Decision #47/21 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the worker's left shoulder difficulties and the worker was not entitled to further benefits.
A teleconference hearing was held on February 17, 2021 to consider the worker's appeal.
1. Whether or not responsibility should be accepted for the worker's left shoulder difficulties as being related to the November 26, 2019 accident; and
2. Whether or not the worker is entitled to further benefits.
1. That responsibility should not be accepted for the worker's left shoulder difficulties as being related to the November 26, 2019 accident; and
2. That the worker is not entitled to further benefits.
On November 27, 2019, the worker filed a Worker Incident Report with the WCB, reporting an injury to her left lower arm, elbow and left hip at work on November 26, 2019 after she lifted a heavy bag filled with garbage. The worker indicated that "…when I lifted I was twisting and then lifting at the same time and I felt a pain in my lower arm and in the inside and outside of my left elbow, and my hip also felt pain."
The worker saw her family physician on November 26, 2019. In a Doctor First Report, the family physician noted the worker reported she threw sacks of garbage and strained her left elbow. The physician reported a date of incident of September 1, 2019, and that the worker had complained of left elbow pain for more than a month. The physician noted the worker's left medial epicondyle was very tender, and diagnosed her with left elbow medial epicondylitis. Physiotherapy was recommended and restrictions of no use of the left upper extremity were outlined.
On December 3, 2019, the employer filed an Employer's Accident Report, in which they described the November 26, 2019 accident as:
No single incident identified that caused pain, but employee is relating it to picking up garbages over the course of the day, pushing the cart and taking the garbages off the cart. She found one of the garbage bags heavier than usual when she lifted it up with both hands to put on her cart…She picks garbage up 2-3 times daily, she transfers garbage and linens from the bin on the unit to her cart that she pushes around for pick up.
On December 4, 2019, the worker attended an initial physiotherapy assessment. The worker reported to the physiotherapist that she had constant aching hot pain into her elbow, medial greater than lateral area; pain when flexing, turning the elbow outwards, pushing/pulling and lifting; and pain at night when lying on the elbow. The physiotherapist diagnosed the worker with medial elbow strain/sprain and recommended restrictions of no use of the left arm.
On December 6, 2019, the WCB contacted the worker to discuss her claim. The worker confirmed she felt pain in her left elbow and hip after lifting heavy garbage bags on November 26, 2019. The worker indicated her elbow was hurting a little in September, but was not really bothering her until the accident. She further confirmed her left hip pain began sometime in August but began to hurt more after the November 26, 2019 incident.
By letter dated December 24, 2019, the WCB's Compensation Services advised the worker that her claim was accepted for a left elbow medial strain/sprain.
On January 2, 2020, the worker attended a follow-up appointment with her family physician, who noted the worker reported no improvement with physiotherapy. The physician reported "Left shoulder tenderness on abduction at 135 degrees," referred the worker to an orthopedic specialist and recommended the worker continue with the modified duties.
On January 7, 2020, a WCB adjudicator spoke to the worker for a status update. The worker advised that her treating physician referred her to an orthopedic specialist; that she saw the orthopedic specialist on January 7, 2020 and was referred for an MRI of her left shoulder. The adjudicator noted it was mentioned initially that the worker's injury was to her left lower arm/elbow and left hip. The worker indicated, however, that since going for physiotherapy treatment, her left shoulder "…started to get really sore as well as her left arm…", and the symptoms had been getting worse since then. A requisition for an MRI querying frozen shoulder syndrome was received.
On January 7, 2020, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's new diagnosis was nonspecific left arm pain. With respect to the orthopedic specialist's query of a diagnosis of frozen shoulder and request for an MRI, the medical advisor opined that a diagnosis of frozen shoulder could not be medically accounted for in relation to the workplace accident as the first reported symptoms involving the worker's left elbow had "…no anatomical relationship to the shoulder" and the worker would be expected to have had symptoms from her shoulder within the first day if she had sustained an injury to her left shoulder joint from the workplace accident.
In his January 10, 2020 report of the appointment with the worker on January 7, 2020, the orthopedic specialist noted limitation of lateral rotation in the worker's left shoulder, but otherwise normal findings with respect to both of the worker's arms, with x-rays of both shoulders indicating "…some changes in anterior border of left glenoidal labrum." The specialist opined the worker was "…showing some evidence of left frozen shoulder syndrome" and noted he had referred her for an MRI.
On January 10, 2020, the worker attended an initial assessment with a new physiotherapist, at which time she reported pain located on the back of her shoulder which radiated into the medial elbow, with the elbow pain being worse than the shoulder. The worker described a constant burning pain and her left arm felt "heavy". The physiotherapist noted active range of motion did not reproduce pain in the worker's left elbow or shoulder, with left shoulder flexion to 180 degrees and the worker reporting mild discomfort after the examination. The physiotherapist diagnosed the worker with left medial epicondylalgia with secondary biceps tendinosis. The orthopedic specialist's and new physiotherapist's reports were reviewed by the WCB medical advisor, who provided an opinion to file.
By letter dated January 31, 2020, Compensation Services advised the worker that the medical information on file indicated she had been diagnosed with a left medial epicondylalgia/ epicondylitis. Compensation Services stated that they had determined there was no relationship between her left hip and left shoulder difficulties and the mechanism of injury, and that responsibility for those difficulties was not accepted.
The worker continued to seek medical treatment and to attend physiotherapy for her left elbow. On March 2, 2020, the worker underwent an MRI of her left shoulder, which showed supraspinatus and infraspinatus tendinosis, with no discrete rotator cuff tear; a nondisplaced posterior labral tear; and mild acromioclavicular joint osteoarthritis. On March 11, 2020, the worker had a left elbow MRI which indicated "No abnormality identified to explain the patients (sic) symptoms."
At a follow-up telephone attendance with the worker's family physician on March 27, 2020, the worker's diagnosis was updated to a left shoulder labrum tear and left elbow epicondylitis, and she was referred to an orthopedic surgeon. On April 21, 2020, the worker's file was reviewed by the WCB medical advisor, who noted the worker's initial diagnosis related to the workplace accident was a left elbow sprain, and the current diagnosis based on the new medical information was non-specific left arm pain. The WCB medical advisor opined that the worker's current symptoms were not medically accounted for in relation to the workplace accident, as there was no clinical evidence of an ongoing left elbow sprain. The medical advisor went on to note that the normal recovery time for an elbow strain would be one to eight weeks for moderately heavy work, and opined that the worker's left elbow sprain would therefore have resolved.
On April 22, 2020, Compensation Services advised the worker that they were unable to account for her left shoulder difficulties in relation to the November 26, 2019 work accident or injury. Compensation Services further advised that they could not account for any ongoing difficulties or limitations in relation to the worker's injury and her entitlement to benefits would end on April 29, 2020.
On April 30, 2020, the worker requested that Review Office reconsider Compensation Services' April 22, 2019 decision. The worker submitted that her treating healthcare providers agreed that her left shoulder, elbow and hip difficulties resulted from her work injury. The worker further noted that she could not do her full work duties and continued to perform modified duties at work with her right arm only.
On June 17, 2020, the employer provided Review Office with copies of a Work Related Injury/Near Miss Form completed November 27, 2019 and an intake form noting the steps taken after the workplace accident was reported.
On June 18, 2020, Review Office determined that responsibility was not accepted for the worker's left shoulder difficulties and there was no entitlement to further benefits. Review Office found that the worker's left shoulder difficulties were not related to the November 26, 2019 workplace accident and that the left shoulder was not injured as a result of physiotherapy treatment for the compensable elbow injury. Review Office determined that the compensable injury was a left elbow sprain, which was now "healed." Review Office further determined that the current diagnosis was non-specific left arm pain, and the elbow injury from November 2019 did not require ongoing treatment or time loss from work or work restrictions.
On August 6, 2020, the worker filed an appeal from the Review Office decision with the Appeal Commission and a teleconference 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.
Subsection 4(2) provides that 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 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."
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 WCB's Board of Directors has established WCB Policy 126.96.36.199, Further Injuries Subsequent to a Compensable Injury (the "Policy"). The Policy applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides, in part, that:
A further injury occurring subsequent to a compensable injury is compensable:
(i) when the cause of the further injury is predominantly attributable to the compensable injury; or
(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.
The worker was self-represented. The worker was accompanied by her spouse and was provided with the assistance of an interpreter. The worker and her spouse made a presentation at the hearing, and responded to questions from the panel.
The worker's position with respect to the issues on appeal was that: she suffered a torn labrum in her shoulder as a result of her workplace accident, for which the WCB is responsible; and she is entitled to further benefits as her left elbow and shoulder difficulties have not resolved.
In a written submission which accompanied her Appeal of Claim Decision form filed August 6, 2020, the worker described the November 26, 2019 incident. The worker noted that towards the end of her shift that day she had to put collected garbage bags in the garbage bin and transfer linens. She said that throwing the garbage bags into the bin requires a lot of strength, as the edge of the bin is about five feet from the ground and the bags are heavy. The worker said that one of the garbage bags was so heavy she had to twist her body and use her maximum strength to throw it high enough, and right after that she started to feel pain in her lower arm and left elbow, inside and out. She said the rest of her work that day was not as heavy, but the pain was so intense that she was almost unable to finish her work. She knew something was wrong, and went to see her doctor that same day.
The worker said she could not do anything with her left hand for the next few days. She subsequently started physiotherapy, but during some of the exercises she had awful pain in her left shoulder, and was not able to do all the exercises. She went to see her doctor, who sent her to a specialist. The specialist suspected she had frozen shoulder and sent her for an MRI. The worker said that the results of the MRI explained everything. It showed that there was a tear at the posterior labrum in her left shoulder. The worker said she returned to work for a few hours a week with some restrictions, and her hip and lower arm returned to normal over time, but she still has pain in the inside part of her elbow and there is no improvement in her left shoulder. The worker noted that the only way to repair that tear is surgery.
With respect to her left shoulder, the worker said that at first, because the pain in her elbow was so strong, she was not sure her shoulder was damaged too. After a few days, when she started physiotherapy, the pain in the elbow was a little lighter, and the pain in the shoulder became stronger. The worker said that because her left elbow and arm were so painful after the accident, she did not use her left hand at all so the tear could only have happened during the accident. The worker submitted that doing the exercises the physiotherapy wanted her to do created strong pain in her shoulder. She submitted that everything is clear, given the results of the MRI, that the "…pain was created by torn posterior labrum."
The worker submitted that she is entitled to further benefits until such time as all the negative effects of her accident are gone She said she still has problems with her left elbow and shoulder. She submitted that the doctor should have checked the condition of her shoulder before deciding that it was completely cured. She submitted that she is also entitled to benefits until her left shoulder has been repaired by surgery, and she can return to work without pain.
The employer was represented by an advocate and by its WCB Coordinator. The employer's advocate provided a written submission in advance of the hearing and made an oral presentation to the panel.
The employer's position was that they agreed with the Review Office decisions and the worker's appeal should be dismissed.
With respect to the first issue, the employer's advocate stated that they did not believe the evidence supported the worker's left shoulder difficulties arose out of and in the course of her regular duties on November 26, 2019. The advocate reviewed the initial medical reports, as well as the reports to the employer and the WCB, and noted that all initial indications were that the worker complained of pain to her left lower arm, elbow and hip and there was no mention of left shoulder pain. It was submitted that if the worker had sustained an acute or traumatic injury to her shoulder, one would have expected immediate pain to this area, but the documentation at the time showed that this was not the case.
The advocated submitted that based on the preponderance of evidence no responsibility should be accepted for the left shoulder. The initial injury was clearly and repeatedly documented to involve the left lower arm. The initial injury was also noted to involve the left hip, but that was not accepted by the WCB. It was submitted that one would have expected immediate complaints regarding the left shoulder if the finding on the MRI of a non-displaced posterior labral tear had been caused by work activities on November 26, 2019. A posterior labral tear involves a sudden onset of pain following trauma, yet the worker repeatedly reported no initial issues with her shoulder to everyone.
The advocate further noted that the March 25, 2020 discharge report from the physiotherapist made no mention of posterior shoulder pain, and the subjective complaints were not consistent with a posterior labral tear. The advocate noted that the specialist thought the worker's shoulder difficulties were related to an injury on November 26, 2019 but also thought the mechanism of injury was a fall, which was not correct.
The advocate further submitted that there is no evidence that the worker's shoulder complaints were caused by the physiotherapy treatment he received.
With respect to the second issue, the advocate submitted that the medical evidence supports the worker had recovered from the effects of the November 26, 2019 workplace injury and was not entitled to further benefits. It was noted that the worker received five full months of benefits until April 29, 2020. The advocated submitted that the injury was a left elbow strain, and asked that the panel accept the medical advisor's April 21, 2020 opinion, where he repeated that the diagnosis was an elbow strain from which recovery had been demonstrated.
In conclusion, the advocate submitted that the worker's left shoulder difficulties are not related to her workplace accident and the worker has been fairly compensated for the compensable left elbow strain, and her appeal should be dismissed.
Issue 1: Whether or not responsibility should be accepted for the worker's left shoulder difficulties as being related to the November 26, 2019 accident.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's left shoulder difficulties are causally related to the November 26, 2019 accident or her original compensable injuries. The panel is unable to make that finding, for the reasons that follow.
The panel is not satisfied that the mechanism of injury, as described in the documentation on file and in the worker's submission, supports that the November 26, 2019 workplace incident caused or resulted in a left shoulder injury, and more specifically in frozen shoulder or a posterior labral tear.
The panel further notes that complaints of shoulder difficulties are not mentioned in the initial reports to the treating healthcare providers, to the employer and to the WCB. While the worker suggested on the appeal that this was because the pain from her other injuries was more intense, the panel has difficulty accepting this explanation. The panel would have expected the worker would have been experienced and noted such complaints at the time of and immediately following the incident if she had injured her shoulder on November 26, 2019. Information on file indicates that it was not until significantly later that she started complaining of shoulder difficulties and that the WCB was only made aware of the worker having problems with her shoulder on January 7, 2020, when they were provided with the request for an expedited MRI querying frozen shoulder.
In addition, while the worker submitted that her orthopedic surgeon has indicated her shoulder difficulties are connected to her workplace accident, the panel is unable to place much weight on the surgeon's January 10, 2020 report. The panel notes that the surgeon commented in that report that the worker's "…symptoms date back to November 2019, when she fell and hurt her left upper limb." It is clear, however, and the worker confirmed at the hearing, that the incident did not involve a fall, and the surgeon's comments in this regard are therefore based on an incorrect mechanism of injury.
In the circumstances, the panel is unable to find that the worker's left shoulder pain or difficulties are causally related to the November 26, 2019 workplace incident.
The worker has also suggested that the WCB is responsible for her shoulder difficulties based on the original physiotherapy treatment she received. The worker has submitted that the physiotherapy treatment created strong pain, and that it is clear, given the results of the MRI, that the "…pain was created by torn posterior labrum." The panel is unable to accept that argument. The panel is satisfied that there is a absence of medical evidence to support that the worker's posterior labral tear or ongoing shoulder pain and difficulties arose out of the delivery of physiotherapy treatment for her left elbow compensable injury, or that her pain and labral tear are predominantly attributable to her compensable injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's left shoulder difficulties are not causally related to the November 26, 2019 accident or her original compensable injury. Responsibility should therefore not be accepted for the worker's left shoulder difficulties as being related to the November 26, 2019 accident.
The worker's appeal on this issue is dismissed.
Issue 2: Whether or not the worker is entitled to further benefits.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further benefits as a result of her November 26, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.
Given our response to Issue #1 above, that responsibility should not be accepted for the worker's left shoulder difficulties as being related to the November 26, 2019 accident, the worker is not entitled to benefits in respect of his left shoulder difficulties.
While there were references early in the file to an injury to the worker's left hip, responsibility was not accepted for a left hip injury, and the worker confirmed at the hearing that her left hip returned to normal over time and was not an issue on this appeal.
The worker has an accepted claim for a left elbow sprain/strain injury. It is the panel's understanding that the normal recovery time for an elbow sprain/strain injury would be from one to eight weeks. The worker was provided with benefits for approximately five months, from November 26, 2019 to April 29, 2020.
While the panel notes that the worker has reported ongoing pain and difficulties with her left elbow, with "…pain from my shoulder to the elbow…" and is currently on a waiting list for surgery, the panel is unable to find that the medical evidence on file supports that her current symptoms or diagnoses are related to the workplace incident or her compensable sprain/strain injury. Based on the available evidence, the panel is therefore unable to account for the worker's ongoing left elbow difficulties in relation to her November 26, 2019 workplace accident or compensable injury.
In conclusion, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require further benefits as a result of her November 26, 2019 workplace accident. The worker is therefore not entitled to further benefits.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, 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 April, 2021