Decision #147/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss and medical aid benefits. A hearing was held on October 17, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits.
That the worker is entitled to wage loss benefits for any time loss between January 6 and January 10, 2016, but is not entitled to medical aid benefits.
On January 13, 2016, the employer filed an Employer's Incident Report with the WCB, indicating the worker injured her shoulder and upper arm area at work on January 6, 2016 while lifting and carrying an injured child. The WCB contacted the worker to gather further information. On January 21, 2016, the worker called the WCB and left a voicemail message advising that she was "okay" and was "not claiming anything."
By letter dated January 26, 2016, the WCB advised the worker that they required further information to proceed with her claim. The WCB noted that attempts to reach the worker by telephone had been unsuccessful and advised that if they did not receive a response by February 2, 2016, they would assume she did not wish to pursue this matter and would take no further action on her claim.
On September 15, 2016, a worker advisor acting on behalf of the worker requested that Review Office reconsider the WCB's decision on a 2014 claim by the worker for a right shoulder injury. Included in the representative's submission was information regarding the 2016 claim. It was noted that on the worker's 2014 claim, she received treatment and returned to a modified light duty position with full-time hours on August 2, 2015. The worker's representative advised that the worker filed the 2016 claim "for aggravation of her right shoulder condition due to quickly picking up a child who fell and was hurt" and provided a history of the worker's treatment. With respect to the worker's 2014 claim, the worker's representative submitted that the worker had experienced an increase in her compensable right shoulder symptoms while performing her work duties and was entitled to coverage of medical treatment and time loss.
With respect to her 2016 claim, the worker's representative submitted that the worker had identified three separate incidents (lifting a child and being hit twice on the right shoulder by a child) which aggravated her right shoulder condition and contributed to her further loss of earnings and need for medical treatment. On September 16, 2016, Review Office advised the worker that a decision had not been made on the 2016 claim and she should contact the WCB's Compensation Services if she wished to pursue the 2016 claim.
In a decision dated October 14, 2016 on the worker's 2014 claim, Review Office determined that the worker had made a full functional recovery by August 2, 2015 and was not entitled to wage loss or medical aid benefits beyond August 1, 2015. The worker appealed that decision to the Appeal Commission, and the Appeal Commission dismissed her appeal on August 10, 2017.
On October 19, 2017, the worker attended at the WCB and advised that she wanted to pursue her 2016 claim. The worker advised that she had not worked since September 2016. The worker was advised that Compensation Services would need to gather further information.
On November 7, 2017, the WCB received a Doctor's First Report with attached chart notes from the worker's January 19, 2016 appointment with her family physician. The report indicated the worker had reported that her shoulder "Still feels sore if she goes to grab something" and that it "Still hurts to grab and lift and carry." She further reported that she had an "…accident on Jan 7th, was carrying a kid and had a lot of R [right] shoulder pain for 3 days…Now feels mostly better." The family physician noted that the worker had full range of motion in her right and left shoulder, that she was tender over the bicipital tendon on her right shoulder and tender to a resisted forward raise. The physician recommended that the worker see a sports medicine physician to consider an injection.
In a report from her appointment with the sports medicine physician on February 17, 2016, the physician provided a diagnosis of right rotator cuff tendinosis. The physician noted that the cause of the worker's complaint of weakness in her right hand could not be explained by that day's examination and referred the worker for a nerve conduction study.
The WCB also received a July 4, 2016 report from a physician with an interest in occupational health medicine ("occupational health physician") who had assessed the worker on June 16, 2016 "regarding her increased difficulties with right shoulder pain since approximately January 2016, and particularly in the last two months." The physician opined that the worker had not fully recovered from her prior 2014 injury and was in need of further treatment and management of her right shoulder.
Also provided to the WCB were letters from the worker's family physician. A January 19, 2016 letter indicated that the worker had "…a longstanding history of chronic tendonitis of her right shoulder" and recommended that activities which exacerbate her symptoms be avoided. A May 17, 2016 letter noted the worker had been suffering from increasing issues with an aggravation of her chronic right shoulder pain and should not be working in a position which involves repetitive use or lifting with her right shoulder. A September 14, 2016 Sickness Certificate noted that the worker "Should not be doing any repetitive activity, including lifting, pushing or pulling with her R arm or shoulder."
On January 4, 2018, Compensation Services advised the worker that her claim was accepted for an accident occurring on January 6, 2016, but they were unable to accept responsibility for any time loss or medical treatment or expenses. Compensation Services advised that as no initial medical treatment had been sought after the accident, they were unable to establish the necessary link between the January 19, 2016 diagnosis and the January 6, 2016 workplace incident.
On October 10, 2018, legal counsel for the worker requested that Review Office reconsider Compensation Services' January 4, 2018 decision. Counsel submitted a September 5, 2018 report from the occupational health physician, outlining the history of the worker's January 6, 2016 right shoulder injury and indicating that the worker was still suffering from the effects of her injury. The physician opined that the worker suffered an aggravation of an existing injury due to her job duties.
On November 22, 2018, Review Office determined that the worker was not entitled to wage loss or medical aid benefits. Review Office noted that the worker did not seek medical attention until two weeks after the January 6, 2016 workplace accident, and she advised her family physician at that appointment that her right shoulder was much better. The sports medicine physician who saw the worker on February 17, 2016 noted that her main complaint was right hand weakness. At her June 16, 2016 assessment with the occupational health physician, the physician noted that the worker was having increased right shoulder pain, particularly in the last two months.
Review Office found that the worker likely suffered a strain type injury and/or mild aggravation of a pre-existing right shoulder condition on January 6, 2016, as supported by her ability to continue working, with only one day of time loss, and that her injury had almost resolved by January 19, 2016. Review Office further found that the worker's increased pain in April/May 2016, as noted by the occupational health physician, occurring several months after the incident, was not a typical pattern of recovery from a strain injury or aggravation of a pre-existing condition, and was not related to the January 6, 2016 incident.
On March 18, 2019, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
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.
WCB Policy 18.104.22.168, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The stated purpose of the Policy is identified, in part, as follows:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part, that:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was represented by legal counsel, who made a submission on her behalf. The worker was accompanied by a family member at the hearing, and responded to questions from her legal counsel and from the panel with the assistance of an interpreter.
The worker's position was that she re-injured her right shoulder in the January 6, 2016 workplace incident, which caused an enhancement of her already existing right shoulder injury or difficulties, and is therefore entitled to benefits.
The worker's legal counsel noted that the worker suffered an injury to her right shoulder in 2014, then re-injured her shoulder on January 6, 2016. Counsel confirmed that the focus on this appeal was on the worker's 2016 workplace accident and injury, and they were not asking that the August 10, 2017 decision by the previous Appeal Commission panel on the 2014 claim be changed.
Counsel submitted that the worker has never returned to the state she was in prior to her 2016 injury. He described their position as being that the worker's 2014 injury was enhanced by what happened in 2016, as explained by the occupational health physician. Counsel stated that the worker has suffered a significant loss of wages as she has not been able to return to her pre-accident position or hours of work, and is entitled to be compensated for her lost wages.
In her evidence at the hearing, the worker described her job duties at the time of the January 6, 2016 incident and the incident itself. She said that she missed the next two days of work after that incident, on January 7 and 8, then returned to work on Monday, January 11. She said she saw her family physician on January 19, 2016, and he recommended lighter duties at work. The employer made some changes in her work, and she tried to continue working lighter duties, but her condition became worse. She went on short-term disability for six months, starting May 17, 2016, then on long-term disability until early 2018.
The worker stated that in 2018, she started work in a different program, with older children, where she works five days a week for five hours a day. She said that she used to work 40 hours per week, and her income is approximately half what she was making before the 2016 incident. The worker described her current duties as being very light. She stated she had no choice but to take this position, as she was not able to go back to the work she was doing in January 2016 because of her arm. She said her arm is so weak and she cannot do even half what she did before.
The treating occupational health physician also attended and gave evidence at the hearing. The occupational health physician stated that he was not the worker's primary treating physician and did not see her at the time of the January 6, 2016 injury. He saw her three months later, in April 2016, then again on June 16, 2016. He said he would typically see her every three or four months and would try to get her recognized for treatment. The physician noted that the worker went on short-term disability in September 2016 and had further treatment, then moved into long-term disability for at least a year, with rehabilitation and a reconditioning program at the end of that. He stated that with treatment, the worker's pain settled down, but her strength and tolerance were not at her pre-2016 level.
The occupational health physician stated that the worker returned to her usual duties but this led to flare-ups and aggravations, and was not sustainable. The worker was eventually moved to her current position, working with older children and with reduced hours, which he described as being manageable.
The occupational health physician stated that he remained of the opinion, as set out in his September 5, 2018 report on file, that the worker is still suffering from her January 2016 injury and has not recovered to be able to resume her pre-January 2016 duties, and that he did not see the worker ever fully recovering from her injury.
The occupational health physician opined that the worker had never recovered from her first injury in 2014. He said that she had been accommodated in a childcare position after that injury, but found it difficult. Prior to the 2016 incident, the worker had ongoing symptoms from her 2014 accident. She was working with pain and complaining of a sore shoulder, but was managing to work with pain and with doing very little else outside of work. He said that she suffered frequent aggravations, but the 2016 injury was particularly significant.
In response to questions from the panel regarding the nature of the pre-existing condition, the occupational health physician noted that the worker did not have a painful right shoulder and was using that shoulder fully prior to her 2014 injury. The physician opined that the worker's pre-existing condition in January 2016 would have been her 2014 compensable injury, "from which she did not make good recovery." He said that the worker "had to be accommodated and she had ongoing symptoms, so that's a pre-existing injury." The physician noted that the worker managed to tolerate working in the accommodated position, although with worsening pain, up until the time of the fairly discrete incident on January 6, 2016, which resulted in an enhancement of her 2014 pre-existing condition.
When asked about the clinical diagnosis for the worker's injury, the occupational health physician stated that it was "important not to lose the forest because of the trees" and that "limiting to the focus of this event in January 2016 misses the continual problems with her injured right shoulder." In terms of clinical diagnoses around the time of 2016 and subsequently, the physician noted that bicipital tendinitis came up multiple times as did shoulder impingement. The physician stated that he could provide extensive notes from therapists who had worked with the worker to try to improve her shoulder, "showing it is not going anywhere,", and reiterated that "the overall impression over months and years is more important, I think, than the details."
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 benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity as a result of her January 6, 2016 workplace accident and/or required medical aid to cure and provide relief from an injury resulting from that accident.
For the reasons that follow, the panel is satisfied that the worker is entitled to wage loss benefits for any time loss between January 6 and 10, 2016, but is unable to find that the worker is entitled to further wage loss benefits or to medical aid benefits as a result of the January 6, 2016 workplace accident.
The worker has an accepted claim for a right shoulder injury arising out of the January 6, 2016 workplace incident. Information on file indicates that the worker missed one or two days of work following the workplace incident. The worker stated at the hearing, that she missed two full days of work following the January 6 incident, then returned to her regular duties the following Monday, January 11, 2016.
Based on our review and consideration of all of the evidence and submissions, on file and as presented at the hearing, the panel is satisfied that the worker suffered a minor right shoulder injury on January 6, 2016, within the environment of a pre-existing shoulder condition (tendinosis), which resulted in her having to be off work for up to two days. The panel is further satisfied that the worker had materially recovered from her injury at or around the time she returned to work on January 11, 2016.
In arriving at that conclusion, the panel places weight on the medical and other information on file which is in closer proximity to the date of the incident, including:
• Information on file shows that the worker returned to her regular duties only a few days after the incident, and continued working for several months after that;
• The worker did not seek medical attention until January 19, 2016, almost two weeks after the incident;
• Chart notes from the worker's family physician who saw the worker on January 19, 2016 referred to the worker having had an accident on January 7 (sic) and noted that she "Now feels mostly better" and her shoulder is "Much better than it was, but still not perfect." Clinical findings include that the worker had full range of motion in her right and left shoulders;
• The report from the treating sports medicine physician who saw the worker on February 17, 2016 noted that the worker's main complaint was with respect to weakness in her right hand. The physician also tested the worker's right shoulder at that time and the reported clinical findings included active range of motion of the shoulder which was "full and pain free," normal strength and negative impingement tests;
• In a conversation with the WCB adjudicator on January 21, 2016, the worker advised the WCB that she was okay and was not pursuing the claim.
The panel notes it was also indicated in the January 19, 2016 chart notes from the worker's family physician that the worker had "recently been told she should be going to swimming activities with children and feels that she does not have the strength to support them in this," and that the physician provided a letter indicating that the worker had a "longstanding history of chronic tendonitis of her right shoulder" which was "significantly better than it has been in the past" but would likely remain a chronic issue. The physician wrote in the letter that "In general, it would be very helpful is she is allowed to avoid specific activities which exacerbate this problem" and stated that "If any particular activity exacerbates her symptoms, it would be ideal if they could be avoided." While information on file indicates that the worker was subsequently given lighter duties, which included no swimming, the panel is not satisfied that such arrangements or accommodations were required as a result of the 2016 injury, and finds that they were essentially preventive in nature.
The panel also notes that the worker's presentation at the hearing was not consistent with her presentation in January and February 2016. The worker stated at the hearing that her shoulder never got better, but continued to get worse from the date of the accident. The panel places more weight on the worker's earlier presentation as being closer in time to the incident and therefore more accurate. The panel acknowledges counsel's explanation that the worker is a very stoic individual, who was clearly fighting to get back to work, but is unable to account for the differences in her presentation on this basis. The panel would have expected that if ongoing symptomatology had been present in January and February 2016, it would have been reported and/or recognized in medical or other reports at that time.
In addition, the panel notes that the occupational health physician indicated in his July 7, 2016 report that by the time the worker met with him on April 7, 2016, "her right shoulder pain had subsided somewhat since January, but she described how it is aggravated with common repetitive lifting and reaching tasks at work" and that a "major complaint was being tired after her work shift…" The physician went on to say that when the worker attended on June 16, 2016, she indicated that her right shoulder pains had worsened again in early May 2016. The panel is unable to account for this decrease then increase or waxing and waning of the worker's symptoms as being related to her January 6, 2016 incident.
The panel further notes that the worker saw the treating sports medicine physician for a follow-up appointment on September 12, 2016, at which time the physician performed a number of tests on the worker's right shoulder and provided a diagnosis of biceps tendinosis, which the panel understands to be a degenerative condition and would be unrelated to the January 6, 2016 workplace incident.
The panel is unable to accept the worker's position, as advanced by her counsel and her treating occupational health physician, that the worker's 2014 compensable injury was a pre-existing condition which was enhanced by the January 6, 2016 incident. The panel notes that the prior Appeal Commission panel determined in its August 10, 2017 decision on the worker's 2014 claim that the worker's right shoulder injury had materially resolved by August 2, 2015, when the worker returned to work, and the then current diagnosis of underlying tendinosis was a pre-existing condition which was not related to the compensable injury. The panel is bound by that decision.
While diagnoses or difficulties other than tendinosis have been suggested, including the occupational health physician's reference to bicipital tendonitis and impingement at the hearing, the panel is unable to relate those diagnoses or difficulties to the worker's January 6, 2016 workplace incident based on the evidence which is before us.
In conclusion, the panel acknowledges that the worker has ongoing issues or difficulties with her right shoulder, but is unable to connect those issues or difficulties back to her January 6, 2016 workplace accident or injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity between January 6 and January 10, 2016 as a result of her January 6, 2016 workplace accident, but did not experience a further loss of earning capacity beyond those dates or require medical aid to cure and provide relief from an injury resulting from that accident. The panel therefore finds that the worker is entitled to wage loss benefits for any time loss between January 6 and January 10, 2016 only.
The worker's appeal is allowed, in part.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of December, 2019