WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150055
DECISION DATE:
February 24, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (not participating)
HEARING:
January 28, 2015, London, Ontario
HEARD by:
J. Morin, Appeals Resolution Officer
ISSUES
The worker objects to the following decisions and requests:
February 14, 2013
- Permanent worsening of neck permanent impairment
- Ongoing entitlement to the left shoulder
- Ongoing entitlement to the left rib
- Entitlement to the upper back
- Entitlement to the lower back
- Entitlement to the right shoulder
May 29, 2014
- Full loss of earnings benefits from January 29, 2014 and continuing
June 2, 2014
- Full benefits at time of the final loss of earnings benefits review.
BACKGROUND
On April 1, 2008 this now 46 year old employed as a restorative care aid injured her neck and left shoulder while attempting to lift a wheelchair over clutter in a storage room. She aggravated her injuries on May 22, 2008 when she attempted to prevent a patient from falling.
Entitlement was initially accepted for injuries sustained to the worker’s neck and left shoulder. On April 1, 2010 the worker underwent anterior cervical discectomy and fusion at the C5-6 and C6-7 levels. In July 2011 entitlement was extended to include a left sided rib strain.
The Appeals Resolution Officer’s decision of July 5, 2011 granted the worker’s objection to the denial of full loss of earnings benefits from November 11, 2008 to July 7, 2009.
A permanent impairment was accepted for the neck injury. As expressed in the decision of August 30, 2011 the worker was granted a 35 per cent non-economic loss award.
The worker returned to modified work with the injury employer and received periods of partial loss of earnings benefits.
As expressed in the letter of April 24, 2012 following several return to work interventions with the assistance of a Return to Work Specialist it was determined the worker could return to modified work as an Assistant Occupation in Support Health Services at 4 hours per day, five days per week. This work was available with the injury employer at $20.18.
The worker discontinued employment in May 2012 due to personal reasons and returned to work on October 22, 2013.
The Case Manager’s (CM) decision of February 14, 2013 concluded the following:
- The medical information did not support permanent worsening of the neck injury
- The CM agreed to accept the funding of the MRI of December 14, 2012 and requested a copy of the report and reconsideration of the decision once the MRI report was received
- The CM commented that initial entitlement included a left shoulder strain. The CM referenced the incident at work on June 11, 2011 where the worker had injured her left shoulder and chest and the incident on April 23, 2012 in which she injured her neck, upper back and left shoulder with new claim established. The partial thickness tear of the left shoulder (supraspintauts tendon) identified in the ultrasound dated July 27, 2012 was denied to be related to the April and/or May 2008 workplace injuries.
- It was concluded the rib strain had resolved with maximum medical recovery of June 6, 2008. The CM concluded the medical information did not support any ongoing symptoms to the worker’s ribs or that the June 2011 incident caused by or related to the April or May 2008 workplace injuries.
- The CM denied that the upper back, lower back and right shoulder conditions were related to the April and May 2008 workplace injuries
- The medical did not support the worker was totally impaired as result of the April and May 2008 workplace injuries
- The work related injury did not prevent the worker from working 20 hours per week in the suitable occupation of Restorative Care Worker. The partial loss of earnings benefits was granted.
The worker discontinued working with the injury employer as of January 29, 2014 claiming an inability to continue working and questioned the suitability of the work provided.
The Case Manager’s decision of May 29, 2014 addressed the several return to work plans particularly the return to work plan of October 23, 2013 and the worker’s discontinuance of work as of January 29, 2014. The Case Manager concluded there was not significant worsening of the neck injury to support the work offered was unsuitable. Therefore, payment of full loss of earnings benefits as of January 29, 2014 was denied. The worker was considered fit for suitable work at reduced hours.
The Case Manager’s decision of June 2, 2014 addressed the final loss of earnings benefit review. The Case Manager concluded there was insufficient evidence of a significant deterioration of the neck condition to support that the modified work available with the injury employer was not suitable. The worker was considered able to work as an Assistant in Support Health Services earning $20.18 per hour at 20 hours per week.
AUTHORITY
Operational Policies:
11-01-05 – Maximum Medical Recovery (MMR)
15-02-05 – Recurrences
15-05-01 – Resulting from Work Related Disability
18-03-02 – Payment and Reviewing LOE Benefits
18-03-06 – Final LOE Benefit Review
ASSESSMENT OF EVIDENCE
In considering this objection I had regard for the evidence contained on the file, the arguments presented by the worker’s representative, the worker’s testimony and the applicable legislative authority and policies.
Worker’s Testimony
The worker testified under oath that today her neck injury causes her constant pain. On average her pain is at 8.5 to 9 over 10, with 10 being the highest, with household activities such making beds and washing a few dishes or a load or two of laundry. She is good for approximately 45 minutes and then she has to take a rest period every 2 hours where at least she has to rest her head on a chair or lie down. She lies down for approximately 30 minutes up to 1.5 hours. After her rest she cannot start right away and needs to start very slowly in order to do anything. She does things between her medication intakes. She has approximately 2 active periods per day. If she is having a good day she may have 3 activities per day. She explained that activity she defines is as any activity that involves her upper body. She stated that she does not get much sleep. She gets approximately 45 minutes at a time. She finds it difficult to find a comfortable position.
Her medication intake in regards to dosage has increased. Hydromorphone was increased from 9 to 12mgs at twice per day. She takes approximately four Percocet per day. She just started magnesium for muscle spasms and an anti-depressant which she has not started as of yet.
She is right hand dominant. She can probably write a one page letter as this would only take approximately 10 to 15 minutes. The gripping and pinching triggers pain in her arms with her left arm more than her right. Recently her symptoms to her right have increased. This also causes pain to her neck due to any static position. Working on a computer is the same and would be harder as the keyboards tend to be higher. In regards to the activity of answering a phone; she could perform this for approximately 15 minutes to up to a half hour. She had the experience of answering phones for work. There was an incident that involved an outbreak at work; so every family had to be contacted to provide an update on what was going on at the home. The administrator brought her the list and she was required to call the family. She got through 15 to 20 calls which took about 30 minutes then she had to discontinue it as she felt like bugs were crawling in her skin and this was exhausting. This affected her neck as she was required to shuffle papers while trying to hold the phone. She did not have the option to tuck the phone with the use of her neck and shoulder. She had to shuffle papers to get the information she had to give to the family and also look through the paperwork in order to answer the family member’s questions. She had to put her head on the table in order to rest. The worker testified that answering the phones also affected her arms as they felt like spaghetti noodles as they were weak. She explained that if her arms are close to her body than her arms do not bother her as much; however, if she has to pull her arms away from her body this causes an increase in pain in her arms, shoulders, neck and upper back.
She recalled the last meeting regarding return to work. She went and tried to go back to work due to financial reasons and for the love of her job. The secretarial job involved a lot of paperwork and writing. She suffers with memory and concentration issues so this caused a lot of problems. For a return to work job she was already alienated as she did not know the staff or the new residents and their families. Due to her lack of memory she could not remember them. She became tearful and stated, “it bothers me with things I can’t do.”
She recalled the job duties offered. They wanted her to complete any aspects of her regular job that she felt where within her restrictions. She explained that a part of the restorative care job was verbal as she had to converse with families and vendors. She was also required to attend care planning conferences which she was able to do. The conferences were for approximately 45 minutes at twice per month. She was in the dining room to supervise and do the aspects of restorative job within her restrictions such as teaching staff about awareness and techniques and explaining how important it was positioning in regards to safety; she stated she was able to do this job. This job was for only 20 minutes of her day. The lectures to educate staff were not a regular part of the job and were required on an as needed basis.
She testified the job aspects that she was unable to do were any of the exercise programs, such as wheelchair exercises. She was asked to shadow a girl that was doing her job and perform any aspects she could do. The parts of the job she was unable to do, which she already tried in previous returns to work, included the feeding program (not part of the restorative job) assisting and feeding residents who could not do it themselves.
There was the walking program she could not participate in. She thought she could do this with the assistance of walking with an empty wheelchair. She tried to do this but it was not done on a regular basis.
She was unable to perform the clerical duties such as answering phones (no head set provided), putting charts together, and shuffling through filing cabinets. She stated that she was unable to perform any bending and twisting and the majority of the work at the desk involved these activities. She explained the books were located on top of a shelf way above her head and were big and heavy. She explained that the majority of work that she was clerical and on the phone. This was supposed to be her priority. She was also asked to do many different, simple, things such as running a note to supervisor or chart nurse. She was asked to feed a resident.
She did perform the resident feeding job. She explained that this job bothered her as she had to sit close to the resident and feed them causing pain to her arm/shoulder. She tried to stand to feed the resident to relieve her shoulder and arm/neck pain but was pulled into the office and told she was not in compliance with the Long Term Care Act; therefore, she could not stand in order to feed the resident.
Her physicians were advising her against any return to work. In 2010 Dr. S told her that she was totally disabled. Dr. G in April 2010 also said that he did not feel she could maintain any gainful employment. Dr. C has placed her off of work on permanent disability in December 2011 and July 2012.
She did try to return to work and stopped working on January 29, 2014 as she was not doing anything or helping anyone. She was working two hours per day. She explained that just movement, the movement of getting up, driving to work, caused major discomfort. She explained that by the time she got to work her 45 minutes (of being able to perform some activity) were already up. She already needed a break before starting the work day. By the time she got home she was suffering with full body spasms that would cause her to be up all night. When she got to work she advised her employer she needed a rest break. Her employer did not have any issue about her going to lie down when she needed to.
She stated that she stopped working as, “I could not do it anymore”, between the spasms causing her pain and her inability to sleep. She stated that driving is truly one of the worst things that she does. She stated that now she drives, “only if I absolutely have to.” Her husband works. Her son’s girlfriend helps her with a lot of the things around the house.
In regards to her left shoulder she believes she injured it, at the same time when she had injured her neck, on April 1, 2008 in the storage room. At that time she had felt a very sharp and shooting pain from her left shoulder up into her neck and in behind her ear. Today, her left shoulder is still very painful and on the best day her pain is at a 5 with it being 7-8 on her worst day. She believes she possibly had injured or worsened her left shoulder on May 22, 2008.
On May 22, 2008 she was on a return to work program and was assisting a gentleman to walk back to his room. He had his walker and she was pulling his wheelchair behind him. She explained his room was cluttered. When he turned to sit on the side of his bed; the girls had forgotten to roll the bed back down so the bed was too high for him to get on. She was required to squat and hold onto the back of the wheelchair with her left hand and tried to turn the crank. While doing this the gentleman started to fall. She does not remember touching or catching him but she reached out with her left hand and felt extreme left shoulder pain. She felt like vomiting and her back hurt so bad that she could hardly breathe.
Presently, her left shoulder pain has not improved. She confirmed the ultrasound dated July 27, 2012 revealed a tear to her shoulder. She stated that she complained continuously of her left shoulder since the accidents in April and May 2008 and denied any continual prior treatment for the left shoulder injury.
In June 2011 there was a hair pulling incident with a resident that she was doing a one to one visit with. This was part of her return to work duty. She had worked with this lady for years prior; however, she was unaware that the lady had deteriorated. Due to her deterioration this lady became unpredictable and little bit aggressive. This resident liked cats so this worker decided to take the resident to see the stuffed animal cats. She sat beside the resident in a chair and turned to grab one of the animals. The lady grabbed her by her hair and slammed her face into the front of wheelchair tray, then lifted her by her hair. This affected the worker’s upper back. She does not recall injuring her shoulder at that time.
In regards to her upper back (between clavicle and shoulders) initial complaints started approximately in May 2011. She related it to being deconditioned from being off for surgery and overcompensating for her right. She believes it is deterioration of her discs above and below her neck fusion. Dr. S had told her right after her surgery that his prediction was the discs above and below would ‘go’ after surgery. She advised that her pain today is 6 out of 10.
She had a low back condition in December 2003 and had a WSIB claim for her lower right back. She stated there was no lost time from work or ongoing issues. She explained there was a “mentally challenged” girl that volunteered. This girl was so nice but she had lifted the worker off her feet and caused her back injury. She had no problems with her lower back until she had the bone removed from her hip. This was part of her neck surgery and this triggered her lower back and right hip pain. She advised that her right hip is sore. She rated her right hip pain at the hearing at 4 during the day and described that when lying down her pain increases to 7. In regards to her lower back her pain during the day is at a level 4 out of 10 and when lying down it increases to 7.
Neck surgery did not help and now it is worse. She feels it further down her back and up her neck. She has less range of motion. She thinks the fusion has done worse. She has a stiff neck all of the time. She stated that she can move her neck a little bit.
She testified she is unable to drive due to her neck injury. The bouncing and bumping when driving causes an increase in pain. She cannot check her blind spot and her reaction time has decreased due to her injuries.
She attributed her left rib injury to the accident on May 22, 2008. She complained of pain from her neck to her hip on left side of her body. She did not realize at the time of the accident that it was her rib as it felt like her back. Once her massage therapist found the rib was out of place and the rib was reset on June 11, 2008 she felt instant relief. After the rib was placed back in it was not perfect but she felt some relief. Subsequently, she had to get it reset at least a half of a dozen times. In one of the incidents when her rib went out of place she was in one of the return to work programs and was reaching into a filing cabinet and her rib popped out of place. She stated that it only takes one false move and her rib pops out of place.
She stated that she is depressed and rated her depression at a moderate level.
In regards to the right shoulder the worker relates this injury to overuse and compensation for the left shoulder. She stated the pain is bothersome. The right shoulder started in approximately May 2011. She rated her right shoulder pain at a level 7. She mentioned this to the doctors and she did not recall any comment and was told that basically her medication intake should help relieve her shoulder pain.
Analysis
Neck Permanent Worsening
I find the evidence before me particularly the medical examination results do not support there is permanent worsening below the 35 per cent non-economic loss award granted for the worker’s neck injury. In coming to this conclusion I compared the examination results at the time of the of the non-economic loss determination to the examination results documented in the medical reports subsequent to the NEL determination and found the following relevant.
- According to the Non-Economic Loss (NEL) Summary Report dated May 3, 2011 the worker reported that she suffered with pain which interrupted her sleep. The worker reported an inability to use her arms for work in front of her body or over her head and was no longer able to do laundry, cooking, mopping, sweeping and gardening. The worker advised of her inability to drive often due to bumps in the road and she tried to spread out small amounts of housework. The worker advised she missed out on doing a lot with her grandson and of her inability to walk her dogs on uneven ground. The worker described her pain as burning sensation in her neck with pins and needles into her arms. The pain was constant and rated 8 out of 10.
- The examination results revealed flexion from a neutral position was at 20 degrees with extension also at 20 degrees. Right lateral flexion from neutral position was 20 degrees with left lateral flexion from neutral position at 18 degrees. Right rotation from neutral position was at 20 degrees with left rotation from neutral position at 23 degrees.
- The Non-Economic Loss Evaluation Sheet identifies that there were also medical reports contained on record that were considered. The NEL Clinical Specialist considered the worker’s left arm – sensory deficits at the C5, C6 and C7 levels. The worker was granted a 35 per cent non-economic loss award for the neck/cervical injury.
- I concur with the Medical Consultant’s opinion as expressed in the memo dated March 26, 2013 that there does not appear to be significant changes in the MRI reports of February 3, 2009 and December 14, 2012. I accept this as I note there is evidence of post-surgery fusion with spondylotic changes that would not appear to be significantly different in comparing the results of the two MRI reports. Also, I do not find that there is evidence on record that refutes the opinion expressed by this Medical Consultant.
- I must comment that as recognized by the Medical Consultant the surgical procedure performed cervical discectomy/fusion could place stress on the levels above and below the fusion. However, at this time based on the evidence before me such as the MRI of December 2012, only mild spondylotic changes in the neck were identified. I also note that at the time of the determination of the quantum of the non-economic loss award the surgical procedures were considered.
- The examination results documented in Dr. T’s report of February 14, 2014 indicate there was a decrease in all ranges of motion in regards to the worker’s neck; however, specific degrees of the ranges of motion were absent.
- The EMG report of June 14, 2014 indicates the neck range of motion was slightly restricted in all directions. Specifics in regards to the actual degrees of the range of motion were absent. I note that the examination results of the EMG indicate that the decrease in ranges of motion was only slightly decreased.
Left Shoulder Permanent Impairment
The worker’s representative argued there is a consistent theme throughout the file record that supports entitlement was accepted for a left shoulder injury resulting from the workplace accidents in 2008 that are covered under this claim. He argued that there is compatibility, between the accidents in 2008 accepted in this case, with the diagnosis of a left shoulder tear. He argued that the primary medical concern was the cervical injury and finally once the ultrasound was conducted there was confirmation that the worker had sustained more than a strain to her left shoulder. He argued that based on the balance of probability the tear to the worker’s left shoulder was related to the workplace accident and that recognition of a permanent impairment and non-economic loss determination is warranted for the left shoulder injury.
In review of the file record especially the medical documentation coupled with the worker’s testimony I am persuaded to accept the tear to the left shoulder was compensable as it is a direct result of the accident in April 2008 and was exacerbated by the accident in May 2008. Additionally, I accept a permanent impairment is evident for the left shoulder tear and the worker is entitled to a non-economic loss determination. In coming to this conclusion I accepted the following:
I do recognize that entitlement was accepted for a strain to the worker’s left shoulder. However, I find that the worker had sustained more than a strain at the time of the workplace accident in April 2008 with exacerbation following the accident in May 2008 when she had attempted to prevent a resident from falling and had extended/stretched her left arm. I accept this as I find there is compatibility between the diagnosis of left supraspinatus tendon tear and the mechanics of the accident in April 2008 when the worker lifted a wheelchair over obstacles/clutter with not being able to place it down. Additionally, I find that the mechanics of attempting to stop a resident from falling causing the worker’s arm to be out stretched would exacerbat the condition to the left shoulder. I accept this as the wheelchair was heavy and the situation of an awkward upright movement of the shoulder in a forceful manner during both incidents in April and May 2008 would precipitate a tear to the shoulder.
One would suspect that the time span that lapsed between the date of the accident in April and May 2008 to when the tear was detected in July 2012 is unreasonable. My finding is to the contrary; as I find it very reasonable noting the primary concern of the worker’s along with her treating physicians was the neck injury and the surgical procedure. I find it very reasonable that the tear would go undetected for a couple years especially when it is not the primary source of the worker’s discomfort and initially it was being chalked up to pain radiation from the neck (as noted in the reports on record such as the medical report dated September 18, 2008). Hence, I conclude that it is very reasonable that the tear was there from the accident in April and May 2008 and probably got worse.
I must comment that there is medical information on record that indicates the worker had sought treatment for her left shoulder prior to the workplace accident accepted in this case. However, I accept the worker’s testimony when she denied any prior continual treatment and that the condition was insignificant. I accept her testimony as she testified in a straight forward fashion with no hesitation in her responses and the medical basically supports her testimony.
Additionally, I find there is an absence in the medical information that compels me to accept there was no significant medical condition that pre-dated the workplace accidents covered in this claim.
The assessors at the Regional Evaluation Centre as documented in the report of August 20, 2009 opined the prognosis for the shoulder injury was partial recovery with full recovery not anticipated but the possibility of some improvement.
The physiotherapist’s report of January 6, 2011 indicated the worker had an increased amount of tension in muscles to her shoulder.
The results of the ultrasound report of July 27, 2012 revealed there was a partial thickness tear of the left supraspinatus tendon to the left shoulder.
Continual Entitlement Left Ribs
In determining whether there is a continual impairment resulting from the rib injury I considered all of the arguments presented by the worker’s representative along with the worker’s testimony that she continues to suffer with rib pain and that approximately six occasions when her ribs have displaced (popping out of place) along with all documentation on record particularly the medical reports.
I note the medical reports such as the reports from the Regional Evaluation Centres dated August 20, 2009 and April 13, 2011 does not mention a rib condition. I do note the reports dated July 25, 2011 from Dr. N advised of the worker’s rib injury. Additionally, I note the Functional Capacity Evaluation report mentions the worker’s accidents that caused rib pain; however, I find these reports do not provide clinical findings to substantiate a continual impairment stemming from the left rib injury that is a result of the workplace accident. The clinical note from Woodstock rehabilitation clinic (printed date of May 13, 2014) indicates the x-ray report of October 1, 2013 taken of the worker’s left ribs revealed there was no displaced fracture or destructive osseous lesion and there was no pneumothorax or pleural effusion. In his report dated July 20, 2014 Dr. C indicated he became the worker’s physician in 2011 after the worker’s regular family physician suddenly passed away. Dr. C advised he was not aware of a rib injury. In review of the medical documentation I am not persuaded to accept that the worker suffers with a continual impairment resulting from the compensable left rib injury. Therefore, the request for continual entitlement for the left rib injury is denied.
Entitlement to Upper Back
It is the worker’s representative’s position entitlement should be extended to include the worker’s upper back. The worker expressed the condition to her upper back commenced in May 2011. She related the condition to deconditioning from being off for surgery and due to deterioration resulting from her discs above and below her neck fusion.
The issue before me is whether the worker had sustained an upper back injury resulting from the workplace accidents in April and May 2008 that are recognized in this claim. The issue of whether there was a continual impairment stemming from the upper back injury was not an issue before me; therefore, a finding of whether there is a continual impairment stemming from the upper back injury will not be made.
I recognize the worker’s testimony that she initially felt the onset of upper back pain in May 2011. However, I find that the evidence particularly the medical is contrary to the worker’s testimony. In fact, there is medical documentation on record such as the Triage Record Emergency report for treatment on May 22, 2008 that in addition to other areas of injury the worker had injured her upper back. Also, the Health Professional’s report dated June 11, 2008 (F.8) completed by the chiropractor mentioned the worker in addition to other injuries had also injured her upper back resulting from the accident at work on April 1, 2008 when the worker lifted the wheelchair. Under section 2 of this report the chiropractor indicated the worker had sustained a strain/sprain injury. The chiropractor also completed a Health Professional’s report dated June 12, 2008 advising the worker had injured her upper back more on left than right.
I do recognize that the worker’s injury report (F.6) does not mention she had sustained an upper back injury resulting from the workplace accident. However, I find the worker had sustained an upper back strain at the time of the workplace accidents recognized in this claim. I note the medical report of May 22, 2008 (which is one of the accident dates accepted in this case) confirms the worker had sustained an upper back injury. According to the chiropractor’s reports in June 2008, only a couple of months subsequent to the April 2008 accident, the worker had sustained an upper back strain resulting from lifting a wheelchair. I find it very reasonable that the upper back condition was not immediately reported by the worker especially noting the significant injury she had sustained to her neck. In conclusion, I am persuaded to accept noting the medical on record the worker had sustained an upper back strain.
Entitlement to Lower Back
The worker’s representative argued the worker had sustained a lower back injury resulting from the workplace accidents recognized in this claim compounded by the surgical procedure performed to her neck in which bone was removed from her hip.
In testimony the worker advised she had injured her lower back in December 2003 and had a WSIB claim; however, there was no lost time resulting from this. The worker denied an ongoing condition to her lower back stemming from the prior claim. The worker attributed her lower back condition to bone removal from her hip for the recognized surgery performed to her neck.
I am not persuaded to accept the lower back injury is a result of the workplace accidents in April and May 2008 recognized in this claim. Additionally, I do not find that the medical evidence supports the lower back condition stems secondarily from the surgical procedure performed on April 1, 2010. In coming to this conclusion I held weight to the following:
- I note that the injury reports completed by the worker and employer do not mention the worker had sustained a lower back injury at the time of the workplace accidents in April and May 2008.
- Medical documentation on record supports treatment was sought for a prior low back condition. Medical information confirms the worker was seen in the Emergency Department on March 7, 1996. I note the worker had a prior workplace injury on December 8, 2003 at which time the worker’s injury was diagnosed as lumbago. I do recognize that full recovery was noted for this work incident in December 2003. On October 20, 2004 the worker reported something popped in her back while lifting an oversized basket at home in which her back injury was diagnosed as a disc herniation with pain and numbness in the top of her legs and hips.
- The x-ray report dated November 28, 2006 (which pre-dates the accidents in this claim) revealed there was some mild osteophytic lipping L2-3, L3-4 in keeping with mild degenerative disease. There were also mild degenerative changes in the facet joints L4-5, L5-S1. There were no destructive lesions or fractures.
- The medical reports on record relatively immediately following the workplace accidents in April 2008 and May 2008 do not mention the worker had sustained a lower back injury. Based on my review of the medical documentation the initial report that mentions the worker’s low back is the clinical note from Active Care Physiotherapy dated May 27, 2010; this is approximately two years post-accident.
- Dr. C’s report of July 20, 2014 advised that he was not aware of a back injury.
In conclusion I do not find the documentation on record supports the worker had sustained a low back injury resulting from the workplace accident. I also find there is an absence particularly in the medical documentation to substantiate the worker’s low back injury stems from the surgical procedure recognized in this claim. Therefore, entitlement to the worker’s low back is not in order.
Entitlement Right Shoulder
It was the worker representative’s position that an extension of entitlement to include the worker’s right shoulder is in order. He argued the worker’s right shoulder condition stems from the workplace accidents covered in this claim compounded by over compensation for the left shoulder injury.
During testimony the worker related her right shoulder condition to overuse and compensation for the left shoulder. She testified that the right shoulder discomfort began in approximately May 2011.
The question before me is whether the worker had injured her right shoulder stemming from the recognized accidents in this claim. Additionally, determination of whether entitlement should be extended as secondary condition resulting from overcompensation for the left shoulder injury.
In review of the documentation before me I do not find that the worker had sustained a right shoulder injury resulting from the accidents accepted in this case. I come to this conclusion as I note the injury reports completed by the worker and employer do not mention that a right shoulder injury resulted from the workplace accidents in this case. I note there was an x-ray taken of the worker’s right shoulder in May 2001 which pre-dates the workplace accidents in 2008 that revealed normal results. The report of October 14, 2008 mentioned the worker’s right shoulder injury but related it to probable cervical disease with pain radiation in the worker’s arms in C5 distribution. I note reports on record such as the report dated March 2, 2010 and June 1, 2010 relate the right shoulder condition to radiation from the neck. I find there is an absence of medical information to substantiate the worker had sustained a right shoulder injury directly resulting from the workplace accidents in this claim.
I must admit that I do find it plausible for one to sustain a right shoulder injury as a result of overuse/over compensation for a left shoulder injury. However, a finding of causation may not be made based on mere speculation or evidence of possibility, but rather probability and it must be linked to a work related injury.
I do not find the evidence supports the worker sustained a right shoulder injury resulting from overcompensation for the left shoulder injury. I do note the worker’s testimony that the right shoulder condition is linked to overcompensation for the left shoulder. However, I find there is an absence in the medical documentation to substantiate this. I also note the worker is right hand dominant and it would be reasonable to conclude that being right hand dominant one would predominantly use their right hand more than the left. In conclusion, I do not find the right shoulder injury is causally linked to overcompensation for the left shoulder injury recognized in this claim. Therefore, the request for an extension of entitlement to include the right shoulder is denied.
LOE from January 29, 2014 and Final Review
I find the worker is entitled to full loss of earnings benefits as of January 29, 2014 and continuing including the final review of loss of earnings benefits. I accept this as I find the work provided by the injury employer was not suitable and the worker was competitively unemployable resulting from her compensable injuries. I note the worker received a significant non-economic loss award of 35 per cent for her neck injury. Additionally, as noted in the above body of my decision I have accepted that there is a permanent impairment resulting from the left shoulder injury. In consideration of her neck injury compounded by the left shoulder injury, along with the medication intake this worker is unable to return to any form of employment.
I commend the employer for attempting to provide work; however, I do not find that the work provided was suitable as it exceeded the worker’s restrictions. I must also commend the worker for attempting to return to work and diligently attempting to remain at work. In coming to my conclusions I found the following relevant:
- I accept the opinions expressed by the medical assessors that the worker was competitively unemployable. I accept their opinions of the worker’s lack of employability noting they have treated the worker on a continual basis and would have a clear understanding of the worker’s ability. I do note the worker had attended assessments such as the Regional Evaluation Centre in April 2011 and the Functional Capacity Evaluation assessment dated January 10, 2012 that provide restrictions. However, I find that coupling the opinions expressed by the worker’s treating assessors with the worker’s medication intake along with numerous unsuccessful attempts to return to work and her ability to only being able to manage two hours per shift along with her testimony I find the worker is unemployable. I do believe this worker struggled with concentration and memory issues that directly relate to her workplace injuries and to the side effects of her medication. Additionally, the opinion of the worker’s inability to be employable is a consistent theme that is expressed throughout the file record by the worker’s continual treating medical assessors. The following are some reports express this opinion:
- Dr. G, orthopaedic surgeon in his report of December 7, 2009 opined that in all probability the worker would not able to return to the duties of her previous activity when the worker’s symptoms and radiology were taken into account. The surgery performed did not produce any relief. I must consider that the surgical procedure did not improve the worker’s condition.
- In his reports of May 29, 2014 and July 20, 2014 Dr. C, family physician advised the worker had attempted many gradual return to work programs that were offered by the WSIB, and was unsuccessful at these attempts. Dr. C opined the worker was unemployable.
- I accept the worker’s testimony that she attempted to return to work and was only able to work at best two hours per day. The worker’s testified that upon her arrival at work she was required to take a break in order to recover from her travel into work. I accept the worker’s testimony as she had testified in a forthright fashion without providing hesitation in her responses. I accept the worker very diligently attempted to return and remain at work. I accept her inability to continue working was directly related to her compensable injuries along with the side effects of her medication such as memory and concentration issues. I also accept the worker was very limited in her ability to work. I accept this as I note her testimony was very consistent with what she reported throughout the file record. At the time of the hearing the worker provided an account of her activities within her daily routine such as light cleaning around her home and the requirement to take breaks. I note that at the time of the non-economic assessment her abilities reported at that time were very consistent with what she had reported as her abilities and routine at the time of the hearing.
- I must comment and express that I concur with the worker’s representative that the work provided to the worker upon the negotiated return to work was not suitable. Again I must comment that I commend the employer for attempting to provide work. However, I accept the worker’s testimony and concur that the majority of the duties that were provided to her were simply not suitable. I do not find that with a significant neck injury one could sustain answering a phone, typing, writing, paper work, putting charts together, shuffling through filing cabinets etc., on a sustained basis.
I find no evidence to support the worker failed to co-operate in the return to work process and accept that she had participated fully to the best of her ability. The worker had attempted to return to work on several occasions throughout the file record and each attempt resulted in an increase of her symptoms.
I am persuaded by the preponderance of the evidence to accept the worker was unemployable noting her testimony along with the arguments presented by her representative, the ongoing condition to her neck (35 per cent non-economic loss award was granted) in combination of the left shoulder injury compounded by her medication intake and her medical assessors prognosis for a return to gainful/competitive employment being poor. I find that the work provided by the employer was not suitable and even if it was the worker would not be able to successfully maintain it as the compilation of the extent of her injuries would have continually caused her to discontinue working. I find that the worker diligently attempted to return to work and even so was only able to maintain work at two hours per shift. Therefore, I concur with the worker’s representative that the worker was unemployable and is entitled to full loss of earnings benefits commencing January 29, 2014 and flowing into the final review of LOE and continuing.
CONCLUSION
For reasons outlined in the body of this decision I find that:
- Permanent worsening to the neck injury is denied
- A left shoulder permanent impairment is accepted. The worker is entitled to non-economic loss determination.
- Ongoing entitlement to ribs is denied
- Entitlement for upper back is accepted
- Entitlement for lower back is denied
- Right shoulder entitlement is denied
- Full loss of earnings benefits from January 29, 2014 and continuing flowing into the final loss of earnings benefit and continuing is in order.
The objection is allowed in part.
DATED February 24, 2015
Mrs. J. Morin
Appeals Resolution Officer