Decision #157/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits. A hearing was held on July 4, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits.
The worker is entitled to further benefits.
The worker submitted a Worker Incident Report to the WCB on February 7, 2018, reporting injury to her neck, right shoulder and upper back at work on February 6, 2018 when she attempted to move a resident. She stated that she felt a pull from her neck to her right shoulder with immediate pain extending from her neck to shoulder and down to her fingers.
The worker saw a physiotherapist on February 8, 2018 and reported constant pain and burning in her neck, right shoulder and shoulder blade, extending into her right arm. She also reported intermittent numbness and tingling from her right arm down into her hand. The physiotherapist noted mild pain and limitation with flexion to the side of the worker's neck, tightness with flexion, pulling with extension and abduction, and painful, limited external rotation of the worker's right shoulder. The physiotherapist diagnosed a brachial plexus strain and a cervical/rotator cuff strain and recommended the worker remain off work.
On February 23, 2018, the worker began a return to work program with restrictions on reduced hours. On March 31, 2018, she returned to regular hours, but continued with modified duties.
A June 19, 2018 a report from the worker's treating physician indicated that due to neck and shoulder pain, the worker was unable to continue the light duties at work and would need to go off work altogether.
A June 29, 2018 MRI study revealed mild degenerative changes of her cervical spine, tendinosis of the supraspinatus and infraspinatus tendons and a tiny, low grade, intra-substance tear involving the junction of the supraspinatus and infraspinatus tendons. On the basis of the MRI results, on July 13, 2018, the worker's treating physician referred her to an orthopedic specialist for assessment. That assessment did not take place until January 29, 2019.
The worker attended for a call-in examination with a WCB medical advisor on July 31, 2018. The WCB medical advisor examined the worker and confirmed that the probable diagnosis arising out of the workplace injury of February 6, 2018 was a "right shoulder girdle/neck strain" in an environment of pre-existing MRI-noted degenerative changes at the rotator cuff and cervical spine. The WCB medical advisor noted that this injury had a natural history of improvement within twelve weeks or less. The WCB sport medicine specialist went on to state that the worker's current diagnosis of non-specific neck/right shoulder pain indicated the presence of symptoms without evidence of a serious underlying medical condition. The WCB sport medicine specialist stated that the worker's current clinical results and reported disability levels could not be accounted for from a strain injury that occurred some 25 weeks earlier, and therefore restrictions on the worker's job duties would also not be medically accounted for in relation to the February 2018 workplace injury.
On August 8, 2018, the WCB advised the worker that it determined she had recovered from the effects of her February 6, 2018 workplace injury and she was not entitled to benefits after August 15, 2018.
The worker requested reconsideration of the WCB's decision to Review Office on September 10, 2018. The worker noted ongoing difficulties with her shoulder, including pain and limited range of motion, and that her treating physician suspected she may have adhesive capsulitis.
On September 20, 2018, Review Office upheld the WCB's decision that the worker was not entitled to further benefits. Review Office accepted that the worker's diagnosis was a strain of her neck and right shoulder and that recovery for that type of injury occurs within a short period of time. Review Office relied on the WCB medical advisor's opinion that the worker would have recovered from her injuries within twelve weeks or less and that her level of disability and the increase in symptoms reported during the call-in examination of July 31, 2018 could not be medically accounted for. Review Office also found there was no evidence to support that the worker's pre-existing degenerative condition in her cervical spine and right rotator cuff was enhanced by the workplace accident.
The worker's representative filed an appeal with the Appeal Commission on December 3, 2018. An oral hearing was arranged.
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 December 2, 2019, 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 Board of Directors.
Section 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. That compensation includes wage loss benefits and medical aid.
Wage loss benefits are addressed in subsection 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from the accident. Section 39(2) of the Act sets out 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.
Section 27(1) of the Act states 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."
The WCB established Policy 18.104.22.168, Pre-Existing Conditions (the "Policy") to clarify the impacts of non-compensable pre-existing conditions on compensable injuries. The Policy sets out that when a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.
The worker appeared before the panel accompanied by an advocate. The worker made a brief submission and responded to questions from members of the panel. The worker's advocate provided information to the panel on behalf of the worker and in response to questions from panel members.
The worker confirmed to the panel the mechanism of injury as described in the initial reporting to WCB. She noted that she immediately felt pain on the right side of her neck, from the base of her skull to her shoulder blade. At the end of her shift on February 6, 2018, she sought treatment from a physiotherapist. That evening, she had difficulty sleeping on her right side as the pain had increased.
The worker noted that her pain was mostly focused in the right side of her neck and down her right shoulder blade, into her right hand. She did not experience significant pain in her shoulder until some point in June or July, she said.
The worker stated that the modified duties she undertook on her initial return to work required use of both hands and moving hands above her shoulders, although this was not within her restrictions.
At the time the WCB determined the worker was or should be fully recovered, she was still experiencing significant pain levels. The worker described the pain to the panel as piercing shoulder pain, and noted that she did not think the treating physiotherapist believed her reports on the degree of the pain. The worker stated that she did not agree with the decision that she was able to return to work and noted the pain was at its worst from July - December 2018. At that time, she couldn't sleep on her right side or back, due to the pain, and couldn't even go to massage as she could not tolerate even a very light touch.
The worker's position, in sum, is that the WCB incorrectly determined that she had recovered from her compensable injury when benefits were terminated in August 2018, and that although the typical recovery period for such an injury had passed, the worker continued to experience ongoing effects of the compensable injury and was therefore entitled to further benefits beyond that time.
The employer was represented in the hearing by an advocate, who appeared with a representative of the employer. The advocate made an oral submission on behalf of the employer and provided a written submission in advance of the hearing. The advocate and the employer's representative also addressed questions from panel members.
The employer's position, as outlined by the advocate, is that the worker was not entitled to further benefits as the worker had recovered from her compensable injury by the date of termination of benefits in August 2018. The employer's advocate posited that the deterioration in the worker's condition beginning in June 2018 and continuing through the fall of 2018 was due to a non-compensable pre-existing condition rather than due to the compensable neck and right shoulder strain injury.
With respect to the diagnosis of adhesive capsulitis, the employer's advocate stated the employer's position is that this diagnosis cannot be causally linked to the relatively mild strain injury that occurred on February 6, 2018. The advocate noted that while such a diagnosis may arise as a result of prolonged immobilization following an injury, the evidence here is that the worker was, within weeks after the injury and continuing until June 2018, capable of returning to modified duties and engaged in physiotherapy, such that there was no period of immobilization of her shoulder. Further, the employer's advocate noted that adhesive capsulitis can also be idiopathic in origin; that is, the diagnosis can arise without any identified cause. The employer's advocate suggested that this may be the case here, where the evidence points to a diagnosis that arose some 4 months post-injury, after the worker had substantially recovered.
In sum, the employer's advocate argued that there is no clear evidence of causation and the worker's condition in August 2018 was not a consequence of the relatively minor soft tissue injury sustained on February 6, 2018. The evidence rather points to the worker's recovery from the compensable strain injury and subsequent deterioration that may have been related to pre-existing degenerative findings as identified by the MRI study, or may have been idiopathic in origin.
The employer's advocate therefore urged the panel to find that the worker is not entitled to further benefits in relation to the February 6, 2018 accident and that the appeal should be dismissed.
The issue for determination by the panel is whether or not the worker is entitled to further benefits in relation to the February 6, 2018 accident. In order to find that the worker is entitled to further benefits, the panel must find that, when the WCB terminated her benefits in August 2018, the worker continued to require medical aid and/or experience a loss of earning capacity as a result of the injury incurred on February 6, 2018. The panel was able to make that finding.
In considering the question before it, the panel considered in particular the medical reports outlining the worker's status in the period leading up to the termination of benefits.
When the worker was injured at work in February 2018, she sought treatment from a physiotherapist within two days. The medical reports confirm that the worker's condition was improving initially, but by the time she returned to work in early March that improvement had slowed and by early April, the worker's reported pain was increasing and she was reporting increased tightness in her shoulder and neck as well.
The worker's condition and symptoms continued to worsen through May and June of 2018. Medical reports indicate that by mid-May, the worker was reporting sharp pain in her right arm and there are clinical findings of decreased abduction and flexion of her shoulder. One month later, on June 21, 2018, the worker's physician noted a severe decrease in range of motion of the worker's right shoulder and stated she was no longer capable of work.
By July 13, 2018, the worker's physician reported severe right shoulder pain with severe restriction of movement of the worker's right shoulder. At this time, she was referred to an orthopedic surgeon, whom she ultimately saw on January 28, 2019.
The WCB medical advisor assessed the worker at a call-in examination on July 31, 2018, noting the worker's report of worsening symptoms with ongoing pain at the right should blade as well as at the anterior aspect of the shoulder blade, radiating into her neck. The worker also reported numbness and tingling affecting her right forearm and hand, mostly at night and a squeezing pain affecting her shoulder. The worker reported she was unable to tolerate even light duties at work, difficulty in dressing, showering and cleaning herself, as well as difficulty in turning the steering wheel with her right arm when driving.
The clinical findings from that examination indicate no evidence of heat, redness or swelling of the right shoulder but significant limitations in active shoulder mobility on the right as compared to the left, with a number of measurements and tests not completed due to significant pain responses and guarding. The medical advisor found that the examination revealed:
• Normal neck mobility
• Absence of cervical dural tension findings
• Absence of a neurological deficit affecting the upper limb
• Pain limitation of right shoulder mobility
• Tenderness over the shoulder with light touch (a finding not pathoanatomically accounted for)
• Pain limited rotator cuff testing
• Pain limitation impeding impingement testing.
The WCB medical advisor concluded that these findings indicated a diagnosis of "non-specific neck/right shoulder pain" and stated that these findings and the "significant reported disability levels would not be accounted for from a strain injury 25 weeks ago."
The panel noted that the WCB medical advisor considered only whether there was evidence that the worker continued to experience the effects of the compensable sprain/strain injury and did not address a potential related diagnosis of adhesive capsulitis.
It was only in the autumn of 2018 that medical reporting began to raise the diagnosis of adhesive capsulitis. The worker's treating chiropractor, in a report dated September 17, 2018 outlines his impression that the worker was suffering adhesive capsulitis secondary to a rotator cuff syndrome. An October 6, 2018 report from the worker's treating physician outlines the physician's belief that the worker's deteriorating shoulder range of motion and increased pain is accounted for by a diagnosis of "frozen shoulder" or adhesive capsulitis. The October 19, 2018 report of an internal medicine specialist also noted the diagnosis of adhesive capsulitis since July 2018 and linked this diagnosis to the workplace injury of February 2018. A sport medicine specialist confirmed the diagnosis in a report dated November 2, 2018.
There are differing medical opinions on whether or not the worker's diagnosis of adhesive capsulitis can be related to the worker's injury of February 2018. The sport medicine specialist, in a report dated August 19, 2019 sets out that:
Due to the fact that the injury happened on February 6, 2018 and was improving, and the fact that the pain got suddenly worse in June 2018 and kept increasing over the next 4-6 weeks, I am of the opinion that the adhesive capsulitis is not due to the workplace injury from February 6, 2018. If the adhesive capsulitis was due to the workplace injury, her shoulder would have gradually worsened after the injury and not improve initially as it did.
The orthopedic specialist who saw the worker on January 28, 2019 set out, in a report dated July 22, 2019 that the diagnosis of a frozen shoulder on the right "…certainly could be, and is most likely accounted for by the work, and work related strain or injury that she described to me at the onset of her symptoms."
The employer suggested that there was a four-month gap between the initial injury in February 2018 and the development of adhesive capsulitis and that the frozen shoulder diagnosis therefore could not be linked to the injury. The panel noted however, that within 6 weeks of the initial injury, the medical reports began to document a gradual deterioration in the worker's condition and increase in pain symptoms. The panel does not find this to be a significant gap in time between the initial injury and the subsequently developing condition, particularly in light of the continuity of medical reporting and care during this period. Further, the panel noted that the treating medical professionals and the consulting orthopedic specialist did not share the view of the sport medicine specialist that the worker's adhesive capsulitis was not related to her workplace injury of February 2018.
Having considered the medical reports and findings, the panel determined, on a balance of probabilities, that the worker had not fully recovered from the injurious effects of her compensable injury by August 2018 when her WCB benefits were terminated. The worker is therefore entitled to further benefits.
The worker's appeal is allowed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of December, 2019