The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his left shoulder and right elbow conditions were not caused by overcompensating for his compensable right shoulder and left elbow complaints. The worker is also appealing the WCB's decision that his continued disablement and loss of earning capacity were not due to the effects of his May 21, 2010 compensable injury and therefore he was not entitled to wage loss benefits beyond February 22, 2012. A hearing was held on August 25, 2014 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's left shoulder and right elbow difficulties in relation to his May 21, 2010 compensable injury; and

Whether or not the worker is entitled to benefits after February 22, 2012.

Decision

That responsibility should not be accepted for the worker's left shoulder and right elbow difficulties in relation to his May 21, 2010 compensable injury; and

That the worker is not entitled to benefits after February 22, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to both arms which he related to the repetitive nature of his work duties as a production worker. The date of accident was May 21, 2010 and it was reported to his employer on July 2, 2010. On May 21, 2010, the worker sought treatment from a physiotherapist and the diagnosis made was right rotator cuff tendonitis and left elbow epicondylitis.

The worker's claim for compensation was accepted and wage loss benefits were paid from July 2, 2010 to July 15, 2010 and the worker returned to modified duties on July 16, 2010.

On March 21, 2011, the employer's representative appealed the WCB's decision to accept the worker's claim and to provide wage loss benefits from July 2 to 15, 2010. The employer's position was that the worker did not sustain an injury arising out of and in the course of employment and therefore he should not have been entitled to wage loss benefits.

In a decision dated May 11, 2011, Review Office determined that the worker's right and left arm difficulties were consistent with his job duties and therefore his claim for compensation was acceptable. Review Office also found that the worker was not entitled to wage loss benefits from July 2 to 15, 2010 as it was felt that the medical evidence from the treating physician confirmed that the worker was capable of performing modified duties.

Commencing May 4, 2011, the worker was laid off from work as his physician outlined new restrictions affecting both arms and as his employer advised that it was not able to provide the worker with modified duties within these restrictions.

On May 26, 2011, the worker was examined by a WCB medical advisor at a call-in examination. Diagnoses of right rotator cuff tendinopathy and left elbow lateral epicondylosis were identified based on regional pain discomfort and tenderness. It was noted that the worker's symptoms were beyond the typical norm for resolution of tendonopathies, which typically resolve, if in a chronic state, over six to ten months on average. Restrictions of avoidance of repetitive right sided overhead and shoulder movements, lifts greater than 10 lbs. overhead through the right arm and shoulder, and repetitive wrist extension and supination movements with load to the left wrist and forearm region were recommended.

On July 11, 2011, the worker was called back to work, performing modified duties.

On September 15, 2011, the worker spoke with his case manager stating that his left shoulder and right arm became sore as a direct result of him being forced to increase his production at work on April 27, 2011. This was the day that both his right arm and left shoulder started to become an issue. He was manually punching clips at that time and he was doing the job on a continuous basis. The worker felt that the modified duties he was performing were outside of his work restrictions. The jobs he performed were repetitive clip making, pulling weeds, using a type of metal to pry the weeds out, painting, sweeping, cleaning up around the yard and shop and a push for quotas to be filled.

The case manager then spoke with the employer and he documented information to the file regarding the worker's complaints of left shoulder and right arm pain and the work duties he performed in April and July 2011.

On September 14, 2011 a WCB medical advisor formed the following opinion after reviewing the claim:

Difficult to see a direct relationship between the left shoulder complaints and the reported CI from 2010; if one was to consider the argument that the left shoulder complaints are secondary to overuse given the presence of right shoulder compensable based restrictions, one needs to consider that there were as well left forearm compensable restrictions which would likely decrease the use of the left arm in the workplace, in addition to the worker performing lighter/modified duties with periods of complete work absence. This would not indicate excessive use of left shoulder at the workplace.

On September 29, 2011, the case manager wrote the worker to confirm that the WCB was unable to accept responsibility for his left shoulder and right elbow issues as he was unable to substantiate that a new workplace injury occurred either in April or July 2011. The case manager also outlined the view that the modified duties performed by the worker were consistent with the workplace restrictions as laid out in the return to work plan.

On October 19, 2011, the worker appealed the September 29, 2011 decision to Review Office. The worker submitted that the duties he performed at work either caused or aggravated his left shoulder and right elbow difficulties.

Following a preliminary review of the worker's appeal, Review Office referred the case back to primary adjudication to conduct a further investigation and to revisit its earlier decision.

On December 14, 2011, the WCB case manager wrote the worker stating that no change would be made to the decision of September 29, 2011, based on the following reasons:

• the minutes of a April 27, 2011 workplace meeting were reviewed and the worker did not report a new injury at the meeting as per his appeal. The worker had been disciplined at that time for not performing the modified duties he was assigned. The worker was not told to increase quota or numbers.
• the case manager could not confirm that the worker used electric snips as per his appeal. While the employer could not verify whether the worker did or did not use them, their use was not a part of either his regular or modified duties.
• regarding the alleged incident in July 2011, the case manager was unable to identify duties which would have caused the injuries described by the worker.
• at no time did the worker report a new injury to his employer or to the case manager.

In response to questions posed by the case manager, a WCB orthopedic specialist reviewed the file on December 16, 2011 and stated:

• the current diagnosis for the right shoulder and left elbow was right shoulder rotator cuff tendinopathy, left elbow chronic lateral epicondylitis. The anticipated recovery period for these two conditions would not be more than one year.
• regarding the worker's current presentation, there had been no new injury to these areas and although the worker's upper limb activities had not been regularly quantified, it did appear that the diagnosis continued to be related to the workplace.

On December 26, 2011, the worker appealed the December 14 decision to Review Office.

On January 9, 2012, the worker underwent a functional capacity evaluation ("FCE") to determine his functional and work abilities. The worker's participation during the FCE was identified not to be a full voluntary effort passing 0 of 5 validity checks. As such, the FCE results were considered to represent the worker's minimal physical abilities.

On February 9, 2012, the worker's claim was reviewed by a WCB orthopedic consultant which included the FCE results. He indicated that in the absence of any further injury to these areas it was difficult to explain why there had been no improvement in spite of appropriate conservative management and workplace protection. The worker's lack of response to local anesthetic and hydrocortisone was difficult to explain and it led to doubt on the claimed severity of symptoms and the significance of the claims of pain and loss of function in that area. The consultant felt that based on the FCE results and his review of surveillance activities, the current workplace restrictions were rescinded.

On February 15, 2012, the WCB advised the worker that wage loss benefits would be paid to February 22, 2012 inclusive and final as it felt that he was no longer suffering from the effects of his workplace injury and that any current symptoms could not be explained in relation to the workplace injury. The case manager stated:

Given that we are now 21 months into your claim, the treatment you have received for your injuries and the lack of new injuries to either your right shoulder or left elbow, the WCB is not able to explain why there has been no improvement in your conditions.

Surveillance results also show no signs of disability to either your left elbow or right shoulder. You demonstrated you (sic) ability to function in a normal manner. This is not at all consistent with the results of the FCE which showed significant disability.

On March 12, 2012, the worker appealed the above decision to Review Office.

On May 4, 2012, Review Office determined that responsibility should not be accepted for the worker's left shoulder and right elbow difficulties in relation to his compensable injury of May 21, 2010 and that there was no entitlement to benefits after February 22, 2012.

Review Office noted the worker's contention that his left shoulder and right elbow conditions developed due to overuse and compensating for his right shoulder and left elbow. The worker indicated that a specific incident did not occur but that his condition came about due to the work he performed in April and July 2011 which involved using electric snips, making clips and weed whacking.

Review Office referred to file evidence noting that the initial diagnosis for the worker's left shoulder was a rotator cuff tear and adhesive capsulitis with rotator cuff tendinopathy, and that an MRI of the left shoulder was normal and no pathology was found. The medical documents did not provide a diagnosis for the right elbow and there was limited report of complaints to physicians regarding the right elbow.

Review Office noted that the duties performed by the worker in April and July 2011 involved no heavy lifting, no production quota, minimal reaching above the shoulder and actions required light force. It found that the modified duties were within the worker's restrictions and there was nothing onerous which would cause his left shoulder/right elbow condition to develop. Review Office also accepted the opinion which was outlined by the WCB medical advisor on September 14, 2011.

With respect to entitlement to benefits after February 22, 2012, Review Office found the evidence supported that the compensable injuries of May 21, 2010 were no longer contributing to the worker's ongoing difficulties. Review Office felt that the worker was not credible in his presentation as there were differences shown in the surveillance video of the worker's activities in late November and early December 2011 and the efforts made at the FCE on January 9, 2012. Review Office also accepted the medical opinion outlined on February 9, 2012, by the WCB orthopedic consultant. Based on the whole of the evidence, Review Office found that the worker's continuing disablement and loss of earning capacity were not due to the effects of the compensable injury of May 21, 2010. It was therefore concluded that the worker was not entitled to benefits beyond February 22, 2012.

On April 22, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged to consider both issues raised by the worker.

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 submission:

The worker was self-represented at the hearing and the services of an interpreter were provided. The worker provided an extensive written submission which consisted of 24 pages of detailed argument and numerous exhibits. The worker addressed a number of credibility issues which were raised in the WCB file and in the Review Office's decision. He was extremely critical of the evidence given by the employer and its representatives, and the findings made by the WCB case manager and Review Office. His overall position on the appealed issues was that his right arm/elbow and left shoulder issues were related to his previous compensable injuries of May 21, 2010 and that the previous injuries continued to persist and exist.

The worker stated that the employer was well-informed about his new injuries as was the WCB. He was sent home on May 4, 2011 because of a change in restrictions. His claims for the new injuries were duly accepted and compensated and treatment for same was paid for by the WCB. It was submitted that both new injuries were sustained in the workplace and were work-related. With respect to the previous compensable injuries, the worker submitted that four doctors and two physiotherapists confirmed that he was still suffering from his injuries. He stated that the surveillance video was inconclusive and lacked validity. With respect to the FCE results, the worker stated that the tests were inconclusive because he was told that once he felt pain, he was to advise the tester and that they would stop. That was what he did and he stated that it could not be said that he did not try.

The worker's evidence was that at the present time, he continued to be injured in the four parts of his body (right shoulder, left elbow, right elbow and left shoulder). While he had been able to maintain employment as a security guard, he was unable to perform his previous job duties which required use of his arms and shoulders. The worker requested reinstatement of all of his claims for both shoulders and both arms/elbows and that compensation be paid from February 22, 2012 to the present and beyond.

Employer's submission:

The employer was represented by an advocate, a health and safety specialist, and a supervisor. The employer noted that it had concerns with the worker's claim from the outset. It was submitted that the job duties did not involve overhead lifting and that they were varied, non-repetitive and were performed at waist or chest height. The diagnoses of rotator cuff tendonitis and left lateral epicondylitis were inconsistent with the job duties. When the worker later developed difficulties with his left shoulder and right elbow, he was performing light duties which also would not be causative of these conditions. The employer was not notified of any difficulties and the worker made no mention of any alternate limb problems until September 2011, even though the worker identified job duties performed in April and July 2011 as being causative. With respect to entitlement to benefits after February 2012 for the compensable injuries, it was submitted that the medical reports showed no pathology and full range of motion. The medical evidence provided no objective findings to support subjective symptoms that continued on and on. It was the employer's position that the WCB's decision to end benefits was appropriate and the panel was asked to dismiss the appeal.

Analysis:

The issues before the panel are whether or not responsibility should be accepted for the worker's left shoulder and right elbow difficulties in relation to his May 21, 2010 compensable injury and whether or not the worker is entitled to benefits after February 22, 2012. We will address each issue separately.

Left shoulder and right elbow difficulties

The first issue is whether or not responsibility should be accepted for the worker's left shoulder and right elbow difficulties in relation to his May 21, 2010 compensable injury. At the hearing, the worker acknowledged that in May 2010 when he first reported his compensable right shoulder and left elbow injuries, his left shoulder and right elbow did not cause him any difficulties. These conditions only arose in 2011. In order for the worker's appeal to succeed, the panel must find that the new left shoulder and right elbow complaints were causally related to compensatory use and/or the job duties being performed by the worker. On a balance of probabilities, we are not able to make that finding.

It would appear that from at least November 2010 onwards, the worker was provided modified job duties at work which complied with the following restrictions:

• avoid lifting overhead greater than 10 lbs through the right shoulder;
• avoid repetitive shoulder motions under load;
• avoid repetitive left wrist extension and supination; and
• avoid unilateral lifting greater than 10 lbs through the forearm.

Although the restrictions on the left side were directed at the worker's elbow, they effectively limited any extensive use of the left shoulder. Similarly, the right shoulder restrictions prevented any significant use of the right arm and elbow. In the circumstances, the panel has difficulty seeing how an overuse injury could develop on the opposite side. The modified duties did not involve a high volume of activity on either side nor was a significant range of motion required. There was very limited requirement for any overhead or above the shoulder activity, which is typically implicated in a rotator cuff tendonopathy.

The worker identified two specific tasks which he was assigned while performing modified duties which he felt were causative of his left shoulder and right elbow difficulties. The first was a job where he was required to cut sheet metal using electric snips, which are a vibratory tool. The worker was able to identify one shift where he was assigned these duties.

The second was the job of using a weed whacker and clearing weeds off of the employer's lot. The evidence is unclear as to the extent to which the worker was performing this work in July 2011. The employer's version of events differs from that of the worker. When asked how long he used the weed whacker, the worker's evidence was that he did this work for 36 hours over the course of six days. The panel accepts that 36 hours would have been the worker's maximum exposure.

Although performing the identified tasks for extended periods of time may in some cases be problematic, the panel finds that in this worker's case, the exposure was not sufficient to convince us on a balance of probabilities that his left shoulder and right elbow difficulties, which still persist and have become chronic, were causally related. We find that the worker's exposure to these duties was limited, and we do not accept that the performance of these duties would cause the long-term damage to his left shoulder and right elbow. The panel also notes that through this period of time, the worker did not report or complain of any significant or acute decline in the status of his compensable right shoulder or left elbow conditions. If the job duties were truly damaging to the left shoulder and right elbow, presumably the right shoulder and left elbow would also have been affected.

The panel therefore finds that responsibility should not be accepted for the worker's left shoulder and right elbow difficulties in relation to his May 21, 2010 compensable injury. The worker's appeal on this issue is denied.

Benefits after February 22, 2012

The second issue is whether or not the worker is entitled to benefits after February 22, 2012. In order for the worker's appeal to succeed, the panel must find that the worker's compensable right shoulder rotator cuff tendonopathy and left lateral epicondylitis continued to be symptomatic and caused the worker to suffer a loss of earning capacity beyond February 22, 2012. On a balance of probabilities, we are not able to make that finding.

According to the March 23, 2011 WCB medical advisor's note, the natural history of these conditions is variable and chronic presentations can last from 6 to 10 months before material resolution. In the worker's case, by February 2012, he had been reporting symptoms for approximately 21 months.

Credibility was an issue in this appeal, with both the worker and the employer questioning the reliability of the other's evidence. Surveillance video and a score of 0 out of 5 on the FCE validity tests was noted by the employer and was relied upon by the WCB in making its decision to end benefits. In the panel's opinion, neither the surveillance video nor the lack of full voluntary effort at the FCE confirms that the worker's compensable injuries have resolved. They do, however, suggest that there has been some degree of symptom amplification and the panel therefore chooses to rely more heavily on the objective diagnostic and clinical findings on file, rather than the reported complaints of pain.

When reviewing the available medical findings which do not rely solely on reported complaints of pain, the panel notes that:

• the reported condition has extended far beyond the typical norms for resolution;
• the MRI of the right shoulder was normal, showing no signs of tendonopathy;
• The corticosteroid injections resulted in no improvement;
• The examination by the WCB medical advisor on May 26, 2011 noted that examination of the left elbow and forearm did not show evidence of swelling or musculature atrophy. There was no radial head tenderness and Tinel's over the cubital tunnel was negative. Wrist range of motion was full. Screening median radial and ulnar nerve function through the left forearm, wrist and hand was unremarkable. There are no findings of left elbow lateral epicondylitis which do not reply on reports of pain.
• The examination by an orthopedic surgeon on October 4, 2011 noted that the right shoulder revealed no muscle wasting, with full active range of motion with a painful arc at about 90 degrees, 5/5 strength with abduction, the empty can test and Speed's test. The worker had full 5/5 strength in both internal and external rotation. Apprehension and load and shift test were negative, as was the crank test. There are no findings of right rotator cuff tendonopathy which do not rely on complaints of pain.

Overall, the panel finds that there is insufficient objective diagnostic and clinical medical evidence to support the finding that the worker continued to suffer from the effects of his compensable injuries beyond February 22, 2012. Accordingly, we find that the worker is not entitled to benefits after that date. 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 9th day of September, 2014