The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 25, 2001, at the request of a union representative, acting on behalf of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that she was not entitled to wage loss benefits and services beyond August 21, 2000 and that no responsibility could be accepted for her lower back complaints as being related to the compensable injury of May 11, 2000. The Panel requested that several witnesses be interviewed and upon receipt of the interviews met on July 4, 2001 to discuss the case.

Issue

Whether or not the claimant is entitled to wage loss benefits and services beyond August 21, 2000; and

Whether or not responsibility should be accepted for the worker's lower back complaints as being related to the compensable injury of May 11, 2000.

Decision

That the claimant is not entitled to wage loss benefits and services beyond August 21, 2000; and,

That responsibility should not be accepted for the worker's lower back complaints as being related to the compensable injury of May 11, 2000.

Background

The claimant filed two applications for compensation benefits on May 15, 2000 for a work related incident that occurred on May 11, 2000. The claimant was employed as a nursing assistant II at the time of accident.

In her first application for benefits, the claimant indicated that she had finished a post-operative sponge bath when she reached for a bed side table to obtain deodorant when the drawer came out and she received a slice in between her baby and ring fingers. The claimant indicated she could not remember too much as she lost a lot of blood and had passed out. A nurse from her ward brought her down to the emergency department for treatment.

The employer's report of injury dated May 15, 2000 stated, "sharp edge on drawer of bedside table, v-shape cut to left pinky finger - received stitches from emergency."

On her second application for benefits, the claimant noted that she sustained a cut in between her baby and ring fingers while looking for deodorant for a patient. The claimant stated "Drawer came out and I guess I jolted back when drawer came out. As I lost a lot of blood and passed out, this is what I believe happened." The claimant also noted on this application form that she had been going for therapy because of a sore shoulder for about one month before the accident of May 11, 2000. She further stated, "it seems I have always had a sore back (due to work NAII) - have been going for therapy."

The employer's report of injury dated May 15, 2000 stated, "injury left shoulder, due to pulling out a drawer, the drawer fell out and worker passed out, and was sitting in chair and received four stitches to finger."

Medical reports received and placed on file noted the following:

• a doctor's first report dated May 15, 2000 (date of visit was May 11, 2000) indicated the following worker's history of injury - "pulled drawer from bedside table and draw pulled out and sustained a laceration to L 5th finger". The diagnosis rendered was a laceration to the left 5th finger. The physician recommended a return to work on May 24, 2000 and to remove sutures in 10 day's time.
• an emergency report dated May 11, 2000 diagnosed the claimant with a laceration to the right hand.
• on June 10, 2000, the attending physician provided an "addendum" to the original doctor's first report. The worker's history of injury was noted as, "pulling out a drawer and cut finger. Syncope after and fell to floor - awoke on chair and has had pains cervical spine." Objective findings revealed limited range of movement in the neck and left shoulder. The scar to the left finger was healing well. The diagnosis was degenerative disc disease at the C5-C6 level. The physician noted that the claimant was referred for physiotherapy treatments directed towards the neck and shoulder and was to be off work to June 26, 2000. The pre-existing condition affecting recovery was recorded as brittle diabetes and left rotator cuff.
• A progress report from the attending physician dated June 19, 2000 noted that the claimant complained of persistent pain on the left side of her neck aggravated by movement. By June 30, 2000, the physician recommended a graduated return to work program and a program of massage therapy and acupuncture treatment.
• in a progress report of July 10, 2000, the physician noted that the claimant lifted a suitcase three days ago and complained of low back pain and that it hurt to turn her head to the left. Under general prognosis, the physician stated "low back pain is exacerbating pain left neck".
• an x-ray report of the lumbosacral spine dated July 24, 2000 noted a mild scoliosis convex left. There was fairly severe degenerative disc disease present at L4-5 and L5-S1. No other significant bone, soft tissue, disc or articular abnormality was seen.
• a progress report from the attending physician dated July 24, 2000 noted increasing pain to both buttocks and low back with limited range of motion and pain to the neck. The claimant was referred for a CT scan of the low back and neck and to a physical medicine and rehabilitation consultant for treatment.
• on August 8, 2000, a WCB medical advisor reviewed the case which included a report from a physiotherapist dated July 25, 2000. The medical advisor commented as follows:
  • the claimant had been undergoing treatment prior to the compensable injury for the neck and left shoulder.
  • The claimant had extensive pre-existing degenerative disease of the spine.
  • The mechanism and immediate exam was limited but did not suggest extensive physical injuries.
  • The claimant suffered an aggravation at very most of an area already undergoing treatment. The lower back complaints were not mentioned until two months after the compensable injury.
  • "Based on these facts and progress noted by the therapist, this claimant, in my opinion, has recovered (time allowed between 28 - 70 days) from her aggravation of pre-X (pre-existing). Her residual complaints are now attributable to her pre-X."

In a decision dated August 15, 2000, the claimant was informed by primary adjudication that benefits would be payable up to August 21, 2000, inclusive and final. It was the opinion of primary adjudication, after consulting with a WCB health care advisor, that the claimant had recovered from the effects of her May 11, 2000 work injury and that her ongoing complaints were related to the degenerative changes that were noted on x-ray. It was also determined that there was no relationship between the claimant's low back complaints and the May 11, 2000 neck injury. The WCB was of the view that the claimant's current disability was a result of an underlying or pre-existing condition, the progression of which was not enhanced or accelerated by the accident at work.

On October 23, 2000, a union representative appealed primary adjudication's decision to Review Office. The union representative presented argument that the claimant's compensable accident led to the aggravation/exacerbation of her pre-existing condition and was the reason she suffered time loss from work. It was felt that the claimant was still entitled to compensation benefits and services beyond August 21, 2000.

On November 24, 2000, Review Office considered the union representative's submission along with additional file documentation which included the results of a CT scan dated September 18, 2000 and a report from a physical medicine and rehabilitation specialist dated October 3, 2000. Review Office determined that no further responsibility would be accepted for the case after August 21, 2000 or for the claimant's back complaints as they were not considered related to the May 11, 2000 work injury.

Review Office supported the opinion expressed by a WCB medical advisor that the claimant likely sustained an aggravation of her pre-existing shoulder and neck problems at the time of the May 2000 workplace event. Review Office stated, "Considering what little we know of the mechanics of injury with respect to both the shoulder/neck (pulling drawer out, cut finger, bled and fainted falling to floor) we can only assume that at the most her pre-existing shoulder/neck problems were temporarily aggravated".

Review Office determined that the claimant had essentially recovered from the effects of her compensable injury based on the following weight of evidence,

• minimal clinical signs;
• a normal neurological examination;
• pre-existing degenerative changes;
• the fact that the worker was receiving treatment to her neck/shoulder prior to the workplace incident, and
• the opinion expressed by the WCB medical advisor.

Review Office also found no evidence to support the claimant's contention that her low back injury was a direct result of her problems with her neck and shoulder or that the back injury, which came about approximately 2 months post-accident, was causally related to the workplace injury. On January 22, 2001, the union representative appealed Review Office's decision and an oral hearing was convened on April 25, 2001.

Following the hearing and discussion of the case, the Appeal Panel requested a report from a physiotherapist who had treated the claimant prior to the compensable accident together with sworn statements from two of the claimant's co-workers with respect to the mechanics of the May 11, 2000 accident. On June 18, 2001, all parties were provided with the statements that the Appeal Commission obtained from the claimant's co-workers and a report from the physiotherapist dated May 17, 2001 and were asked to provide comment. On July 4, 2001, the Panel met to render its final decision and took into consideration a submission from the employer's advocate dated June 26, 2001.

Reasons

After hearing the oral evidence on this appeal, the Panel was of the opinion that more information was required from the period of time that the claimant actually sustained her injury, that being the events surrounding the accident on May 11, 2000. Two sworn statements were obtained from co-workers of the claimant who assisted her after her injury. In addition, a report from the claimant's physiotherapist was obtained as this individual was treating the claimant for her neck and shoulder prior to the work injury of May 11, 2000.

The reason for obtaining the statements of the claimant's co-workers was because the claimant's file contained very little information as to the mechanics of her injury. This was particularly due to the fact that the claimant had little or no recollection as to what happened after she cut her finger and saw the blood because she fainted. There was supposition that she had fallen on the floor which supposition was later repeated as fact in her attending physician's report of June 10, 2000.

The statements obtained by the Panel indicate that there had been no fall to the floor. The first nurse who attended to help the claimant has indicated that the claimant was standing beside the bed when she entered the room. This individual got her to sit down in a chair because she was "getting paler." It was while she was seated that she fainted and the nurse was able to keep her in her chair. During the entire syncope episode, the claimant was supported by this nurse. There was no fall to the floor either from a standing or seated position.

The second nurse who attended the scene only came in to the room after the syncope episode. She confirmed that when she came in the claimant was seated in a chair and the room was not in any disarray as it might have been had there been a fall to the floor.

The report of the physiotherapist dated May 17, 2001 reveals that the claimant was being actively treated prior to her injury. Between April 24, 2000 and May 9, 2000, the claimant had attended for physiotherapy on six different occasions for left side neck, shoulder and arm pain. The physiotherapist described the treatment as being for joint restriction in her cervical spine and upper thoracic spine with secondary myofascial increased tone. The recommendation was that the claimant required 12 -14 weeks of treatment.

Five days after her work injury, the claimant made a 2nd report to the WCB advising that she had been going for therapy because of a sore shoulder for about one month before the accident of May 11, 2000. She also noted that "it seems I have always had a sore back I have been going for therapy." The claimant's first report of injury made no mention of any problem other than the cut finger.

Subsequent medical reports on the claimant's file reveal that there was no report initially to the attending physician of anything other than the cut finger. Subsequent medical reports indicated pain in the cervical spine, limited range of movement in the neck and left shoulder and persistent pain in the left side of her neck aggravated by movement. Most of the symptoms are the same as what she was being treated for by her physiotherapist pre-accident. The recommended course of treatment was "physiotherapy treatments directed towards the neck and shoulder."

The Appeal Panel is unable to find any appreciable evidence of change between the claimant's pre-accident and post accident status. This, combined with the evidence indicating that there was no actual fall to the floor either from a standing or seated position lends credence to the employer's argument that there is no compelling evidence whatsoever that the claimant sustained any injuries other than a cut finger as a result of her accident of May 11, 2000. It is difficult for the Panel to understand how any other injury could have occurred to the claimant. Accordingly, the claimant is not entitled to wage loss benefits beyond August 21, 2000.

With respect to the second issue of whether or not responsibility should be accepted for the worker's lower back complaints as being related to the compensable injury of May 11, 2000, the decision of the Panel is no. There is little to suggest in the evidence that the claimant suffered anything other than a cut finger as a result of the compensable accident. Therefore, any aggravation of her lower back at a later date could not have been related to this accident.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of August, 2001