WORKERS COMPENSATION APPEAL TRIBUNAL. [PERSONAL INFORMATION] (in respect [PERSONAL INFORMATION) CASE ID # [PERSONAL INFORMATION] EMPLOYER/APPELLANT

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: AND: [PERSONAL INFORMATION] (in respect [PERSONAL INFORMATION) CASE ID # [PERSONAL INFORMATION] EMPLOYER/APPELLANT WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #203 Appellant Respondent Patricia McPhail, Employer Advisor Brian L. Waddell, Q.C., Solicitor representing the Workers Compensation Board Place and Date of Hearing October 21, 2014 Quality Inn on the Hill 150 Euston Street Charlottetown, Prince Edward Island Date of Decision September 1, 2015

2 WCAT Decision #203 Page 2 of 26 Facts and Background 1. The Worker had been employed with the Employer since September 13, 2010, as a package technician in [PERSONAL INFORMATION]. 2. On May 29, 2012, the Worker reported to his supervisor that he sustained a repetitive motion strain injury in his left arm muscle. 3. The Worker filed a Worker s Report, Form 6, with the Workers Compensation Board on June 26, 2012, and stated that he suffered a repetitive motion strain to his left arm. [Appellant s Appeal Record Tab 1] 4. The first Physician s Report, Form 8, which was dated June 25, 2012, diagnosed left elbow repetitive strain from using (repetitively) a pressure bar at work. [Appellant s Appeal Record Tab 2] 5. The Employer s Report, Form 7, which was dated June 26, 2012, was received by the Board on June 27, [Appellant s Appeal Record Tab 3] 6. On July 3, 2012, the Board Entitlement Officer referred the Worker to an occupational therapist for a pre-adjudication assessment. [Appellant s Appeal Record Tab 4] 7. On July 5, 2012, the Worker was approved for a maximum of 12 physiotherapy treatments beginning July 10 and ending August 6, [Appellant s Appeal Record Tab 5] 8. On July 5, 2012, the Worker completed a Progressive Injury Questionnaire in which he described his typical day as [PERSONAL INFORMATION]. [Appellant s Appeal Record Tab 6]

3 WCAT Decision #203 Page 3 of An Inter Office Memorandum dated July 19, 2012, the Board s occupational therapist, Alida Love, documented her phone call with the Worker in which she stated, it is reasonable to appreciate that risk factors may exist to develop a repetitive strain injury to the left forearm/elbow. [Appellant s Appeal Record Tab 7] 10. On July 19, 2012, the Worker s claim was approved for left elbow epicondylitis and forearm strain. [Appellant s Appeal Record Tab 8] 11. On August 6, 2012, a Case Coordinator Review of Claim was completed by Mike Kelly in which it indicated that the Worker had problems with his right elbow in the past and related this to the Worker s previous work as an [PERSONAL INFORMATION]. [Appellant s Appeal Record Tab 9] 12. The Worker returned to work on September 23, 2012, on modified duties and regular duties on October 22, On November 15, 2012, Mike Kelly notified the Worker that his claim had been closed for Temporary Wage Loss benefits effective September 23, 2012 and Medical Aid benefits effective October 1, [Appellant s Appeal Record Tab 10] 14. In a letter dated June 28, 2013, Dr. G. Stewart Campbell, Orthopedic Surgeon, wrote to the Worker s family physician, Dr. Ron Nicholson. In this letter, Dr. Campbell noted that even when the Worker was away from work he had continuous pain. [Appellant s Appeal Record Tab 11] 15. A MRI of the Worker s left elbow was done on August 8, [Appellant s Appeal Record Tab 12] 16. The Worker received a platelet rich plasma (PRP) injection on August 9, 2013, and was off work until August 21, In a letter dated August 9, 2013, Dr. G. Stewart

4 WCAT Decision #203 Page 4 of 26 Campbell stated that the Worker would be released to return to work on August 21, 2013, without restrictions. The Worker was to follow up with Dr. Campbell in 6 weeks. [Appellant s Appeal Record Tab 13] 17. A representative of the Appellant spoke with the case coordinator, Craig Abbott on August 15, 2013, about the Worker being off work until August 21, She advised that the Appellant could offer modified duties that were not physically demanding. They could offer duties that would not require him to use the arm in which he had the injection. Mr. Abbott stated that he discussed modified duties with the Worker, but felt that the best thing to do was to follow Dr. Campbell s advice and take the two weeks off to rest his elbow in the hopes that it would get better. It was at that time that the Appellant s representative advised Mr. Abbott that the Worker had a side business [PERSONAL INFORMATION]. [Appellant s Appeal Record Tab 14] 18. The Appellant s representative advised that she wanted to see objective evidence that showed that the elbow problems were related to his job with the Appellant and asked the Board to look into his side business. 19. In an Inter Office Memorandum dated August 19, 2013, Craig Abbott documented a call with the Worker in which the Worker stated that his shoulder continued to bother him following the PRP injection. The Worker advised that he had a hard time riding his motorcycle. [Appellant s Appeal Record Tab 16] 20. In that same phone call, the Worker expressed concern that his shoulder was still bothering him and advised that he was scheduled to work on August 21 and 22 from 7:00 a.m. to 7:00 p.m., but did not feel that he could work with the way his shoulder and arm were feeling. [Appellant s Appeal Record Tab 16] 21. The Worker expressed concern that he did not feel that he could do his duties with just one arm. He was advised by Craig Abbott that people could help him at work and the

5 WCAT Decision #203 Page 5 of 26 Worker advised that he had no problem with someone helping him at work. The Worker was further advised by Craig Abbott that he would need a completed Form 6 on file before he could look at reopening his Wage Loss Benefits. [Appellant s Appeal Record Tab 16] 22. Dr. Nicolson, the Worker s family physician, in a note to Craig Abbott on August 19, 2013, delayed the Worker s return to work due to medical reasons until further assessment by Dr. G. Stewart Campbell. [Appellant s Appeal Record Tab 17] 23. The Worker saw Dr. Campbell on August 22, 2013, and was put off work for medical reasons. [Appellant s Appeal Record Tab 18] 24. On August 22, 2013, the Worker filed a new Form 6 in which he claimed a relapse of his May 29, 2012, compensable injury. [Appellant s Appeal Record Tab 19] 25. In a letter dated August 28, 2013, the Board approved four weeks of physiotherapy treatments for the Worker s left elbow injury of May 29, 2012, effective September 4 and ending October 1, 2013, for a total of 12 treatments. [Appellant s Appeal Record Tab 20] 26. On August 28, 2013, the Worker s case coordinator requested the Board s medical advisor s opinion on whether the Worker s left shoulder pain and inability to return to work were reasonably related to the injury that initiated the Worker s claim. [Appellant s Appeal Record Tab 21] 27. Dr. Steven O Brien on September 4, 2013, provided a medical opinion which stated that the shoulder injury was not medically reasonably related to the workplace injury that initiated the claim. [Appellant s Appeal Record Tab 21]

6 WCAT Decision #203 Page 6 of On September 15, 2013, Dr. G. Stewart Campbell returned a copy of the Return to Work Physician Form for the Board indicating that the Worker could not return to work. Also included was a copy of the Worker s Health Services Return to Work Assessment which indicated that the Worker was worse after the injection to his left elbow with regard to shoulder pain. [Appellant s Appeal Record Tab 22] 29. On September 6, 2013, Craig Abbott had a phone conversation with the Worker in which he indicated that he was still reviewing the Worker s claim. He indicated that Dr. Campbell could not explain how his shoulder symptoms would be connected to the plasma rich platelet injection. He advised that the Board medical advisor reviewed his file to determine if there was a connection and the medical advisor had advised that it was not related to the workplace injury and therefore non-compensable. [Appellant s Appeal Record Tab 23] 30. Mr. Abbott explained to the Worker that he was going to write a letter to Dr. Campbell to determine the reason he could not return to modified duties is more to do with his shoulder symptoms or his left elbow symptoms. Mr. Abbott explained that if it was more because of his shoulder symptoms that he would not reopen his claim as it would be noncompensable. [Appellant s Appeal Record Tab 23] 31. Physiotherapy Reports dated September 4, 2013, September 23, 2013 and October 11, 2013, indicated that the Worker received treatments related to left shoulder pain on September 4, 6, 9, 11, 23, 25, 27 and 30. In the notes from the physiotherapist, it was noted that the Worker had a PSP injection into the left elbow and complained of left chest pain and shoulder pain 1 to 2 days following that injection. He reported that the pain through his shoulder remained daily as did the left elbow pain. [Appellant s Appeal Record Tab 24]

7 WCAT Decision #203 Page 7 of On September 9, 2013, Mr. Abbott sent a letter to Dr. G. Stewart Campbell regarding whether the Worker s shoulder pain was preventing him from working modified duties. [Appellant s Appeal Record Tab 25] 33. The Worker saw Dr. Campbell for a follow up appointment on October 8, 2013 and on October 11, 2013, Dr. Campbell sent another Return to Work Physician Form to the Board indicating that the Worker could return to work on modified duties on October 15, [Appellant s Appeal Record Tabs 26 and 27] 34. On October 17, 2013, the Board notified the Worker that his claim for compensation benefits as a result of his injury on May 29, 2012, was re-accepted effective August 9, The diagnoses under the claim was left elbow epicondylitis and forearm strain. [Appellant s Appeal Record Tab 28] 35. On October 18, 2013, the Worker was informed by the Board that his claim was closed for Temporary Wage Loss Benefits effective October 15, 2013, but that Medical Aid Benefits would continue pending his surgery. [Appellant s Appeal Record Tab 29] 36. On December 11, 2013, Dr. G. Stewart Campbell wrote to Dr. Ron Nicholson and stated that the lateral epicondylitis of the left elbow was chronic and unresponsive to all other modes of treatment, including the PRP injection. He stated that the Worker was scheduled for left elbow lateral epicondylar release on January 7, [Appellant s Appeal Record Tab 30] 37. On January 8, 2014, Dr. Campbell sent a letter to Dr. Ron Nicholson and stated that the Worker s surgery had been cancelled the day before and was now rescheduled for January 21, He advised that the Worker had returned to work on January 5 and 6 but had suffered an acute exacerbation of his lateral epicondylitis and was unable to work on January 7. He commented that the Worker was severely tender over his lateral epicondyle and would not be able to work prior to his surgery and for at least six weeks

8 WCAT Decision #203 Page 8 of 26 following his surgery. He advised that he had provided the Worker with a note regarding absence from work from January 7, 2014 until March 17, [Appellant s Appeal Record Tab 31] 38. On January 31, 2014, Dr. Campbell sent another letter to Dr. Ron Nicholson following up on the lateral epicondylar release of the left elbow on January 21, He advised that the Worker was neurovascularly intact and would be referred for gentle physical therapy in Summerside. He noted that the Worker continued to have significant pain in the left shoulder which had its onset after his left elbow MRI when he felt his shoulder was twisted in the MRI machine. Dr. Campbell noted that the Worker s physical examination of the shoulder revealed marked tenderness over the pectoralis major muscle belly and pain with resisted adduction of the shoulder. [Appellant s Appeal Record Tab 32] 39. On February 7, 2014, Craig Abbott asked the Board s medical advisor, Dr. Steven O Brien, for his medical opinion regarding the new reports from Dr. Campbell of October 8, 2013 and January 31, 2014, which noted that the Worker s left shoulder symptoms began after his left elbow MRI of August 8, Mr. Abbott asked Dr. O Brien to review the reports and advise whether it would change his opinion as to whether or not the Worker s left shoulder symptoms were reasonably related to the workplace injury which initiated the claim. [Appellant s Appeal Record Tab 33] 40. Dr. O Brien restated his position of September 3, 2013, in which he stated that the Worker s left shoulder pain was not medically causally related to his left elbow PRP injection. [Appellant s Appeal Record Tab 33] 41. On January 7, 2014, the Appellant filed a Request for Internal Reconsideration appealing Craig Abbott s October 17, 2013 decision along with a letter containing additional arguments. [Appellant s Appeal Record Tab 34]

9 WCAT Decision #203 Page 9 of On March 18, 2014, the Internal Reconsideration Officer (IRO) issued Decision IR # [PERSONAL INFORMATION] denying the Appellant s reconsideration request #1 and dismissing issue #2. [Appellant s Appeal Record Tab 35] 43. Mr. Abbott issued a second decision on Issue #2 on April 14, [Appellant s Appeal Record Tab 36] 44. A second Request for Internal Reconsideration dated April 29, 2014 as well as a letter containing additional arguments dated May 1, 2014 was sent to the Board. [Appellant s Appeal Record Tab 37] 45. The IRO issued Decision IR # [PERSONAL INFORMATION] on July 10, 2014, in which they denied the Appellant s request for internal reconsideration. [Appellant s Appeal Record Tab 38] Issues 46. Issue #1: Was the Decision to re-open the Worker s claim for his left elbow epicondylitis appropriate? 47. Issue #2: Were medial aid benefits and temporary wage loss benefits provided to the Worker for a non-compensable left shoulder injury? Appellant s Argument on Issue #1 48. The Appellant disagreed that the Worker s recurrence of his left elbow epicondylitis and forearm strain were related to his work tasks with the employer.

10 WCAT Decision #203 Page 10 of The Appellant looked to Section 6 of the Workers Compensation Act which requires that for compensation to be payable, a worker must have sustained a personal injury, by way of accident, arising out of and in the course of employment: 6.(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of employment is caused to a worker, the Board shall pay compensation as provide by this Part out of the Accident Fund. [Workers Compensation Act, R.S.P.E.I. 1988, Cap W-71, s.6 (1) Appellant s Factum Tab 2] 50. The Appellant also quoted Policy-71 Arising Out of the Course of Employment which defined the personal injury as "personal injury means a measurable change to the body caused by an accident arising out of and in the course of employment". [POL-71"Arising Out of and in the Course of Employment" - Appellant's Factum - Tab 3] 51. The Applicant submitted that recurrence claims are acceptable when the condition causing the current impairment is medically compatible with the previous work injury and no other variable has intervened as a significant cause of the current". [s.2, POL-60, "Recurrence" - Appellant's Factum - Tab 4] 52. Recurrence is defined as: "Recurrence" means a return of disabling conditions, supported by objective medical evidence that can be reasonably related to an injury caused by a previous work-related accident. Recurrence of the condition must be medically compatible with the previous injury, and decisions to accept or deny recurrences must rely on medical evidence supporting this relationship. [Appellant's Factum - Tab 4] 53. The Appellant argued that with cases of recurrence it was essential that the evidence showed that the Worker's injury arose out of and in the course of employment in order for compensation to be given.

11 WCAT Decision #203 Page 11 of The Appellant stated that it appeared that the Case Coordinator, Craig Abbott, gave a lot of weight to the Occupational Therapist's memo to file dated July 19, 2012, in making the determination that the Worker's left elbow epicondylitis recurrence arose out of and in the course of his employment with the employer. [Appeal Record - Appellant's Factum - Tab 7] 55. The Appellant quoted particular clauses in the memos, the first one regarding the August 15 th discussion: "I also advised that a WCB Occupational Therapist had investigated this claim originally and concluded that the repetitive movements at work were a risk factor and that Dr. Stewart Campbell also noted it was related to the repetitive duties at work." [Appeal Record - Appellant's Factum - Tab 14] 56. In the second Memo, the Case Coordinator stated: "I advised that a WCB OT did investigate his injury prior to his claim being approved and the OT did not[e] risk factors with his position." [Appeal Record - Appellant's Factum - Tab 14] 57. The Appellant argued that the statements by the Case Coordinator overstated the findings of the Occupational Therapist and that the Occupational Therapist only found that risk factors may be present and not that they were present. [Appeal Record - Appellant's Factum - Tab 7] 58. The Appellant stated that the Occupational Therapist did not investigate the claim in the manner prescribed by PRO-79 "Workplace Assessments for Repetitive Strain Injuries". The Appellant quoted Section 5 of Policy-79 which states:

12 WCAT Decision #203 Page 12 of 26 "The Occupational Therapist will arrange a worksite visit which will include: A review of the job description; An assessment of the job tasks and analysis of risk factors for the development of a repetitive strain injury; A general de-briefing which may include recommendation to the worker and employer when risks for repetitive strain injuries are identified; A referral to the Manager OHS Officers via , when workplace concerns appear to be generalized within the workplace. 6. Following the worksite assessment the occupational Therapist will Complete the "RSIOT" template which will include a clear statement indicating whether risk factors are present, not present or cannot be determined; [underline for emphasis by the Appellant.] [Appellant's Factum - Tab 5] 59. The Appellant argued that the Occupational Therapist did not arrange a worksite visit and did not complete an "RSIOT" template indicating that risk factors were present. The Appellant argued that the Worker's workplace activities were not assessed and evaluated for potential risk factors in accordance with POL-91 "Repetitive Strain Injuries", which states: 4. The Workers Compensation Board Occupational Therapist will assess workplace activities and evaluate the extent of exposure of the following potential risk factors: - high repetition; - high force; - extreme postures; - vibration; - frequency; - duration; - recovery time; - length of employment; - individual work style; - unaccustomed activity;

13 WCAT Decision #203 Page 13 of 26 - extreme cold temperature. High repetition = 2 to 4 times per minute or cycles less than 30 seconds. High force = hand weights of > 4 kg. High vibration = > 1,000 hours exposure. Duration = minimum 2-4 hours Current research is used to evaluate the impact of each risk factor which varies depending upon the diagnosis. [Appellant's Factum - Tab 6] 60. The Appellant further argued that without a worksite visit, the Occupational Therapist would be unable to determine if the tasks actually qualified as high repetition, high force, or any other risk factors. The Appellant argued there was no objective review of work duties completed, only a review of the subjective explanation of the duties as explained by the Worker. The Appellant argued that the risk analysis was not done for high repetition, high forces and extreme posture and whether or not there was sufficient recovery time. The argument was made that as the Occupational Therapist did not perform a worksite visit to establish if there were risk factors, such weight should not have been placed on her assessment as, it was argued that her assessment amounted to guess work as to what risk factors may be present. The Appellant stated that there was no review of the actual performance of tasks to establish whether the tasks involved high repetition, high force or other risk factors and so it would be inappropriate to deem the Worker's injury as stemming from his work with the employer. 61. The Appellant submitted that there could not be assumption by the Occupational Therapist on the basis of the previous work within [PERSONAL INFORMATION] that the Worker had a job that had risk factors which could lead to a repetitive strain injury of left elbow epicondylitis. 62. The Appellant further alleged that if there were insufficient facts available to determine the Worker's injury was work related then there would be no way to reasonably relate the

14 WCAT Decision #203 Page 14 of 26 injury to a previous work-related incident and argued that the claim should not be approved as a recurrence where there was no evidentiary foundation that the injury arose out of and in the course of employment. 63. The Appellant stated that medical compatibility under POL-60 "Recurrence" required the Board to consider factors such as pre-existing conditions and aggravating lifestyle factors when assessing recurrence cases. [Appellant s Factum, Tab 4] 64. The argument was made that genetic predisposition and hobbies/leisurely activities were also considerations for determining entitlement under POL-91 "Repetitive Strain Injuries". [Appellant s Factum, Tab 6] 65. The Appellant submitted that the Worker's Progressive Injury Questionnaire did not list any hobbies, however, the Board appeared to have been aware that the Worker had a hobby of [PERSONAL INFORMATION]. The Appellant argued that it did not appear to have taken this into consideration with regard to its impact on the recurrence of the Worker's left elbow epicondylitis. [Appeal Record, Tabs 6, 14 and 16] 66. Also, the Appellant argued that the Board failed to consider legitimate concerns regarding possible pre-existing conditions and aggravating lifestyle factors and stated that there was insufficient evidence to determine that the Worker sustained a recurrence of the repetitive strain injury as a result of his employment with the employer. There was not a proper analysis for potential work risk factors and the Worker's hobbies had not been considered in relation to the recurrence of his left elbow epicondylitis and forearm strain. Respondent s Argument on Issue #1 67. The crux of the argument made by the Respondent was that the Appellant was attacking the original Entitlement Decision of July 16, 2012 under the guise of appealing the recurrence decision.

15 WCAT Decision #203 Page 15 of The Respondent argued that in as early August 15, 2013, the real issue for the Appellant was that the Worker s elbow problem was not caused by repetitive strain with the employer. In the original decision, it was found that the Worker's elbow injury was caused by repetitive strain. The Respondent argued that the recurrence claim in and of itself should not be struck down given that the original decision could not be struck down. 69. The Respondent stated that the Appellant's submissions from paragraphs 14 to 28 of the Factum, all provided argument in an attempt to undermine the original Entitlement Decision as to whether it actually qualified as a repetitive strain having regard to high repetition, high force and other risk factors. 70. The Respondent commented upon the Appellant s quote from PRO-79 which dealt with worksite assessment for repetitive strain injuries. The Respondent stated that procedures under the Workers Compensation Program do not equate to policies and do not amount to compulsory, mandatory or a binding set of principles. 71. With regard to the second Worker's Report Form 6 which claimed a recurrence which was dated August 23, 2013, the Respondent reinstated temporary wage loss benefits for the period of August 9, 2013 to October 15, [Respondent's Appeal Record Tab 81] 72. The new Form 6 indicated the Worker was experiencing pain in his left elbow while doing regular work with the employer and this was a relapse of a previous injury. The Respondent stated that Dr. G. Stewart Campbell in his medical report of August 22, 2013 indicated that the Worker was returning to his office for a "follow-up of his left elbow lateral epicondylitis after having had a PRP injection on August 9, 2013" and noted that Dr. Campbell stated the Worker still had significant tenderness at the extensor origin and pain with resisted risk extension. [Respondent's Appeal Record Tab 82]

16 WCAT Decision #203 Page 16 of The Respondent commented that Dr. Campbell was of the view that he was dealing with the original injury to the left elbow. 74. On September 4, 2013 the physiotherapist report made reference to ongoing treatment to the left elbow and that pain remained daily to his left elbow. 75. In his medical report of October 8, 2013, Dr. Campbell made reference to the fact that the Worker was returning for his work related injury to his left elbow with chronic lateral epicondylitis. The Respondent argued that this medical report left little doubt that the Worker was suffering from a work related re-injury to his left elbow. [Respondent's Appeal Record Tab 95] 76. Further medical reports from Dr. Campbell showed that he was continuing to treat the lateral epicondylitis of the left elbow. The Appellant challenged the decision to re-open the Worker's claim as a result of his left elbow epicondylitis on the basis that the Respondent did not appear to have fully considered the possibility of a pre-existing degenerative condition, aggravating lifestyle and so forth. The Board looked to s. 56(1) of the Workers Compensation Act which states as follows: 56(1) The Board shall not reconsider a decision under this Act or the prior Act made after this section comes into force, except on the written request of a person with a direct interest in the decision made not later than 90 days from the date of notification of the decision. [Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1, s. 56(1) Respondent s Factum Tab 2] 77. Again, as previously argued by the Respondent, it was noted that the Appellant did not file a request for Internal Reconsideration until January 10, 2014 approximately 18 months beyond the accepted time frame for seeking such reconsideration and therefore the Board declined to reconsider the matter. [Respondent's Appeal Record Tab 9]

17 WCAT Decision #203 Page 17 of The Respondent submitted that it was comfortable with the direction of the occupational therapist on July 16, 2012 where the therapist noted that she observed the Appellant's facility many times and observed duties involved in repetitive lifting or gripping that it would be reasonable to appreciate that risk factors may exist to develop repetitive strain to a left forearm which made it reasonable for the Respondent to issue a decision letter approving the claim for left elbow epicondylitis and forearm strain on July 19, [Respondent's Appeal Record Tabs 27 and 28] 79. The Respondent further argued that having regarding to the definition of "Recurrence" in POL-60, the Respondent concluded that there had been a recurrence and given the fact that there was a return of disabling conditions supported by objective medical evidence from Dr. Campbell and others, the recurrence was medically compatible with the previous injury and was, in fact, the subject injury to the left elbow itself. Appellant s Argument on Issue #2 80. The Appellant argued that payment was made by the Respondent for physiotherapy related to the Worker s shoulder which was not approved. The Appellant reviewed the reports from the physiotherapist from September 23 and October 11, 2013, that referenced only the Worker s shoulder. The Appellant alleged that treatment only appeared to pertain to issues related to the Worker s shoulder and not his elbow. [Appellant s Appeal Record Tab 24] 81. The Appellant had requested that the inappropriate payment be rectified as the cost for those physiotherapy sessions should not have been paid by the Respondent and should not be on the Appellant s account. 82. The Appellant further submitted that the Memo to File from the Case Coordinator from August 19, 2013, stated, He is scheduled to work August 21 and 22 from 7am to 7pm

18 WCAT Decision #203 Page 18 of 26 but does not feel he can work with the way his shoulder and arm are. [Appellant s Appeal Record Tab 16] 83. The Appellant noted that Dr. O Brien provided a medical opinion on September 4, 2013, in which he indicated that the Worker s left shoulder pain would not be medically reasonably related to the workplace injury that initiated the claim or be related to the PRP injection. [Appellant s Appeal Record Tab 21] 84. The Appellant stated it was important to note that the Worker had previously returned to work on modified duties on September 23, 2012 when he had only had elbow issues and that he was originally scheduled to return to work on August 21, 2013 following the PRP injection without restrictions. [Appellant s Appeal Record Tabs 10 & 13] 85. The Appellant argued that the letter from Dr. G. S. Campbell dated October 8, 2013, did not provide a clear answer to the question of whether or not the Worker s shoulder pain was preventing him from returning to work on modified duties. [Appellant s Appeal Record Tab 26] 86. The Appellant took issue with the Case Coordinator stating that he neglected to ensure the assessment was being made in relation to returning to work on modified duties. The Appellant thought this was significant given that the Appellant was attempting to offer modified duties which would not require the use of the Worker s left arm and the Worker had been previously been able to return to work on modified duties despite his injury. 87. The Appellant looked to an Event Log of October 10, 2013, in which the Case Coordinator asked the physiotherapist if it was the Worker s shoulder or elbow symptoms that were preventing him from working the modified duties. [Appellant s Appeal Record Tab 39]

19 WCAT Decision #203 Page 19 of The physiotherapist commented that the shoulder had mostly improved but the biggest thing that would slow the Worker down was his elbow. The Appellant suggested this did not provide a clear answer to the specific question left by the Case Coordinator. [Appellant s Appeal Record Tab 39] 89. The Appellant suggested that there was no evidence which clearly stated that the Worker could not return to work on modified duties due to his elbow injury. 90. The Appellant argued that the majority of the information provided appeared to point to the shoulder issue as being the reason the Worker remained off work for longer than expected following the PRP injection. 91. The Appellant argued that if the Worker had a loss of earning capacity related to his shoulder, i.e. if, on a balance of probabilities, it was his shoulder and not his elbow preventing him from returning to work on modified duties, then compensation was not payable for wage loss related to his shoulder and argued that there was insufficient evidence indicating that the Worker s elbow was the reason he could not return to work on modified duties. 92. The Appellant argued that, on a balance of probabilities, it appeared that the Worker s prolonged need to be off work following the PRP injection related to issues he was having with his shoulder and not his elbow. This meant that the Worker s temporary wage loss benefits should not have been reopened effective from August 9, 2013 until October 15, Respondent s Argument on Issue #2 93. The Respondent argued that there was no reason to conclude that medical aid benefits and temporary wage loss benefits were provided to the Worker for a non-compensable left shoulder injury and that the Respondent had found that there was no claim for a left

20 WCAT Decision #203 Page 20 of 26 shoulder injury which the Respondent stated was apparent due to the Decision of March 10, [Appeal Record Tab 8] 94. The first mention of the Worker s left shoulder pain was with the Case Coordinator on or about August 12, 2013 and it was referenced by Dr. Campbell in his medical reports, however, the Respondent argued that it never made any connection or provided any compensation for the left shoulder. 95. In the Reconsideration decision of March 18, 2014, the Respondent noted that they could not see where a decision had ever been made on the issue of cost relief for the left shoulder in 2013, so the Respondent concluded they had no authority to reconsider the matter and they dismissed the Reconsideration on that basis. [Appeal Record Tab 7] 96. The Respondent reconsidered the matter in a decision of April 14, 2014, which noted that the Worker s left shoulder symptoms were non-compensable. 97. The Respondent suggested that there was no evidence, on the balance of probabilities, to suggest that it was the Worker s shoulder and not his elbow that was preventing him from returning to work on modified duties. The Respondent noted that the physiotherapy reports maintained the same diagnosis which noted the Worker s ongoing left elbow pain. 98. The physiotherapist s discharge report from October 15, 2013, stated, [PERSONAL INFORMATION] left shoulder should not limit his ability to return to work if there are suitable options for his left elbow. [Appeal Record Tab 96] 99. The Respondent argued that in this case the Worker had an entitlement to compensation, returned to work and then had a recurrence which provided him with a further entitlement to compensation.

21 WCAT Decision #203 Page 21 of The Respondent argued that with regard to Section 17 of the Act, if the evidence was equal in weight, the benefit of the doubt would have to go to the Worker The Respondent further submitted that the original entitlement decision about repetitive strain at the workplace should not be rehashed under the guise of a recurrence decision nor should it be concluded that the recurrence was approved because of the Worker s left shoulder injury, which conclusion is contrary to the medical evidence on file. Analysis/Decision Issue #1 Was the Decision to re-open the Worker s claim as a result of his left elbow epicondylitis appropriate? 102. Section 6 of the Workers Compensation Act requires that for compensation to be payable, a worker must have sustained a personal injury, by way of accident, arising out of and in the course of his employment: 6. (1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of employment is caused to a worker, the Board shall pay compensation as provided by this Part out of the Accident Fund. [Workers Compensation Act, R.S.P.E.I. 1988, Cap W-7.1 s.6 (1) Appellant s Factum Tab 2] 103. POL-71, "Arising Out of and in the Course of Employment", defines a personal injury as: 4. "Personal injury" means a measurable change to the body caused by an accident arising out of and in the course of employment. 1. [Appellant s Factum Tab 3] 104. POL-60, Recurrence is defined as:

22 WCAT Decision #203 Page 22 of Recurrence means a return of disabling conditions, supported by objective medical evidence that can be reasonably related to an injury caused by a previous work-related accident. Recurrence of the condition must be medically compatible with the previous injury, and decisions to accept or deny recurrences must rely on medical evidence supporting this relationship. [Appellant s Factum Tab 4] 105. The Appellant alleged, as previously stated, that this was a case of recurrence and, if so, it was essential that the condition causing the current impairment was medically compatible with a previous workplace injury and no other variable intervened as a significant cause of the current impairing condition The second Worker's Report Form 6 on August 23, 2013 claimed a recurrence and on that basis the Respondent reinstated temporary wage loss benefits from August 9, 2013 to October 15, Form 6 indicated that the Worker was experiencing pain in his left elbow while doing regular [PERSONAL INFORMATION] job in the plant and that was a "relapse of his previous injury" The Appellant quoted from Policy POL-79 which dealt with worksite assessment for repetitive strain and commented that the occupational therapist did not investigate the claim in the manner prescribed by POL-79. The Appellant argued that without a worksite visit the occupational therapist would not be able to determine if the task actually qualified as high repetition, high force or any of the other risk factors. However, the occupational therapist had stated on July 16, 2012, that she observed the Appellant's facilities many times and having observed the duties involving repetitive lifting or gripping, that it would be reasonable to appreciate that risk factors may exist to develop repetitive strain.

23 WCAT Decision #203 Page 23 of The Tribunal agrees that the occupational therapist did not investigate the claim in the manner prescribed and although it would have been preferable to have the occupational therapist investigate the claim as set out in POL-79, the Tribunal submits that the procedures are not compulsory or mandatory but procedures that one would hope would be followed Dr. Stewart Campbell in his medical report dated August 22, 2013 indicated that the Worker was returning to his office for a "follow-up of his left elbow lateral epicondylitis after having a PRP injection on August 9, He noted that the Worker still had significant tenderness to the extensor origin and pain with resisted risk extension The physiotherapist in her report of September 4, 2013, made reference to treatment to the left elbow. The continuing diagnosis was left pectoral strain and left lateral epicondylitis Both Dr. Campbell and the physiotherapist made reference to the origin injury to the left elbow and the physiotherapist's continuing diagnosis was left pectoral strain and left lateral epicondylitis. In the medical report of October 8, 2013, Dr. Campbell made reference to the fact that the Worker was returning for his work related injury to his left elbow with chronic lateral epicondylitis Although the Respondent did not arrange a worksite visit and did not complete the RSIOT template indicating that risk factors were present and although it is unclear whether or not the Respondent considered factors such as pre-existing conditions and aggravating life style factors, the Tribunal finds that the evidence of the occupational therapist, the physiotherapist and Dr. Stewart Campbell was sufficient for the Respondent to make a determination that the decision to re-open the Worker's claim as a result of his left elbow epicondylitis was correct.

24 WCAT Decision #203 Page 24 of Therefore, the Tribunal finds that the decision to re-open the Worker s claim as a result of his left elbow epicondylitis was appropriate. Issue #2 Were Medical Aid Benefits and Temporary Wage Loss Benefits provided to the Worker for a non-compensable left shoulder injury? 114. The Respondent's decision of March 10, 2014 stated that there was no claim for left shoulder injury in this matter. This was dealt with by Dr. Steven O Brien in his opinion of September 4, The Worker s claim was for left elbow epicondylitis There had been mention of the Worker s left shoulder during the course of his treatment. The first mention was in a conversation with his case worker around August 1, In the physiotherapy report, Progressive Injury Questionnaire, the physiotherapist noted the area affected was the left elbow. The physiotherapist's report noted the initial diagnosis of left pectoral strain and left lateral epicondylitis. [Appeal Record Tabs 24 and 93] 118. The letter from Dr. Stewart Campbell to Dr. Ron Nicholson dated October 8, 2013, stated that the patient had been treated for left shoulder pain recently, but it was temporarily related to his left elbow PRP injection. Dr. Campbell noted that the Worker reminded him that the MRI of the elbow was done the day before his PRP injection and, therefore, he thought that the position of his shoulder in the MRI entry was most likely the cause of the shoulder pain, which was now dissipating. Dr. Campbell commented that the Worker s elbow had improved because he was not doing continuous repetitive work using his arm or elbow. Dr. Campbell noted that the Worker still had tenderness over the lateral epicondylitis. [Appeal Record Tab 95]

25 WCAT Decision #203 Page 25 of The physiotherapist report dated October 11, 2013 commented that the Worker showed improvements with physio in his left shoulder but also mentioned that his left elbow continued to pain, but the specialist did not seem to think "there are many further options at this time". [Appeal Record Tab 96] 120. Further, in the physiotherapist s report, the treatment plan stated that the Worker s left shoulder pain had decreased and he had returned to many of his previous activities. It was noted that his left shoulder should not limit his ability to return to work if there were suitable options for his left elbow The Tribunal agrees that there was mention of the Worker s shoulder, however, the initial diagnosis was the left pectoral strain and left lateral epicondylitis and the present diagnosis always remained the same. The Tribunal finds that there is no evidence, on a balance of probabilities, to suggest it was the Worker s shoulder and not his elbow that prevented him from returning to work on modified duties. Therefore, the Tribunal finds that medical aid benefits and temporary wage loss benefits were not provided to the Worker for a non-compensable left shoulder but were provided for a compensable left elbow injury.

26 WCAT Decision #203 Page 26 of We thank counsel for their materials and submissions. Dated this 20 th day of August, P. Alanna Taylor, Chair Workers Compensation Appeal Tribunal Concurred: Donald Cudmore, Employer Representative Gary Paynter, Worker Representative