The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable injury and was not entitled to benefits beyond February 2013. A hearing was held on October 1, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits after February 19, 2013.

Decision

That the worker is entitled to wage loss and medical aid benefits up to May 10, 2013.

Decision: Unanimous

Background

On May 29, 2012, the worker filed a claim with the WCB for right shoulder pain that began in February 2012 which she related to her job duties that involved mopping floors. The date of accident was listed as March 30, 2012. The worker was diagnosed with a right shoulder strain/impingement which was accepted as a WCB responsibility. In June 2012, the worker commenced modified duties with restrictions while undergoing physiotherapy treatment.

On December 18, 2012, the worker underwent a Functional Capacity Evaluation which determined that she would benefit from a reconditioning and strengthening program in order to facilitate a return to her full regular duties. In early January 2013, the worker commenced a reconditioning program.

In a doctor progress report dated January 4, 2013, a sports medicine specialist indicated the worker still had subjective complaints of soreness with use, with aching and burning. She was able to work with restrictions. The worker was advised to continue with her rehabilitation and was to follow up in 3 to 4 weeks time.

On January 28, 2013, the treating physiotherapist provided the WCB with an update of the worker's progress in the reconditioning program. She stated:

The pain scale has decreased considerably subjectively. Significant improvements have been noted objectively. Improved range of motion and improved strength of the upper extremity is noted bilaterally. Improvement is noted in the strength of the lower extremity bilaterally. Functional improvement is noted with the work simulation exercise.

In the reconditioning discharge report dated February 12, 2013, the treating physiotherapist stated, in part:

Subjective increases in pain have increased since starting the work simulation activities. Range of motion has improved as well as strength. There are still complaints of pain with all overhead movements. Good lower extremity strength is noted. Functional/work place simulation tolerances have improved.

The physiotherapist stated that the worker was given a detailed home exercise program to complete on an independent basis. The goal was to increase the work simulation activities in order to transition the worker to full duties.

On February 19, 2013, the worker was advised that the WCB would not accept further responsibility for wage loss or medical costs as it was felt that she had recovered from the workplace injury of March 30, 2012 and was fit to resume her regular work duties. The case manager referred to the comments made by the treating physiotherapist in the reconditioning discharge report that the worker still had an ache in her shoulder but she had full strength and near full range of motion in her right shoulder. The case manager noted that pain was a subjective measure and without objective evidence supporting the need to be off work, it was not sufficient to justify time loss or modified duties.

File records showed that the worker claimed that she had increased pain in her right shoulder and was unable to perform her regular work duties.

On March 8, 2013, the worker wrote Review Office stating that she disagreed with the adjudicator's decision that she was fit to return to her regular duties. The worker noted that she had an MRI scheduled for April 13, 2013 and that her treating physician had not cleared her to return to her regular duties. She noted that the physiotherapy report clearly stated that her shoulder and arm ached more when she did any physical work. The worker also noted that she was going for a further physiotherapy assessment on March 11, 2013.

On April 18, 2013, Review Office determined that the worker was not entitled to wage loss or medical aid benefits beyond February 19, 2013. Review Office noted in its decision that the worker was considered fit to return to her full duties without restrictions based on the discharge report from the reconditioning program. It noted that the normal recovery period for a strain injury was in the range of 6 to 8 weeks depending on the individual, their age, gender, conditioning level and/or pre-existing health conditions which may delay recovery. It noted that the worker was now 8 months past the normal recovery period and had received continued medical care and therapy.

Review Office concluded that on a balance of probabilities, the worker's strain injury had healed and that she had recovered from the effects of the March 30, 2012 accident. Any residual discomfort experienced by the worker could not be medically accounted for in relation to the compensable injury. On May 30, 2013, the worker 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 self-represented at the hearing. The worker submitted that at the time the WCB determined she was not entitled to any further benefits, she was still under her doctor's care and until he actually released her to go back to work, she could not have gone back, according to her employer's policy. Until such time as her doctor cleared her to return to her duties, she could not go back. The worker questioned how the WCB could just decide that she was ready to go back to work when her doctor told her that she was not yet ready.

The worker felt that she had tried hard to do everything asked of her and she went through the work-hardening program set up by the WCB, despite the fact that she was in a lot of pain. After the WCB stopped her claim, she received coverage under her disability plan at work and they sent her to another work-hardening program. She attended the program every second day and found that she tolerated that program much better. After completing that program, her doctor decided that she could return to full duties, and she did, at the beginning of May 2013. Her doctor imposed permanent restrictions of limiting work to a five day week, as she previously worked on a schedule which sometimes had her working seven days in a row. Her doctor did not think that the worker would now be able to tolerate working seven days in a row.

Overall, the worker advised that she still had some problems with her shoulder but that she was able to do her job with the five day restriction. By Friday, she would have issues with her shoulder and would be better after a few days off to let it rest. The worker felt that the WCB's decision was unfair as it assumed she was better, but she submitted that people heal at different rates and she was probably slower than most.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss or medical aid benefits after February 19, 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 her compensable injuries. On a balance of probabilities, we are able to make that finding.

The WCB determined that the worker had functionally recovered by February 19, 2013. This decision was largely based on the fact that the worker had completed a work hardening program on February 12, 2013. Review Office stated: "Upon discharge from the reconditioning program, the physiotherapist noted [the worker] could return to her full duties without restrictions. The physiotherapist documented that [the worker] still had subjective complaints of pain in her right shoulder, however functionally she had recovered."

The panel's reading of the physiotherapist's discharge report is slightly different. The physiotherapist reported that the worker indicated an increase in her symptoms since focusing on work simulation activities and that the ache in her right shoulder was constant. The symptoms continued to be aggravated with overhead activities and repetitive work. The panel places weight on the fact that the worker's visual analog scale changed from 7/10 on January 2, 2012 down to 3/10 on January 28, but then increased up to 8/10 on February 12, 2012. Similarly, the DASH score went from 69.16% on January 2, 2013, down to 32.5% on January 28, but then went back up to 50.83% on February 12, 2012. The panel finds this is consistent with the worker's reports of increased difficulty once more work simulation activities were incorporated. We also note that the recommendation section of the discharge report indicated that: "The goal was to increase the work simulation activities in order to transition [the worker] to full duties." The panel reads this as meaning that the worker was close to being recovered and ready to return to her full duties, but was not quite there.

The panel also notes that the worker's compensable diagnosis was not a right shoulder sprain, but rather was right shoulder impingement. According to the WCB medical advisor's memo of September 7, 2012, the natural history of impingement is variable, with some patients recovering completely and some continuing to experience pain with certain shoulder movements. We therefore do not accept that the extended time it was taking for the worker to recover was inconsistent with her injury.

On reviewing the medical information from the worker's doctor, the January 4, 2013 report indicated continued symptomatology and impingement signs at that time. A subsequent modified duty form dated February 22, 2013 reported a continued need for modified duties for an estimated duration of 6-8 weeks.

At the hearing, the worker's evidence was that commencing in mid-March 2013, she attended another physiotherapy work hardening program. She attended this program every second day and it continued until April 26, 2013. Upon completion of the second program, the worker said that her shoulder had improved and she hardly ever thought about it anymore. She would just have to manage the achiness after working for five days.

In the panel's opinion, while the worker's compensable right shoulder impingement was improving after the first reconditioning session, the worker had not yet recovered. We find that the worker continued to suffer from the effects of her compensable injury until the completion of the second reconditioning program, at which time she was cleared by her doctor for a return to full duties. The worker's Appeal of Claim form requested benefits to be paid from February 19, 2013 to May 10, 2013. When asked about the significance of the May 10, 2013 date, the worker indicated that this was the date when she went back to her regular duties and other accommodations ended. Based on the foregoing, the panel finds that the worker is entitled to wage loss and medical aid benefits up to May 10, 2013. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 22nd day of November, 2013