The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 4, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 4, 2000.

Issue

Whether or not responsibility should be accepted for physiotherapy and/or medical treatment commencing in April, 1999 as being related to the compensable injury of August 4, 1998.

Decision

That responsibility should not be accepted for physiotherapy and/or medical treatment commencing in April, 1999 as being related to the compensable injury of August 4, 1998.

Background

On August 4, 1998, a table that the claimant was working on as a line operator was hit by a moving forklift, which caused the table to move 6 inches, hitting the claimant in the stomach. At the same time the claimant went back and heard a snap in her neck. Later on, her head, neck, and back were in constant pain. On the application form for compensation, the claimant checked off "yes" when asked, "Have you had previous trouble with this particular part of your body". The claimant stated she "was bumped by a car from the back".

Following the August 4th accident, the claimant attended a hospital emergency facility and was diagnosed with a strained neck and a minor blunt trauma to the abdomen. X-rays of the cervical spine dated August 6, 1998, showed the C4-5 and C5-6 discs were minimally narrowed with small osteophytes consistent with early disc degeneration.

Reports received from the attending physician showed that the claimant underwent physiotherapy treatments and returned to light duties on August 17, 1998. On November 13, 1998, the attending physician documented that the claimant still had some stiffness and discomfort in her neck region.

On November 21, 1998, a Workers Compensation Board (WCB) adjudicator requested a WCB medical advisor's opinion with respect to the case. It was noted that the claimant was still performing light duties that consisted of making and delivering cartons and boxes. The medical advisor's opinion was that the diagnosis was a cervical spine strain. He also believed that the claimant's ongoing problems with her neck were not related to the compensable injury but were due to the pre-existing degenerative disc disease in the cervical spine.

Based on the medical advisor's opinion, it was determined by Claims Services that the claimant had recovered from the compensable injury and that any ongoing problems were not related to the August 4, 1998, injury. Claims Services advised the claimant on November 26, 1998, that she could return to full regular duties immediately.

On February 24, 1999, the claimant contacted the WCB stating that her family physician referred her for additional physiotherapy treatments. On April 21, 1999, a note received from the attending physician stated that the claimant had a recurrence of her infrascapular fibrositis and was being referred for physiotherapy.

On May 3, 1999, the employer indicated that the claimant was claiming a recurrence of her August 1998 injury. The employer advised that the claimant had been resistant to working overtime and consequently began complaining to her team leader that her neck was bothering her. The company was able to accommodate the claimant with light duties and that the claimant felt fine working on the line but was unable to lift anything. The claimant did not indicate when she experienced this new aggravation.

In a memo dated June 10, 1999, a WCB adjudicator documented her conversation with the claimant. The claimant advised that she was attending physiotherapy and was working regular duties. The claimant said she did not have a new accident. She had made ongoing complaints to her supervisor about her sore neck. The claimant was asked if there were any accidents outside of work that would cause her current neck pain. The claimant replied no but a car in a parking lot had bumped her. She said that her neck was bothering her before this event.

On June 11, 1999, Compensation and Rehabilitation Services determined that the claimant had recovered from the August 4, 1998, compensable injury. This decision was based on the weight of evidence and on the advice of a WCB medical advisor who stated there was minimal objective medical information to relate the claimant's current symptoms to the August 4, 1998, compensable accident. This decision was appealed by the claimant on July 7, 1999. On July 26, 1999, Review Office requested that further investigations be carried out prior to considering the appeal.

In a memo dated August 3, 1999, the employer told a WCB adjudicator that the claimant did not miss time from work due to the April recurrence. On April 29th, the claimant went on light duties for 2-3 weeks and was on modified duties from August 4 to November 14. The claimant had approved physiotherapy coverage through Standard Life insurance.

On August 16, 1999, the claimant provided a sworn statement to a WCB field representative. The claimant stated she did not have any new workplace accidents that would have been responsible for the April 1999 recurrence of neck pain. With regard to the car accident, the claimant did not remember when the accident happened other than she was stopped at some lights and a car bumped her from behind. There was no damage to either vehicle and no one was hurt. She went to the hospital only as a precautionary measure.

Since November 1998, the claimant indicated that she has never been pain free. She felt little twinges but it wasn't really bad. The neck would sometimes be stiff. The claimant noted several co-workers were aware of her neck problems. The claimant advised that her job duties had been the same since November 1998. In April 1999 she went to see her doctor as her neck pain was getting progressively worse. The claimant stated that she really felt pain in her neck when stacking pizza pops on a pallet low to the ground. When the pallets get to about her waist level, the pain isn't as great as she does not have to bend over so far. When emptying racks of pizza pops onto belts, the high racks aren't too bad, but the lower racks cause pain in her neck.

Statements were obtained from several co-workers who confirmed that the claimant complained to them about her neck pain ever since the original accident in August 1998.

In a statement dated August 24, 1999, a supervisor noted that the claimant mentioned ongoing neck problems between November 1998 and April 1999 but did not miss time from work. The supervisor had concerns that the claimant would bring up the fact that she could not work overtime due to her neck problems, but continued working during her regular work hours. The supervisor also noted that the claimant might have some concern for her job as she was aware that performance evaluations were being done and "I don't want to see her use her sore neck as an excuse for poor performance. Her performance was an issue prior to her neck problems."

On September 28, 1999, the attending physician outlined the dates he treated the claimant between August 6, 1998, and September 23, 1999. The physician stated that on almost all of these visits, the claimant's complaints centered on pain and stiffness in her neck, pains across her upper back, and decreased ability to do her job effectively. Physical examination revealed tenderness over the deep muscles of the sides and back of her neck, as well as varying degrees of limitation of neck movements because of pain. There was discomfort of fibromuscular stiffness in the affected areas of the cervical spine. The claimant also had intermittent paraesthesia down both arms. The claimant was treated with physiotherapy, analgesics and anti-inflammatories but obtained only short-term relief. Due to persistent complaints, arrangements were made for the claimant to see an orthopaedic specialist and a neurologist.

The physician noted that the claimant was examined at a local hospital on May 6, 1999, after her vehicle was rear-ended. When seen at the hospital, the claimant complained of an exacerbation of neck and upper back pains. The claimant contended that the accident did not have any long lasting ill effects and that her symptomatology stemmed from her original mishap at her job involving a forklift on August 4, 1998. On September 15, 1999, the claimant went again to the hospital because of increasing headache and neck pain. A head CT scan showed no mass lesion, hemorrhage, infarct or other abnormality.

When last seen on September 23, 1999, the physician stated that the claimant denied much improvement overall and still continued to have pains in her neck, decreased ability to do an effective full-day's work and increasing concerns about what the future holds for her.

On October 5, 1999, a WCB Review Officer contacted the claimant to clarify what motor vehicle accident she was referring to when she filled out her application form dated August 31, 1998. The Review Officer stated it was obvious that the claimant wasn't talking about a MVA that occurred in the future, i.e. May 6, 1999. The claimant responded that she had not been bumped by a car prior to August 31, 1998 and that she had no idea why she put it on her claim form. The claimant claimed she was heavily sedated and confused.

In a decision dated October 8, 1999, Review Office determined that no responsibility should be accepted for physiotherapy or medical treatment commencing in late April 1999 as being related to the claimant's accident of August 4, 1998.

When rendering its decision, Review Office stated that the claimant's treating physician was contacted. The physician stated that after seeing the claimant on November 13, 1998, he did not see her again until April 29, 1999. This was a gap of 5 months. Review Office did not relate the symptoms causing the claimant to attend medical treatment on April 29, 1999, to the incident as described on the claimant's injury claim form of August 4, 1998.

Further, Review Office noted that the claimant had stated the motor vehicle accident of May 6, 1999, was the incident to which she was referring on her claim for injury form. This was impossible as her claim for injury was completed on August 31, 1998, and obviously at that time she was not talking about an incident that occurred nine months later. After reviewing the evidence, Review Office did not feel that a cause and effect relationship had been established between the neck complaints of April 29, 1999, and the original injury.

A report dated October 12, 1999, was received from the treating orthopaedic specialist. The specialist noted that the claimant was involved in an accident at work in early August 1998. He felt that the claimant had some soft tissue injuries to her thoracic spine and cervical spine areas. The specialist stated that the claimant's symptoms should have long since subsided and thought there was a considerable psychogenic element in the patient's complaints.

On January 19, 2000, a union representative appealed the above decision, on behalf of the claimant.

Reasons

The attending physician treated the claimant on six occasions in 1998, with the last attendance being November 13, 1998. We note that he did not see the claimant again until April 29, 1999, a gap in time of approximately 5 months.

X-rays taken of the claimant's cervical spine on May 6, 1999, revealed that the claimant has minor degenerative disc disease. The radiologist's report confirmed: "There are degenerative changes involving the mid cervical spine with slight narrowing of the disc space at C4-C5 and C5-C6. Degenerative osteophytes are noted anteriorly at this level. No other abnormality has been demonstrated. No fracture or dislocation noted."

The attending physician arranged for the claimant to be examined by an orthopaedic specialist on October 12, 1999. In his opinion the specialist concluded that the claimant had some soft tissue injuries to her thoracic spine and cervical spine areas and that any symptoms should have long since subsided.

After having reviewed all of the evidence, we were able to reach the conclusion that the medical findings did not support the need for any ongoing time loss, physiotherapy and/or medical treatment beyond March 1999 as being related to the compensable injury of August 4, 1998. Therefore, responsibility should not be accepted for such. Accordingly, the claimant's appeal is hereby dismissed.

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