The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

 

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits after March 5, 2015 in relation to her compensation claim. A hearing was held on March 10, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 5, 2015.

Decision

That the worker is not entitled to benefits after March 5, 2015

Decision: Unanimous

Background

The worker reported that she injured her right shoulder on July 18, 2014, when she lifted a heavy object from a closet to shoulder height. The accident was reported to the employer on July 21, 2014.

Following receipt of medical reports from a hospital emergency facility and a physiotherapist, the worker's claim for compensation was accepted based on the diagnosis of a sprain/strain to the right shoulder and a neck strain. On September 13, 2014, the worker returned to her regular work duties. On October 1, 2014, she was discharged from physiotherapy treatment.

On October 27, 2014, the family physician recorded that the worker complained of a burning pain in her right shoulder and scapula, and an MRI examination was ordered.

On November 6, 2014, a WCB medical advisor opined that the worker's current presentation was medically accounted for in relation to the July 2014 workplace event and that there was no material evidence of a pre-existing medical condition prolonging the worker's recovery from the workplace injury.

On December 1, 2014, the worker underwent an MRI of the right shoulder and cervical spine. The results showed mild distal rotator cuff tendinosis and no tears in the right shoulder, and no significant abnormalities in the cervical spine.

On December 11, 2014, the worker attended physiotherapy and was diagnosed with mechanical and myofascial cervical and thoracic spine pain.

On February 19, 2015, the WCB medical advisor reviewed the claim file. He stated that the current presentation was non-specific cervical and right shoulder pain, and the worker's current medical presentation was unlikely accounted for on the basis of the July 2014 workplace events. He said there was evidence of rotator cuff tendinosis as a pre-existing condition.

In a decision dated February 27, 2015, the WCB case manager advised the worker that based on a review of her claim, including consultation with a WCB medical advisor, it had been determined that the need for ongoing restrictions would not be related to the workplace injury of July 18, 2014 and there was no longer medical evidence to support an ongoing relationship between her current medical presentation and the workplace injury of July 18, 2014. On June 4, 2015, the worker appealed the decision to Review Office.

On July 20, 2015, the employer's advocate provided a submission. A copy of that submission was forwarded to the worker, who provided a response dated July 28, 2015. On August 4, 2015, Review Office considered the worker's appeal and determined the worker was entitled to benefits to March 5, 2015.

Review Office noted that the worker suffered a strain/sprain type injury to her right shoulder/neck at the time of the workplace accident and that these types of injuries typically resolve within 12 weeks. Review Office referred to some issues that may have impacted the worker's recovery. Review Office accepted the WCB medical opinion outlined on February 19, 2015 and was unable to find medical evidence which would support the need for modified duties by the time of the February 27, 2015 decision to end the worker's claim. Based on WCB Policy 44.30.60, Notice of Change in Benefits or Services, Review Office found that the worker was entitled to benefits to March 5, 2015.

On August 9, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the oral hearing, the appeal panel met to discuss the case and requested additional medical information regarding the worker's medical condition. On May 10, 2016, the interested parties were provided with a copy of the medical information received and were asked to provide comment. On May 25, 2016, the panel met further to discuss the case and render a decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act 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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 27(10) states, in part, that medical aid provided by the WCB shall at all times be subject to the supervision and control of the WCB.

Worker's Position

The worker appeared at the hearing accompanied by her husband, who assisted her with her presentation. The worker answered questions from the panel.

The worker's position was that the original assessment of her injury was incorrect and her appeal should be allowed, based on new medical information she had obtained.

The worker referred in her submission to three additional medical reports, all of which had been provided to the panel in advance of the hearing. In response to questioning from the panel, she did not point to anything in particular in those reports that she was relying on in advancing her position.

The panel questioned the worker in detail as to the events that followed her injury, her work history since the accident, her current medical and functional status and ongoing medical treatment. The worker referred to various different treatments she had been receiving and identified a number of medical professionals she had seen since her WCB benefits were discontinued. She said that she is currently working full-time, eight hours a day, with the restrictions which were outlined by the employer's representative in her submission.

The worker said that she has really been pushed to exercise, and works out five days a week, from 5:00 to 6:00 p.m., doing 20 minutes on the treadmill and a variety of shoulder, arm and neck exercises. After that, the pain comes and she has to lie down. She has difficulty sleeping. She goes to bed with pain at 7:00 or 8:00 and wakes up around midnight. She said that she has been living with pain since the injury and it takes its toll. She said that she knows the pain all started with the accident, as she did not have it before her injury.

The worker submitted that more emphasis should have been placed on determining where her pain was coming from and she should have been given more time for her injury to heal. Physiotherapy and the repetitive nature of her work had only aggravated her injury, and her pain had worsened. When her claim was closed, she was forced to go on long-term disability because she was unable to perform all of her duties at work.

Employer's Position

The employer was represented by an advocate. The employer advocate's position was that the worker's injury was properly diagnosed, and her ongoing difficulties were not due to the July 2014 workplace injury.

The employer advocate submitted that the initial diagnosis of a right shoulder strain and nonspecific neck pain was in keeping with the medical information provided at the time. In the employer's view, the worker's current difficulties are degenerative in nature and not related to the workplace strain injury, and the recent medical information validates that position.

It was submitted that the details of the worker's return to work also confirm that her difficulties are not due to the July 2014 workplace injury. There was a long graduated return to work program, and minimal diagnostic and clinical findings. However, the worker continued to complain of symptoms which, in the employer's view, would be associated with degenerative changes in the cervical spine.

The advocate noted that when the WCB ended the worker's benefits on February 27, 2015, she was approved for and started receiving disability insurance from a disability carrier. She continued with a graduated return to work program with the assistance of the disability carrier. On September 30, 2015, the disability carrier ended her benefits as she was essentially performing her full duties. She was again off work completely, however, from October 19 to November 1, 2015. At the date of the hearing, the worker was still in a graduated return to work program, with restrictions that were far more limiting than those originally applied following her injury. It was submitted that this sort of regression, over such a long period of time was not commensurate with a mild workplace strain, but rather with the normal progression of a degenerative disease which worsens with age.

The employer advocate submitted that the medical information in the worker's claim showed evidence of recovery from the shoulder strain injury and non-specific neck pain. The employer asked that the panel accept the opinion of the WCB medical advisor who reviewed the file on two occasions and, based on clinical examination reports and MRI results, opined that the current presentation was not accounted for in relation to the July 2014 strain injury. The employer asked that the panel affirm the decision that the worker is not entitled to benefits after March 5, 2015.

Analysis

The issue on this appeal is whether or not the worker is entitled to benefits after March 5, 2015. For the worker's appeal to be successful, the panel must find that the worker's ongoing difficulties after March 5, 2015 were causally related to the injury she sustained in the workplace accident of July 18, 2014. The panel is unable to make that finding.

The diagnosis that has been accepted as compensable in this case is a right shoulder sprain/strain and neck strain.

On February 19, 2015, after reviewing the file, including the December 1, 2014 MRI of the worker's shoulder, the WCB medical advisor opined that it was unlikely that the worker's continued symptoms and current presentation of non-specific cervical and right shoulder pain were the result of the workplace events from July 2014. The medical advisor further noted the existence of a pre-existing condition of rotator cuff tendinosis, and determined that there was no need for restrictions in relation to the compensable injury of July 18, 2014. The panel places significant weight on the opinion of the WCB medical advisor.

In her appeal, the worker specifically relied on the three additional medical reports which she had obtained, consisting of a letter from a sport medicine physician dated September 29, 2015, the results of a second MRI dated October 1, 2015 and a letter from the treating physiotherapist dated February 25, 2016.

The panel has carefully reviewed these reports, but is unable to find that they relate to the workplace injury. In this regard, the panel notes that the letter from the sport medicine physician provides a diagnosis of a right cervical radiculopathy. The panel notes that the diagnosis in this this letter, dated a year and a half after the workplace injury, is not consistent with the MRI findings, the initial report of the workplace injury, or the early medical reports on file, which referenced only sprain/strain type injuries. This later diagnosis is also not consistent with the April 9, 2015 findings of a physician in pain management, who examined the worker and specifically stated that there was "no evidence of radiculopathy."

The panel also review the recent October 1, 2015 MRI, which reported:

1. Mild rotator cuff tendinosis with no evidence of tear.

2. Intrasubstance tear superior labrum. This may be on a degenerative basis.

3. Mild acromioclavicular degenerative change.

The panel notes that the first and third of these findings were present on the MRI from December 1, 2014, and are considered to be pre-existing and degenerative conditions. The second finding is new, and given that a tear was not previously identified, the panel is unable to ascribe it to the July 18, 2014 workplace injury.

The worker also provided a report of the treating physiotherapist dated February 25, 2016, which notes that the worker was last seen in that clinic on March 23, 2015. The panel notes that the report refers to a variety of different concerns which the worker raised and were being addressed by the clinic, including elbow pain, which were not consistent with the initial reports of the worker's injury.

Following the hearing, the panel sought information from the medical practitioners who had been identified by the worker during the hearing, to ensure a full understanding of the worker's current situation. The panel has carefully reviewed the information which was provided in response to our inquiries, but is again unable to establish a link between the worker's complaints as identified in those reports and the compensable injury.

The further information included the chart notes from the treating sport medicine physician for the period September 1, 2015 to March 15, 2016. The sport medicine physician's diagnosis of cervical radiculopathy is not consistent with the MRI findings, including the October 1, 2015 MRI, or the initial reports of the workplace injury.

The panel also obtained reports from a pain management physician, dated April 9, 2015 and April 4, 2016, with similar content, indicating that the worker saw the physician only once, for a consultation on April 9, 2015. The worker's complaint was described as being upper/mid back and neck pain, and does not refer to right shoulder pain. The physician also reported that the worker's pain symptoms began as the result of straining while pulling an object. The reports and findings are thus based on a different area of the body and a different mechanism of injury.

The panel obtained a number of reports from a second physiotherapist seen from March 25 to June 30, 2015. The reports indicate that the worker was assessed in March to determine the suitability of a reconditioning program. A June 30, 2015 report notes that the worker's neck and shoulder mobility is within normal expected ranges. It also notes that despite all of the gain, the worker continued to experience ongoing and worsening pain and advised that despite a reduction in the worker's activity and function her pain continued to worsen. The report stated that clinical findings were inconsistent with the worker's complaints. In a letter dated October 5, 2015, the physiotherapist noted that the examination performed on June 30, 2015 uncovered no red or yellow flags and was found to be within normal limits, and a recommendation of a full return to work was made at that time.

The panel also obtained a report from a third physiotherapist in respect of 16 attendances between December 2, 2015 and May 4, 2016, for reconditioning. The report indicates that original entrance complaints included bilateral shoulder pain, and identified the anatomical areas that were treated as neck, right and left shoulder and thoracic region. As the visits progressed, there is reference to the right shoulder pain being minimal, but the left shoulder and thoracic pain continuing. The report stated that the response to the treatment initially was good with reports of pain reduction and improved sleep, and that the later treatment provided was supportive in nature as the worker continued to increase her hours of work.

The panel recognizes that the worker has ongoing pain complaints and limitations. We are unable, however, to relate those complaints and limitations to the worker's July 18, 2014 workplace injury.

Based on the evidence, the panel therefore finds, on a balance of probabilities, that the worker's ongoing difficulties after March 5, 2015 were not causally related to her workplace injury of July 18, 2014. The worker is not entitled to benefits after March 5, 2015.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 22nd day of July, 2016