Decision #19/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid after May 3, 2018. A hearing was held on December 3, 2018 to consider the worker's appeal.
IssueWhether or not the worker is entitled to wage loss and medical aid after May 3, 2018.
That the worker is not entitled to wage loss or medical aid after May 3, 2018.
The worker reported to the WCB that he injured his middle back on October 30, 2017 as follows:
A student was moving from one area to another, I was holding her hand, she grabbed my left arm and flopped to the ground. I felt a twinge in my left middle back at the time. I finished my shift.
On November 1, 2017, the worker attended a physiotherapist who diagnosed him with a left thoracic spine sprain/strain and recommended he remain off work until November 6, 2017. On November 2, 2017, the worker saw his treating chiropractor who diagnosed a cervical/thoracic sprain/strain with subscapular inflammation. The treating chiropractor recommended the worker remain off work until November 10, 2017. The worker's claim was accepted and payment of wage loss and medical aid benefits commenced.
On November 23, 2017, the worker was seen by a physician assistant under the supervision of his family physician, who queried a strain of the trapezius versus the infraspinatus. An x-ray of the worker's left shoulder, taken November 24, 2017, showed "No fracture or dislocation is identified. Moderate osteoarthritic changes are noted at the acromioclavicular joint."
At a follow-up appointment on December 7, 2017, the physician assistant queried a possible diagnosis of sprain/trauma to the worker's shoulder with nerve impingement and referred the worker for an MRI.
The MRI of the worker's left shoulder was conducted on December 18, 2017. The reported impression from that MRI was:
1. No high-grade rotator cuff tear.
2. Focal tendinosis versus partial low grade tear of the infraspinatus tendon.
3. Suspected tearing of the glenoid labrum, especially at the anteroinferior, inferior and posterosuperior aspects with small paralabral cysts. If clinical management would be affected, further evaluation of the labrum with an MR arthrogram could be considered.
4. Moderate osteoarthritis of the AC joint.
At a further follow-up appointment with the physician assistant on December 21, 2017, the worker was diagnosed with "Glenoid labrum tear, tendinosis vs low grade tear infraspinatus" and a referral was made to an orthopedic surgeon.
An MR arthrogram of the worker's left shoulder was conducted on March 8, 2018, which revealed a "High grade SLAP [superior labrum anterior and posterior] lesion and low grade partial tear of the articular surface of the supraspinatus tendon." At a follow-up appointment on April 9, 2018, the worker's attending orthopedic surgeon noted that he did not feel this finding on the MR arthrogram was consistent with the worker's reported area of pain and referred the worker to a pain clinic for further assessment and evaluation.
On April 19, 2018, the worker attended a call-in examination with a WCB orthopedic consultant. The WCB orthopedic consultant opined that the new diagnosis was non-specific left scapular pain of undetermined etiology. The WCB orthopedic consultant noted that the workplace injury diagnosis was a strain/sprain soft tissue injury, and expected recovery time for such an injury was within six to eight weeks. The WCB orthopedic consultant opined that the current presentation was not medically accounted for in relation to the workplace injury. He noted that clinical findings on his examination of the worker at that time did not point to intra-articular pathology of the left shoulder as a source of his symptoms. In particular, the lack of instability on physical examination of the left shoulder did not point to a labral tear as a source of symptoms.
On April 25, 2018, Compensation Services advised the worker that they were unable to accept further wage loss benefits beyond May 3, 2018 or further medical treatment as related to his claim. Compensation Services advised that the accepted diagnosis as related to the worker's claim was a left shoulder soft tissue sprain/strain and they had determined that he had recovered from his October 30, 2017 workplace injury.
On April 29, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted in his request that there had been no definitive diagnosis for his workplace injury, despite his having been treated by a chiropractor, physiotherapist, family physician, and orthopedic surgeon and numerous diagnostic tests having been done.
On June 20, 2018, Review Office determined that there was no entitlement to medical aid and wage loss benefits beyond May 3, 2018. Review Office placed weight on the WCB orthopedic consultant's April 19, 2018 opinion and found, on a balance of probabilities, that they were not able to account for the worker's current complaints in relation to the October 30, 2017 workplace accident.
On July 9, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
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 wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
The worker was self-represented, and was accompanied at the hearing by a union representative.
The worker's position is that he has not recovered from his October 30, 2017 workplace injury and is entitled to further benefits. He stated that whether there were pre-existing conditions or not, he was working and was fine until the injury happened. Since his accident, he has had and continues to have problems because of his injury.
The worker called his family physician as a witness. The physician stated that he has been the worker's family physician for more than 25 years. The family physician provided copies of recent medical reports form the worker's files, including his 2017 and 2018 chart notes.
The family physician stated that there was no question that the worker had some degenerative changes to his cervical spine prior to the accident. Having said that, he said that he understood that the worker was functional, mobile and actively involved in his job up until that time.
The physician noted that the mechanism of injury was well-established, as a traction injury applied to the left upper limb. He believed that everyone was a "little bit offside" in terms of their focus on the worker's symptoms as being related to the worker's left shoulder. He noted that after some delay, there was a tentative diagnosis of a left shoulder injury.
The family physician indicated that he became more involved with the worker's care in February 2018, and as he reviewed the available information, it became clear that the worker's injury was not related to his shoulder. He said that on June 11, 2018, he provided a diagnosis of cervical disc degeneration and advised the worker that his symptoms were related to his cervical spine.
The family physician stated that from a medical standpoint, there was no doubt in his mind that the worker's traction accident resulted in such an injury. Unfortunately, in his view, too much emphasis had been place on the worker's shoulder, when this was actually a neurological injury and the symptoms were in fact from and continued to be from the cervical discs. The physician stated that the worker's symptoms had improved to some degree, but there were still clinical signs and symptoms which were related to the worker's neck injury. The family physician said that he felt that this should be a compensable claim, recognizing that there were some pre-existing issues, but that those pre-existing issues were not symptomatic prior to the workplace accident.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid after May 3, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid after May 3, 2018 as a result of his October 30, 2017 workplace accident. The panel is unable to make that finding.
Based on our review of all of the evidence before us, on file and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the worker's current symptoms are not related to the compensable injury and the worker is not entitled to further wage loss or medical aid benefits.
The worker's claim was accepted for a left thoracic strain/sprain and trapezius sprain. The panel finds that this injury would have been of a relatively short duration and had resolved by May 3, 2018.
The panel notes that a number of areas or issues were considered in the course of the claim as possible sources of the worker's claim. The panel carefully reviewed each of these areas with the worker's family physician at the hearing.
The first area was the intra-articular pathology of the left shoulder, with the finding on the MR arthrogram of the worker's left shoulder of a "High grade SLAP lesion and low grade partial tear of the articular surface of the supraspinatus tendon." The panel notes that both the treating orthopedic surgeon and the WCB orthopedic consultant indicated that while there were problems inside the worker's left shoulder, this high grade SLAP lesion and tear near the insertion point of the supraspinatus tendon were not correlated to the worker's symptoms. The worker's family physician indicated at the hearing that he was in agreement with the orthopedic surgeon's and orthopedic consultant's conclusion in that regard.
A second area or issue related to the original description of problems in the scapular area which the worker had been complaining about from the outset of the claim. The family physician acknowledged that the WCB was originally talking about a sprain/strain in the shoulder area, and that much of the physiotherapy which the worker received was originally aimed at that area. The panel notes that there is no specific diagnosis with respect to an ongoing scapular injury. The family physician indicated at the hearing, that at the end of day, he did not believe that there was an injury to the scapular area.
The third area which the worker's family physician referred to at the hearing was the worker's cervical spine. The physician stated that he believed that the pain which the worker had been experiencing was actually neurological pain, and that the problem was actually in the cervical spine area. The physician referred to a November 15, 2018 MRI of the cervical spine which was included with the chart notes he had provided. He noted that the MRI showed changes to pre-existing degenerative conditions at a number of levels of the cervical spine. He noted that the degenerative changes were there and were getting worse, but he did not believe that they caused the injury. Rather it was the muscles, ligaments and nerves that were injured in the accident. He stated that the key was that the traction injury, the sudden sort of pulling away from the body and upwards, would cause a tightening of the paracervical muscles. The physician noted that despite worsening of the degenerative changes on his MRI, time and not being as active, had resulted in improvement of this injury.
The panel is unable to find that the worker suffered a neurological injury. In the panel's view, the physician's position that the neurological component was more at issue in the worker's injury was speculative in nature. When asked about clinical correlation, including in terms of where the symptoms were showing up, the physician was unable to point to anything in particular. He stated that he did not have an easy answer other than to say that all the discs were involved, and that he could not point to a specific disc.
In conclusion, based on our review and consideration of the evidence, the panel is satisfied, on a balance of probabilities, that the worker's injury was more of a muscular nature, and not neurological, and that his compensable injury had resolved by May 3, 2018
The panel therefore finds that the worker did not sustain a further loss of earning capacity or require further medical aid after May 3, 2018 as a result of his October 30, 2017 workplace accident, and that the worker is not entitled to wage loss or medical aid after May 3, 2018.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of February, 2019