The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel Review was held on March 31, 2000, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not benefits are payable beyond October 27, 1999.

Decision

That benefits are payable to the claimant from October 27, 1999 to her return to work on or about January 24, 2000.

Background

The claimant filed an application for compensation benefits claiming injury to her upper back region on July 7, 1999, while moving furniture during her employment activities as a custodian. The claimant was diagnosed with an acute thoracic strain and physiotherapy was prescribed. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced July 9, 1999.

A neurologist assessed the claimant on September 13, 1999, at the request of the family physician. The neurologist noted that the claimant complained of a transient burning sensation between her shoulder blades, numbness involving both arms and hands and neck pain, pointing to the left paracervical muscles. Following his assessment, the neurologist said he could not find an adequate neurological examination to account for the claimant's symptoms in the absence of any objective neurological signs. Nerve conduction studies and EMG examinations were considered normal.

On October 7, 1999, an orthopaedic specialist examined the claimant at the request of the family physician. The specialist's examination findings showed neck movements to be slightly restricted. The upper and lower limbs had full movements. The dorsolumbar spine movements were slightly restricted. Pain and tenderness were noted at the level of T4-5-6 posteriorly. Reflexes, power and sensations in the extremities were within normal limits. The specialist noted x-rays of the dorsal spine taken July 12, 1999, revealed no fractures. Spur formation was noted on multiple mid vertebral bodies. Cervical spine films dated August 24, 1999 were within normal limits. Repeat x-rays of the upper dorsal spine were essentially unchanged and spur formation was noted on the mid vertebral bodies. The disc spaces were adequate.

The specialist concluded that the claimant sustained a soft tissue and ligamentous strain to her upper back. The painful areas at T4-5 and 6 were injected with Xylocaine and Depo-Medrol. The specialist believed the claimant was now fit and able to perform her usual work activities but to continue with medications.

On October 20, 1999, a WCB medical advisor reviewed the entire case and formed the opinion that the claimant was now fit to return to full duties. On October 22, 1999, rehabilitation & compensation services advised the claimant that in its opinion, she had recovered from the effects of the July 7, 1999, work place injury and compensation benefits would end on October 27, 1999.

In February 2000, a worker advisor appealed the decision to discontinue benefits as of July 7, 1999. The worker advisor contended that the claimant was unfit to return to work until January 24, 2000, based on the opinion of a second orthopaedic specialist.

Information from the second orthopaedic specialist revealed that the claimant was seen on November 24, 1999. Examination findings showed no abnormality in the alignment of the thoracic or lumbar spines. Tenderness was noted in the mid thoracic spine area to the left of the midline. The claimant could bend forward and almost touch her toes. There was no pain when the rib cage was depressed. Arms were neurologically normal. The specialist thought that the claimant strained her thoracic spine area and stated that it was certainly taking a long time to recover. He thought that additional exercises and physiotherapy for one more month would be helpful. He suggested that the claimant definitely return to work. He suggested light duties for two weeks and then "return to the full load after that."

Prior to considering the appeal, Review Office asked a WCB orthopaedic specialist to provide an opinion with respect to the orthopaedic specialist's findings and to specify what would be the normal range of recovery for a thoracic strain. In a memo dated February 15, 2000, the orthopaedic specialist commented that the claimant sustained a musculoligamentous strain in the thoracic area of the upper back as recorded on file by the examining doctors. He stated that this type of injury should normally constitute a maximum disability period of no more than 6 weeks. The November 24, 1999, examination by the orthopaedic specialist did not indicate that the claimant was totally impaired but only that he thought it would be beneficial for the claimant to have further physiotherapy to rehabilitate her back to work activity. This was a judgement call made by the examining physician at the time.

On February 18, 2000, Review Office determined that the claimant was not entitled to benefits beyond October 27, 1999. Review Office made reference to the examination findings noted by the two orthopaedic specialists as well as the neurologist who had previously examined the claimant. With respect to the second orthopaedic examination, which was almost 20 weeks post strain, Review Office felt there was almost no objective evidence to be found on this examination to warrant an authorization of time loss from work. A finding of tenderness was not deemed objective, as it was a subjective complaint of pain.

Review Office remarked that the worker's representative requested WCB coverage from October 28, 1999 to January 24, 2000. Based on the examination findings of the three specialists, such a claim would not seem to be a reasonable conclusion. Review Office felt the vital issue in the medical evidence was the fact that all three specialists found basically no functional impairment and that there was strong range of motion noted in all the examinations. The claimant's main problem seemed to be when the thoracic area was palpated and this was not going to happen during the course of her duties. It was clear to Review Office from a review of all medical evidence that from an objective point of view there were no solid grounds to reinstate benefits.

In a submission dated March 8, 2000, the worker advisor appealed Review Office's decision to the Appeal Commission and a non-oral file review was arranged.

Reasons

The second treating orthopaedic surgeon forwarded a letter to the claimant's worker advisor on January 31st, 2000, which outlined his opinion as to the claimant's condition subsequent to the termination of benefits. In arriving at our decision, we attached considerable weight to his following comments:

"As of November 24, 1999, I stated that I thought she could have additional exercises and physiotherapy for one more month. I would therefore class her total disability to be from the time of the accident until about December 24. After that time I suggested she have light duties for two weeks. This could perhaps be extended to one month, so I would think light duties from about December 24 to about January, would be suitable. After January 24, I would have considered her to be suitable for her work and require no further medical treatment.It was my impression that her symptoms that she complained of on November 24 were related to her injury."

In addition, we also considered the opinion of the medical advisor to Review Office, which is contained in a memo, dated February 15th, 2000.

"Dr. [2nd orthopaedic surgeon's] examination of November 24, 1999 does not indicate that the claimant was totally impaired but only that he thought it would be beneficial for the claimant to have a further physiotherapy program in order to rehabilitate her back to work activity. This is a judgement call made by the examining physician at the time."

We find based on the weight of evidence that the claimant is entitled to benefits from October 27, 1999 to her return to work on or about January 24, 2000.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of April, 2000