The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 15, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being May 18, 2001.

Issue

Whether or not the claimant's complaints beyond December 29, 1999 are related to the compensable injury of January 23, 1998.

Decision

That the claimant's complaints beyond December 29, 1999 are not related to the compensable injury of January 23, 1998.

Background

On February 24, 1998, the claimant filed a claim for compensation benefits in which she related her right shoulder problem to her employment activities as a grocery cashier. The claimant described the accident as follows:

"On Friday, Jan. 23/98 while cashing at my lane, 2 big boxes of chicken legs got caught on the belt. The belt kept rolling & the rest of the grocerys (sic) were piling up. I reached over to grab the boxes & pulled to get them unstuck & that is when I felt the pain in my shoulder. Gradually the pain got worse."

The claimant reported the accident to her employer on February 12, 1998, after seeking medical attention from her attending physician. The physician diagnosed the claimant with a right shoulder pain/impingement and a referral was made for physiotherapy treatments. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the claimant between February 26, 1998 and April 22, 1998.

In late July 1998, the attending physician referred the claimant to a physical medicine and rehabilitation specialist for treatment regarding complaints of ongoing right shoulder, arm and neck pain. On August 12, 1998, the specialist reported that the claimant's history and examination were suggestive of a right rotator cuff tendonopathy without impingement. The specialist arranged a referral to a physiotherapist in an attempt to improve the claimant's shoulder mechanics and function and to decrease the risk for a recurrence.

In a report dated September 10, 1998, the physiotherapist reported that the claimant was last seen on September 3, 1998. The claimant was managing well. The soft tissue tension in the right upper trapezius was decreased. There was full arm range of motion. Shoulder strength had improved. Discomfort was noted with horizontal adduction over the anterior shoulder. The claimant was discharged with instructions to continue with home exercises.

In a progress report of February 11, 1999, the attending physician noted that the claimant experienced increased pain in her right shoulder and neck after lifting a heavy bag of birdseed across the cashier till. The physician recommended the claimant decrease her shifts to 4 hours for two weeks on the express lane. On March 11, 1999, the physician noted that the claimant had pain in her right pectoralis muscle and that shoulder range of motion had improved. The claimant was advised to avoid heavy lifting and to work on the express lane only.

The attending physician submitted progress reports dated May 11, 1999 and September 9, 1999. On October 18, 1999, a WCB medical advisor commented that he could see no relationship between the compensable injury and the claimant's neck complaints given the medical information on file.

On November 10, 1999, the attending physician reported that the claimant had experienced a flare-up of pain in the last month over the anterior right shoulder and neck. Apparently the scanners were not working properly and the claimant had to key in her codes for five hours. Examination findings showed the claimant had full range of motion of the shoulder and neck and mild tenderness of the right shoulder and anterior pectoralis and right cervical area.

In a letter dated December 22, 1999, the claimant was informed that her case had been reviewed by a WCB medical advisor in October and November 1999. The medical advisor stated that there was no longer an ongoing cause and effect relationship between the January 23, 1998 work place accident and the current difficulties she experienced to her neck shoulder or chest region. As the claimant was considered to have recovered from the effects of her workplace accident, no further responsibility would be accepted for the claim beyond December 29, 1999 inclusive and final.

On January 21, 2000, the attending physician wrote to the WCB regarding the claimant's condition. The physician did not believe that the claimant had recovered from the effects of her initial workplace injury as she continued to have intermittent flare-ups of the exact same pain in the same sites, after performing her regular duties.

In a February 18, 2000 memo, a WCB medical advisor indicated that he recently contacted the attending physician whose main concern was the claimant's intermittent bouts of pain of the same type and area as the original compensable injury. The medical advisor pointed out a number of occasions including the specialist's report of 1998 which described a normal shoulder exam and as such it was difficult to relate the claimant's present problems to the specific compensable injury. The medical advisor stated that the attending physician disagreed but understood the WCB's position.

On June 27, 2000, a submission was received from a union representative disagreeing with the WCB's decision of December 22, 1999. Prior to considering the appeal, Review Office sought the opinion of a WCB orthopaedic consultant.

In a decision dated October 13, 2000, Review Office determined that no responsibility could be accepted for the claimant's ongoing complaints beyond December 29, 1999. Review Office stated, in part, that the issue being considered was whether or not responsibility should be accepted beyond December 29 for the effects of a specific workplace injury that took place on January 23, 1998.

Review Office noted that the claimant had been diligent in remaining on the job and it appeared that she may have experienced some flare-ups of problems since January of 1998. Review Office indicated that the WCB's orthopaedic consultant had stated there was no definitive diagnosis of any condition occurring as a result of the claimed incident of January 23, 1998. The mechanism of injury described by the worker would normally create no more than a muscle strain which would not last this length of time. No x-rays had ever been taken and there was now some indication of symptoms in the claimant's neck and arm, although repeated examinations had reported normal range of movement in the worker's neck and shoulder. It was the orthopaedic consultant's opinion that it would be difficult to implicate the compensable injury as being the cause of the worker's claimed persistent symptoms. Review Office concluded there was no evidence to suggest that the claimant's ongoing complaints were related to the January 23, 1998 incident.

On March 15, 2001, an oral hearing took place at the Appeal Commission at the request of the union representative. Following the hearing and discussion of the case, the Panel decided to write to the claimant's rehabilitation medicine specialist for a copy of his recent examination report. On March 22, 2001, the rehabilitation medicine specialist responded to the Panel's request for further information. A copy of his report was forwarded to the interested parties for comment.

On April 17, 2001, the Panel met again to discuss the case. It was determined that follow-up information would be required from the rehabilitation medical specialist prior to rendering a final decision with respect to the issue under appeal. On April 23, 2001, the rehabilitation medicine specialist responded to the Panel's request for further information and a copy of his report was forwarded to the interested parties for comment. On May 18, 2001, the Panel met to render its final decision.

Reasons

After thoroughly reviewing the evidence, we find that the claimant’s complaints beyond December 29^th, 1999 are not, on a balance of probabilities, related to her compensable injury of January 23^rd, 1998. In coming to this conclusion, we attached considerable weight to the following body of evidence:

• Treating Physician’s Progress Report dated November 10^th, 1999 – “Full range of motion shoulder neck. Mild tenderness right shoulder and anterior pectoralis and right cervical.”

• WCB medical advisor’s memorandum to file dated February 18^th, 2000 – “Talked to attending physician for 15 minutes today. Her concern is that Mrs. [the claimant] has intermittent bouts of pain the same type and area as the original compensable injury. I noted that there were a number of occasions including Dr. [treating physical medicine & rehabilitation specialist’s] 1998 report which described a normal shoulder exam and it was difficult to relate present problems to the specific compensable injury.”

• WCB orthopaedic consultant’s memorandum to file dated October 10^th, 2000 – “I do not think we have a definitive diagnosis of any condition occurring as a result of the compensable injury January 23, 1998. The mechanism described would normally create no more than a muscle strain which would not last this length of time. There have been no x-rays taken; there is some indication of symptoms in neck & arm; although repeated examinations report normal range of motion in neck & shoulder. Until significant pathology has been demonstrated it is difficult to implicate the compensable injury as the cause of the persisting symptoms.”

• Treating physical medicine & rehabilitation specialist’s report to the attending physician dated March 22^nd, 2001 – “On examination active shoulder motion was relatively full and symmetrical. No sensory deficit was noted in the right upper limb. Strength was normal in all major muscle groups of both arms. Biceps, brachioradialis and triceps were normal and symmetrical.

Shoulder impingement signs were not as prominent as in the past. There was tenderness over the right anterior shoulder as well as in the mid-portion of the right trapezius muscle. Localized tenderness was also present over the anterior second and third ribs on the right. The acromioclavicular joint and bicipital tendon were not significantly tender at this time.

Her presentation seems to be similar to that in 1998 when I saw her with symptoms related to her job as a cashier.”

• Treating physical medicine & rehabilitation specialist’s report to the Appeal Commission dated April 23^rd, 2001 – “Ms. [the claimant] was seen for review on April 10, 2001. She underwent x-ray evaluation of the right shoulder at the Metro X-ray Clinic on March 20, 2001. No abnormality was reported on that study.

There were no significant changes in Ms. [the claimant’s] presentation when she was seen in follow-up. The x-ray results were reassuring and do not change my previous impression.”

Although the claimant has reported intermittent flare-ups from time to time, we are in agreement with the conclusion that there has been no definitive diagnosis of the claimant’s condition which shows an ongoing relationship to the original compensable injury. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 12th day of June, 2001