Decision #148/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current health complaints were not the result of her compensable injury and she was therefore not entitled to further physiotherapy treatment. A hearing was held on September 7, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to further physiotherapy treatment.
Decision
That the worker is not entitled to further physiotherapy treatment.
Background
On April 21, 2016, the worker tripped and fell at work, landing on her right arm against a filing cabinet.
When speaking with a WCB adjudicator on May 20, 2016, the worker described the accident of April 21, 2016 as follows:
Was organizing filing cabinet; bring file to desk to review and then return file info back to cabinet. Desk drawer was open right next to filing cabinet; she then got up and tripped over desk drawer and hit her right arm on the filing cabinet - filing cabinet is same height as desk. Not cut but bad swelling and extreme pain.
The worker indicated that she was feeling okay but was not able to lift and carry things, and that she felt numbness and tingling. The worker advised that she missed time from work on April 22 and 25, and returned to work on April 26.
The claim for compensation was accepted based on the treating physician's diagnosis of a right upper arm soft tissue injury.
On May 3, 2016, the worker was seen by a physiotherapist for an initial assessment and was diagnosed with a right brachial contusion. The WCB accepted responsibility for the physiotherapy treatments, and on August 16, 2016, the worker was discharged from treatment. The discharge report stated that the worker's recovery was not satisfactory due to pain level and psychological involvement.
In a letter dated August 18, 2016, Compensation Services advised the worker that her file was considered "inactive" as she had been discharged from physiotherapy treatment and was working her regular hours and duties.
On August 29, 2016, the worker called the WCB to advise that she did not respond well to the physiotherapy treatment and acupuncture. The worker noted that she continued to work at her desk job with a lot of computer work, but had to stop every 30 minutes to do stretches for her right hand and arm. She was also experiencing numbness and tingling in her right arm and hand.
File information contains progress reports from the treating physician dated August 30 and September 6, 2016 and a report from a new physiotherapist dated September 30, 2016. The diagnoses outlined by the physiotherapist were cervical radiculopathy and a right rotator cuff strain with capsular restriction.
On October 3, 2016, a WCB medical advisor reviewed the file and stated:
1. The diagnosis concordant with the described mechanism of injury and the opinion of the treating physician and physiotherapist was a right upper arm soft tissue injury (contusion).
2. Typical recovery from a soft tissue injury in an uncomplicated course is expected to recover over a period of days to weeks (6 - 8 weeks).
3. The current right extremity symptoms appear to be originating from the right shoulder given the treating physicians August 3, 2016 (sic) and September 6, 2016 reports. The compensable contusion of the right upper arm (mid humerus towards the elbow) is anatomically remote from the right shoulder and as such less likely to contribute to right shoulder symptoms. As such, on the balance of probabilities, the right shoulder symptoms is (sic) less likely an ongoing material effect of the April 21, 2016 workplace accident.
On October 13, 2016, the worker was advised that based on the accepted diagnosis, the recovery norm and length of time passed since the date of injury, and the current diagnosis, it was the opinion of the adjudicator that she had made a functional recovery from the original April 21, 2016 work injury, and her ongoing symptoms would not be considered related to the claim.
In an appeal submission dated November 29, 2016, the worker stated, in part:
I never had any pain or issues in my right hand or shoulder. Since this injury (April 21, 2016) I am having enormous pain, stiffness, and numbness in my right hand and now in my right shoulder. This is due to not getting the proper physiotherapy treatment on time and not continuing the physiotherapy treatments. My pain is increasing and spreading rapidly from my right arm to on my right hand, neck and shoulder…
I am appealing to WCB to approve my physiotherapy treatments until my right hand movements continue without any pain or difficulties and fully cover the costs I have paid for the physiotherapy treatments.
On January 18, 2017, Review Office determined that the worker was not entitled to further physiotherapy treatments on the grounds that her current health complaints were not the result of the April 21, 2016 accident. Review Office referred to file evidence in support of its decision. Review Office indicated that it accepted and agreed with the WCB medical opinion that the worker's current right arm, neck and shoulder issues were not in keeping with the compensable injury and any treatment she required was not as a result of an injury "arising out of and in the course of her employment." As the worker's current physiotherapy treatments were being provided due to complaints not accepted in relation to the compensable accident, Review Office indicated that any further physiotherapy treatments for the worker's right arm, shoulder and neck were not accepted.
On March 14, 2017, the worker appealed Review Office's decision to the Appeal Commission and a 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's Board of Directors.
The worker was employed by a federal government agency or department and her claim is adjudicated under the Government Employees Compensation Act ("GECA"). Pursuant to subsection 4(2) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.
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 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."
Worker's Position
The worker was self-represented. The worker provided a written submission in advance of the hearing and participated in the hearing by teleconference. The worker made a presentation and responded to questions from the panel.
The worker's position was that her right arm and shoulder pain are related to her April 21, 2016 work-related injury and she needs to continue physiotherapy treatments in order to get better.
The worker stated that she never had any pain or issues in her right arm or any part of her right side prior to her April 21, 2016 injury. Following her accident, her right upper arm pain spread very quickly to her right shoulder and hand.
The worker said that the physiotherapy treatment which she received initially did not help her. She saw another physiotherapist at the end of September 2016, and attended treatment three times a week for her right arm and shoulder from the end of October 2016 to the end of January 2017. The October to January treatments were painful, but helped her a lot. She said that her arm is much better than it was before, but is still not where it should be. She still has trouble reaching out to do things like washing and brushing her hair, and finds it hard to type or do anything continuously with her right hand for more than 20 minutes or half an hour.
The worker noted that her doctor and her physiotherapist have both said that she needs to continue with physiotherapy. She said she knows that physiotherapy will help her, but she is currently on a leave of absence without pay and cannot afford to pay for the treatments herself.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to further physiotherapy treatment. For the worker's appeal to be successful, the panel must find that additional physiotherapy treatment is required as a result of the worker's April 21, 2016 compensable injury. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a right arm injury as a result of her April 21, 2016 workplace accident. The panel accepts the original diagnosis of that injury as a right upper arm soft tissue injury, and is satisfied that it is consistent with the mechanism of injury as described in the information on file and at the hearing.
Based on our review of all of the information before us, on file and at the hearing, the panel is unable to connect the further diagnoses, including those of frozen shoulder and a rotator cuff strain, to the compensable workplace injury.
In this regard, the panel notes that information on file shows that the further diagnosis of frozen shoulder does not appear until approximately four months after the workplace accident. The treating physician and physiotherapist do not refer to right shoulder complaints or difficulties in their initial reports. The first mention of the worker experiencing right shoulder difficulties appears in the August 30, 2016 report from the treating physician, or approximately four months after the workplace accident. Subsequently, in her initial report dated September 30, 2016, the second physiotherapist provides a diagnosis of a right rotator cuff strain with capsular restriction and cervical radiculopathy.
The worker confirmed at the hearing that she believed the frozen shoulder was related to the original injury, and added that "that's the only thing I can think of." The worker had also submitted a letter from her second physiotherapist dated October 22, 2016 in advance of the hearing, in which the physiotherapist opined that the worker's "presentation now is related to the compensable injury." The panel notes that the letter confirms that the worker was first seen by the physiotherapist on September 13, 2016. Given that this was almost five months after the worker's accident, and that no clinical findings were provided by the physiotherapist in support of her opinion, the panel is unable to attach any weight to that opinion.
In response to a question as to whether her doctors or physiotherapists had told her how a bang on her arm could hurt her shoulder like that, the worker stated they had not, all they said was that "it could be related." The worker went on to state that:
All I heard from my Winnipeg doctor, from here and physiotherapists in Winnipeg, the second one, and here too, it could be related…the pain, because I didn't get that proper treatment, that's what I heard from those professional people. Like I have no idea what -- all I know I am in pain…my hand is not mobilizing 100 percent…I have no idea how it goes there and how these things work. But yes, my doctor, both doctors, and physiotherapists…think it could be related.
The panel acknowledges the worker's ongoing concerns. The panel finds, however, on a balance of probabilities, that the subsequent diagnoses and the worker's ongoing condition are not related to her compensable injury. Based on the information before us, the panel also finds that further physiotherapy treatments were and are directed towards these subsequent diagnoses, and in particular at the frozen shoulder condition, and are not related to the April 21, 2016 workplace injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker does not require further physiotherapy treatment as a result of her April 21, 2016 compensable injury. As a result, the worker is not entitled to such treatment.
The worker's appeal is denied.
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 3rd day of November, 2017