The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 15, 2001, at the request of the claimant. The Panel discussed this appeal on August 15, 2001.

Issue

Whether or not responsibility should be accepted for the worker's recent right shoulder/arm/hand problem and any associated treatment or time loss.

Decision

That no responsibility should be accepted for the worker's recent right shoulder/arm/hand problem and any associated treatment or time loss.

Background

On November 26, 1999 the claimant filed an application for compensation benefits indicating that her employment activities as a photofinishing packaging operator caused discomfort in her back, neck, right shoulder, right arm, right elbow, right wrist and tingling in her right fingers. The claimant advised that her right shoulder has caused her some level of discomfort for just over a year and that she had seen a physician for her difficulties and was treated by physiotherapy.

In early January 2000, a Workers Compensation Board (WCB) adjudicator spoke with the attending physician by phone. The physician indicated that he first saw the claimant in December 1998 for shoulder difficulties and that she gave him no indication that this was work related. The pain seemed to be muscular in nature and was affecting the trapezius and neck area. He saw the claimant again for the same complaints on August 30, 1999 and the claimant advised him that she had been attending physiotherapy for the problem. The next appointment was November 22, 1999 when the claimant felt she couldn't work. X-rays were taken the same day but they revealed no abnormality. The physician indicated that he saw the claimant for follow-up on November 30th and that he had not seen the claimant since. When discussing the diagnosis, the physician couldn't state with certainty what exactly the claimant's problem was, but felt that it was due to repetitive tasks.

On January 27, 2000, a WCB medical advisor assessed the claimant. The differential diagnoses were outlined as follows:

1. C6-C7 root lesion of unknown etiology and cervical spine irritability.
2. Region myofascial pain syndrome involving the right shoulder girdle and forearm musculature.
3. Assessment of her wrists revealed a clicking which was reproducible over the carpus on the right hand side with some laxity of lunate and capitate.
4. There was evidence of chronic strain/sprain phenomena involving the left shoulder girdle.
5. Cervicogenic vertigo.

The medical advisor recommended that the claimant undergo a neck x-ray, a CT scan and nerve conduction studies. The medical advisor was of the view that the claimant was capable of modified duties such as a customer service representative, however, the repetitive rigors of the specific hands on line would be beyond the claimant's capabilities at this point.

On March 1, 2000, the WCB confirmed with the claimant that her employer could provide alternate duties effective March 7, 2000 that were in keeping with the following restriction, "all repetitive activities involving the right shoulder and heavy lifting." Wage loss benefits would be paid to March 3, 2000 inclusive and final. The claimant was advised that the WCB would continue to monitor her medical status inasmuch as she had not completely recovered from the effects of the accident.

A CT of the cervical spine was performed on March 10, 2000 and it revealed no evidence of spinal stenosis or of a disc protrusion. A progress report received from the attending physician dated March 30, 2000 indicated that the claimant was recovering gradually but she experienced pain with her new job duties.

In a June 19, 2000 memo, a WCB adjudicator recommended that the case be closed as the claimant had returned to work in March 2000 and also because there had been no further medical appointments since March 30, 2000.

On July 4, 2000, the claimant contacted her adjudicator and indicated that she was relocating to British Columbia in October or November 2000 and that she would be looking for alternate work. The claimant was advised that if she found work beyond her restrictions, the WCB may not accept responsibility for her ongoing problems.

The claimant contacted the WCB on December 8, 2000 to advise that she had obtained a job with a new employer in Victoria, BC as a customer service representative on November 21, 2000. The claimant didn't think that the job would require her to be on the cash registrar as much as she had been with the accident employer. She stated that her arm/shoulder was fine prior to working with her present employer and that she received no ongoing medical treatment. The claimant indicated that at first she was working 4 hour shifts. She worked a full 7 hour shift on November 27, 2000 when she noticed severe pain shooting up her arm and tingling in her right index middle and 3rd fingers. The claimant continued working to December 7, 2000 and doing stretching exercises. The claimant believed that her current time loss was related to her prior injury of November 16, 1999 and that she was therefore claiming time loss benefits.

In a letter dated January 26, 2001, the claimant was informed that the WCB was not accepting any further responsibility for any recent time loss and for any further medical treatment. The claimant was informed that her case had been reviewed by a WCB medical advisor who was of the view that there was no ongoing cause and effect relationship between the compensable injury and her current shoulder and arm difficulties. It was the opinion of the WCB that the claimant had recovered from her compensable injury of November 16, 1999. On January 30, 2001, the claimant appealed the decision to Review Office.

On February 11, 2001, the WCB received the claimant's application for compensation benefits for an injury occurring on November 29, 2000. The claimant noted that she had been working on a cash counter and attempted to lift a box of Christmas lights weighing two pounds when she experienced a sharp pain in her right hand followed by pain up the right arm into her shoulder. The claimant reported her injuries as pain in right hand/arm to shoulder, tingling/numbness of fingers of right hand.

On February 16, 2001, Review Office determined that no responsibility would be accepted for the worker's recent right shoulder/arm/hand problem or for any associated treatment or time loss. Review Office was of the view that there was no evidence to link the claimant's recent difficulties to the November 1999 compensable injury. Review Office noted that the accident employer accommodated the claimant back to work at a different job on March 7, 2000 without any wage loss. No medical attention was sought or contact made with the WCB, by the worker after March 30, 2000, until approximately 8 months later in December 2000. It appeared that the claimant's decision to leave her accident employer was based on reasons other than the compensable injury.

Review Office felt the claimant's recent time loss and associated medical attention was precipitated by the claimant's actions on November 29, 2000. She had no longer been working for the accident employer at the date and time of the onset of her problems. On March 26, 2001, the claimant appealed Review Office's decision to the Appeal Commission.

Reasons

The evidence reveals that the claimant underwent a CT scan of her cervical spine on March 10th, 2000, which confirmed no identifiable disc protrusion. A WCB medical advisor reviewed the claimant's file and recorded the following comments in a memorandum to file dated January 10th, 2001: "It is my view that the claimant was recovered as it is stated by the claimant on December 8th 2000 that she was fine. Her CT was (N). Likely recovered March 2000." It is significant to note that the claimant did not receive any ongoing medical treatment from March 2000 until sometime subsequent to the December 7th, 2000 incident. We find based on the preponderance of evidence that the claimant no longer experienced a loss of earning capacity after she resumed the new employment position with the accident employer in March 2000.

The claimant left the employ of the accident employer on a voluntary basis on October 21st, 2000. She commenced employment with a new employer in the Province of British Columbia on November 21st, 2000 and it was sometime thereafter that she reports to have suffered a work place injury. We find based on the weight of evidence that the claimant's current medical complaints were, on a balance of probabilities related to her December 7th, 2000 workplace accident in British Columbia. Accordingly, responsibility should not be accepted for the worker's recent right shoulder/arm/hand problem and any associated treatment or time loss.

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 26th day of September, 2001