The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 23, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed the case on March 23, 2000 and again on June 9, 2000.

Issue

Whether or not the claimant is entitled to the payment of benefits subsequent to August 14, 1998; and

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That the claimant is entitled to the payment of benefits subsequent to August 14, 1998; and

That a Medical Review Panel need not be convened pursuant to subsection 67(4) of the Act.

Background

On June 4, 1998, the claimant was operating a chute on a cement mixer when he felt a pop in his back after using his shoulder and body weight to stop the chute from hitting a co-worker. Later that evening, the claimant stated his left side started to hurt and by next morning he could hardly move. Initial medical reports diagnosed the claimant with a neck or cervical sprain. Cervical spine x-rays revealed loss of normal lordosis, no evidence of a fracture or dislocation, and no significant disc, bone or joint abnormalities.

In a telephone conversation with a Workers Compensation Board (WCB) adjudicator on June 18, 1998, the claimant indicated that his doctor told him that he could return to work. The claimant advised that he returned to work on June 15th with another construction company as he did not feel comfortable going back to work with the accident employer because of the way his boss reacted to the incident and because he was told that he was being replaced. The claimant advised that he was taking muscle relaxants and that he had back pain at times but he was capable of doing his work. No more doctor appointments were scheduled.

A progress report from the attending physician dated July 15, 1998 indicated that the claimant had persistent neck pain and range of movement was painful in all directions.

On August 4, 1998, the WCB accepted the claim for an accident occurring on June 4, 1998. The claimant was paid wage loss benefits up to June 15, 1998, the date when he returned to work.

The claimant discontinued working for the second employer on August 14, 1998, due to increasing pain in his neck, arm, and spinal regions. There were no new accidents or injuries to account for his difficulties. He related his pain complaints to the June 1998 accident.

Medical reports showed that the claimant was seen on a number of occasions between July 15, 1998, and September 29, 1998, with respect to neck, back and shoulder pain. On September 4, 1998, the attending physician noted that there was some risk for chronic pain syndrome and on September 9, 1998, medical information suggested that the claimant was suffering from myofascial pain in the left shoulder. On September 21, 1998, a chiropractor diagnosed the claimant with facet irritation at T3.

An orthopaedic specialist assessed the claimant on October 3, 1998. The specialist reported that the claimant displayed many signs of myofascial pain in the left shoulder girdle region. The claimant may have segmental problems at the T5-T6 level producing the dorsal spine pain. His low back area also exhibited signs of myofascial pain. He was sore over the left L3 facet area suggesting a left L3 facet syndrome.

On October 8, 1998, the claimant was examined by a WCB medical advisor to determine his current status and functional capabilities. Following the assessment, the medical advisor provided the following comments:

• The claimant sustained a strain of his cervical spine on June 4, 1998. This was classified as a Grade 2 injury consisting of neck complaints and musculoskeletal signs based on the Quebec Classification of Whiplash Associated Disorders. The recommended treatment plan was to return the patient to his usual activities as soon as possible. There were no neurological signs to suggest nerve root irritation.
• The medical advisor felt that the present thoracic and lower lumbar pain complaints could not be related to the initial workplace incident.
• The claim had multiple red flags such as the claimant's report of feeling depressed, workplace issues, financial difficulties, etc. The claimant's symptoms had spread since the initial workplace incident and his Waddell's score was 5/5. Many of these issues, according to the medical advisor, were likely prolonging the claimant's symptoms although the range of motion at both his cervical and thoracolumbar spines were functional and fluid. His symptoms appeared to be disproportionate to his findings and the reported injury.

On December 8, 1998, the claimant was notified by Claims Services that the medical evidence did not support a continuing cause and effect relationship between his symptoms since August 1998 and the compensable injury of June 4, 1998. When arriving at its decision, Claims Services noted that the claimant gained employment on June 15, 1998, performing laborer work. He did not complain to anyone of ongoing difficulties or inability to perform his duties until August 14, 1998, when he quit his job and did not give his boss an explanation for this decision. Medical information received from the attending physician in early July 1998 reported no significant objective findings of the claimant's neck and back. Based on these factors, Claims Services was of the view that the claimant had functionally recovered from the effects of the compensable injury and that he was capable of performing his pre-accident duties without restrictions.

On February 25, 1999, a solicitor, acting on behalf of the claimant, appealed the above decision to Review Office. Briefly, the solicitor indicated that the claimant resumed work with a different company only until August 14, 1998, when he had to quit because the pain became intolerable. He noted that the claimant was only able to work because he was taking pain medication prescribed by his doctor. The solicitor stated that at no time did his client completely recover from his June 4th accident injuries. A doctor's note dated December 22, 1998, was submitted confirming this fact. The solicitor questioned the examination findings and comments made by the WCB's medical advisor on October 8, 1998. In addition, he felt that the orthopaedic assessment also carried out on October 8, 1998, was disregarded and not taken into consideration.

In a February 26, 1999, decision, Review Office noted that medical information provided by the claimant and his doctor suggested that the claimant's soft tissue injury had essentially resolved by late June or early July 1998. The claimant was employed in a physically strenuous job from June 15th to August 14th without any substantiated neck or back problems or further accident involving his upper back region. In early September 1998, medical evidence revealed that the claimant experienced a variety of diffuse, vague pain complaints in his head, neck, shoulders, low back and hips. Medical investigation failed to identify any objective clinical findings of anatomical abnormality to account for these symptoms or to establish a cause and effect relationship with the claimant's work related accident.

Review Office considered the historical evidence did not confirm a chain of causation between the June 1998 work accident and the claimant's subsequent pain complaints. The weight of evidence did not support a cause and effect relationship. Review Office was unable to conclude that the claimant's work accident in June 1998 made any significant contribution to the cause of his later pain symptoms or associated disablement after August 1998.

In correspondence dated July 15, 1999, the solicitor submitted a number of medical reports which he felt supported the position that the claimant's work related injury of June 4, 1998 still continued. The solicitor requested Review Office to reconsider its previous decision and at the very least refer the case to a Medical Review Panel (MRP) because of the difference of medical opinion.

On August 23, 1999, a supervisor from Rehabilitation and Compensation Services wrote to the solicitor indicating that there was no basis to convene an MRP as the definition of "opinion" as set out in section 67(4) had not been met. On December 8, 1999, the solicitor appealed this decision to Review Office.

In a decision dated January 7, 2000, Review Office confirmed that there was no basis to convene an MRP. Review Office indicated that it reviewed the medical reports submitted by the solicitor on July 15, 1999. In its view, the reports did not suggest any difference of opinion with regards to comments recorded on file by WCB medical advisors. The reports provided no "statement of facts" supporting a conclusion that the worker's ongoing complaints continue to be related to the compensable accident of June 4, 1998. It was Review Office's opinion that the requirements to convene an MRP under Section 67(4) had not been satisfied. The solicitor appealed Review Office's decision and an oral hearing was then convened.

Reasons

A review of the medical evidence suggested three possible evolving diagnoses (neck sprain, myofascial pain and nerve root compression) with respect to the claimant's continuing difficulties. At our request, an independent external neurology consultant examined the claimant on April 6th, 2000. The purpose of this examination was to assess the claimant's current condition.

In arriving at our decision, we attached considerable weight to the examination findings, opinion and treatment recommendations expressed by the independent consultant:

"It is my feeling that the majority of his pain is coming from a regional myofascial pain syndrome around the area of the left shoulder, which was the area of his body that took most of the impact in the described events that led up to his problem."

"I have taken about a half an hour with this gentleman to describe to him that I am not able to find any underlying medical problem that should cause a permanent pain condition. He has a regional myofascial pain problem, which I feel is related to the injury as described. His arm pain and sensory complaints are indirect consequences of this injury as is his associated depression. I have assured him that if he can get into an aggressive treatment program with a knowledgeable physiotherapist there is a significant chance of a degree of improvement that might allow him to get into some form of work. I emphasized the importance of getting back into any type of work to get back into a routine schedule. There is no contraindication for him to return to any type of work that at least initially does not involve any heavy or repetitive lifting with his left arm."

"I would strongly recommend that he be referred to Mr. [name], a physiotherapist at the Pan Am Sports Clinic, for a minimum of a two month period of physiotherapy as well as a maximum of two months physiotherapy directed toward his active myofascial trigger points to see to what degree improvement will occur when an aggressive knowledgeable physiotherapist manages him along with what I hope is new patient motivation to be compliant with the home exercise program, which is far more important than the therapist seeing the patient."

"In addition to the above I would strongly recommend reducing his Morphine and trying to get him off of it altogether, switching to a non-addicting, likely equally effective medication, Neurontin in gradually increasing doses as tolerated, with the hope that it could be weaned if response to the physiotherapy recommended above is apparent. Thyroid function tests, folate, B12 levels, CBC and iron should be checked as the deficiencies in these increase the likelihood of refractory muscle pain."

"Currently he is not capable of repetitive lifting or moderate or heavy lifting with the left arm. I would hope that if he responds to therapy then these restrictions could be lifted. To what extent they would need to be maintained would depend on further assessments over time. At the present time he certainly is capable of working in a desk job as his legs and right arm and cognitive function are unaffected by this problem."

We find based on the weight of evidence that the claimant's regional myofascial pain is on a balance of probabilities related to the compensable injury of June 4th, 1998 and that this condition to date has not been properly treated. We strongly recommend that the WCB oversee the implementation of the above recommendations proposed by the independent neurology consultant. In addition, we find that the claimant is therefore entitled to the payment of benefits subsequent to August 14th, 1998. Given our decision with respect to the first issue, there is no longer a need to consider the second issue dealing with the convening of a Medical Review Panel.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of June, 2000