Decision #20/18 - Type: Workers Compensation
The worker is appealing decisions made by the Workers Compensation Board ("WCB") that her right shoulder difficulties were not a consequence of her compensable accident and that she was not entitled to benefits after January 5, 2017. A hearing was held on October 17, 2017 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the July 21, 2015 accident; and
Whether or not the worker is entitled to benefits after January 5, 2017.
That responsibility should not be accepted for the worker's right shoulder difficulties as being a consequence of the July 21, 2015 accident; and
That the worker is not entitled to benefits after January 5, 2017.
The worker filed a claim with the WCB for "back (lock spasm) and scratch on back" that occurred on July 21, 2015 when she tried to restrain a client while employed as a residential support worker. Medical information on file revealed the following:
• Doctor's First Report for an examination on July 21, 2015 referred to low back tenderness, numbness in arm and neck pain. The diagnosis was low back pain.
• Doctor First Report for an examination on July 27, 2015 referred to pain in back and forearm pain.
• X-ray of the lumbar spine dated July 28, 2015 showed "Facet and sacroiliac joints are grossly unremarkable. Subtle degenerative disc space narrowing may be present at L3-4 and L4-5. X-rays of the thoracic spine showed "minimal multilevel anterior endplate souring is noted. No focal osseous lesion or paraspinal soft tissue abnormality is demonstrated."
• Doctor Progress report for an examination August 5, 2015 indicated backache and right arm pain.
• Physiotherapy Initial Assessment dated August 7, 2015 noted pulling/pinching pain along entire right side especially post right shoulder and post right hip. A torn right deltoid was questioned.
• Doctor Progress Report dated August 8 and 20, 2015 noted right hip and low back pain.
• Physiotherapy Progress Report for September 12, 2015 stated that numbness and tingling in arm was much improved. Only occasional right hip/locking continued - aggravated.
• CT of the abdomen, pelvis and right hip was carried out on September 16, 2015. The CT of the right hip noted "Joint space well maintained. No abnormal masses or fluid collections are identified. The cause of the patient's symptoms has not been determined."
• MRI of the lumbar spine dated September 29, 2015 showed a central disc protrusion with annular tear at L3-4 and no displacement at the L4 roots. A broad left paracentral disc protrusion with posterior displacement of the left L5 root was seen and mild degenerative facet arthrosis. There was mild hypertrophic facet arthropathy at L5-S1.
• On September 30, 2015, the treating physiotherapist noted that the worker's right shoulder was feeling much better and that the worker was very sore in her hip/low back.
• On October 29, 2015, the worker was seen at the WCB for a call-in assessment. The medical advisor stated in part, that the initial clinical presentation was most consistent with nonspecific low back pain. If it occurred after a specific inciting activity, it would be clinical equivalent to a strain/sprain injury.
• In November 2015, the worker started a work hardening program. On February 18, 2016, it was noted that the worker's program was placed on hold pending the MRI of her right upper back/shoulder.
• On April 1, 2016, MRI of the right shoulder showed an insertional tendinopathy supraspinatus and partial intrasubstance insertional tear supraspinatus.
• On April 8, 2015, the treating physician referred the worker to an orthopedic surgeon noting that the worker suffered from chronic right shoulder pain.
• On April 21, 2016, a WCB medical advisor reviewed the file information and outlined the view that any diagnosis related to the worker's shoulder condition could not be medically accounted for in relation to the compensable injury.
• On October 7, 2016, the WCB wrote the treating physician requesting chart notes from January 2, 2015 to the present regarding the worker's right shoulder. The requested information was received on November 21, 2016.
• On November 22, 2016, the WCB medical advisor reviewed the chart notes and opined that the worker's presentation was not consistent with the rotator cuff tear being related to the compensable injury.
On December 9, 2016, Compensation Services advised the worker that based on a thorough review of her claim, it was the WCB's position that she had recovered from her compensable low back diagnosis and that her current right shoulder symptoms were unrelated to the workplace injury. Therefore, the WCB was unable to accept responsibility for the cost of medical treatment or time loss from work beyond January 5, 2017. On March 13, 2017, the Worker Advisor Office requested reconsideration of the December 9, 2016 decision.
On April 11, 2017, Review Office determined that the worker's right shoulder difficulties were not compensable based on medical and other file information that was collected in close proximity to the workplace accident.
Review Office also found that the worker was not entitled to benefits beyond January 5, 2017 or to workplace restrictions or medical treatment beyond January 5, 2017. It found that the worker suffered from a low back sprain/strain as a result of the workplace accident and that imaging results did not identify any acute findings in relation to the mechanism of injury. It was also was of the opinion that the accident did not structurally alter any pre-existing findings. On April 28, 2017, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was held on October 17, 2017.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On January 16, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
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 has an accepted claim for a workplace injury which occurred on July 21, 2015. She is appealing the WCB decisions that her right shoulder difficulties are not compensable and that she is not entitled to benefits beyond January 5, 2017.
The worker was represented by a worker advisor and accompanied by her mother. The worker answered questions from the panel with the assistance of sign language interpreters.
The worker's representative advised that the worker disagrees with the positon of the WCB. She noted that the incident involved in this appeal occurred on July 21, 2015.
In reply to questions the worker advised that:
• there were two incidents involved with her injury, one on July 21 and one on July 27.
• at the time of the incidents, she was a residential support worker, working with a client one on one.
• she did not have any right shoulder or low back difficulties prior to the incidents.
• on July 21 she had to restrain the client and felt pain in her back, leg and right shoulder.
• she attended an emergency ward where a physician gave her a needle and sent her home. She was told to relax for a few days.
• she returned to work on July 26, 2015 with a painful back.
• on July 27 she had to restrain the same client again.
• on July 27, she saw a second physician who sent her for an x-ray, an MRI, and physiotherapy. She said she complained about her shoulder but the physician did not respond to this.
• she saw a WCB physician on October 29, 2015.
• she attended a work hardening program in November 2015. She said that she had pain in her hip, back, and shoulder. Regarding her shoulder pain she said it was "right on the shoulder blade."
• she switched to a different physician in 2016 who advised that she had a tear in her shoulder and referred her to a surgeon.
• the surgeon gave her another needle and then referred her to physiotherapy which did not work.
• she was scheduled to have shoulder surgery in November 2017.
In response to a comment from the panel about the lack of information on the file dealing with her shoulder, the worker responded:
Well, I had complained to the doctor about my shoulder right at the beginning, and they kind of went, oh, yes, well, maybe that’s from your back. And I felt like maybe the communication wasn’t there, but I had said that it was the shoulder. I often told people that, and they just ignored me every single time. And I said, that is the problem, it’s the shoulder. I said that I’m struggling with that, I said, like, it’s a stabbing pain. I mentioned that to a number of people, I said, you know, that’s something that we need to address.
Regarding the status of her shoulder since 2016 she advised that:
Well, really, during the daytime, it’s kind of off and on at times, but in the evening, the pain gets a lot worse. I have a very hard time sleeping throughout the night, I get up often throughout the night as well.
The worker's representative noted that there was information about the shoulder injury on the file. She commented that:
• the two initial reports from July 21, 2015 and July 27, 2015 identify right arm symptoms.
• the August 7, 2016 physiotherapy report which assesses the worker's condition questions a "right shoulder tear."
• throughout the course of the medical reports on file, there’s mention of shoulder symptoms which confirms continuity with respect to the shoulder.
Regarding the worker's low back injury, the worker's representative acknowledged that there is not a current diagnosis for the worker's low back, but noted that the worker has said that she did not return to her pre-accident status.
The representative noted that the worker's job is very physical, that she had done the job for an eight-year period of prior to the July 21, 2015 incident. She was very capable of performing her duties before the incidents, but since the incidents she has not returned to that state where she is able to go back and be as physically capable of performing the job duties.
The worker's representative submitted that:
We ask the panel to consider, on a balance of probabilities, [worker's] ongoing back and hip difficulties are associated to the 2015 compensable injuries. In the event the panel determine [worker's] right shoulder condition is acceptable, we then ask the panel to consider [worker's] right shoulder condition has influenced the recovery of her low back and right hip condition.
The employer did not participate in the appeal.
There are two issues before the panel.
1. Whether or not responsibility should be accepted for the worker's right shoulder difficulties as being a consequence of the July 21, 2015 accident.
For the worker's current right shoulder difficulties to be accepted as a consequence of the July 2015 workplace injury, the panel must find, on a balance of probabilities that the workplace injury caused the worker's current shoulder injury. The panel finds, on a balance of probabilities, that the worker's current right shoulder injury is not a consequence of the July 21, 2015 accident.
The panel carefully reviewed the medical information and finds that it is probable that the worker did sustain an injury to her right shoulder as a result of her work in August 2015. However, the panel finds that the shoulder injury had resolved by September 30, 2015.
In making this finding the panel relies upon the evidence of the physiotherapists who treated the worker in August/September 2015. The panel notes that a physiotherapist noted right shoulder issues in her first report on August 7, 2015. In a subsequent report on a September 12, 2015, this physiotherapist noted improvement in the worker's right shoulder range of motion. On September 30, 2015, a second physiotherapist examined the worker noted that the worker's right shoulder was feeling much better.
The worker was subsequently examined by a WCB Medical Advisor on October 29, 2015. The examination dealt the worker's lower back pain. There was no reference by the worker or physician to an ongoing shoulder injury or shoulder pain. The panel finds that this is consistent with our decision that the shoulder injury had resolved by September 30, 2015.
As an aside, at the hearing, the worker was asked about the location of the shoulder pain that she experienced and she pointed to the right scapular area. The panel notes that an orthopedic surgeon recently performed surgery on the worker's right shoulder and diagnosed AC joint arthritis and chronic cuff syndrome. The panel finds that the site of the surgery is anatomically not related to the worker's initial shoulder symptoms.
The panel finds on a balance of probabilities that responsibility should not be accepted for the worker's right shoulder difficulties as being a consequence of the July 21, 2015 accident. The worker's appeal is dismissed.
2. Whether or not the worker is entitled to benefits after January 5, 2017.
For the worker appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity as a result of the July 2015 accident. The panel was not able to make this finding.
The panel notes that the hearing focused on the relationship of the worker's right shoulder condition to her workplace accident. Given the panel's finding that the worker's current right shoulder difficulties are not related to the workplace accident, the panel finds that the worker is not entitled to benefits after January 5, 2017 in relation to her right shoulder.
The panel also considered whether the worker is entitled to benefits after January 5, 2017 in relation to her low back injury. The panel is unable to find, on a balance of probabilities, that the worker's loss of earning capacity after January 5, 2017 is caused by her right hip and low back injury.
Regarding the worker's right hip, the panel notes that the worker had an MRI of her right hip on September 29, 2015 which indicated "Normal MRI right hip". The panel is not able to find that the worker's right hip is causing a loss of earning capacity.
Regarding the worker's low back, the panel notes that her low back injury was described as a strain. The panel also notes that the September 29, 2015 MRI of the worker's low back did not identify a structural cause for her low back pain. In addition, the worker's representative advised the panel that there is currently no diagnosis for the worker's back condition.
The panel notes the evidence that the worker has not received medical attention for her low back since February 2016. The panel also notes the worker's evidence is that she discontinued the home exercise program for her back about a year ago.
The panel finds, on a balance of probabilities, that the worker is not sustaining a loss of earning capacity as a result of her right hip and low back injuries.
'The worker's appeal of this issue is dismissed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of February, 2018