WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090070
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: May 26, 2009
ATTENDEES: Worker, Worker Representative
ISSUE
The worker is objecting to the denial of the November 14, 2005 recurrence for his right shoulder, right arm, as well as the upper back/neck areas (thoracic area).
HOW THE ISSUE ARISES
On November 24, 2004, this 43-year old letter carrier slipped on ice at a residence on the fourth step, where he then fell down causing injury to his neck, low back, right shoulder, and right knee.
The case manager reviewed the claim and granted entitlement for the diagnoses of cervical and thoracic strain and soft-tissue injuries to the right shoulder and right knee.
The worker did eventually return to work on a graduated plan, effective December 6, 2004, where he was performing work within his functional restrictions.
On November 14, 2005 (almost one year later), the worker claimed a recurrence of his injuries indicating that he was delivering mail on November 14, 2005. At the end of the day, he felt pain in his neck and bilateral shoulders, along with experiencing numbness in both arms and hands during the night. At this time, no specific incident or accident was described.
Entitlement for the November 14, 2005 recurrence of the November 24, 2004 injury was considered and subsequently denied by the case manager as outlined in a February 15, 2006 decision. The worker is now objecting to this decision.
AUTHORITY
Operational Policy Manual Document:
- 15-03-01 – Recurrences
ASSESSMENT OF THE EVIDENCE
At the hearing, the worker testified to the following:
His duties include collecting mail from three to four different areas as there is a place for letter mail, another for flat mail, and another for parcels. All of the mail is brought to the sorting station where there are three panels. On this day (November 14, 2005), there were four panels. He indicated that there were two walk-through buildings with greater than 200 townhouses in them. As these are walk-through buildings, he is required to pick up mail in a single satchel which hangs over his right shoulder and is also strapped to his waist. As the walk-through building requires that he drop the mail in the slots of each door, he had to bend over for each delivery. He confirmed that a satchel full of mail weights about 35 to 40 pounds and when he first loads all of the mail into the satchel, he takes the elevator to the top floor of the building.
At the time of his original injury on November 24, 2004, he confirmed that he was delivering mail when he slipped on ice and grabbed a handrail with both hands to prevent from falling. This claim was allowed and he was off for three to four weeks when he then returned to modified duties. When he returned to the modified duties, he indicated that he was asked to work the flyers at his regular station; however, he was later then asked to go to Thornhill, Ontario, where he would then work the flyers at this location also. When he first returned to his regular station/regular duties, both the chiropractor and his family doctor approved the return-to-work plan.
Prior to suffering his November 14, 2005 recurrence, he was working on a new route which he started about 1 month prior. Prior to the recurrence, the worker indicated that he was walking 11 hours per day, which was mandatory, and that he was managing the pain, but on November 14, 2005, he could not take it anymore.
After his recurrence, he confirmed that he saw his chiropractor immediately as this chiropractor was located close to work. At the time, he was experiencing pain in his right shoulder, right arm, as well as numbness in his right hand. He said that he did not go see his family doctor as this doctor is located in Markham, Ontario and it takes too long to see him. After his November 14, 2004 injury, the worker confirmed that his doctor was treating him with adjustment, massages, and home exercises.
From November 2004 to November 2005, he confirmed that he kept on seeking medical treatment from both the chiropractor and family doctor. Apparently, the Workplace Safety and Insurance Board (WSIB) investigator was asked to contact the chiropractor, but to his knowledge this has not occurred. He said that between 2004 and 2005, he could manage day-to-day work activities and rates his pain between 1 and 3 at that time.
He disagrees with a statement on file from a co-worker which indicates that he was seen wearing a back brace as this was in 2006 and it was not a back brace that he was wearing, but a belt for his satchel to carry letters. He also denies that another co-worker saw him wearing a back brace and confirms that he never mentioned this to her.
He confirmed that all medical information was received from his family doctor and his chiropractor and that he was taking regular Tylenol to manage his pain. He said he initially took this every day, but then this dropped to three times per week.
He said that he used to play soccer but stopped two years ago. At this time, he said that he stopped because of family responsibilities and the fact that he was getting older. This was apparently simply recreational soccer where he would play with friends.
Worker Representative’s Position
The worker representative provided the opinion that the adjudication of the claim was based on false information and improperly investigated the medical evidence on file. He indicated that the claims field investigator failed to research continuity as was requested and this is playing a significant role in the denial of the claim. He confirmed that as a result of the November 14, 2005 recurrence, the worker has pain in his back and shoulders. He contends that the worker had been working 10 hours per day, plus overtime, which started on October 20, 2005 and he had never carried a satchel before taking on this new position. As a result, he was doing heavier work and also had an increased workload.
Employer Representative’s Position
Although the employer representative was unable to attend the hearing, she did provide a written submission dated May 05, 2009 where she indicated that it she was of the position that there is insufficient evidence to allow the recurrence of November 14, 2005.
The worker returned to his full duties after the initial accident on February 21, 2005, and he continued at those duties, and even accepted voluntary overtime, as outlined in the addendum to the investigation report on file. As well, the worker recovered to the point where he was able to play outdoor soccer, two times per week (also outlined in the investigation report), and that soccer was quite a physically demanding sport. Even after the original accident, the worker indicated at the time of the investigation, that he had periodic pain only further indicative of the fact that his pain was not continuous.
Finally, none of the witnesses identified by the worker, could confirm continuity of complaint. The diagnoses at the time of the claim of “pain – undetermined origin” on the Health Professional’s Report (Form 8) from the chiropractor does not appear to match with the diagnosis at the time of the original injury. All in all, the employer does not agree that there is medical continuity and agrees with the February 15, 2008 case manager’s decision denying entitlement to the November 14, 2005 recurrence.
Analysis
I have carefully reviewed the claim-file information and noted that at the time of the November 14, 2005 recurrence, the worker was originally claiming bilateral shoulder and arm pain, as well as increased back pain.
Nonetheless, as the original entitlement in the claim was limited to the cervical and thoracic spine, along with the right shoulder and right knee only, the worker limited his arguments to only those that where entitlement had been originally granted.
Based on the worker’s testimony at the hearing, he is claiming that as of October 20, 2005, he started working at a new position as a letter carrier where he was required to work longer hours including some overtime, and he had never carried a heavy satchel before. As such, he was doing a heavier job along with an increased workload which he and his representative feel led to him having a recurrence of his pain on November 14, 2005.
The worker did return to his full duties after the original November 24, 2004 accident. He returned to these full duties effective February 21, 2005 where he was able to continue with these duties and was even capable of accepting some voluntary overtime. It is also noted in the claim-file that the worker was capable of performing his full workup and also appeared to recover to the point where he was able to play soccer, two times per week.
The WSIB investigator also interviewed the witnesses identified by the worker; however, none of the three witnesses named could actually confirm continuity of complaint between November 24, 2004 and November 14, 2005. As outlined in the WSIB investigator’s report dated November 7, 2006, the worker denied having any other accident or injuries and related all of his ongoing problems to the original November 24, 2004 work-related injury.
I have also analyzed the medical information on file and note that although the WSIB claims field investigator did not actually document in his November 7, 2006 report that he had requested clinical notes from the chiropractor, this information was actually received to file.
I have reviewed the medical information/clinical notes received from the worker’s family physician which outlines the following visits and findings:
November 29, 2004 – indicates that the patient complaints of right knee and right shoulder blade, upper and lower back pain due to work-related incident on November 24, 2004. Unable to sleep and tenderness to cervical/thoracic spine and headaches. Swollen right hand and prescribed Ibuprofen and physiotherapy.
December 16, 2004 – indicates that the worker feels better; pain on the right side of neck, along with right-hand pain and swelling.
December 31, 2004 – indicates that the patient feels a lot better; near full range of motion; neck pain, right hand, shoulder, and complaints of tenderness at the paracervical and parathoracic upper-back areas, decreased range of motion and degenerative disc disease (DDD) superimposed by the right shoulder, right cervical and right arm and upper back;
January 7, 2005 – indicates that the worker feels better; the decrease in pain and swelling still present. Also off work and would like to go back to work;
January 18, 2005 – indicates right-side and forearm pain, right-knee pain radiates to right side, right-side cervical and thoracic spine DDD with questionable nerve impingement; modified work
January 22, 2005 – indicates that the right hand swollen on dorsum;
March 31, 2005 – indicates WSIB; fell on ice, right hand, right arm, return to work more than seven weeks ago. Still pain and discomfort in right hand; right-side neck and headaches; Diagnosis: right shoulder/arm cervical strain with questionable impingement; should continue active exercises;
June 14, 2005 – indicates complaints of pain in chest (muscular pain) for the last two days;
July 12, 2005 – indicates pain in chest;
December 2005 – indicates pain in right shoulder, right-side arm and forearm numbness; happening since November 14, 2005; worker on modified hours, six hours per day; went to see the chiropractor and took three days off work in November;
January 28, 2006 – indicates shoulder area, right side, still very painful; going for physiotherapy and also right-side numbness and feeling sick; patient in mild distress; PB 130/72.
I have also reviewed the chiropractor’s clinical notes and although these notes are written on white paper with no letterhead, I have confirmed with the chiropractor’s office that these are in fact how he documents his clinical notes. At this time, I also took the opportunity to clarify the notes as these were difficult to read.
The worker was seen by the chiropractor on the following dates:
December 04, 2004 – patient being moulded for inserts and shoes. Increased pain cervical spine in neck and upper back, right side stiffness with upper back and neck pain. Diagnosis: cervical spine with facet irritation and hypertonic muscles.
December 12, 2004 – picked up inserts and shoes, neck and upper back pain all evening. Diagnosis: Same as above (SAA)
June 15, 2005 – experiencing cervical upper level pain. Pain has not disappeared but comes and goes depending on work load. Diagnosis: Facet irritation with hypertonic muscles in cervical spine
June 17, 2005 – indicates that the worker feels much better after the last treatment but still experiencing pain in cervical spine and thoracic spine. Diagnosis: SAA
June 22, 2005 – reporting at the worker is feeling a little better and would like to get better but still having pain in cervical spine and thoracic spine. Patient still has pain in traps especially. Diagnosis: SAA
June 24, 2005 – indicates the worker did not feel much relief from last treatment. Diagnosis: SAA
June 29, 2005 – had better weekend and felt much better after the last treatment, Diagnosis: SAA
July 6, 2005 – feels much better with last treatment. Treatment once per week seems to help especially with workload being steady. If discomfort appears at end of the day, patient recommended to self treat with ice. Diagnosis: SAA
July 13, 2005 – feeling better with range of motion increasing slowly but still having some discomfort at the end of work day. Reported that some days were better than others. Diagnosis: SAA
July 20, 2005 – still has stiffness in same areas yet pain slowly decreasing. Patient reported icing one night because of stiffness in cervical spine. Diagnosis: SAA
July 27, 2005 – patient feels okay lately and treatment seems to be helping. Still has some stiffness after work day. Diagnosis: SAA
August 10, 2005 – indicates the worker had some stiffness the day before and felt a bit of pain. Has been busy with work and at home;
August 24, 2005 – feels okay after one week. The stiffness came back and he had put heat and ice. Felt okay today but still felt stiff after going home from work;
September 1, 2005 – patient okay during the day depending on the amount of workload he has. Has some stiffness with discomfort but starting to get better.
September 7, 2005 – patient feels some discomfort on the traps today, would like to get new insoles as these helped during walking. Diagnosis: SAA
September 28, 2005 – patient feels okay even though it has been a couple of weeks. He treats with heat and ice. Diagnosis: SAA
November 15, 2005 – indicates worker was delivering mail as usual and when he arrived at home, he felt pain in the neck and upper level with the right-side pain being greater than on the left. He doesn’t recall any trauma or fall; however, he did deliver heavy sets of mail; bilateral pain down arms. Diagnosis: facet irritation of C-spine and hypertonic muscles.
November 18, 2005 – indicates that the patient still has neck and upper pain. Still not much improved since last treatment. Diagnosis: SAA
November 22, 2005 – indicates the worker feels pain still and lots of discomfort. Worker was put on four days modified duties. Diagnosis: SAA.
Throughout my review of the family doctor’s clinical notes above, I have confirmed the worker was consistently seen by his family doctor for his work related injuries from November 29, 2004 to March 31, 2005. The worker then saw the family doctor for complaints of non-compensable chest pain on June 14, 2005 and then again on July 12, 2005.
A review of the chiropractor’s clinical notes indicate the worker was seen for complaints of pain in his compensable cervical spine and thoracic spine. I note the worker was first seen again by the chiropractor on June 15, 2005 as he was experiencing cervical upper level pain. At this time, he indicated his pain has not disappeared but came and went depending on workload. At this time, he was diagnosed with facet irritation with hypertonic muscles in cervical spine. Since this date the worker was consistently seen until September 28, 2005. From this date, the worker was not seen again until the date of the claimed recurrence on November 14, 2005. As this is only a short timeframe (1 ½ months) where the worker did not seek medical treatment, I accept from my review of the medical information above that continuity of medical treatment has actually been established for the compensable areas of injury.
Although a review of the claim file confirms there was a lack of continuity of complaint to co-workers from December of 2004 to November 14, 2005 as confirmed by the worker’s co-workers themselves in the WSIB investigator’s report, continuity of medical treatment has been established.
The employer mentioned a concern over the fact that the worker was actually able to return to playing soccer twice per week which would have likely began in around May of 2005 and carried on until at least September 2005. The soccer this worker was playing was for recreational purposes and was amongst friends. It was not competitive at all and furthermore soccer requires the use of the lower body more than the upper body. There is no proof of any injury arising from this worker playing soccer and I do not accept that simply because he was able to play soccer, that he would be completely pain free from his compensable injuries. This worker also admitted himself in a statement made to the investigator that after the original incident on November 24, 2004 he had periodic pain only.
At the time of the original reporting of the recurrence to the chiropractor, the worker could not identify any specific incident or trauma that would have caused him to have a flare-up of his work-related injury. He simply reported that he was delivering mail as usual and when he arrived at home, he felt pain in the neck and upper level with the right-side pain being greater than on the left. He did however mention was that he had delivered heavy sets of mail on that day and was feeling bilateral pain down both his arms.
At the hearing however the worker testified that he had in fact had a change in his work duties as he had recently changed jobs in the month prior to his recurrence (October 2005) as he was given a new route with walk-through buildings were he was required to pick up mail in a single satchel which he hung over his right shoulder and was also strapped to his waist. The worker testified this was new for him as he was never required to carry a satchel full of mail before. As walk-through buildings require that he drop the mail in the slots of each door, he had to bend over for each delivery. It was confirmed that a satchel full of mail weights about 35 to 40 pounds.
In light of the above, continuity of medical treatment from November 2004 to November 2005 has been established, the worker did have a change in work activity/jobs about one month prior to the claimed recurrence of November 14, 2005 where he was required to carry a satchel filled with mail which he carried on his right shoulder. He had never done this before and this action would have put additional weight on the worker’s right shoulder and neck which he was not accustomed to. The worker appears to have suffered a temporary aggravation of his right shoulder and neck from having to carry the satchel full of mail which eventually caused him to suffer a flare-up of his compensable right shoulder, right arm and upper back/neck areas.
As such, the evidence suggests, and I conclude that continuity of medical treatment has been established and the worker suffered from an insignificant new accident while newly having to carry a satchel full of mail as required in his new job which began the month prior. In light of the above, I accept that there is sufficient evidence to allow entitlement to the November 14, 2005 recurrence to the right shoulder, right arm, as well as the upper back/neck areas (thoracic area), as claimed by the worker.
CONCLUSION
The worker’s objection to the November 14, 2005 recurrence is allowed
DATED August 27, 2009
S. Godin Appeals Resolution Officer Appeals Branch