Decision #05/18 - 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 benefits after February 15, 2016. A hearing was held on November 30, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits after February 15, 2016.
Decision
The worker is entitled to benefits after February 15, 2016.
Background
The worker filed a WCB claim on July 19, 2016, reporting that she had sustained an injury to her left hip and groin on February 11, 2016 after she slipped on a jacket that was left on the floor causing her to do the "splits" before landing on her left hip.
The worker was diagnosed with a left groin strain by her doctor on February 12, 2016 and it was recommended by the doctor that she take a few days off work. She returned to work on February 16, 2016.
While moving heavy furniture on July 4, 2016, the worker then experienced an increase in pain in her left hip and attended her doctor on July 7, 2016. She advised the doctor that her left hip had been sore since her earlier fall but had acted up since "pushing heavy desks" and was diagnosed with bursitis in her left hip. She was off work for 2 weeks when she attended a physiotherapy appointment on July 19, 2016 where she was diagnosed with left trochanter bursitis.
She then filed a claim with WCB on July 19, 2016. She was advised by the WCB that her claim was accepted for the accident that occurred on February 11, 2016 and that she was entitled to
benefits to February 15, 2016. The WCB advised the worker that she was not entitled to benefits for her hip issues that occurred on July 4, 2016 as it could find no medical evidence of a left hip injury nor could it establish a connection between the left trochanter bursitis diagnosis and the left groin strain she was diagnosed with on February 12, 2016.
The worker disagreed with the WCB decision to deny her entitlement to wage loss benefits after February 15, 2016, and on November 15, 2016, a request for reconsideration was submitted to the WCB Review Office on the worker's behalf by a worker advisor.
Review Office considered the worker's appeal and on December 15, 2016 determined that she was not entitled to wage loss benefits after February 15, 2016. In reaching this conclusion, Review Office determined, on a balance of probabilities, that if the worker's left trochanter bursitis was related to the accident on February 11, 2016, it would have been more severe shortly after the time of the accident and would have resolved itself prior to the worker's hip issues in July 2016. The worker also stated that her hip pain was consistent but manageable and was aggravated while doing unaccustomed lifting at work in July 2016 and as such, Review Office could not find a connection between the February 11, 2016 accident and the new hip issues.
On April 13, 2017, the worker filed an application to appeal with the Appeal Commission. An oral hearing was held on November 30, 2017.
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.
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.
The worker injured her left hip and groin on February 11, 2016 and is seeking benefits after February 15, 2016.
Worker's Position
The worker was represented by a worker advisor who made a presentation on her behalf. The worker answered questions from the panel.
The worker explained that she works as a cleaner in a school. On the day of the accident, she went into a room to clean when she slipped on a nylon jacket which was on the floor. She had not noticed the jacket before she stepped on it. She described the fall as doing the splits on her side. She said that "… I fell with all my body right on this bone here onto my side." The panel notes that the worker pointed to the bony area at the side of her left hip.
She said that she fell with such force that it took her a little bit of time to compose herself. She said that tried to get up on her own and realized she couldn't get up without assistance. Two students help lift her up off the floor. She said that since the accident she has had pain down the outside of her leg and continuous pain in the hip.
The worker explained that she did not seek medical attention at the time of the injury because she thought it was just a bruise and she couldn't justify missing work because of a bruise. She said that she thought she had a bruised bone.
The worker's representative noted:
• the worker's supervisor confirmed that the worker had been making ongoing complaints of left hip difficulty since the accident. He confirmed the worker always related her difficulties to the accident in February. He was not aware of any prior hip problems.
• a co-worker also confirmed that the worker had ongoing complaints since the accident which the worker related to the accident. The co-worker also confirmed that prior to the February 2016 accident there had been no complaints of hip pain or difficulties.
The worker's representative noted that there is medical confirmation of personal injury, being a left hip and left groin injury at the time of the accident and that the initial physiotherapy assessment dated July 19, 2016 confirmed a diagnosis of trochanteric bursitis.
She also noted that in support of a relationship between this diagnosis and the workplace accident there is the WCB's medical advisor's opinion of August 22, 2016, which identified the causes for trochanteric bursitis. She noted that the WCB medical advisor stated that this diagnosis can be caused by a direct blow to the lateral or outer aspect of the hip and upper thigh, that recovery norms are variable, and that this condition generally improves by several weeks with conservative care.
The worker's representative submitted that the worker did not have treatments for this condition until July 2016, which explains why she had ongoing difficulties.
The worker's representative also noted examinations of July 14 and August 18, 2016 by the attending physician confirm the worker's report of a flare-up of pain in the left hip was related to performing her work duties. She noted objective findings continue to support tenderness over the greater trochanteric area and bursa. She said that the attending physician opined that the current chronic bursitis is an extension to the initial acute traumatic bursitis that was still ongoing due to the work-related injury of February 11, 2016.
The worker's representative submitted that the evidence supports that there was an ongoing outer hip injury that was not treated and that it is available to the panel to find that the July 16, 2016 findings are a further injury and are still a WCB responsibility under Board Policy 44.10.80.40 Further Injuries Subsequent to a Compensable Injury.
The worker advised that she subsequently received cortisone shots which relieved her pain.
Employer Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether or not the worker is entitled to benefits after February 15, 2016. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and required medical aid benefits after February 15, 2016 as a result of her February 11, 2016 workplace accident.
As noted previously, the worker has an accepted claim for a workplace injury that occurred on February 11, 2016. The issue before the panel relates to the whether the worker's loss of earnings and medical aid in July 2016 are related to the February injury claim. The panel finds, on a balance of probabilities, that worker did sustain a loss of earning capacity and required medical aid after February 15, 2016, specifically after July 19, 2016, as a result of the February accident.
In making this decision the panel attaches weight to the following:
• worker's Notice of Injury dated February 12, 2016 indicates that the worker pulled her groin and bruised her hip when she fell on her left side hip.
• worker's co-worker and supervisor were aware of injury and confirm that the worker continued to complain about the injury. The co-worker and supervisor confirmed that the worker had not complained about her hip prior to the February accident.
• worker's supervisor confirmed that the worker was not able to complete certain duties and related this to her hip injury.
The panel notes that worker's complaints were consistent with the August 22, 2016 opinion of the WCB medical advisor. The medical advisor opined that "Trochanter bursitis can be caused by a direct blow to the lateral (outer) aspect of the hip/upper thigh…" The panel notes that the worker sustained a direct blow to her left hip area.
The medical advisor also opined that "Typically symptoms include localized pain to the upper lateral thigh which can sometimes radiate down the outer thigh to the knee level. If related to trauma, the symptoms would arise immediately/within a day or two in relation to the injury." The worker's injury followed this pattern.
The medical advisor also opined that "Recovery norms are variable, but the condition generally improves by several weeks with conservative treatment." The panel notes, however, that when the accident occurred, the worker continued working in job duties that would involve the hip and did not seek medical treatment, thinking that the injury would resolve. After the incident in July 2016, the worker sought medical treatment and her condition quickly resolved. The panel finds that the worker did not, on a practical basis, allow for her condition to improve between February and July 2016, and that the flare up of her symptoms in July 2016 were connected to her February 11, 2016 injury.
The panel attaches weight to the March 31, 2017 opinion from the treating physician who opined that:
In my opinion she had an acute traumatic bursitis in the area that converted into a chronic inflammatory bursitis because it was not allowed a proper time or treated at the time, to resolve as expected. This is alluded to in the comments from [Review Officer]. It is my opinion that the chronic bursitis was caused by an extension of the acute traumatic bursitis and still related to the worker related injury.
The panel notes the treating physician's report of August 18, 2016 which reported "With the heavier duties at work in the last week has had flare of pain in her L hip."
The panel finds that the worker's February injury to her trochanteric bursa flared up due to the change in duties in the summer of 2016.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding Officer
S. Briscoe, Commissioner
A. Finkel, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of January, 2018