The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 31, 2001, at the request of the worker. The Panel discussed this appeal on July 31, 2001.

Issue

Whether or not the worker is entitled to wage loss benefits for the period June 10, 1996 to March 25, 1997, less any periods worked.

Decision

That the worker is entitled to wage loss benefits for the period June 10, 1996 until physiotherapy was completed in February 1997.

Background

On April 29, 1996, the worker filed a Worker's Report of Injury indicating that while performing her duties as an assembler she suffered injuries to her right and left arms, neck, wrists, shoulders and hands. The worker described her injury as follows:

"I believe that doing the same movement with my hands for 2 years without knowing that I should be stretching is the cause. I have done a lot of hand crimping, stripping wires by hand. Also my head is always looking down. I believe all of this is the cause of my injury."

In a report dated April 26, 1996, the worker's treating physician noted that the worker was complaining of pain in her right forearm and presented with diffuse arm tenderness. The treating physician provided a diagnosis of tendonitis.

Physiotherapy reports dated May 10 and 27, 1996 indicated that the worker attended nine (9) physiotherapy appointments between April 16 and May 21, 2001. In the May 27 report the physiotherapist noted that the worker was to call after her doctor's appointment to determine if one (1) more treatment was necessary. The physiotherapist further indicated that the worker was to continue with home strengthening exercises.

In a progress report dated May 21, 1996 the treating physician stated that the worker could return to work on May 27, 1996, that she needed stretching breaks at work and that she should complete home exercises.

On May 23, 1996 the claim was reviewed by a medical advisor to the WCB who indicated that the worker's symptoms and diagnosis as indicated in the file were reasonable and could be related to her work activities.

The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on April 29, 1996. Benefits were paid up to May 24, 1996 and the worker returned to work on May 27, 1996.

In a telephone conversation with the adjudicator on June 21, 1996 the worker advised that she was having ongoing problems with her shoulder and was laid off from her employment on June 7, 1996. The worker asked that her benefits be reinstated as she was unable to look for work and was not in receipt of Employment Insurance benefits.

The worker did not attend her physician until June 17, 1996 as he was away and she did not wish to change doctors. In a progress report dated June 17, 1996 the treating physician reported the worker complained of persisting pain in her arms, particularly her left wrist, right elbow and right shoulder. The physician indicated the worker should attend physiotherapy if approved by the WCB.

On July 10, 1996 a physiotherapy consultant to the WCB contacted the physiotherapy clinic where the worker had previously attended and was advised that the worker had not attended for any appointments since May of 1996.

In response to a request by the physiotherapy clinic for approval of further treatments a WCB medical advisor again reviewed the worker's claim. On August 9, 1996 the medical advisor stated his opinion that the worker's current condition was not related to the compensable injury. The medical advisor further confirmed that a referral for further physiotherapy treatments was not in order.

On August 16, 1996 the WCB medical advisor discussed the case with the worker's treating physician. He noted that the treating physician was unable to provide a diagnosis nor was he able to outline any objective findings, rather than there was widespread pain reported despite the worker not being physically challenged at work.

In a July 18, 1996 conversation with her adjudicator the worker indicated that both arms were sore as well as her right shoulder when she returned to work on May 27, 1996. The worker further indicated that two co-workers had been laid off and she asked her manager on June 6, 1996 if there would be further layoffs. The worker was advised that it was possible. At that time she told her manager that she wanted to be laid off as she could not work in her condition because her arms were too sore. The worker was laid off from her employment on June 7, 1996.

In a July 18, 1996 conversation with the worker's manager, the adjudicator was advised that the worker had spoken to the manager around June 6, 1996 expressing an interest in being laid off if there were to be further layoffs. The manager stated that he was not aware the worker was requesting a layoff because of the difficulties with her arms.

On September 9, 1996 Claims Services determined the weight of medical evidence indicated that the worker had recovered from the effects of the compensable injury. Claims Services further concluded that the worker had chosen to terminate her employment and accordingly, there was no basis to reinstate full wage loss benefits effective June 10, 1996.

On or about March, 1997 the worker commenced employment with a different employer, but resigned this position on April 18, 1997. The worker subsequently contacted the WCB and indicated that she was unable to continue in her new position due to pain in her arms. The worker related her current difficulties to the compensable injury of April, 1996 and asked that her benefits be reinstated effective April 9, 1997. Ultimately, the WCB accepted responsibility for the claimant's ongoing complaints and paid wage loss benefits for the period of April 9, 1997 to December 10, 1998.

In March, 2000, the worker wrote to Review Office and expressed disagreement with the September 9, 1996 decision of Claims Services, which held that there was no basis to reinstate full wage loss benefits effective June 10, 1996. The worker indicated that she had never fully recovered from her injury and that she should have received benefits from June 10, 1996 until she returned to work on March 25, 1997.

In a decision dated April 14, 2000, Review Office determined that the worker was not entitled to payment of wage loss benefits commencing June 10, 1996. Review Office indicated there was no medical information to indicate that the worker had been disabled from employment during the period June 10, 1996 to March 25, 1997.

On April 9, 2001, the worker filed an application to appeal Review Office's decision of April 14, 2000. On July 31, 2001, a hearing took place at the Appeal Commission to consider the worker's appeal.

Reasons

We find that the claimant is entitled to wage loss benefits for the period of June 10th, 1996 to sometime in February 1997 when her physiotherapy was completed. In arriving at this decision, we considered a number of factors, the most relevant of which were as follows:

• It was the claimant's evidence that her medical difficulties continued for some time after June 10th, 1996.
• During the period in question, the claimant was actively being treated by her attending physician as well as undergoing a course of physiotherapy and a course of acupuncture.
• A WCB medical advisor was asked to provide an opinion whether there was sufficient medical evidence to support a cause and effect relationship between the claimant's current difficulties and the compensable injury of April 15th, 1996. In a memorandum dated October 24th, 1997, he responded by stating, "Yes - pain appears to have resolved at some point in late 96/early 97 but was reactivated when she returned to similar work in March/April of 97."

The weight of evidence has led us to conclude that the claimant's medical condition had, on a balance of probabilities, resolved in February 1997 when she was discharged from physiotherapy. As previously mentioned, the claimant is entitled to wage loss benefits, however, we note that she applied for and received employment insurance benefits during the period in question. The claimant's appeal is hereby allowed.

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 30th day of August, 2001