The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 17, 2001, at the request of the claimant's brother. The Panel discussed this appeal on several occasions, the last one being December 11, 2001.

Issue

Whether or not the worker is entitled to wage loss benefits for the period September 26, 2000 to November 22, 2000, inclusive; and

Whether or not the worker is entitled to wage loss benefits beyond January 16, 2001.

Decision

That the worker is entitled to wage loss benefits for the period September 26, 2000 to October 24, 2000, inclusive; and

That the worker is not entitled to wage loss benefits beyond January 16, 2001.

Background

While employed as a sewing machine operator in October 1998, the claimant developed pain in her neck while turning a heavy bag. The following day she noticed a lump on the left side of her neck. Initial medical information diagnosed the claimant with a sprain of the cervical spine and in the left shoulder. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits commenced on October 19, 1998. Subsequent medical information revealed the following:

• in December 1998, a WCB medical advisor assessed the claimant with a strain injury to her cervical and upper thoracic soft tissues. It was felt that the claimant's cervical spine range of motion was resolving, however, current clinical evaluation was persistent with early myofascial focus over the left levator scapula and trapezius.
• the claimant was assessed by a physician specializing in pain and stress management commencing in January 1999. On March 31, 1999, the specialist noted that the claimant had ongoing restriction in range of motion of her neck and some weakness in her shoulder. It was felt that the claimant was ready to commence a gradual return to work at light duties and that she continue to attend physiotherapy. By September 16, 1999, the specialist noted that the claimant had some shortening of the left trapezius and infraspinatous.
• in a report dated November 12, 1999, a physician and surgeon diagnosed the claimant with myofibrofascitis.
• x-rays taken of the cervical spine on November 15, 1999 revealed no loss of cervical lordosis and no abnormalities were demonstrated in either the left shoulder or wrist.
• on February 24, 2000 a WCB physical medicine and rehabilitation consultant noted subjective complaints of discomfort on palpation over the left upper quadrant soft tissues and proximal arm. There was no active myofascial pain involvement. He stated that the push for production upon returning to work at regular duties sewing heavy bags re-irritated the soft tissue symptoms in the left upper quadrant.
• A Doctor's First Report dated April 17, 2000 noted that the claimant was flipping a cloth at work and developed pain and weakness at the left neck and left arm. Examination showed a painful arc at the left shoulder at 45 degrees, decreased strength of the left hand and possible Raynaud's phenomenon. The impression was a cervical strain, left shoulder strain, weakness left shoulder, left arm and left hand. Sedentary work was suggested. On May 16, 2000, the physician noted a painful arc syndrome of the left shoulder. By September 7, 2000 the physician reported ongoing left shoulder painful arc syndrome at 55 degress.

On August 31, 2000, the claimant was notified by the WCB's Healthcare Management Services that arrangements were made for her to be examined by a WCB healthcare advisor on September 26, 2000. On the morning of the examination, the WCB received a telephone call from a relative indicating that a relative was dying and the claimant had to travel to Calgary with her mother as she did not speak good English. In a later conversation with a WCB adjudicator, the claimant's brother advised that he did not know how long his sister would be gone or when she would be back. In a letter dated September 28, 2000, primary adjudication determined that the claimant's wage loss benefits would be suspended as of September 25, 2000 in accordance with the Workers Compensation Act (the Act) that stated:

"Where a worker fails to submit to an examination, or obstructs the examination, the right to compensation is suspended until the examination has taken place; and no compensable is payable during the period of the suspension unless the board otherwise determines."

On October 24, 2000 the claimant's brother called the WCB stating that his sister was back in town and that the WCB could now arrange for a WCB examination. The claimant was later examined by a WCB rehabilitation and medicine consultant on November 23, 2000. Based on his examination findings, the consultant concluded that there were no objective evidence of any residuals related to the post injury on a balance of medical probabilities.

On January 9, 2001, primary adjudication determined that the claimant likely sustained a muscular injury as a result of her October 1998 work related accident and from the weight of evidence she had recovered from the effects of her compensable injury. The claimant was advised that wage loss benefits were not payable beyond September 25, 2000 as the weight of medical evidence no longer supported a loss of earning capacity on a balance of probabilities. On March 8, 2001, the claimant's brother appealed this decision and the case was referred to Review Office.

Prior to considering the appeal, Review Office requested and obtained additional information from the claimant' treating physical medicine and rehabilitation specialist dated May 1, 2001 and an opinion from a WCB physical medicine and rehabilitation consultant dated May 16, 2001.

On June 1, 2001, Review Office determined that the claimant was entitled to wage loss benefits from November 23, 2000 to January 16, 1001 inclusive. Review Office noted that in the opinion of the WCB physical medicine and rehabilitation consultant, there were no objective medical findings to suggest the worker was still suffering from the effects of her October 7, 1998 soft tissue injury. He also indicated there would be no basis for any persisting rotator cuff/impingement problems given the lengthy period of time since she last worked. Review Office was of the opinion that the weight of medical evidence established that the claimant had recovered from the effects of her October 7, 1998 injury and there was no longer any loss of earning capacity resulting from the compensable injury.

Review Office also determined that the claimant's wage loss benefits should have been reinstated effective November 23, 2000 the date that she attended the previously cancelled medical appointment. Based upon the WCB's procedure for discretionary termination of benefits, Review Office found that the claimant was entitled to wage loss benefits until January 16, 2001. In August 2001, the claimant's brother appealed Review Office's decision and an oral hearing was arranged.

On October 17, 2001, an oral hearing was held at the Appeal Commission, after which the Panel decided that it would require additional medical information prior to discussing the case further. On November 23, 2001 all parties were provided with a number of medical reports that were received from two of the claimant's treating physicians and were asked to provide comment. On December 11, 2001, the Panel met to consider the case which also included a submission from the employer's advocate dated December 6, 2001.

Reasons

The worker in this case had a compensable left neck/shoulder injury in 1998 and received benefits from the Workers Compensation Board (WCB) until January 16, 2001. She has filed an appeal on two decisions made by the Review Office about her entitlement to wage loss benefits.

Entitlement to Benefits from September 26, 2000 to November 23, 2000

The first issue deals with the suspension of benefits for a two month period in the middle of the worker's claim, because of a missed appointment for a medical examination by a WCB medical advisor. The claimant is appealing the suspension of her wage loss benefits from September 26, 2000 to November 23, 2000, when the rescheduled examination took place.

The relevant legislation is subsection 21(2) of The Workers Compensation Act (the Act) which states:

21(2) Where a worker fails to submit to examination, or obstructs the examination, the right to compensation is suspended until the examination takes place; and no compensation is payable during the period of the suspension unless the board otherwise determines.

In order for the worker to be successful on this issue, the panel would have to determine that the reasons for the worker's non-attendance for her examination would allow us to exercise the discretion that last words of subsection 21(2) provide. After a review of the evidence and of the circumstances surrounding the call-in examination, we do find that the claimant is entitled to a restoration of benefits for a portion of the period, from September 24, 2000 to October 23, 2000 inclusive.

The worker in this case was in receipt of ongoing wage loss and medical aid benefits under this claim for almost two years, as of September 2000, largely due to persisting irritative myofascial pain findings that had been identified by a WCB rehabilitation consultant at an earlier call-in examination.

In August 2000, the Board received a progress report from the worker's attending physician. The report referred to a new problem with the claimant's shoulder, which was flagged by the WCB's healthcare department for review. A note from that department, dated August 30, 2000, indicates there were potential new medical conditions identified, as well as concerns regarding psychological conditions and whether they were being treated. A call-in examination was recommended, to determine the claimant's status and what medical restrictions might apply.

At the time of the recommended call-in examination, this claim was not moving toward resolution and termination of benefits, but toward careful management of an increasingly complex medical matter that would require increasing medical interventions. While the claimant's examination on November 23, 2000 ultimately found that the claimant's symptoms had largely resolved, we note that no one was suggesting that the claim (or entitlement to benefits) was at an end, before or on September 26, 2000, when the claimant failed to appear for the examination.

On the morning of the scheduled appointment, the worker's brother contacted the Board stating that the worker was leaving to Calgary for a family emergency, and would not be able to attend the examination. The adjudicator, and later the Review Office, invoked the provisions of Section 21(2) of the Act, and advised that the worker would have her benefits suspended until such time as she was actually examined by the WCB medical advisor.

Her brother next contacted the Board on October 24, 2000, indicating that his sister had returned the previous evening, and that she wished to have the Board medical examination rescheduled. A date was set for November 23, 2000.

We find that the claimant's failure to attend the medical examination would normally result in the suspension of compensation of benefits. However, we do accept that the claimant's reasons for non-attendance - the family emergency requiring her to leave the city - allow us to use the discretion provided by the Act, and to restore compensation benefits for at least part of the period.

The Act does require workers to mitigate or lessen the impact of their injury and the costs associated with the injury. In this case, we note that the claimant or her brother could have begun the process of rebooking her appointment prior to her return to Winnipeg, rather than waiting until her return. For this reason, we are not prepared to cover wage losses incurred in the delay between her return to Winnipeg (October 24) and the date of the rescheduled examination.

Accordingly, we would authorize the continued payment of wage loss benefits for the period of her absence from Winnipeg, being September 26 to October 23, 2000. Therefore, the claimant is partially successful in her appeal of this issue.

Entitlement to Benefits after January 16, 2001

The second issue under appeal deals with the claimant's wage loss benefits being terminated as of January 16, 2001. The claimant argues that she had not recovered from the effects of her injuries as of that date, and that she is entitled to ongoing wage loss benefits beyond that date.

Section 39 of the Act states that an injured worker who suffers a loss of earning capacity as a result of the injury is entitled to wage loss benefits, until the loss of earning capacity ends.

In order for the claimant to succeed on this issue, the panel would have to find that the claimant's compensable injuries were still causing a loss of earning capacity. The panel was unable to make this finding.

We note that the claimant was originally diagnosed with neck and left shoulder strain-type injuries in October 1998, as a result of her work place activities as a sewing machine operator handling very large and bulky materials. Her claim was accepted, and she received ongoing medical aid and wage loss benefits for these injuries.

Later reports note that the claimant had some active myofascial activity, which was treated. However, a gradual return to work program in 1999 was not successful, with the claimant leaving work as of November 12, 1999. A WCB physical medicine and rehabilitation consultant states, in a report dated February 24, 2000, that the claimant suffered a re-irritation of her soft tissue symptoms during the failed return to work program. He notes, however, that there were only limited findings during his examination, with no active myofascial pain involvement, no joint involvement in the arm, shoulder, or neck, and no evidence of neurological involvement. He had concerns regarding the claimant's inconsistent use of thyroid medications, and placed temporary restrictions that would allow the worker to perform light duties.

A second return to work program was terminated after one week when the claimant reported recurring symptoms. WCB later determined that the job duties were outside the suggested restrictions.

During the summer of 2000, medical reports suggested a left shoulder impingement, and possible psychological conditions, and the claimant was then re-examined by the WCB physical medicine and rehabilitation consultant on November 23, 2000. He again notes that there were few findings in his examination of February 24, 2000, and then states,

"The current clinical examination had limited findings restricted to subjective minor tenderness, left trapezius with and (sic) no evidence of any active myofascial pain involvement. There appeared to be as well, minor irritability of the left shoulder at the subacromial bursa, biceps tendon and rotator cuff with no definite confirmation on stress tests of more significant rotator cuff, subacromial bursa or biceps tendon involvement.

Improvement and resolution of the rotator cuff involvement, and of other structural irritative involvement as result of aggravation by the prior work duties would have been expected with a period off regular work duties. There does, as well, appear to have been further improvement in the degree of soft tissue symptomatology as well"

The WCB medical advisor also notes his concern about the claimant's continued non-compliance with her thyroid medication, and that it can contribute to symptoms and delay recovery.

We note that a second physiatrist examined the claimant on April 24, 2001, and had findings essentially the same as those reported by the WCB medical advisor in November 2000. We note in particular that the claimant has mostly full range of motion of her neck and shoulder, and normal strength and reflexes in both upper limbs. Mild impingement of the left shoulder and some soft tissue tenderness was also noted.

We also obtained a medical update from the claimant's attending physician, dated November 13, 2001, regarding his examination the previous day, who notes "she now has full range of motion and equal strength on abduction of the shoulders. Her neck flexion is slightly reduced and she gets pain to the left scalene muscles when she looks to the right she has a left shoulder impingement syndrome that has improved."

We place particular weight on these last three reports, since they cover the period before and after the claimant's benefits were terminated, as well as her current status. Based on the minimal findings in these reports, we find on a balance of probabilities that the claimant has recovered from the effects of her October 26, 1998 compensable injury, and is no longer suffering a loss of earning capacity that would entitle her to further wage loss benefits after January 16, 2001.

Accordingly, the claimant's appeal on this issue is denied.

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 8th day of January, 2002