The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 30, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on October 30, 2000.

Issue

Whether or not the claimant is entitled to the payment of wage loss benefits beyond May 6, 1998.

Decision

That the claimant is entitled to the payment of wage loss benefits between May 6, 1998 to March 31, 1999.

Background

While performing the duties of a labourer on March 6, 1997, the claimant was cleaning a drainage with a shovel when he began to experience pain at his left anterior chest, left shoulder and arm. The diagnosis reported by the attending physician was a sprain of the muscles of the left shoulder/arm and chest. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On October 16, 1997, the claimant attended the WCB's offices for an examination by a WCB medical advisor. Following the assessment, the medical advisor noted that the claimant demonstrated symptoms and signs compatible with muscular irritability of his left shoulder girdle musculature. Treatment was recommended in the form of dry needling followed by a stretching and strengthening program. The medical advisor suggested that the claimant attend a shoulder stabilization program.

A subsequent medical report was received from a physician specializing in pain and stress management dated December 10, 1997. The specialist assessed the claimant with sleep disturbance and myofascial pain of the pectoralis, latissmus dorsi and infraspinatus muscles. The claimant was prescribed medication to improve his sleep and was treated with a course of trigger point acupuncture applied to the pectoral muscles.

On January 21, 1998, the claimant underwent a bone scan and the results of which showed the following: "There is an unusual appearance to the left 4th rib anteriorly. Radiographic correlation is recommended."

On January 28, 1998, x-rays of the chest were carried out and read as follows: "The small exostosis of the left fourth rib anteriorly could be a very small osteochondroma or more probably minor insignificant developmental deformity. No significant abnormality of the chest or ribs is identified."

On April 7, 1998, a WCB medical advisor reviewed the file documents at the request of primary adjudication. The medical advisor noted that the claimant had full range of motion in his shoulder and neck although he still had some myofascial activity. The medical advisor felt however, that the claimant should be able to return to work at his same regular duties.

On May 1, 1998, the claimant was informed by the WCB's Claims Services that he was considered to have recovered from the effects of his 1997 injury to the point where he was capable of returning to his pre-accident job. Wage loss benefit were paid to May 6, 1998 inclusive and final.

Subsequent to the above decision, the claimant underwent a left shoulder arthrogram on September 17, 1998. The report indicated that there was normal capacity of the joint capsule. There was no evidence of rotator cuff tear. There was no abnormal contrast collection in the subdeltoid space. The biceps tendon was in its normal position. The labrum appeared intact.

In a report of October 23, 1998, the attending orthopedic specialist noted that when the claimant was examined on August 26, 1998, he had mild restricted range of motion and no gross rotator cuff weakness. Impingement signs were positive. The arthrogram of September 17, 1998, showed no significant abnormalities. The specialist's impression was that the claimant appeared to have a shoulder contusion likely involving the rotator cuff or subdeltoid bursa, without rotator cuff tear. The specialist further stated, "From the information I have regarding this man, one would usually expect to see recovery by now, for this accident over a year ago. The exact mechanism and severity of the injury is unknown to me. The shoulder could remain symptomatic to the present, as a result of that accident, but this is a difficult conclusion to reach, based on the knowledge I have regarding his condition, and the relative absence of objective positive findings and investigations.". The specialist believed that a trial return to work on May 7, 1998 was quite reasonable and that there were no firm, temporary or permanent workplace restrictions.

In another report by the same orthopedic specialist dated December 8, 1998, he noted that the claimant had not responded long term to the shoulder cortisone injection and that he reviewed the risks and benefits of decompression of the rotator cuff and the AC joint and would proceed with this.

The claimant was subsequently examined by a WCB orthopaedic consultant on March 19, 1999. The consultant stated in his examination notes that he was unable to provide a diagnosis for the claimant's continued perceived disability. He found no evidence of a continuing disability arising out of the workplace incident reported to have occurred on March 6, 1997. There were no restrictions arising out of this accident and it was believed that the claimant was capable of performing his previous regular occupation duties on a full time basis. The proposed surgical procedure was not the responsibility of the WCB.

On April 29, 1999, Rehabilitation and Compensation Services wrote to the claimant informing him of the WCB's orthopaedic consultant's findings and opinion following the March 19th examination. The claimant was informed that the WCB still remained of the opinion that he had essentially recovered from the effects of the 1997 accident and that no further wage loss benefits or surgery would be covered by the WCB. On July 13, 1999, a worker advisor appealed the decision to Review Office and submitted additional medical information prepared by an occupational health physician dated April 29, 1999 and June 21, 1999. The worker advisor requested that the claimant's wage loss benefits be reinstated retroactively from March 7, 1998, and that the WCB should cover the claimant's upcoming surgery. A Medical Review Panel (MRP) was also requested as the worker advisor believed there was a difference of opinion between the claimant's physician and the WCB medical advisor who examined the claimant on March 19, 1999.

At Review Office's request, the case was referred back to Rehabilitation & Compensation Services to address the issue concerning the convening of an MRP. The request for an MRP was later granted and was held on November 9, 1999. Based on the MRP's findings and opinion, Rehabilitation & Compensation Services determined that there was no medical evidence to indicate that the claimant had not recovered from the March 6, 1997 shoulder strain. Also, there was no medical evidence to support that he was restricted in any way from performing his pre-accident duties. On May 30, 2000, a solicitor acting on behalf of the claimant, appealed this decision to Review Office.

On July 21, 2000, Review Office determined that the claimant was not entitled to wage loss benefits after May 6, 1998. Review Office indicated that after considering the MRP's conclusions and examination findings along with the other medical evidence and opinions, the weight of evidence did not support a relationship between the worker's ongoing symptoms and the compensable incident. On August 8, 2000, the claimant's solicitor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Chairperson MacNeil and Commissioner Finkel:

In his report of injury form, the claimant indicated that his injury occurred while he was "cleaning a drainage with a shovel". He began to experience pain in his chest, left shoulder and arm. This history is confirmed by the treating physician who recorded the workers history of injury as follows: " At work, while pushing with a shovel debris in a channel, felt pain in left arm, chest (left front area) and left shoulder". A diagnosis of "sprain of muscles of left shoulder, left arm and chest" was proposed. The treating physician later made a change in diagnosis to that of tendinitis of the left shoulder. The claimant underwent four weeks of extensive physiotherapy after which he was discharged. The physiotherapist considered nothing more to be done as the claimant, despite a little shoulder pain, had full range of motion and good strength.

Eight months following the compensable accident, the treating physician referred the claimant to a pain and stress management physician. Upon examination, the specialist noted full range of motion of the claimant's left shoulder with some grimacing. Impingement tests were negative. He assessed the claimant as having a sleep disturbance together with myofascial pain of the pectoralis, latissimus dorsi and infraspinatus. Treatment included a prescribed sleeping medication and a course of trigger point acupuncture applied to the pectoral muscles.

On March 3rd, 1998 the specialist provided a progress report to the treating physician, in which he advised:

"In general, he is sleeping the whole night through without any medications. He manifests full range of motion of the left shoulder. On my last exam of February 10th, he still had some mild evidence of myofascial activity in the pectoralis major and infraspinatus. I needled trigger points in those muscles on that occasion. Mr. [the claimant] is currently undergoing a physiotherapy program. I thought that this would probably resolve his remaining pain complaints."

It was on the basis of the foregoing report that the WCB regarded the claimant to have recovered from the effects of his compensable injury and therefore benefits were terminated. The treating physician on the other hand did not consider the claimant's condition to have changed appreciably at all and so he arranged for the claimant to be examined by an orthopaedic surgeon.

A left shoulder arthrogram performed on September 17th, 1998 confirmed that there was no evidence of a rotator cuff tear. On examination, the orthopaedic specialist determined that most of the claimant's pain in the left shoulder appeared to arise from the acromioclavicular (AC) joint. A conservative course of treatment including some cortisone injections was employed. Ultimately, it was determined that conservative measures were not producing satisfactory results and so the surgical procedure of decompression of the rotator cuff and the AC joint was entertained. It should be pointed out that the orthopaedic surgeon's understanding as to the history of injury ("a fall onto the left arm") is completely different than that of the claimant's ("while cleaning a drainage with a shovel, I started to feel the pain"). Surgery for left shoulder decompression was scheduled for August 26th, 1999.

Upon becoming aware of the proposed surgery, the WCB arranged for a call-in of the claimant to be examined by one of its medical advisors. An orthopaedic consultant to the WCB conducted an examination of the claimant on March 19th, 1999. We attached a good deal of weight to the conclusions reached by this specialist:

"I am unable to provide a diagnosis for the claimant's continued perceived disability.

Further, I find no evidence of a continuing disability arising out of the workplace incident reported to have occurred on March 6, 1997.

There are no restrictions arising out of this incident, and I believe he is capable of his previous regular occupation on a full-time basis.

The proposed surgical procedure is not the responsibility of the WCB of Manitoba."

The surgery did proceed as scheduled. According to the operative report dated August 26th, 1999 the procedure performed was acromioplasty, distal clavicle excision, partial bursectomy. We found the post operative diagnosis of "AC joint arthritis, rotator cuff tendonitis, bursitis left shoulder" somewhat surprising given that the original diagnosis was "sprain of muscles of left shoulder, left arm and chest".

At the request of the WCB's Rehabilitation and Compensation Services, an MRP was convened on November 9th, 1999. We note in particular the MRP's unanimous responses to the following questions posed by Rehabilitation and Compensation Services:

Q. What is the diagnosis of the injury sustained by the worker on March 6, 1997? What information supports this diagnosis?
A. After review of the records, review of the x-rays and interviewing and examining Mr. [the claimant], the Panellists agree that they cannot be specific as to the diagnosis other than stating that Mr. [the claimant] suffered a strain of the muscles in the area of the left shoulder. There have not been any objective findings recorded. The Panel's difficulties on the day of the panel were increased by the fact that Mr. [the claimant] had undergone surgery to his left shoulder in August 1999.

Q. Has the worker recovered from the effects of the injuries resulting from the March 6, 1997 accident?
A. The Panellists are agreed that Mr. [the claimant] has not recovered from the effects of the injuries resulting from the March 6, 1997 accident since he continues to complain of pain in the same areas which were strained at the time of his accident.

Q. What is the present diagnosis of the worker's condition and the etiology of this condition?
A. On this examination, Mr. [the claimant] has post-surgical pain resulting from his "left shoulder decompression" performed August 26, 1999. In addition, the Panellists note the presence of soft tissue pain on pressure in various areas of the left shoulder that, according to the record, had been present since the accident. The Panellists are unable to give a precise anatomical diagnosis. The early records are incomplete and the later records describe complaints of pain and tenderness on pressure and descriptions of paresthesias without objective findings.

After having considered the evidence as a whole, we find that the claimant's surgery on August 26th, 1999 was not, on a balance of probabilities, in any way related to the compensable injury other than both events involved the left shoulder. In our view, the shoulder difficulties experienced by the claimant subsequent to March 31st, 1999 were a consequence of a non-compensable condition. We further find based on a preponderance of evidence that the claimant had fully recovered from the effects of his compensable injury by the end of March 1999. Inasmuch as the WCB examined the claimant in March 1999 to consider his status as well as the relatedness of the proposed surgery, we feel the claimant is entitled to the payment of wage loss benefits beyond May 6, 1998 up to and including March 31st, 1999.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of December, 2000

Commissioner's Dissent

Commissioner Leake’s dissent:

The minority is of the opinion that the claimant is entitled to wage loss benefits beyond May 6, 1998 until his return to work in January 2000.

In reaching this conclusion the minority references the findings of the MRP wherein they concluded the claimant had not recovered from the effects of his injuries stemming from the March 6, 1997 accident. Also, in reaching this conclusion the minority places weight on the evidence from the claimant given at the hearing that after surgery the claimant’s condition improved to the point where he effectively returned to work in January of 2000.

B. Leake, Commissioner