The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 31, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on January 31, 2001 and on May 18, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond June 1, 1998; and

Whether or not the claimant's restrictions are related to the compensable injuries of June 21 and August 22, 1997.

Decision

That the claimant is not entitled to wage loss benefits beyond June 1, 1998; and

That the claimant's restrictions are not related to the compensable injuries of June 21 and August 22, 1997.

Background

While performing the duties of a warehouse assembler on June 21, 1997, the claimant experienced a sharp pain from her elbow all the way across her shoulder through her neck. On June 23, 1997, the attending physician diagnosed the claimant's condition as a neck, upper trapezius muscle spasm and right brachial plexus irritation. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on June 22, 1997.

On August 5, 1997, a WCB medical advisor assessed the claimant to determine her present status and to see if she was capable of a graduated return to work program. Following the assessment, the medical advisor diagnosed the claimant with a right shoulder/scapular strain. It was felt that the claimant could attempt modified duties at full hours. Restrictions were outlined to restrict lifting to 15 pounds and to avoid work above shoulder level.

File information revealed that the claimant returned to alternate duties at reduced hours on August 1st, 1997 and then to full 8 hours on August 21, 1997. While at work on August 22, 1997, the claimant accidentally fell backwards and struck the back of her head. The diagnosis was spasm and strain of the back and shoulder. The claimant was off work between August 22, 1997 to October 26, 1997. On October 26, 1997, the claimant returned to alternate duties.

On December 5, 1997, February 11, 1998 and March 4, 1998, a physical medicine and rehabilitation specialist assessed the claimant. In a report dated March 9, 1998, the specialist noted that the working diagnosis was mild dural irritation on the basis of disc herniation at C6-7 on the right. There were no obvious physical examination signs to confirm the diagnosis. The specialist felt that it was safe for the claimant to return to full duties. Recommendations were made for a reconditioning program and for the claimant to utilize a step ladder at work to allow her to avoid hyperextending her neck when working at a height.

A graduated return to work program commenced on May 12, 1998 whereby the claimant performed regular and alternate duties. On May 26, 1998, a WCB occupational therapist attended the worksite and assessed the regular duties. It was determined that the job was heavy in nature and the claimant was required to lift in excess of 50 pounds. On June 2, 1998, a WCB medical advisor commented that in her opinion the claimant was not well suited for her pre-accident work, however the medical evidence did not support the claimant was disabled from working due to her compensable injury.

On June 5, 1998, a WCB adjudicator from Claims Services wrote to the claimant. The claimant was advised that the weight of evidence including the medical findings, diagnosis and time that had passed did not support an ongoing cause and effect relationship between the work injury and her current symptoms. The adjudicator was of the opinion that the claimant had recovered from her work injuries. It was also recognized that the claimant may not be capable of her full pre-accident duties, however this was considered a labour management issue and was outside the scope of the WCB.

On September 24, 1998, a worker advisor submitted new medical information from an occupational health physician dated August 13, 1998. The worker advisor contended that this report along with the weight of evidence on file supported, on a balance of probability, that the claimant had not fully recovered from the effects of her June 21, 1997 workplace injury. The worker advisor also requested that the case be referred to the WCB's vocational rehabilitation department to assist the claimant in returning to gainful employment.

In a letter dated November 10, 1998, the worker advisor was informed that the submitted medical information was reviewed by a WCB medical advisor. Based on this review, it was still the opinion of Claims Services that the claimant's current symptoms were not a direct result of the 1997 work injury. With respect to the referral for preventive vocational rehabilitation assistance, Claims Services noted that there was no noted pre-existing condition of significance other than the claimant's small stature. Given this, a referral to preventive rehabilitation was not appropriate.

On September 30, 1999, the worker advisor requested Review Office to consider the case and additional medical information was submitted from a physical medicine and rehabilitation specialist dated June 28, 1999 and August 9, 1999. The case was then reviewed by a WCB physical medicine and rehabilitation specialist on December 3, 1999 at the request of Review Office.

In a decision dated January 7, 2000, Review Office made the determination that the claimant was not entitled to wage loss benefits beyond June 1, 1998 in relation to the June 21 and August 22, 1997 work accidents. Review Office was of the opinion that the claimant's ongoing problems were the result of her pre-existing condition and not the compensable accident.

Review Office also determined that the claimant had work restrictions which were due to her pre-existing condition, (i.e. degenerative disc narrowing at C5-C6) and that the case should be referred to the preventive vocational rehabilitation committee to determine whether the claimant qualified for those benefits. Subsequent file correspondence of April 25, 2000, revealed that the claimant did not qualify for preventative vocational rehabilitation benefits as it was determined that any form of retraining would not allow the claimant to recoup her pre-accident salary.

On January 31, 2000, an oral hearing took place at the Appeal Commission at the worker advisor's request. Following the hearing and discussion of the case, the Appeal Panel requested that arrangements be made for the claimant to be assessed by an independent orthopaedic assessment. The independent specialist's report of March 22, 2001 and a diagnostic imaging report of March 14, 2001, was distributed to the interested parties for comment. On May 18, 2001, the Panel met further to discuss the case and took into consideration a letter from the worker advisor dated April 19, 2001.

Reasons

This is the case of a worker who suffered an injury to her neck and upper back as a result of two separate incidents in June and August of 1997. The first was accepted as a compensable claim by the WCB; the second as a recurrence of the first.

Wage loss benefits were terminated as of June 1, 1998, as it was determined by the board that her ongoing conditions were not causally related to the workplace incidents. This decision was upheld by the Review Office, which concluded that her ongoing problems were due to a pre-existing medical condition. It is from that decision that she appeals to this Commission.

There are two issues to be determined in this appeal: whether or not she is entitled to wage loss benefits beyond June 1, 1998; and whether or not her current workplace restrictions are related to the compensable injuries of June 21 and August 22, 1997.

For both issues to succeed, the panel must determine that her current and ongoing medical problems are - on a balance of probabilities - related to those injuries and not to any pre-existing condition.

We were unable to make such a determination.

Prior to coming to our decision, we conducted an extensive review of the claimant's file; we had the benefit of an oral hearing at which presentations were made by representatives of both the claimant and the employer and which allowed us to question both parties; and we had a report by an independent medical examiner.

Over a period of a couple of years, the claimant was examined - or her file reviewed - by a number of medical practitioners. WCB medical consultants and a physical medicine specialist to whom she was referred by the board generally concluded that she was physically able to return to her pre-accident position by June 1998. It should be noted that there was a difference of opinion between two board consultants as to the need for ongoing restrictions.

Two medical specialists, to whom the claimant was referred by her Worker Advisor, came to a different conclusion: that the decision that she was capable of returning to work on June 2, 1998 was "ill-advised, incorrect, and contraindicates reliable information to the contrary in her file."

In his presentation to the panel, the claimant's representative argued that the claimant had yet to recover from the combined effects of the two injuries. In support of this argument, he presented the opinions of the above-noted two medical specialists.

He also objected to the decision of the Review Office, which had concluded that the claimant's ongoing medical problems were "the result of her pre-existing condition and not the compensable accident." He specifically noted that the matter of a pre-existing condition had not been a major consideration, prior to the Review Office decision. We note this matter of pre-existing factors had been mentioned by some of the medical examiners and board adjudication staff on previous occasions.

The employer's representative relied on other, differing medical evidence to support its position that the worker was able to return to her job in June 1998.

We should note that board medical advisors commented on two other factors which, in their opinion, contributed to the worker's difficulty in returning to her pre-accident position. One was that she was never really suited to this job. She is very short and the job involved a lot of reaching above her head to lower boxes that are reasonably heavy. The second was a labour/management issue. The worker had been in this position for only a few months. After returning to work following a lengthy strike, she had been transferred from her previous position, which involved very light duties.

In our initial consideration of this case, we felt we would be assisted by independent medical advice. So, we referred the claimant - and her file - to a "third-party" orthopaedic specialist.

We found his analysis and opinion to be very persuasive in coming to our ultimate decision.

As noted above, in considering both issues, we had to determine whether her existing medical problems were related to her two workplace injuries or to a pre-existing condition.

In his report on his examination of the claimant and his review of her file, this medical consultant wrote:

• "In my opinion her current condition is not causally related to her workplace injuries of 21 June 1997 and 22 August 1997.
• The patient had considerable pre-existing degenerative changes in her cervical and dorsal spine prior to her injury of 21 June 1997. .. In my opinion these changes had been present for several years prior to 21 June 1997."

We accept this opinion and, thus, conclude that she has recovered from the combined effects of her two workplace injuries.

The doctor further noted:

• "In my opinion her pre-existing conditions have not been adversely affected by her injuries of 21 June 1997 and 21 August 1997."

Review Office in its decision had noted Board Policy 44.10.20.10 in respect of pre-existing conditions. This was also brought up by the worker's representative in his presentation before the panel.

Two sections of that policy are germane to this consideration:

1. WAGE LOSS ELIGIBILITY

(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition,

the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Pursuant to subsection 1(a), the board compensated the claimant for her wage loss due to the effects of the two accidents, even though her pre-existing condition may have contributed to her symptomatology. However, once she had recovered from those injuries and given that her pre-existing condition had not been enhanced by the injuries - as corroborated by the doctor's opinion noted above, wage loss benefits were terminated, as set out in subsection 1(b).

Therefore, in respect of the first issue before us, we conclude that the claimant is not entitled to wage loss benefits beyond June 1, 1998.

In respect of the second issue, workplace restrictions, the independent medical examiner wrote:

• "In my opinion this patient does have current physical work restrictions but in my opinion these do not limit her employability.
• In my opinion the above advised work restrictions are due solely to her pre-existing conditions and not to her workplace injuries from which she has long since recovered."

We found this opinion to be conclusive of the matter and, thus, find that the claimant's restrictions are not related to the compensable injuries of June 21 and August 22, 1997.

Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of June, 2001