, 1013 are related to the effects of the workplace accident. The low back problem is a condition which the WCB medical advisor opined was not accounted for by the mechanism of injury and the panel would tend to agree with this assessment. We also note that the low back condition became increasingly symptomatic only several months after the acute workplace injury. The panel notes that at the time of the hearing, the worker required use of a cane to mobilize. At the hearing, the evidence was that the worker needed the cane to support his right side. The worker stated that he had been using the cane since approximately 1 ½ months after the injury (i.e. late August 2012) and that he had been using it consistently ever since. The worker's family physician, however, did not report use of a cane until January 2013. Further, at the call-in examination of September 19, 2012, the WCB medical advisor's notes indicate that the worker: "ambulated into the examination room with no gait abnormalities." The panel finds that the worker's recollection of his need to use a cane to mobilize is not entirely consistent with the medical reporting. It would appear that in fact, his need for a cane did not arise until several months post-accident. Given that the worker was not working during this period of time and maintained a relatively sedentary lifestyle during this period, the panel has difficulty attributing the worker's low back problems to the compensable injury. It is notable that the imaging reports identify degenerative and possible spondylitic changes in the worker's lumbar spine, which could explain the worsening condition.
It is therefore the panel's decision that the worker has entitlement to further benefits and services beyond January 22, 2013 as it relates to his neck and upper right extremity only. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 24th day of October, 2013