Decision #73/16 - Type: Workers Compensation
Preamble
al.The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to her compensable accident that occurred on December 19, 2014. An oral hearing was held on April 11, 2016 to consider the worker's appe
Issue
Whether or not the worker is entitled to further benefits in relation to the December 19, 2014 accident.
Decision
That the worker is not entitled to further benefits in relation to the December 19, 2014 accident.
Decision: Unanimous
Background
The worker filed a claim with the WCB when she jarred her right shoulder at work on December 19, 2014 when taking out garbage that weighed approximately 80 pounds (On January 2, 2015, the worker indicated that the garbage weighed 15 to 20 pounds). Subsequent medical information showed that the worker was diagnosed with a rotator cuff strain resulting from the accident and that she had a history of shoulder problems in the past for which she underwent a subacromial injection on October 21, 2014. On December 24, 2014, the worker returned to work performing modified duties while attending physiotherapy treatment.
In late February 2015, the treating physician reported that the worker felt a small throbbing pain in her right shoulder that radiated to the upper right arm and a burning sensation in both hips.
On February 25, 2015, the treating physiotherapist reported that the worker was discharged from treatment and her condition was improving.
On March 4, 2015, the worker was seen at the WCB for a call-in assessment regarding her right shoulder complaints. The examining medical advisor indicated that the current diagnosis for the right shoulder was unclear as the worker did not agree to a comprehensive right shoulder examination. The medical advisor requested that WCB case management obtain chart notes and a narrative report from the treating physician regarding the worker's pre-accident right shoulder symptoms. In the interim, the medical advisor indicated that the worker's right upper medial and lateral arm pain was not likely accounted for in relation to the workplace accident given that her complaints first began in February 2015, two months post workplace accident in the absence of a concordant accident.
The worker spoke with her case manager on March 13, 2015 to advise that due to weather changes (ice and mud), her work boots collected mud and this caused her shoulder to become very sore.
On March 17, 2015, an MRI of the right shoulder revealed mild AC arthrosis and a small full-thickness tear of the supraspinatus with articular surface tear in the cephalad subscapularis.
On March 25, 2015, the worker advised her case manager that she again injured her right shoulder, right knee and right hand at work. While walking out of a shack to see a client, her jacket sleeve was caught on the metal door jamb and she spun and jarred her right shoulder. She also hurt her right hand and struck her right knee against the door jamb.
On March 27, 2015, the WCB medical advisor stated that "The reported mechanism of walking through mud with heavy boots would not likely account for any structural alteration in the right shoulder."
In a decision to the worker dated March 30, 2015, the WCB outlined its position that based on the mechanism of injury, diagnosis and duration of the claim and presentation during the call-in examination, the WCB was unable to account for her stated ongoing right shoulder difficulties as being related to the compensable incident. Based on these findings, the need for ongoing medical treatment, ongoing loss of earning capacity and ongoing physical restrictions were not related to the compensable accident.
On May 19, 2015, a union representative provided the WCB with a report from the treating physician dated May 5, 2015 to support that the worker's ongoing right shoulder difficulties continue to be a direct result of the December 19, 2014 workplace injury.
A WCB orthopedic consultant reviewed the file on June 10, 2015 and responded as follows to questions posed by the case manager:
The clinical history and examination reports point to a diagnosis of degenerative rotator cuff disease of the right shoulder since 2013.
The subacromial injection in October 2013 was directed to this pre-existing diagnosis.
The December 19, 2014 workplace injury caused a non-specific strain/sprain of the right shoulder.
The MRI demonstrated an osteoarthritis of the right acromion-clavicular joint which would be a degenerative process of many years duration.
There was no objective medical evidence that the workplace injury aggravated or enhanced the pre-existing degenerative pathology in the right shoulder.
The current difficulties are related to the pre-existing shoulder condition rather than the workplace injury. Had it not been for the pre-existing condition, recovery from the workplace injury would have been expected within a few weeks.
In a decision dated June 10, 2015, the WCB advised the union representative that the new report had been considered and that the WCB remained of the opinion that the worker's ongoing difficulties related to her right shoulder were not related to the December 19, 2014 compensable accident.
On June 19, 2015, the union representative wrote Review Office stating that they were in disagreement with the March 30 and June 10, 2015 adjudicative decisions. The union representative referred to the opinions expressed by the treating physician on May 5, 2015 and an occupational health physician dated May 21, 2015, that the worker's mild AC arthrosis was having a minimal effect on her ongoing symptoms and that they related her right shoulder pain and discomfort to a combination of an adhesive capsulitis and rotator cuff tear. Based on these findings, the union representative contended that the worker's ongoing right shoulder difficulties continue to be a direct result of the December 2014 workplace injury.
On August 13, 2015, the employer's representative outlined the position that the explanation provided by the WCB orthopedic consultant was more consistent with the historical pattern of the worker's shoulder problems which required steroid injections in June 2013 and October 2014. He noted that the initial medical reports concluded that the initial injury sustained in December 2014 of was that of a sprain/strain and that recovery from such an injury would be a few weeks. The worker also experienced an increase in pain as well as a decrease in range of motion while at home on February 20, 2015. It was felt that the "weight of evidence does not establish the necessary nexus between [the worker's] ongoing shoulder problems and the compensable incident of December 19, 2014."
In a decision dated September 14, 2015, Review Office found there was no further entitlement to benefits on the claim. Review Office concluded that the worker's right shoulder condition was in keeping with the natural progression of a degenerative rotator cuff tear and acromioclavicular arthritis of the right shoulder. Neither conditions were work-related. By the time of the decision to end support for benefits on March 30, 2015, there was insufficient medical evidence to support the worker continued to suffer from the effect of the workplace injury. On October 2, 2015, the union representative 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 WCB 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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.
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.
The worker has an accepted claim for an injury arising from a December 19, 2014 accident. She is seeking wage loss and medical aid benefits in relation to this workplace accident.
Worker's Positon
The worker was represented by a union representative. The representative provided a written copy of his submission. The worker answered questions from the panel.
The representative noted that the worker was injured at work on December 19, 2014. He noted she sought medical attention on December 22, 2014 and was diagnosed with a probable rotator cuff strain. She was accommodated by the employer on December 24, 2014 by modifying her own position.
The worker's representative acknowledged that more than a year prior to the workplace accident, the worker received a subacromial steroid injection, for symptoms of rotator cuff impingement and indicated that it had settled well. He advised that in the months before the workplace injury she reported no right shoulder symptoms or limitations.
The worker's representative noted that the worker's physicians have a different view of the worker's injury than the WCB orthopedic consultant. He said that the physicians who examined the worker were of the opinion that the mild AC arthrosis, which the worker had, was having a minimum effect on her ongoing symptoms. The worker relied on the following opinions:
May 5, 2015, a sports medicine physician opined that based on the worker's reported mechanism of injury it is quite likely that the tearing within the supraspinatus and subscapularis tendons were, on a balance of probabilities, likely to have occurred with respect to her workplace injury. The physician also opined that the worker began to develop adhesive capsulitis in her right shoulder.
May 21, 2015, an occupational health physician opined that "The unanticipated weight of a garbage bag she yanked on in a lifting exertion is consistent with the diagnosis of acute strain…The March 17, 2015 MRI finding of small full thickness supra spinatus rotator cuff tear is, on balance of probability, likely caused by this injury event, given the specific exertion involving the weight lifted and the acute onset of anterior shoulder pain.
The representative noted a WCB orthopedic consultant opined the worker's shoulder problems were "…degenerative and long standing, and that there was little evidence to support the workplace accident on December 19, 2014 made a meaningful change to her condition."
The worker's representative submitted that the WCB put significant weight on the opinion of the WCB orthopedic consultant and the results of an incomplete call-in exam. He said that on a balance of probabilities, the physicians that examined the worker have a better understanding of the mechanics of injury and how her ongoing difficulties are related to the December 19, 2014 injury.
In answer to a question, the worker advised that she underwent surgery on her right shoulder in February 2016. She was unable to provide information on the surgery.
Regarding the injections she received in her right shoulder before the workplace accident, the worker advised that the first injection provided relief. With respect to the second injection, the worker said:
But it was different from the first time. And that one it didn’t work the way the first one. And I guess at that point I realized, okay, well if it’s a tear, it’s not going to help.
The worker advised that she had another injury in March 2015. She described the accident as follows:
My right shoulder. There was a nail hanging out of the door. And as I went to go direct traffic, I got caught on it. And I ripped my jacket and it pulled me back. At that point my arm, it was like it froze. I was in pain. I felt like somebody just took me out at the knees. I went down and I radioed in for help. It took them about 20 minutes before and finally one of the guys that was just driving around.
The worker advised that she sought medical attention immediately.
Employer's Position
The employer relied upon its written submission to Review Office dated August 13, 2015. In the written submission the employer concluded:
In closing, we believe that the explanation provided by the [WCB orthopedic consultant] is far more consistent with the historical pattern of this worker's shoulder problems which required steroid injections in June 2013 and October 2014. The initial medical reports from more than one physician as well as a physiotherapist concluded that the injury sustained on December 19, 2014 was that of a sprain/strain. Anticipated resolution of such an injury would have been in the neighborhood of a few weeks according to [WCB orthopedic consultant], however [worker] experienced an increase in pain as well as a decrease in range of motion while at home on February 20, 2015. We believe that the weight of evidence does not establish the necessary nexus between [worker's] ongoing shoulder problems and the compensable incident of December 19, 2014. Accordingly, we would call upon the Review Office to confirm the adjudicative decisions of March 30th and June 10, 2015.
Analysis
The worker has an accepted claim for a workplace injury and is seeking further wage loss and medical aid benefits in relation to this claim. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical treatment as a result of the accident beyond the benefits that have already been provided. The panel was not able to make this finding. The panel finds that the worker's ongoing difficulties are not related to the December 19, 2014 accident and that the worker is not entitled to further benefits on this claim.
The panel notes that the worker initially indicated that the garbage bag which she lifted weighed about 80 pounds but revised this estimate to approximately 15 pounds.
The panel has considered the medical and other evidence on the claim file. The panel notes that the worker had a pre-existing shoulder condition for which she received treatment in 2013 and 2014, specifically:
June 6, 2013 - diagnostic imaging of right shoulder - "There is mild AC Joint arthrosis"
June 24, 2013 - right shoulder injection
October 2, 2014 - sports medicine physician - diagnosis: rotator cuff impingement - treatment: ultrasound guided injection into subacromial/subdeltoid bursa
The panel finds that the worker's condition had not settled or resolved as suggested by the worker's representative and the occupational health physician, but rather it continued to wax and wane in the period prior to the workplace accident.
The panel finds that the worker sustained a strain injury while at work on December 19, 2014. The panel accepts the opinion of the sports medicine physician who examined the worker on December 22, 2014. The panel also attaches weight to the opinion of the WCB orthopedic consultant who reviewed the worker's file on June 10, 2015 and opined that "The workplace injury of December 19, 2014, caused a non-specific strain/sprain of the right shoulder." The panel finds that the act of lifting a garbage bag weighing approximately 15 pounds did not involve significant force and would be unlikely to cause a significant tear of the rotator cuff.
The panel notes the occupational health physician's assessment of the injury as an acute strain and conclusion that it likely caused the small full thickness rotator cuff tear. The physician opined that the injury was consistent with the mechanism of injury reported by the worker, specifically "I jarred my right shoulder while taking the garbage out." However, the panel also notes that the occupational health physician relies upon a history of the worker receiving a cortisone injection in 2013 and having no further impairment or pain related to her regular duties up until December 2014. This history is incorrect and ignores the fact that in October 2014 the worker received a second injection in the same area and was diagnosed with a rotator cuff impingement. The panel is not able to attach weight to the opinion of the occupational health physician.
With respect to the opinion of the treating physician as outlined in a May 5, 2015 report, the panel notes that physician states "With respect to the rotator cuff tears, I would be unable to comment as to whether this is directly related to her December 19th incident or something that may have been pre-existing however there is no specific MRI evidence assertion one way or the other." The physician states he is unable to comment on the extent of the worker's pre-existing condition but does comment that it is quite likely tearing occurred based upon the worker's description of the mechanism of injury. The panel has a different view of the mechanism of injury, as noted above, and does not attach weight to the physician's opinion on this matter.
The panel has also considered the opinion of the WCB medical advisor who examined the worker on March 4, 2015. The physician notes that the worker would not permit an examination of her shoulder. The physician comments, pending receipt of the records detailing the pre-accident history of the right shoulder, that:
In the meantime, it appears that [worker's] right upper medial and lateral arm pain is not likely accounted for in relation to the December 19, 2014 accident, given that these complaints first began in February 2015 - 2 months post workplace accident, in the absence of a concordant accident.
As noted above in this decision, the chart notes regarding the prior right shoulder treatments indicate that it had not resolved and that the worker received a second injection in the shoulder area 2 months before the workplace injury.
The panel notes that on March 28, 2015, the worker suffered an intervening injury involving a more significant mechanism of injury.
The panel finds, on a balance of probabilities, that worker did not sustain a loss of earning capacity and did not require medical treatment as a result of the accident beyond the benefits that have already been provided under this claim.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 17th day of May, 2016