Decision #122/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss or medical aid benefits after August 1, 2015. A hearing was held on June 15, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after August 1, 2015.

Decision

That the worker is not entitled to wage loss or medical aid benefits after August 1, 2015.

Background

The worker filed a claim with the WCB on March 27, 2014 for an injury to her right shoulder/arm that she related to her work activities as a cleaner/housekeeper. The worker stated:

This started the end of February. Doing work duties, I started to have pain in my right shoulder. My job is all physical. I do vacuuming, heavy garbage, shower room, sweep. I use my right hand for everything.

In an Incident Report filed April 7, 2014, the worker reported that she hurt her right arm/shoulder on March 15, 2014 vacuuming and picking up garbage. In a conversation with an adjudicator on April 16, 2014, the worker advised that during the night shift on March 14 (not March 15th as originally indicated), she was lifting garbage from a container at work when she felt a sudden sharp pain in her right shoulder. That same day she reported to the person in charge that she felt pain in her shoulder when she lifted out the garbage.

On June 16, 2014, the worker underwent an MRI assessment and the findings revealed tendinosis of the supraspinatus, infraspinatus and subscapularis tendons.

On July 1, 2014, a WCB medical advisor opined to the file that the current diagnosis was tendonopathy/strain in the presence of pre-existing tendinosis.

On March 18, 2015, the worker was seen by a WCB medical advisor at a call-in assessment. The medical advisor stated that the current diagnosis based on the examination was rotator cuff syndrome/impingement syndrome. An occupational health physician's report of February 11, 2015 had reported myofascial pain but this was a descriptive label, rather than a specific diagnosis. The medical advisor stated:

…Exam maneuvers to provoke impingement were positive today and were noted to be positive by previous examiners on previous occasions. The MRI findings of tendinosis are likely reflective of a combined effect of age related degeneration/attrition and the aforementioned sub-acromial impingement process.

On August 10, 2015, a WCB medical advisor opined that based on medical reports from two treating physicians, the worker had resolving right shoulder rotator cuff impingement syndrome, a condition which typically improves with appropriate shoulder girdle strengthening and avoidance of provocative factors.

File information showed that the worker returned to work at full-time hours as a daycare assistant, without restrictions, in August 2015.

In January 2016, a WCB claim was filed for aggravation of the worker's right shoulder condition when she quickly picked up a child who had fallen and was hurt. On January 21, 2016, the worker advised the WCB that she was okay and was not pursuing the claim.

On May 17, 2016, the treating physician reported that the worker had been having increasing issues with a re-aggravation of chronic right shoulder pain which had been a workplace injury. It was felt that the worker should not be working in a position that involved repetitive use or lifting with her right shoulder.

On May 31, 2016, Compensation Services determined that there was no entitlement to wage loss benefits beyond August 1, 2015 as the worker had functionally recovered from her March 14, 2014 compensable injury and was capable of her pre-accident work duties effective August 2, 2015. The decision was based on the accident description, the accepted compensable diagnosis, the length of time since the work injury, the MRI findings, the medical opinions on file and the finding that the worker did not seek medical treatment between August 2015 and January 2016 for her shoulder condition.

In a report to the treating physician dated July 4, 2016, an occupational health physician stated that he disagreed with the adjudicative decision of May 31, 2016 that the worker had made a full recovery and was not in need of further treatment and management of her right shoulder condition. The physician noted that the worker was struggling to manage her chronic right shoulder issues which had re-emerged in recent months while performing repetitive lifting and reaching tasks during child care assistant work that she started in the summer of 2015. The physician recommended a gradual exercise program to restore optimal shoulder stabilization which the worker lacked.

On July 12, 2016, Compensation Services advised the worker that the July 4, 2016 report had been considered and contained no information to warrant a change to the previous adjudicative decision.

In a submission to Review Office dated September 15, 2016, a worker advisor stated:

It is our opinion [worker] has experienced a recurrence of her compensable right shoulder symptoms under claim…(2014) and experienced injuries under claim…(2016) that contributed to her loss of earnings and need for medical treatment.

In a decision dated October 14, 2016, Review Office determined that the worker was not entitled to wage loss or medical aid benefits beyond August 1, 2015.

Review Office found that the worker originally suffered a right shoulder injury and was diagnosed with rotator cuff syndrome/impingement syndrome. The medical information showed that she had a slow but steady recovery and returned to work on August 2, 2015 on a full-time basis. Based on these findings, Review Office determined that the worker had made a full functional recovery by the time she returned to work on August 2, 2015.

Review Office stated that it was unable to substantiate the worker's claims that she had ongoing difficulties upon her return to work and was attending physiotherapy on an ongoing basis. Review Office noted that the worker did not report ongoing difficulties with her right shoulder to her employer between her return to work on August 2, 2015 and May 5, 2016, and did not seek additional medical attention with the exception of one physiotherapy treatment on October 26, 2015.

Review Office referred to the MRI findings dated June 16, 2014 and accepted the March 18, 2015 comments by the WCB medical advisor. It found that the worker's physiotherapy appointments in October and February were in keeping with her pre-existing difficulties which were expected to flare up from time to time, rather than evidence of an acute problem. Review Office found that medical aid expenses beyond August 1, 2015 were authorized in error by the WCB. 

On October 31, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. The worker advisor provided a submission in advance of the hearing, including three additional medical reports, for the panel's consideration.

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.

Under subsection 4(2), 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 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation on her behalf. The worker was accompanied at the hearing by two family members, and responded to questions from the worker advisor and the panel with the assistance of an interpreter. The treating occupational health physician also attended the hearing, and responded to questions from the panel.

The worker's position was that she had not fully recovered from her 2014 workplace injury and was entitled to wage loss and medical aid benefits after August 1, 2015.

It was submitted that the worker never had difficulties with her right shoulder prior to her 2014 injury. Her job was very physical, and it would have been very difficult for her to do it if she had had problems with her shoulder. The worker was diagnosed with right shoulder rotator cuff tendonopathy or strain in the environment of a pre-existing condition. The worker advisor submitted that file information shows that she had a very slow recovery with ongoing right shoulder symptoms.

It was submitted that the worker had not fully recovered from her 2014 injury when she returned to full-time employment as a child care aide on August 2, 2015. Although the child care position was considered a lighter position than her previous one, she still had to use her right arm a great deal. Prior to her return to work, the worker's occupational health physician and treating physician had expressed concerns over her lack of right shoulder strength and how heavy activities would aggravate her shoulder injury. The worker continued to have right shoulder symptoms after her return to work in the child care position. Certain duties and activities aggravated her shoulder condition, and her symptoms began to increase.

The advisor noted that five physiotherapy sessions had been approved by the WCB on July 28, 2015 to assist her in her return to work, but she was not able to attend for treatment until October 26, 2015 due to an error. The advisor submitted that the approval of those sessions while the worker was in the process of returning to work indicates that the claim was still active, and was for the purpose of helping the worker make a successful return to the workforce.

In conclusion, it was submitted that the information supported that the worker suffered ongoing and further disability associated to her 2014 compensable injury, and should be entitled to coverage of benefits and services.

Employer's Position

The employer was represented by a human resources generalist. The employer representative made a presentation in support of the worker and her appeal.

The representative noted that the worker was an exemplary employee, who works hard and wants to work, which is why the employer agreed to bring her back and retrain her in the daycare position in 2015. The representative stated that they hope the worker can come back to work for them again. However, the only position they have at this time involves lifting and other tasks which are beyond the level that the worker is at now with her shoulder, and they do not believe it would be beneficial for the worker to come back to work in these circumstances.

The representative submitted that the worker has an ongoing condition which has still not been resolved, and needs to be taken very seriously.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after August 1, 2015. For the worker's appeal to be successful, the panel must find that the worker continued to suffer a loss of earning capacity and/or need for medical aid benefits after August 1, 2015 as a result of her compensable injury. The panel is unable to make that finding for the reasons that follow.

The worker has an accepted claim for a right shoulder injury arising out of her 2014 workplace incident. The panel finds that the compensable diagnosis is a right rotator cuff syndrome/impingement syndrome, as established by the WCB medical advisor following his call-in examination of the worker on March 18, 2015. The panel finds that this diagnosis is consistent with the earlier diagnosis by another WCB medical advisor on July 1, 2014 of a tendonopathy/strain in the presence of pre-existing tendonosis. The panel is further satisfied that this diagnosis is consistent with the mechanism of injury in this case.

The panel finds that the worker received treatment based on the compensable diagnosis, and medical information on file indicates that her injury had materially resolved by August 1, 2015. In support of that finding, the panel notes as follows:

• The treating physician wrote on May 27, 2015 that the worker was gradually improving and the goal was to get her back to work by mid July 2015. The physician stated that he was "pleased with the course of her recovery, though she is not symptom free yet." 

• The treating physiotherapist reported on May 28, 2015 that the worker was "continuing to improve but is not 100% yet. We have to get her stronger so she can return to work in July." 

• The occupational health physician reported on June 17, 2015 that the worker had "near full right and left range of motion" on examination.

The panel also places weight on the opinion of the WCB medical advisor who opined, on August 10, 2015, that the worker's current diagnosis would be "resolving right shoulder rotator cuff impingement syndrome," based on the reports from the treating physician and occupational health physician. The medical advisor further opined that:

…This condition typically improves/resolves with appropriate shoulder girdle strengthening and avoidance of provocative factors.

…The condition has reportedly improved considerably and material resolution is anticipated.

…At this point, while acknowledging a degree of residual symptoms, a need for specific workplace restrictions is no longer apparent. The a/p [attending physician] has suggested that [worker] not return to the "physically demanding duties in housekeeping" but this would be considered only in terms of preventive restrictions.

The evidence shows that the worker returned to work full-time in a child care position on August 2, 2015, without restrictions. The child care position has been described as a lighter position, less physically demanding than the worker's previous position. The panel notes that this change in position was arranged between the employer and the worker. Based on the medical information on file, the panel is not satisfied that restrictions were required in respect of the compensable injury, and finds that this accommodation of the worker was essentially a preventive measure unrelated to that injury.

The panel finds that there is a significant gap in time following the worker's return to work in August 2, 2015, where there was little or no indication that the worker had any concerns or was experiencing any difficulties with respect to her right shoulder. Information on file indicates that the worker attended only one physiotherapy treatment between June 2015 and January 2016. The panel notes that although a listing of physiotherapy appointments which was provided in advance of the hearing suggested that the worker also had an appointment on December 3, 2015, a note on file indicates that the worker missed that appointment. A letter from the occupational health physician dated July 4, 2016 indicates that he assessed the worker on October 1, 2015. The letter indicates, however, that the assessment on that date related to persistent left shoulder soreness, and specifically states that the worker's "right shoulder was not acutely painful in the fall."

The panel notes that the worker started seeking medical treatment again in January 2016, following the incident involving the child who fell and was hurt. The worker was referred to a sports medicine physician, and in a letter dated February 19, 2016 which was filed at the hearing, the physician indicated that impingement tests were negative and provided a diagnosis of right rotator cuff tendinosis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's 2014 right shoulder impingement injury had resolved by the time she returned to work on August 2, 2015. The panel further finds that the worker's current diagnosis of underlying tendinosis is a pre-existing condition which is not related to the compensable injury.

The panel recognizes that the occupational health physician has proposed that the worker is suffering from other conditions which he related to the original injury (myofascial pain, biceps tendinitis, biceps tendinosis), and questioned the physician at the hearing in this regard. The panel finds that these conditions are not evident in the earlier medical evidence on the file. Based on our review and consideration of all of the information before us, the panel finds that these other conditions are not related to the March 2014 injury.

The panel acknowledges that the worker has ongoing issues or difficulties with respect to her right shoulder, but is unable to connect those issues or difficulties back to her March 2014 compensable injury.

In conclusion, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid benefits after August 1, 2015 as a result of her compensable injury. The worker is therefore not entitled to wage loss or medical aid benefits after August 1, 2015.   

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of August, 2017

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