Decision #109/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to the June 17, 2016 accident. A hearing was held on July 14, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the June 17, 2016 accident.
That the worker is not entitled to further benefits in relation to the June 17, 2016 accident.
On June 24, 2016, the worker filed a Worker Incident Report with the WCB reporting she was involved in a motor vehicle collision with wildlife on June 17, 2016 and injured her right and left hands, neck, upper back and both shoulders. The worker advised she continued working and finished her shift as she did not initially feel any symptoms, but had to stop working after two additional shifts due to pain. The worker further noted that her thumbs were in braces due to a prior accident in May 2016.
The worker sought medical attention from her family physician on June 24, 2016, reporting moderate to severe pain in both shoulders, neck, upper back, both forearms and hands, with numbness and tingling in her hands. The physician noted tenderness in both shoulders, neck, upper back and both wrists and hands with no obvious joint effusions, normal range of motion, muscle strength and reflexes, and referred the worker for x-rays. The physician provided a diagnosis of "multiple sites pain due to injury." X-rays taken July 4, 2016 of the worker's cervical spine and both hands, including wrists, did not identify any fractures.
On July 11, 2016, the worker's claim was accepted by the WCB, and the worker was seen by a physiotherapist for an initial assessment. Following that assessment, the physiotherapist diagnosed the worker with a rotator cuff strain, WAD II (whiplash associated disorder, grade II), de Quervain's tenosynovitis on the left wrist, and a strain/sprain injury. Reference was made in the assessment to the worker's previous workplace accident in May 2016.
The worker underwent a nerve conduction study on August 2, 2016, which showed the presence of mild to moderate bilateral carpal tunnel syndrome. At a follow-up appointment with her family physician on August 15, 2016, the worker was referred for a lumbar spine x-ray and to an orthopedic surgeon. The x-ray of the worker's lumbosacral spine, taken August 16, 2016, indicated: "Alignment unremarkable. Disc spaces and vertebral heights are well-maintained. There are small anterolateral osteophytes at most levels. No further abnormalities demonstrated."
In a follow-up report dated September 1, 2016, the worker's treating physiotherapist applied for an extension of treatment and outlined restrictions. On September 2, 2016, the WCB's Compensation Services advised the employer that the worker was fit for work with temporary restrictions of sedentary duties; no prolonged sitting; keep within the body envelope; and no overhead reaching. On September 7, 2016, the employer advised the WCB that they could not accommodate the worker within those restrictions. On September 12, 2016, a WCB physiotherapy advisor reviewed the worker's file, given the request for an extension of treatment, and noted "There has been limited progress objectively with multiple areas of concern. There appears to be barriers to the return to work. WCB medical review is likely indicated."
On September 21, 2016, the worker was seen by an orthopedic surgeon, who noted tenderness over the worker's lower lumbar region, but good range of motion; normal range of pain-free motion in the worker's right shoulder, but some limitation in flexion and abduction in her left shoulder joint; reasonable range of motion in the worker's elbows and wrists; good pronation and supination in both forearms; and fist, grasp and pinch were good bilaterally. The surgeon further noted that the x-rays of the worker's lumbar spine "…revealed moderate Osteo-arthrosis." The surgeon opined that the worker was slowly recovering from severe wrist sprains on both wrists and recommended the worker continue with heat application and range of motion exercises. The surgeon further noted that the worker's main concern at present was severe headache, and referred her to be assessed by a neurologist.
On October 24, 2016, the worker attended a call-in examination with a WCB medical advisor. In his notes of that examination, the WCB medical advisor opined that the diagnosis related to the workplace accident was a cervical spine strain, a strain of the left and right shoulders, and bilateral wrist/thumb strains. The medical advisor further opined that the current diagnoses were a cervical spine strain, left shoulder rotator cuff strain with a possible tear and an injury to the distal radial ulnar joint of the left wrist and possible tear to the ulnar collateral ligament of the left thumb. The WCB medical advisor suggested the worker should be referred by her treating family physician for MRI studies of the cervical spine and left wrist to clarify and confirm those diagnoses. The medical advisor also opined that the worker's progression appeared to be delayed from the typical recovery norms, and outlined detailed temporary restrictions for the worker, to remain in place and be reviewed when the diagnoses were clarified.
On November 10, 2016, the worker was seen by the neurologist, who opined that "The presentation is mostly consistent with a MSK (musculoskeletal) injuries, including of the neck (just soft tissue?), with probably some secondary headaches. No significant neurologic injury or lesion is evident." The neurologist went on to recommend the worker's family physician have the worker referred to a rehabilitation medicine specialist, and noted the worker would be returning for an occipital nerve block.
On December 22, 2016, the WCB received a Physiotherapy Discharge Form from the treating physiotherapist recommending a graduated return to work plan of 3 hours per day for 2 to 3 weeks, then 6 hours per day for 2 to 3 weeks, followed by an increase to 8 hours per day. The physiotherapist noted that a reconditioning program had previously been suggested.
On December 30, 2016, a CT scan of the worker's cervical spine was performed and indicated "Relatively mild degenerative changes in the cervical spine…" On January 6, 2017, an MRI was performed on the worker's left wrist and indicated that no abnormality was identified.
On January 10, 2017, the WCB medical advisor reviewed the worker's file, including the recent diagnostic imaging. The medical advisor opined that the current diagnoses of the neck and left wrist, concordant with the diagnostic imaging, would be non-specific cervical spine pain and non-specific left wrist pain. The medical advisor went on to opine that recovery from a cervical spine strain would have been expected within 6 to 8 weeks, and given the elapsed time since the workplace accident and the absence of acute pathology beyond degenerative changes, the worker's current cervical spine symptoms would be a result of the degenerative changes shown on the December 30, 2016 CT scan.
The WCB medical advisor also opined that the worker's current left wrist symptoms were likely an effect of the carpal tunnel syndrome indicated on the September 2016 nerve conduction studies, rather than an ongoing effect of the workplace accident, as recovery from a wrist strain would similarly have been expected within 6 to 8 weeks. The medical advisor opined that the medical information did not support the requirement of restrictions with respect to the workplace accident. On January 10, 2017, Compensation Services advised the worker that they had determined she had recovered from the June 17, 2016 workplace accident and entitlement to wage loss benefits would end on January 16, 2017.
On January 17, 2017, the worker requested that Review Office reconsider Compensation Services' decision, indicating she still continued to suffer the effects of the workplace accident and her treating healthcare providers supported she was still having difficulties. On January 27, 2017, the worker contacted Review Office and advised she had changed physiotherapists and the treatment she had been receiving from the second physiotherapist, which included acupuncture, was providing relief from some of the symptoms she had been experiencing.
On January 27, 2017, Review Office requested and received copies of the chart notes from the worker's second physiotherapist. On February 17, 2017, after reviewing the chart notes and the worker's file, and speaking with the worker's family physician, the WCB medical advisor advised that his January 10, 2017 opinion remained unchanged. The medical advisor noted that the results of the imaging had not indicated any structural pathology in the worker's cervical spine or left wrist resulting from the workplace accident that would require workplace restrictions, and that his opinion was in line with the first treating physiotherapist's recommendation for a return to work.
On February 22, 2017, noting the previous physiotherapist had recommended a reconditioning program and outlined work restrictions, Review Office determined the worker was entitled to further physiotherapy treatment. Review Office further determined that the worker was not fit to return to her full pre-accident work duties as of January 17, 2017 and was therefore entitled to wage loss benefits beyond January 16, 2017. The worker's file was returned to Compensation Services for further adjudication.
On March 22, 2017, a report was received from the worker's second physiotherapist dated March 15, 2017, which recommended the worker could return to work. In a discussion with the WCB on March 23, 2017, the worker advised she was doing a lot better and would be returning to work with a new employer the following week. The WCB advised the worker that wage loss benefits would be paid to March 22, 2017, but there would be no further wage loss as her treating physiotherapist had advised she could return to work. On March 30, 2017, the worker contacted the WCB and advised she was off work due to non-compensable reasons. The WCB again advised the worker that wage loss benefits were payable to March 22, 2017 as the worker was able to return to work but remained off work due to non-claim-related issues.
On April 27, 2017, the worker's legal counsel submitted a medical note from the worker's family physician dated April 24, 2017 placing her off work, along with an April 12, 2017 report from the worker's second treating physiotherapist, and requested that Compensation Services review their decision to end the worker's wage loss benefits effective March 22, 2017. On May 26, 2017, Compensation Services wrote to the worker and to her legal counsel advising the new information had been reviewed but there would be no change to the decision the worker was not entitled to wage loss benefits after March 22, 2017.
On July 10, 2019, the worker requested that Compensation Services reconsider their decision. Enclosed with the worker's request was a copy of a June 27, 2019 report from a physician with an interest in occupational medicine, noting the physician's disagreement with Compensation Services' decision that the worker had recovered from the June 17, 2016 workplace accident and did not require workplace restrictions.
At the request of the WCB, the new medical information and the worker's file were reviewed by a WCB orthopedic consultant. Following his review, the consultant advised that he supported the opinion of the WCB medical advisor that the worker had recovered from the effects of the workplace injuries and opined that there was no clinical evidence that the workplace injuries "…have caused any lasting demonstrable pathology." On July 18, 2019, Compensation Services advised the worker that there would be no change to their earlier decision.
On March 5, 2020, a worker advisor acting on behalf of the worker requested that Review Office reconsider Compensation Services' decision, and on March 10, 2020, Review Office returned the worker's file to Compensation Services for further investigation. On April 8, 2020, consultation reports from a pain management specialist were provided to the WCB by the worker's new treating family physician, listing the worker's treatment for pain, including pain injections and recommendations for home exercises. Reports from a treating physical medicine and rehabilitation specialist were also provided.
On April 15, 2020, the worker's file was again reviewed by the WCB orthopedic consultant, who opined that the worker's current medical treatments were non-specific and directed at non-specific pain symptoms, and that "No objective medical evidence has been placed on file to support that the workplace injury has caused any lasting demonstrable pathology. It is my opinion that recovery from the workplace injury has occurred." On April 16, 2020, Compensation Services again advised the worker that there would be no change to their earlier decision, as they were unable to establish that the worker's ongoing difficulties or need for workplace restrictions were related to her workplace injury of June 17, 2016.
On May 1, 2020, the worker's representative again requested that Review Office reconsider Compensation Services' decision, relying on their March 5, 2020 submission and the additional medical information provided subsequent to that submission. On May 27, 2020, Review Office advised that they had considered the reports of the treating healthcare providers and determined there was no entitlement to further benefits.
On June 22, 2020, the worker's representative submitted copies of documents from the worker's automobile insurer related to physical assessments required for licensing, and requested that Review Office reconsider their May 27, 2020 decision. On July 8, 2020, after reviewing the information provided, Review Office determined that the worker did not have a further loss of earning capacity or require further medical treatment in relation to the compensable injuries, and as such, there was no entitlement to further benefits.
On January 14, 2021, the worker's representative 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.
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 188.8.131.52, Pre-existing Conditions, which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy states that the 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.
The worker was represented by a worker advisor, who provided a written submission in advance of the hearing, including numerous medical reports, and made an oral presentation to the panel. The worker responded to questions from her representative and from the panel.
The worker's position was that her entitlement to benefits should continue beyond the benefit termination date of March 22, 2017, as she continued to require medical treatment, continued to have a loss of earning capacity and did not recover from her compensable injuries.
The worker's representative began her presentation with a summary of the claim history. The representative submitted that the file shows evidence of a continuity of symptoms that began at the time of the accidents and continued past the benefit termination date. It was submitted that although the WCB medical advisor indicated the worker's headaches had resolved after treatment with a nerve block, this was not the case, and the worker continued to have nerve block therapy after her benefits were terminated. It was noted that while the physiotherapist discharged the worker, the physiotherapist went on to recommend further physiotherapy and continued to treat the worker after her benefits ended, further indicating the left shoulder injury had not fully resolved.
The worker's representative referred to and quoted at length from the June 27, 2019 report of the physician with an interest in occupational medicine, noting that the physician believed the worker was left with myofascial pain, that she had been undertreated and that she had never fully recovered from the effects of her workplace injuries. The representative noted that the physician with an interest in occupational medicine continued to follow the worker's case and assist with referrals, and quoted from parts of the physician's most recent report dated October 20, 2020 which had been provided in advance of the hearing. The representative also referred to reports from the treating pain management specialist that the worker suffers from a WAD II injury with associated cervicogenic headaches related to the whiplash she suffered in the accident.
It was submitted that the continuation of symptoms and their causal connection to employment is apparent in the treatment providers' reports. The worker's representative noted that right after the worker's benefits were terminated, the family physician agreed with the treating physiotherapist that the worker had not recovered and advised that she could not work. The representative submitted that this was supported by the fact that the worker was unable to perform the full duties of a Class 1 truck driver during a trial run as an assistant driver with a new employer in late March or early April 2017.
The worker's representative submitted that the fact that the return to work in late March/early April 2017 failed should have been investigated by the WCB. The representative also noted that after Review Office decided that more benefits were due the worker, the WCB did not follow up with any other treatment providers than the physiotherapist, and submitted that they should have investigated further. The fact that the worker continued to require the same medication should also have been investigated by the WCB, but was not.
The worker's representative submitted that the worker's compensable symptoms caused her to have her Class 1 driver's licence suspended. The worker was required by the automobile insurer to undergo a medical fitness examination with an occupational therapist because of the reported injury to her left hand, shoulder and neck. The worker was eventually able to get her Class 1 licence reinstated, but with restrictions of operating a vehicle with automatic transmission and a steering wheel spinner device, which were a direct result of the effects of the accident.
It was submitted that in addition to these restrictions on her licence, the worker was unable to do many of the duties associated with a Class 1 driver position due to the effects of the accident and was limited in the jobs she could do. Due to the restrictions on her licence and the physical limitations from her accident, she was only able to secure a limited series of temporary, seasonal and part-time positions and therefore continued to suffer a loss of earning capacity. In addition, given her sporadic income and the fact that she was only able to afford medication when she was employed, her access to medication and treatment was inconsistent, which further interfered with her recovery.
The employer did not participate in the appeal.
At issue on this appeal is whether or not the worker is entitled to further benefits in relation to the June 17, 2016 accident. For the worker's appeal 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 medical aid beyond March 22, 2017 as a result of her June 17, 2016 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a strain/sprain of the cervical spine and strain/sprain of the left shoulder, left wrist and thumb. The worker was deemed to have recovered from her compensable injuries and cleared to return to work on March 23, 2017. The panel finds that there is an absence of clinical evidence to support that she continued to suffer from her compensable injuries or was unable to return to work due to the effects of her workplace accident as at that date, and is unable to relate the worker's current or ongoing symptoms and medical condition after March 23, 2017 to her compensable injury or symptomatology prior to that date.
The treating physiotherapist's March 15, 2017 discharge report, which was based on an examination of the worker on March 11, 2017, states that the reason for discharge was "return to work and reached max # of sessions." While the worker's representative referred to indications of ongoing complaints in that report, the panel notes that these were subjective or self-assessment complaints as opposed to clinical findings. The panel further notes that the physiotherapist indicated in the report that the worker would not be disabled from work and did not provide any restrictions. A subsequent letter from the physiotherapist to the worker's family physician dated April 12, 2017 indicated that treatment had been ongoing and the worker continued to complain of shoulder symptoms, but the dates of treatment were not indicated and the report did not indicate that the worker was unable to work.
Information on file documents that the WCB medical advisor spoke to the worker's treating family physician by telephone on February 17, 2017, at which time they discussed the worker's current shoulder symptoms, and the family physician stated "…that the clinical examination is very difficult to interpret as he feels the patient has a number of…factors that overlay the clinical examination findings." It was further documented that the family physician agreed with the graduated return to work that was outlined by the treating physiotherapist in a December 22, 2016 report and that the physician reported "…that there was no clear clinical findings on the most recent examination other than what was reported by [the worker]."
The worker's representative argued that the family physician had indicated right after the worker's benefits ended that she had not recovered and could not work. The panel notes, however, that the note from the family physician dated April 24, 2017 simply states that the worker "…is not expected to be able to return to work in the next three months, due to medical reasons…" and does not provide any details or particulars in this regard or indicate the medical reasons the worker is unable to return to work.
The panel is further unable to find a tangible diagnosis which would account for the worker's ongoing condition as being related to her workplace accident or compensable injury. The worker has placed considerable reliance on the reports of the treating pain management specialist. The panel notes that in his report dated September 30, 2019, the pain management specialist stated that "My impression is that [the worker] has been suffering predominantly with a chronic post-traumatic mechanical neck pain syndrome/WAD II injury with associated cervicogenic headaches." The specialist went on to state that "Based on [the worker's] historical account of events, her symptoms resulted directly from the motor vehicle accidents in which she was involved in 2016."
The worker's representative confirmed at the hearing, in response to a question from the panel, that it was their position the worker "…has been suffering predominantly from chronic post-traumatic mechanical neck pain syndrome/WAD II injury with associated cervicogenic headaches." The panel is unable to find that the evidence establishes that this diagnosis is related to the effects of the workplace accident.
In this regard, the panel places weight on the opinion of the WCB orthopedic surgeon who reviewed the worker's entire file, including reports from the physician with an interest in occupational medicine, the treating pain management specialist and the physical medicine and rehabilitation specialist, and concluded that "The current treatments are non-specific and are directed at non-specific pain symptoms," that "…the presenting features are entirely subjective," and that "No objective medical evidence has been placed on file to support that the workplace injury has caused any lasting demonstrable pathology."
The panel notes that the worker's evidence at the hearing was that she needs Tylenol 3 and cannabis to sleep, and that she is taking double the amount of Tylenol 3 now as compared to after the accident. The panel is unable to relate the worker's use of this medication, including the significant increase in her reported need for this medication, to the June 17, 2016 workplace accident, more than 5 years ago, or the compensable injuries arising out of that accident.
The panel is further unable to relate the restrictions or conditions on her Class 1 licence to her compensable injuries. The worker confirmed at the hearing that she is right-hand dominant. The panel notes that the information shows the worker was required to undergo a medical fitness examination because of the reported injury to her left hand, shoulder and neck, not her right hand. The worker also confirmed at the hearing that she does not drive because of the medications she is taking, particularly the Tylenol 3. Further, or in any event, the panel has previously determined that the worker has recovered from the effects of her compensable injuries, and as such, is unable to establish that her ongoing difficulties and use of those medications or restrictions can be related to the workplace accident or injuries.
In conclusion, the panel acknowledges the worker's complaints and concerns with respect to her ongoing symptoms and difficulties, but is unable to relate her symptoms, conditions or restrictions subsequent to March 22, 2017 to the effects of her June 17, 2016 workplace accident or compensable injuries.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require further medical aid beyond March 22, 2017 as a result of her June 17, 2016 workplace accident. The worker is therefore not entitled to further benefits in relation to the June 17, 2016 accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of September, 2021