Decision #135/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she was not entitled to wage loss or medical aid benefits after July 3,2014 in relation to her compensable injuries. A hearing was held on October 21, 2015 to consider the worker'sappeal.
Issue
Whether or not the worker is entitled to wageloss or medical aid benefits after July 3, 2014.Decision
That the worker is entitled to wage loss and medical aidbenefits after July 3, 2014 up to July 16, 2014 inclusive.
Decision: Unanimous
Background
On July 14, 2014, the worker filed a claim with the WCB for an accident that occurred at work on July 3, 2014 while assisting a co-worker transfer a patient from a wheelchair into bed using a hoyer lift. The worker stated: "I was trying to lift his leg to pull the sling onto his leg, and all of a sudden I felt a sharp pain in my left shoulder and it shot right up into my neck. We had to put him into bed and I injured both of my wrists while doing this. I twisted the wrong way when I was in front of him lifting his leg, and this is where I injured my right hip."
The Employer's Accident Report dated July 11, 2014 stated that the worker "is currently being accommodated to nights as of May 23 as a result of nights being the less repetitive shift for her bilateral [wrist condition] (on-going long time issue); stated to manager that she was lifting patient legs yet patient was in the hoyer sling in his wheelchair as the lift had not been initiated yet. Patient had been assessed by OT and was a 2 person assist. Employee has a 20 lb lifting restrictions which is being accommodated."
A Doctor's First Report dated July 7, 2014, stated that the worker had pain in both wrists, right hip and left shoulder since lifting a client at work on July 3, 2014. The physician diagnosed the worker with injury to both wrists, left shoulder, and a right hip strain.
On July 14, 2014, the employer spoke with WCB case management to advise that she had concerns with the claim. She said the worker had a bilateral wrist condition for many years, that she was scheduled to go for surgery and that the worker was completely out of sick time.
On July 18, 2014, a WCB adjudicator spoke with the worker and documented the following information:
I asked about her 20 lb lifting restriction. She said there were only 2 of them and she didn't think his leg was more than 20 lbs. She just had to lift it a little bit to pull the sling.
When she lifted the leg up with her left arm and felt a sharp pain in her left shoulder and while pulling sling under his leg with the right arm she had a sharp pain in her right wrist. Her right thumb bent back. She didn't twist properly because when she felt the pain she twisted suddenly and right foot was in front of him trying not to let him fall and she felt a sharp pain in her right hip as she jerked herself. The man felt that he was falling and at the edge of his chair and on top of a pillow. He was saying he's falling, help me. She tried to help him not fall and put him into his bed.
On July 20, 2014, the worker's family doctor reported that the worker had a painful and stiff left shoulder and neck with worsening pain and swelling in her hands. The worker had an active condition. The physician noted that the worker was being referred to a specialist and that she was not capable of alternate or modified work.
In claim notes dated August 6, 2014, a WCB medical advisor stated: "The treating physician documents that the worker has acute arthritis. If the Tylenol #3 is being prescribed in relationship to the acute [non-compensable] condition, then it would not be related to the CI [compensable injury]. If the Tylenol #4 is prescribed for a strain/sprain then it would be reasonable to accept financial responsibility for the prescribed Tylenol #4 as per the August 1, 2014 opioid management report."
A different WCB medical advisor reviewed the claim file on August 8, 2014. He referred to the worker's report that she almost simultaneously:
- injured the left shoulder when lifting a single leg
- injured the right wrist when pulling a sling under the leg
- injured the right hip when she twisted suddenly
The medical advisor stated it was unlikely that the mechanism of injury would account for the significant injuries to three separate body areas/structures simultaneously. He stated an injury greater than a mild strain seemed unlikely. He stated that the need for time off work and the use of opioid analgesics was considered unlikely. He noted that the worker had workplace restrictions in place already, in relation to other conditions.
The medical advisor indicated that the presence of a non-compensable condition may account for a degree of the reported diffuse symptoms, functional impairment and need for analgesics. It was unlikely that the other condition or pre-existing wrist condition would be materially aggravated by the reported mechanism of injury. In summary, the medical advisor stated it was unlikely that the mechanism of injury would result in significant injuries causing functional impairments that would interfere with the worker's ability to continue with her already modified work duties.
Based on the WCB medical opinion outlined on August 8, 2014, the worker was advised on August 11, 2014 that there was not enough evidence to conclude that the onset of her left shoulder, right hip and bilateral wrist difficulties were due to the mechanism of injury as described on July 3, 2014, therefore her claim for compensation was disallowed.
On September 9, 2014, the Worker Advisor Office appealed the above decision to Review Office on the worker's behalf. The worker advisor submitted that the file evidence supported that the worker sustained a workplace accident (a strain) on July 3, 3014 and that the provisions set out under subsections 1(1) and 4(1) of the Act had been met.
In a submission to Review Office dated November 17, 2014, the employer's advocate outlined the position that the evidence on file did not show that the worker's difficulties arose due to a workplace injury but were due to her pre-existing non-compensable condition. A copy of the advocate's submission was then sent to the worker advisor and the worker advisor's response is on file dated November 21, 2014.
On November 26, 2014, Review Office determined that the worker sustained an accident in accordance with the Act. Review Office agreed with the WCB medical consultant who stated that based on the mechanism of injury, a "mild strain" injury was probable. Review Office then referred the case back to Compensation Services to determine any benefit entitlement in relation to the accident.
In a WCB decision dated December 15, 2014, the worker was advised that while her claim for injury to her left shoulder, left hip and left wrist on July 3, 2014 had been accepted as a mild strain, the WCB was not able to support a loss of earning capacity beyond the date of the July 3, 2014 workplace accident or for the prescribed opioid analgesics. The decision was based on the WCB medical advisor's opinion that even with the diagnosis of a mild strain, the need for time off work and the use of opioid analgesics would be unlikely.
On January 30, 2015, the worker advisor appealed the December 15, 2014 decision to Review Office. The worker advisor argued that the medical reports from the attending physicians confirm the worker was totally disabled from work beyond the date of the accident and therefore she was entitled to wage loss benefits. It was also the worker advisor's opinion that the need for opioid medication was directly related to the compensable injuries of July 3, 2014, particularly the left shoulder strain.
In a submission to Review Office dated March 4, 2015, the employer's advocate submitted that based upon the mechanism of injury, diagnosis, pre-existing conditions, provision of modified duties and the opinion of the WCB medical advisor, there was no reason to reverse the December 15, 2014 adjudicative decision. A copy of the submission was sent to the worker advisor and her response is on file dated March 12, 2015.
On March 24, 2015, Review Office determined that the worker was not entitled to medical aid or wage loss benefits beyond July 3, 2014.
Review Office agreed with the WCB medical advisor that the worker suffered mild strain injuries which do not typically require time loss or medication. Review Office acknowledged that the treating physician authorized time loss for the worker and provided her with medication including opioids but found that the worker's time loss and medication usage were related to her non-compensable conditions and not related to the claim. Review Office commented that a mild strain type injury would not have prevented the worker from performing her regular accommodated duties nor would it have required the worker to use medications. On April 10, 2015, the worker advisor 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.
The worker has an accepted claim for a mild strain which arose from a workplace accident but was awarded benefits for only the day of the accident. She is seeking benefits beyond the date of the accident.
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.
Worker's Position
The worker was represented by a worker advisor. The worker answered questions posed by the worker advisor and the panel.
The worker advisor submitted that the worker is entitled to full benefits, being wage loss and medical aid, for her injuries that arose as a result of the workplace accident on July 3, 2014. She noted that the worker's claim was accepted by the Review Office who agreed that the worker suffered strain injuries as a result of her July 3, 2014 workplace accident when she assisted a patient. She said the accident resulted in strain injuries, particularly to the left shoulder and right hip. She disagreed with the WCB medical advisor who considered the injury to be a mild strain. She submitted that on a balance of probabilities, the strain was not as minimal as suggested by the medical advisor due to the size and condition of the patient who the worker was assisting.
In response to a question from her representative, the worker said that the patient that she and her co-worker were helping was an amputee on one leg and the other leg was very big and heavy, possibly 100 pounds. She said she was injured trying to move the patient from a wheelchair onto his bed.
She said:
I tried to lift the left leg up with the elephantiasis to pull the sling with my right hand. All that, it's heavy load so we had to pull and I had this leg go, something cracked like that.
The worker said that they were using a hoyer lift but it was not designed for amputees making the task more difficult.
The worker advisor advised that the worker relies on the doctor's first report dated July 7, 2014. She noted that the doctor confirmed the diagnosis connected to the workplace accident as strains specifically to the left shoulder and the right hip with a further aggravation to the pre-existing condition of the wrists.
In support of an ongoing relationship between the compensable left shoulder strain and a continued loss of earning capacity, she relied upon the examination report of July 16, 2014 by the family physician who opined that the worker could not work.
The worker advisor referenced WCB policies 44.120.10, Medical Aid and 44.120.20, Medical Aid Opioid Medication, in support of the worker's request for coverage of medical aid benefits.
With regard to whether she was working restricted duties at the time of the injury, the worker disagreed with the employer and said the restrictions were no longer in place. The worker also disagreed with the suggestion that she did not report her shoulder and hip when she first sought medical attention.
The worker advisor noted that the employer's accident report on file notes that the accident was reported to the employer the next day, July 4, with the areas of injury being the left shoulder, the right hip and the wrists. With respect to the first medical report on file, she said it confirms a diagnosis of a strain to the right hip and left shoulder. It also supports an inability to work.
The worker advisor asked the panel to look only at the injuries that directly arose as a result of the accident as the evidence supports there is an entitlement to benefits for the injuries specifically being to the left shoulder and the right hip.
Employer's Position
The worker was represented by an advocate and a staff person. The employer representative advised that the employer initially opposed the acceptance of the claim. She said that it remains the employer's position that the worker's sore and tender joints are due to her active non-compensable condition. The employer agrees with the March 24, 2015 Review Office decision that there was no entitlement to benefits and agrees with the opinion of the WCB medical advisor that the reported mechanism of injury would not have resulted in any significant injury causing functional impairment.
The employer representative submitted that any need for medical benefits, including prescription drugs, is for the worker's non-compensable problems which are well documented and are noted on her prior claim files.
The employer representative noted that initially, the worker didn't report an injury to her left shoulder or her right hip as indicated in the employer's report which was completed just days after the incident. She said that when she first reported the incident to the employer's occupational health nurse, the worker only indicated that her wrists were sore. The employer was aware that the worker had wrist problems, as they had already accommodated her with modified duties for this condition.
The employer representative advised that at the time of the accident, the worker was being accommodated with modified duties with restrictions for her non-compensable wrist condition. As well, the employer was aware of her history of another non-compensable condition.
The employer representative advised that on February 20, 2014, the worker submitted a medical note requesting that she be switched to night shifts due to medical illness. She noted that the worker had been diagnosed with a wrist condition and an internal condition. The worker's work restrictions included a 20 pound restriction on lifting, carrying, pushing, and pulling. She was also told by her doctor to self-monitor her activity in terms of repetitive motion, bending and twisting. She also noted that the worker had concurrent employment, working full time during the day in a home care position.
The employer representative submitted that the restrictions in place at the time of the accident would be more than sufficient for any possible aches or soreness caused by the claimed workplace incident.
The employer representative noted that the July 7, 2014 doctor's first report documented minimal objective findings mainly consisting of tenderness and swelling around the joints and decreased range of motion due to pain. At that time a drug was prescribed which is commonly given for the internal condition. She noted that the July 22, 2014 doctor's report noted resolving pain and full range of motion.
She said that the main symptoms of the internal condition are joint pain, tenderness and swelling and these are precisely the symptoms that were noted by the worker's doctors. She also noted that the July 31, 2014 report from the worker's treating physician for a July 28 examination, basically reported no findings other than the other condition and synovitis of the hands, wrists and fingers which is related to her pre-existing wrist condition. The employer representative noted that the worker had improving pain in the left shoulder joint and full range of motion in both shoulders and all spheres and suggested that the prescriptions noted were for her pre-existing problems.
The employer representative added they have concerns about the actual mechanism of injury.
Analysis
The issue before the panel is whether the worker is entitled to wage loss or medical aid benefits after July 3, 2014. For the worker's appeal to be approved the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid after the date of the accident. The panel was able to make this finding.
The panel finds that the worker was entitled to benefits for a strain injury to her left shoulder. The panel also finds that the strain injury had sufficiently resolved by July 16, 2014 based on a report from her family physician. By this point, the worker was fit to return to her regular employment duties which were being modified due to her pre-existing wrist and internal conditions.
Although the worker referred to multiple injuries arising from the lifting incident, the panel finds that the most likely injury was a strain to her left shoulder. In reaching this decision, the panel notes the following:
- the initial medical report dated July 7, 2014 identifies the area of injury as left shoulder, both wrists and right hip. This report notes restricted range of motion for the left shoulder which the panel finds is consistent with an injury to the left shoulder. The findings of tenderness to the right hip with full range of motion does not, in the panel's opinion, support a likely strain injury. The panel finds that the other findings by the physician are more reflective of the worker's pre-existing internal condition.
- on July 16, 2014 the family physician identified the area of injury as "L shoulder." He reported that the worker had full range of motion in her left shoulder. In reply to the question "what are the complicating factors impeding progress?" the physician identified the worker's pre-existing internal condition.
The panel therefore finds, on a balance of probabilities, that the worker is entitled to wage loss and other benefits until July 16, 2014. After this date, the worker's wage loss is more likely due to her pre-existing wrist and internal conditions.
The panel considered the August 8, 2014 opinion of the WCB medical advisor. We agree with the medical advisor's opinion that it is unlikely the worker's pre-existing conditions would be materially aggravated by the reported mechanism of injury. However, the panel finds there is sufficient evidence of injury to the left shoulder to provide benefits for the noted period.
The worker's appeal is accepted.
Panel Members
A. Scramstad, Presiding OfficerR. Koslowsky, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 30th day of December, 2015