WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100082
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker
HEARING DATE: June 8, 2010
PARTICIPANTS: Worker, Worker Representative, Employer
OBSERVERS: Worker Representative’s employee
ISSUES
The worker is objecting to the Adjudicator’s letter dated February 8, 2008 which denied entitlement for the left upper extremity and neck. Previously, the worker was also objecting to the Case Manager’s letter dated June 2, 2009 which denied psychotraumatic entitlement; however, since the operating area has recently approved treatment for the worker’s psychological issues, without actually granting psychotraumatic disability, this issue has been withdrawn without prejudice pending the outcome of the treatment.
In addition, the objection regarding the Non-Economic Loss (NEL) quantum pertaining to the 5% award granted for the right elbow was withdrawn without prejudice prior to the hearing.
HOW THE ISSUES ARISE
On January 23, 2006, while performing his janitorial duties, the worker noticed an increase in right elbow pain. The Workplace Safety and Insurance Board (WSIB) accepted the duties of mopping the floor caused the right lateral epicondylitis to develop and granted entitlement for this area of injury.
In May 2007, the worker was granted a 5% permanent impairment award for the residual impairment which remained in his right shoulder.
The worker subsequently claimed his left upper extremity (elbow/shoulder) problems were related to overcompensating for the right elbow. The WSIB originally granted entitlement for this area; however, it was subsequently revoked when it was determined the left shoulder pain was due to referred pain from an underlying non-work-related cervical condition. Entitlement for the cervical region was denied on the basis the work duties did not aggravate the underlying condition. Also, it was determined that the cervical region had not been aggravated by the physiotherapy treatment the worker was receiving.
In addition, entitlement for a psychotraumatic disability condition was allowed on a temporary basis and then closed. Presently, the worker has been granted another temporary session of psychological treatments to assist him in attending the Labour Market Re-entry (LMR) plan program pertaining to a purchasing agent, that has been developed for him.
It has been requested that a formal decision regarding psychotraumatic disability be stayed pending this period of treatment.
Therefore, the issue in dispute to be determined with this hearing is in regards to entitlement for the left shoulder/elbow and cervical regions.
AUTHORITY
As per the WSIB Operational Policy Manual (OPM)
15-05-01 Resulting from Work-Related Disability
11-01-15 Aggravation Basis
15-05-02 Accidents Resulting from Treatment
ASSESSMENT OF THE EVIDENCE
Although employed for nineteen years with the accident employer, the worker advised the WSIB that he started to notice right elbow pain in September 2005 after a switch to using a heavier mop than usual. By January 2006, the worker reported his symptoms of right elbow discomfort to the employer; however, other than losing time for physiotherapy sessions, the worker was able to continue working with the employer.
According to the October 2006 Regional Evaluation Centre (REC) report in the claim file record, the worker was attending physiotherapy three times a week. Treatment consisted of acupuncture, exercises and a stretching program. In October 2006, he had commenced neck traction and neck stretches.
In addition to attending physiotherapy, the worker was performing two hours of regular duties and six hours of modified duties. The assessment noted the worker’s x-rays indicated the worker had very mild degenerative disc disease at the C5-6 level with some minor impingement in the neural foraminae at that level. The worker advised the assessors that his modified employment consisted of him doing whatever he felt he was capable of performing. He also had the ability to take breaks and adjusted his regular duties into two or three segments. It was recorded at the time that the worker’s left side was fine and there were no neck complaints; however, the physical examination of the neck demonstrated the lateral rotation in the neck was “symmetrical and about 60% of normal range.”
The worker testified he was continuing his modified duties, which mainly consisted of his previous duties less the mopping portion. However, he was forced to perform all the duties using his left hand only due to the restrictions placed because of his right elbow impairment. He indicated that after approximately six months on these duties, he began to notice left elbow pain. During the hearing, the employer confirmed the worker was treated at the first aid station by the nurse for left elbow problems.
At the beginning of September 2007, the worker was placed on a “scrubbing down bumper” position which required him to stretch with his left shoulder at chest height or above to reach the bumper which needed cleaning. The employer representative confirmed the worker was placed on this duty and complaints were made by the worker that he had difficulty performing the task.
The first medical mention of problems with the left side occurred on a Functional Abilities Form (FAF) dated September 19, 2007 that indicated restrictions were necessary for the left arm and hand. There was also to be no repetitive grasping or lifting, no work above shoulder level and no repetitive shoulder movement. The worker’s physician indicated the problem was due to repetitive use at work, which involved scrubbing, lifting and reaching with his left arm, often above shoulder height.
As per memo 13 of the claim record file, the worker reported to his employer in October 2007 that he was relating upper arm and back problems to the physiotherapy treatments and due to the fact that he was using his left arm more due to the permanent accommodations required from his right elbow impairment. During the hearing, the worker clarified the above statement by testifying that the left elbow problem was due to the repetitive use of left arm during the previous year while on modified duties, the left shoulder problem was due to the scrubbing position and the cervical condition became aggravated during two subsequent physiotherapy treatment sessions for his elbow and shoulder condition.
The worker testified that he had no prior neck problems until the physiotherapist began a form of compression therapy on his neck and upper back which caused immediate pain to develop in the region. It became worse on the second visit requiring the physiotherapist to spend the next several sessions attempting to alleviate the pain symptoms from the compression therapy.
A further REC assessment was arranged and it occurred in November 2007. The diagnosis given was cervical spondylosis with degenerative changes pre-existing at C5 and C6. A left cervical and shoulder muscle strain was also diagnosed. It was considered that the prognosis for the cervical spondylosis was poor for recovery; however, the left shoulder’s muscle strain prognosis was good for a partial recovery in approximately three months. It was considered that his symptoms may “wax and wane” depending on his level of activity.
In memo 17A of the claim file record, the WSIB Medical Consultant commented,
“The September 19, 2007 physiotherapist’s report indicates left elbow and rotator cuff strain possibly secondary to postural dysfunction of the neck and back.
The November 28, 2007 REC report by Dr. Hupil indicates Dr. Iwan diagnosed cervical spondylosis in 2006. Furthermore, there are degenerative changes at C5 and C6.
Medical evidence suggests that these problems are not caused by over-compensating. These problems are caused by postural dysfunction of the neck and back, which is not related to the worker’s injury.”
In the family doctor’s report of March 26, 2008, it was noted that there was left paraspinal and left posterior shoulder tenderness, although the range of shoulder motion was full.
By September 2008, the family doctor indicated the worker was experiencing chronic pain on his right side (no mention of the left being involved) and the chronic pain had resulted in a significant problem with depression. The mental health report for an October 2008 assessment stated the worker continued to feel chronic pain in both elbows and in his left shoulder.
The worker testified that after the September 2007 onset of pain, the employer had virtually no type of employment for him to perform and he basically received a salary for showing up for work. The employer confirmed that it had no meaningful employment available for the worker, in large part due to a shortage of business. Thus, after a return to work mediation meeting could identify neither suitable nor sustainable work for the worker with the accident employer, LMR services were considered necessary.
The worker’s representative noted the following:
- The worker’s left elbow problems resulted from the worker overcompensating for the right elbow while he was performing the accommodated duties which were necessary after the right elbow restrictions were put into place.
- The left shoulder problems were directly related to the new scrubbing task performed for two weeks while on modified duties.
- The cervical problem was as a direct result from the physiotherapy treatment.
The employer’s representative confirmed that the employer was aware that it was not unusual for workers to develop opposite appendage difficulties when performing one-handed work, but unfortunately due to the economy, there was little else it could offer the worker. The employer asked that the operating area consider if any accident cost relief would be in order if entitlement is granted for the additional areas of the body.
ANALYSIS:
In order to determine if the additional areas of entitlement are in order, it is necessary to review each area separately with regards to the duties being performed and the onset of the problem.
a) Entitlement for the left elbow
The Operational Policy Document 15-05-01, “Resulting from Work-Related Disability”, states:
“Workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.”
The policy further states, “the development of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee, is an example.”
After reviewing the entire claim file record and considering the testimony heard, entitlement for the left elbow is re-instated. I base this conclusion on the following:
- The worker continued to perform most of his regular duties, except for the mopping, and was required to perform these duties left-handed.
- The employer confirms the work was repetitive and the worker required treatment at the nurse’s station during the development of the condition.
- There was no underlying condition present to account for the onset; thus, a causal relationship between the work performed and the diagnosis is probable.
In summary, entitlement for the left elbow is granted. The operating area is to determine if sufficient impairment exists to warrant a NEL determination.
b) Entitlement for the left shoulder
I conclude there is entitlement for the left shoulder. I base this conclusion on the following:
- The worker had only been performing the scrubbing duty for two weeks.
- The motions involved were repetitive in nature, were often above shoulder level and were motions to which the worker was unaccustomed.
- The employer confirms the repetitive nature of the job and mechanics involved.
- The worker was noted to have complained from the onset of the new job that it was causing him difficulties.
- Thus, there is adequate information to confirm a disablement situation was evident.
- The worker’s treating physician supports a causal relationship between the work duties and the diagnosis.
In summary, there is sufficient evidence to support a causal relationship between the left shoulder impairment and the new duties being performed one-handed during the scrubbing procedure. Since this procedure was performed while attempting modified duties due to the right elbow condition, entitlement under the present claim is in order. The operating area is to determine whether sufficient impairment remains to warrant a NEL determination.
c) Entitlement for a cervical condition
Whereas the left elbow and left shoulder can be related to the working environment, according to the worker the onset of cervical problems is due to the treatment he obtained while at the physiotherapy clinic.
As per OPM Document 15-05-02, “Accidents Resulting from Treatment”, a worker “may have entitlement, but if negligence on the part of the treating agent is involved, the worker may have a right of action against the treating agent”.
The worker testified he was having no difficulties with his cervical region prior to the treatment by the physiotherapist. He indicated the physiotherapist was applying pressure to his neck and upper back in an attempt to treat the bilateral condition which had developed due to his work duties; however, during the treatment the worker experienced significant pain due to the pressure being applied.
As per the worker’s x-rays and comments from the REC evaluation, the worker does have cervical spondylosis and degenerative changes pre-existing at C5 and C6.
The worker’s representative has requested entitlement be granted for the cervical condition on an aggravation basis as it was asymptomatic prior to the treatment.
As per OPM Document 11-01-15, “Aggravation Basis”:
“Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state.”
I accept the worker’s testimony that he noticed pain upon treatment and his underlying condition was aggravated due to this treatment; however, I cannot accept ongoing entitlement for the cervical condition for the following reasons:
- Although the worker denied experiencing neck problems prior to the September/October 2007 physiotherapy sessions, there must have been some symptoms of neck discomfort or restrictions noting the 2006 REC notation of the worker starting neck traction and the need for cervical x-rays to have been taken which identified the underlying condition.
- As per WSIB policy, entitlement is granted for the acute episode only, i.e. when the condition returns to its pre-accident state or to the point where the natural progression of the underlying condition would have been even without the aggravation.
- I do not consider the physiotherapist’s actions caused the spondylosis, but identified the condition was present and these symptoms would have eventually been manifested noting the worker only had 60% of the normal range of motion in 2006.
- According to the worker’s testimony, there was no twisting of the neck, but the application of direct pressure to the area. This would indicate no traumatic event occurred at the physiotherapy clinic, but the treatment resulted in the quicker discovery of the degenerative changes which were occurring naturally within the worker’s cervical region and were ready to cause the worker discomfort with increased activity.
- The medical opinions of the WSIB Medical Consultant and REC assessors stress only an underlying condition is present in the cervical area, with no other permanent impairment being diagnosed.
- As per the worker’s testimony and comments within the claim record file, for more than the past two years the worker has performed virtually no work for the employer; thus, there would be no on-going aggravation from the work.
In summary, the worker’s cervical region was temporarily aggravated by the physiotherapy treatment; however, it was through this treatment that the underlying condition was identified as being ready to become symptomatic. With the passage of time, the degenerative changes were to continue to occur naturally and noting the lack of activity by the worker while at work, based on the balance of probability, the worker’s present complaints, which only medication has been prescribed to control, are due to natural progression of the underlying condition. Therefore, the worker is not entitled to a NEL assessment for this area.
CONCLUSION
I conclude the following:
- There is entitlement for the left elbow.
- There is entitlement for the left shoulder.
- The operating area is to determine if sufficient disability exists to warrant a NEL assessment for these areas of impairment.
- The underlying cervical condition was aggravated by the physiotherapy; however, the condition has progressed to the natural progression point of the disease had this temporary aggravation not occurred. Therefore, the worker is not entitled to a NEL assessment for this area
The worker’s objection is allowed in part.
DATED June 16, 2010
N. Norvack
Appeals Resolution Officer
Appeals Branch