Decision #18/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 14, 2000, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on November 14, 2000 and again on December 19, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond February 4, 2000; and

Whether or not responsibility should be accepted for any treatment the claimant receives after February 4, 2000.

Decision

That the claimant was not entitled to wage loss benefits beyond February 4, 2000; and

That responsibility should not be accepted for any treatment the claimant received after February 4, 2000.

Background

This case was previously the subject of an Appeal Panel hearing on June 29, 1999, to determine three issues. A complete background leading up to the June 29, 1999, hearing can be found under Decision No. 119/99 and will not be repeated in its entirety at this time.

Briefly, the claimant experienced pain in her right arm and neck when serging elastic into pants on March 27, 1996, during the course of her employment as a sewing machine operator. Initial medical documentation showed that the claimant was diagnosed with myositis of the right neck and arm muscles and that she displayed degenerative changes in the cervical spine. The claim for compensation was at first rejected by primary adjudication, however, the decision was overturned by the Review Office and then later confirmed by an Appeal Panel on November 1, 1996.

The claimant was assessed by an orthopaedic specialist on October 17, 1997. The report from the specialist showed that the claimant presented with almost full range of movement in her shoulder with slight decrease in power. There was also a suggestion of possible carpal tunnel syndrome and the claimant was referred for testing. The orthopaedic surgeon concluded that the claimant had recovered enough from her shoulder condition and that she could return back to work activity.

The claimant was also treated by a physician specializing in pain and stress management. On November 24, 1997, he agreed that the claimant was ready to go back to work, although a different type of job was required as the claimant contended she was unable to perform her pre-accident duties.

In January and April 1998 the claimant was advised that she was considered to have recovered from her compensable accident by October 17, 1997 and that no further consideration would be given to her case beyond that date.

On June 29, 1999, the case was considered on appeal by the Appeal Commission who ultimately determined that the claimant had not fully recovered from her work related accident of March 27, 1996 and that she was entitled to further compensation benefits beyond October 17, 1997. In part, the Panel made the following comments in its decision:

    "It appears to the Panel that the claimant's benefits were discontinued too soon, possibly as a result of her maternity leave with no attempt to integrate her gradually back into the work force as recommended in the medical reports."

    "the medical evidence from the summer of 1998 continues to suggest that the claimant had right upper extremity shoulder and neck regional myofascial neck pain syndrome manifested by active trigger points, spasm and restriction of movements of the neck and right shoulder joint."

Subsequent file records revealed that updated medical information was obtained from the claimant's treating physicians and physiotherapist together with records from Manitoba Public Insurance regarding a March 4, 1999, motor vehicle accident involving the claimant. File documentation also contained a WCB physical medicine and rehabilitation consultant's examination report dated November 25, 1999.

On January 28, 2000, Rehabilitation & Compensation Services determined based on the weight of evidence that the claimant had essentially recovered from her compensable injury and that benefits would be paid to February 4, 2000, inclusive and final. In reaching this decision, the adjudicator referred to a physiotherapy report, which showed that the claimant was treated between November 16, 1999 to December 23, 1999, and that the claimant's movement, pain, strength and function were all improving. The adjudicator also noted the following comments that were made by the WCB's physical medicine and rehabilitation consultant following his examination of November 25, 1999:

    "there was no definite myofascial pain syndrome activity identified, but more diffused tenderness of uncertain significance including right face and head, right neck, upper chest, medial scapular area, upper extremity forearm and arm.

    The specialist indicated that he would have expected complete resolution of the medial scapular muscle symptomatology related to the surge in duties long ago and as a result of the completion of the directed appropriate treatment, which has occurred to date, plus the physiotherapy treatment as suggested. It was recommended that you return to work on a graduated basis to your regular duties."

On February 29, 2000, the advocate for the claimant appealed the above decision to Review Office. The advocate advanced the argument that the WCB did not help the claimant to integrate back into the workforce as was suggested by the previous Appeal Panel. The advocate further indicated that there was no mention in the examination report of November 25, 1999 indicating that the claimant was ready to go back to work. He also believed that even though the claimant's condition was improving with physiotherapy, coverage for further treatment should still be a WCB responsibility.

In a decision dated April 7, 2000, Review Office denied the claimant's appeal. Review Office made reference to the examination report of November 25, 1999, and the findings of a functional capacity assessment that was performed on April 5, 2000. Review Office was of the opinion that the objective evidence did not support the contention that the claimant continued to have a loss of earning capacity, which was related to her compensable injury. Any suggestion that the claimant could return to alternate work and/or a graduated re-entry basis would be made based on the claimant's subjective complaints and in recognition of the fact that she demonstrated a general lack of physical conditioning. The Review Office indicated that the WCB had no responsibility in this regard.

Review Office concluded the evidence did not support the suggestion that the treatment being received by the claimant was of particular value in leading to a resolution of her complaints. The shoulder and neck stretches that the claimant was instructed to perform as part of a general conditioning program could just as easily be done at home. Review Office saw no basis for underwriting additional treatment.

On June 20, 2000, the advocate for the claimant appealed Review Office's decision and an oral hearing was convened on November 14, 2000.

Following the oral hearing and discussion of the case, the Panel determined that additional information was needed to be obtained from a WCB physical medicine and rehabilitation consultant who had previously examined the claimant on November 25, 1999. A response dated December 6, 2000, was later received from the consultant and was forwarded to the interested parties for comment. On December 19, 2000, the Panel met again to discuss the case further and consideration was given to a final submission from the claimant's advocate dated December 19, 2000.

Reasons

In its decision of August 19th, 1999, the Appeal Commission restored the claimant's benefits on the basis that she was still experiencing ongoing myofascial pain. The WCB arranged for one of its medical advisors specializing in physical medicine and rehabilitation to examine the claimant on November 25th, 1999. Following his examination, the medical advisor recorded in his notes to file that "no definite myofascial pain syndrome activity" was currently identifiable. An adjudicator later discussed these examination notes with the medical advisor. The substance of their conversation was reported in a memo dated January 27th, 2000: "There was no myofascial pain syndrome present and no objective findings in relation to the CI. It was Dr. [name]'s opinion that the claimant has recovered from the CI."

Prior to our making any decision with respect to this case, we requested the medical advisor to clarify his examination report and medical summary of November 25th, 1999.

    Q. What if any, restrictions would you have placed on the claimant at that time (i.e. November 1999)?

    A. I would have placed restrictions, that is temporary restrictions, to light duties.

    Q. Are these restrictions related to the compensable injury or possibly to another source or cause?

    A. No. In my opinion and on a balance of medical probabilities, I would not have placed any restrictions related to the injury of March 27, 1996 in November 1999. She however at that time would likely have required restrictions. The restrictions, in my opinion, would be as a result of the apparent new symptoms post MVA of March 16, 1999. I would also note increased symptoms were reported post pregnancy as well suggested on the file in early 1997.

We find in accordance with the weight of evidence that the claimant had, on a balance of probabilities, recovered from the effects of her compensable injury by the time her benefits were discontinued on February 4th, 2000. In addition, we further find that the claimant's ongoing difficulties are non-compensable and most probably related to the motor vehicle accident she sustained on March 16th, 1999. In view of the foregoing findings, the claimant should not be entitled to wage loss benefits beyond February 4, 2000 and no responsibility should be accepted for any treatment the claimant receives after this date as well. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 24th day of January, 2001

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