The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current neck complaints were not related to her compensable left shoulder strain and therefore she was not entitled to wage loss and medical aid benefits after April 25, 2012. A hearing was held on November 6, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after April 25, 2012 in relation to the January 17, 2012 compensable injury.

Decision

That the worker is entitled to wage loss and medical aid benefits after April 25, 2012 to July 10, 2012 in relation to the January 17, 2012 compensable injury.

Decision: Unanimous

Background

On January 17, 2012, the worker injured her left shoulder when she slipped on ice. The worker said she did not fall but tweaked her left shoulder in the process. She felt a pulling sensation in her left shoulder and throughout her left arm. The worker indicated that she continued to work after the incident and that her last day of work was on January 23, 2012.

The claim for compensation was accepted based on the diagnosis of a left shoulder strain and benefits and services were paid accordingly.

On March 1, 2012, the worker provided the WCB with additional details of the January 17, 2012 accident. The worker indicated that she was trying to put two trains together and they wouldn't couple. It was minus 41 degrees that morning. She was using both hands to lift up the lever and then she used her left hand to reach in to pull the coupler open. She then slipped and was falling and a co-worker grabbed her and prevented her from falling. She injured her left shoulder/arm in the process. The worker noted that her shoulder was hurt the most but she could feel pain all down her arm.

On March 5, 2012, the treating physician reported that the worker had left shoulder pain only and had limited range of motion, specifically abduction. The physician felt that the worker was capable of performing alternate or modified duties and was to avoid pulling, pushing and lifting with her left shoulder.

On March 5, 2012, a physiotherapist reported that the worker had pain along her left shoulder and shoulder blade, left arm and hand swelling. The diagnosis was a left cervical radiculopathy.

The worker's file was reviewed by a WCB medical advisor on March 27, 2012. He stated that the diagnosis was likely a left shoulder rotator cuff strain and that the mechanism of injury was consistent with the diagnosis.

On March 30, 2012, the treating physiotherapist reported that the worker had subjective complaints of pain in her shoulder/neck movement, left more than the right.

An MRI of the left shoulder taken April 10, 2012 showed no evidence for a rotator cuff tendon tear.

On April 25, 2012, the treating physician reported that the worker had normal range of motion of her left shoulder and that she could work 5 to 7 hours per day for four weeks and then go back to full time duties.

The worker returned to modified duties in late April 2012 but discontinued due to pain complaints on May 2, 2012.

A cervical spine x-ray dated May 2, 2012 showed moderately severe degenerative disc disease space narrowing at C5-6 and C6-7 with posterior osteophytes.

On May 28, 2012, a WCB medical advisor commented that the worker's neck diagnosis appeared to be left C7 radiculopathy. He felt that this diagnosis was related to the initial traction type injury reported by the worker in January 2012. The medical advisor noted that resolution of the worker's left shoulder injury had not yet occurred. Restrictions were outlined for a period of 6 to 8 weeks.

An MRI of the cervical spine dated June 4, 2012 showed degenerative disc changes at C5-C6 and C6-C7. No cord compression was identified. There was a moderate right-sided neural foraminal narrowing at C5-C6. No findings were identified to suggest a compressive lesion on C7 nerve root on the left side.

On June 11, 2012, the treating physician reported that the worker could return to work at any time with little limitation of her left shoulder. He also requested that the worker be assessed by a WCB doctor.

On July 10, 2012, the worker was seen by a WCB medical advisor for an assessment of her shoulder and neck. The WCB medical advisor concluded that the probable diagnosis was left C7 radiculopathy and possible mild shoulder impingement syndrome and that these were related to the effects of the January 2012 workplace incident. It was also felt that the worker's delay in recovery was due to pre-existing cervical degenerative disc disease.

In a physiotherapy progress report dated July 11, 2012, it was indicated that the worker had bilateral shoulder and neck pain progressively with work-related activities and with activities of daily living. She also had suboccipital tension headaches.

File records showed that the worker continued to seek medical treatment related to her neck and shoulder complaints. In a doctor's progress report dated March 20, 2013, the treating physician noted that the worker still had ongoing issues with her neck and shoulder and that all the symptoms seemed to revolve around the neck region.

On May 14, 2013, the employer's representative appealed the worker's entitlement to wage loss and medical aid benefits after April 25, 2012. It was the employer's position that the medical evidence showed that the worker had recovered from the effects of her compensable left shoulder strain within a normal recovery period. They did not believe that the development of neck and cervical spine difficulties that surfaced months later was in any way related to the January 17, 2012 workplace accident in which the worker slipped but did not fall.

On June 24, 2013, Review Office determined that the worker was not entitled to benefits beyond April 25, 2012. Review Office referred to specific file information to conclude that the worker's need for medical aid and her loss of earning capacity after April 25, 2012 was not required as a result of her left shoulder injury. Review Office's opinion was that the worker's medical status significantly changed after April 25, 2012 and that these changes were not medically accounted for in relation to the left shoulder strain injury sustained on January 17, 2012. On July 26, 2013, the worker 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. She is seeking wage loss benefits and medical aid benefits after April 25, 2012.

Relevant provisions of the Act include:

· ss. 4(1) provides that 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.

· ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

· ss. 39(2) 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.

· ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Worker's Position

The worker was represented by her union representative. The representative provided a written brief prior to the hearing and summarized the worker's position at the hearing. The worker answered questions from the panel.

The worker's representative stated that:

"It's our position that it's a fact that [worker] did injure herself in the workplace. This is well documented. When she returned to work late in April 2012, albeit on a graduated basis, she had not fully recovered from that injury. Her own doctor while clearing her did recommend she seek additional physiotherapy."

The representative noted that when the worker returned to the workplace she was required to do her regular duties which included pulling heavy switches, placing wheel chocks in front of locomotives, and climbing up and down ladders. He said these duties aggravated her already injured shoulder.

In answer to a question from the panel about what is causing her current problem, the worker said that "it seems more the shoulder." She was unable to say whether the problem is coming from her shoulder or her neck. She said that when she went to the doctor initially she went strictly for her shoulder.

On her return to work she said that it was not a normal busy day, "I did everything so carefully, took my time, because I don't want to be hurt." She said that by the end of the second day she was "back to square one." She then went to see a different physician who told her that her problem was a C7 disc problem.

She described the accident which occurred when she was coupling two cars. She said that she had to physically get between the two cars, lift a lever and pull the coupling mechanism. As she pulled with her left hand her legs let go and a co-worker stopped her from falling and hitting herself on the rail. She said that she was "jerked" as a result of falling.

The worker said the pain she had after the incident was in the same area, her left shoulder, that she injured in 1997. At that time, after a series of treatments, she had a cortisone shot which worked "like magic."

Employer's Position

The employer was represented by an advocate and its Advisor, Disability Management.

The advocate said that the evidence shows the worker had recovered from the effects of her compensable left shoulder strain within a reasonable period. She said that the employer does not believe that the development of neck and cervical spine difficulties, which were noted months later, are related to the workplace injury.

The advocate noted that the claim was accepted as a left shoulder strain, and that the medical reports from the physician and physiotherapist mention a left shoulder strain. She noted the first mention of neck issue was in a March 30, 2012 report from the physiotherapist. The physiotherapist noted increased findings which included the right side. However the April 30 report from treating physician noted that the worker had no complaints and that the shoulder was fine.

The advocate disagreed with the WCB acceptance of a change in diagnosis from left shoulder strain to cervicular radiculopathy in May 2012. She submitted that the mechanism of injury is not the cause of the worker's complaints of pain in her neck, both shoulders and upper spine. She noted Review Office ended the claim in July and that the employer continues to accommodate the worker.

Analysis

The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits after April 25, 2012.

For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid after April 25, 2012 as a result of the workplace injury. In other words, the panel must find that the worker was unable to work at her regular duties and required medical aid after this date due to her workplace injury.

The panel was able to make this finding. The panel finds that the worker had minimal shoulder symptoms and complaints when she returned to work on April 30, 2012. However, the evidence is not entirely clear as to whether or not the worker's shoulder condition had resolved by April 25, 2012. The panel finds that it is more likely than not, that her shoulder had not resolved at the time of the return to work and that her shoulder symptoms, although minimal, continued and then worsened on the second day of her return to work.

Regarding the panel's finding that the worker's condition had not resolved completely by April 25, 2012, the panel notes the treating physician recommended a return to work at reduced hours and continued physiotherapy if needed. As well, the treating physiotherapist noted on March 30, 2012 that the worker still had weakness and pain in the area of the injury.

The panel notes that the worker had no complaints on the first day of the return to work (April 30). The duties she performed were sedentary and she worked for 6 hours. However, on the second day (May 1), near the end of her shift she participated in switching two cars. The evidence shows that this activity is significantly more physical than the duties she performed on her first day. The worker told the panel that after doing the switching she could "actually feel this is not feeling good so I left." She said that it was already uncomfortable when she got home and was stiffening up. Later that night it became achy and kept getting worse and worse.

Shortly after her unsuccessful return to work, the worker was seen by her treating physiotherapist who noted complaints of pain along her left shoulder, shoulder blade, left arm/hand swelling, decreased strength and decreased function. The panel accepts these complaints are related to the flare-up of the worker's muscular strain injury.

The panel also finds that the worker recovered from the January 2012 strain injury by July 10, 2012 which is the date upon which a WCB medical advisor examined the worker and found:

• postural assessment reveals the heights of her shoulders and iliac crests to be level. No kyphosis or scoliosis was noted.
• tenderness was not noted on palpation of the shoulder girdle musculature, and in particular over the insertion of the rotator cuff tendons.
• at the level of the left shoulder, diminished impingement testing was positive for mild discomfort, but not weakness. Jobe's test was negative. Weakness of supra and infraspinatus was not detected.

The panel believes that these findings support its decision that the strain injury was resolved by this date.

The panel notes that a parallel condition, diagnosed as a left-sided neck radiculopathy, appears to have become symptomatic at the time of her return to work. The panel considers the parallel condition affecting the worker's neck is likely a pre-existing condition. The panel finds that the worker's workplace injury was a strain type injury to the worker's shoulder. In the panel's opinion, the evidence does not support a finding that the worker's initial injury was a cervical radiculopathy as there were no significant signs or symptoms of a radiculopathy until the worker returned to work in late April 2012, more than 3 months after the workplace accident.

The panel finds that as of July 10, 2012, the worker was fit to return to work and that any loss of income after that date was not related to the accepted workplace injury.

Given this finding, the panel finds that the worker is entitled to wage loss and medical aid benefits for the period from April 25, 2012 to July 10, 2012.

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 11th day of December, 2013