Decision #37/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on October 23, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being February 12, 2002.Issue
Whether or not the worker is entitled to the payment of wage loss benefits beyond March 14, 2000.Decision
That the worker is not entitled to the payment of wage loss benefits beyond March 14, 2000.Decision: Unanimous
Background
On October 2, 1998, the claimant sustained an injury to her right shoulder during the course of her employment as a leather cutter. At the time of accident, the claimant was lifting skins on rotation from side to side when her shoulder "gave way". Reports from her attending physician diagnosed the claimant with a strain to her neck and right shoulder region.The Workers Compensation Board (WCB) accepted the claim and wage loss benefits were paid from October 2, 1998 to March 11, 1999 when the WCB determined that the claimant had recovered from the effects of her compensable injury. On July 2, 1999, Review Office overturned the decision and the claimant's benefits were reinstated.
In October 1999, a WCB physical medicine and rehabilitation consultant assessed the claimant. The consultant took into consideration the mechanism of injury and was of the opinion that the claimant sustained a medial scapular and top of the shoulder muscle strain.
On November 30, 1999, a CT of the cervical spine showed a moderate sized right posterior lateral disc protrusion at C5-C6. The preliminary digital radiograph demonstrated a mild narrowing of the C5-C6 disc space, as well as reversal of normal lordosis, which appeared to be related to a muscle strain.
A report authored by a physical medicine and rehabilitation specialist dated December 16, 1999, noted that the claimant still had a tendency not to rotate her neck fully, but when made to do proper rotation, she had full mobility of her neck. This showed that the claimant exhibited a lot of behavior problems. On examination, the claimant had a taut band in the left trapezius, which was needled, sprayed and stretched.
On January 13, 2000, a WCB physical medicine and rehabilitation consultant reviewed the November 30, 1999 CT scan results. On a balance of probabilities, he was unable to relate the CT findings to the mechanism of injury. On January 18, 2000, a pain and stress management physician felt that the claimant may benefit from five acupuncture treatments and a physiotherapy program prior to her return to work.
Following an examination on February 2, 2000, a chiropractor concluded that the claimant presented with signs of abnormal pain behavior and an appointment was scheduled for two days later. The claimant, however, called the chiropractor's office to state she was stiff and aching and was not prepared to continue with therapy.
In a memo dated March 2, 2000, the WCB's rehabilitation and physical medicine consultant concluded that the claimant had recovered from the effects of her compensable injury and that her ongoing problems were likely related to pre-existing degenerative changes in the cervical spine as well as a disc protrusion at C5-6.
On March 7, 2000, the claimant was advised that wage loss benefits would be paid to March 14, 2000 inclusive and final. It was the opinion of primary adjudication that the weight of evidence did not support a cause and effect relationship between her October 2, 1998 compensable injury and her ongoing symptoms. Primary adjudication determined that the claimant's ongoing problems were likely related to the pre-existing disc protrusion and degenerative changes of the cervical spine. It considered that this condition had not been caused or enhanced by the compensable injury and that the compensable injury was no longer contributing to her ongoing symptoms. The decision was appealed to Review Office by the claimant.
In a decision dated March 31, 2000, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond March 11, 2000 based on the following rationale:
- the physician who initially treated the claimant on October 6, 1998 diagnosed her condition as a strained neck and right shoulder. Subsequent medical reports from several physicians confirmed this diagnosis.
- medical reports indicated that the claimant tended to keep her neck stiff and rigid, but when she was made to do proper rotation, she had full mobility of her neck. The physician was of the opinion that there was a lot of behavior problems and a lot of functional overlay which was impacting on her recovery.
- Review Office was of the opinion that the claimant had suffered a muscular injury at the time of the accident and had now recovered from the muscular injury.
On October 23, 2001 an oral hearing was held at the Appeal Commission. The Appeal Panel hearing the case requested additional information from the claimant's treating physician and employer, prior to rendering a decision. On December 7, 2001, all parties were provided with copies of a medical report dated November 23, 2001, a myelogram report of February 16, 2001, and information from the employer dated December 4, 2001 and were asked to provide any additional comments.
On January 3, 2002, the Panel met again to discuss the case and it decided to request additional medical information be obtained from a physical medicine and rehabilitation specialist who had seen the claimant for a follow-up appointment in early August 2000. On January 25, 2002, all parties were again provided with copies of the specialist's consultation reports dated January 11, 2002 and September 3, 2000 along with an EMG report of August 4, 2000 and were asked to provide further comments. On February 12, 2002, the Panel met again to discuss the case and review a submission from the worker advisor's office dated February 4, 2002.
Reasons
In arriving at our ultimate decision, we attached considerable weight to the following body of evidence:- November 10th, 1999 - Letter from the Physical Medicine and Rehabilitation consultant to the treating physician. On examining her, she had one taut band in the left trapezius, which needled, sprayed and stretched her and plan to see her in two weeks. I think a lot of functional overlay is impacting on her recovery because even before I did any thing to her she had full mobility of her neck if she relaxed her neck a bit. I explained to her that if she were to keep her neck in isometric contraction that it would be sore, and that she has to learn how to properly move (sic) her neck.
- November 30th, 1999 - CT cervical spine - Impression: Moderate sized right posterior lateral disc protrusion at C5-C6. The preliminary digital radiograph also demonstrates mild narrowing of the C5-C6 disc space .
- December 16th, 1999 - Letter from the Physical Medicine and Rehabilitation consultant to the treating physician. She still has a tendency not to rotate her neck fully but when I make her do proper rotation, she has full mobility of her neck, showing that there is a lot of behaviour problems.
- January 13th, 2000 - WCB medical advisor memo to file. File reviewed and CT of Nov 30/99. On a balance of medical probabilities I would not be able to relate findings on CT of C spine to mechanism of injury stated for the current claim.
- January 18th, 2000 - Letter from Pain and Injury physician to WCB claim services. Her pain complaints are somewhat reduced. I thought she might benefit from a further five acupuncture treatments. I also think she would benefit from a physiotherapy program to strengthen muscles and control prior to her return to work. I imagine this will be in the range of 1-2 months.
- June 29th, 2000 - Letter from a second Physical Medicine and Rehabilitation consultant to the claimant's union representative. Ms. [the claimant] may have some activity limitations due to her restricted neck motion. However, there are not many activities from which she would be absolutely precluded from a medical perspective. For the present time she should probably limit heavy lifting and overhead work. These restrictions would not be permanent. It is difficult to suggest a specific timeframe for these restrictions, as it would have been expected that more significant improvement should have occurred over the past 1 years.
- February 8th, 2001 - Letter from Section of Neurosurgery Health Sciences Centre to the treating physician. Her physical examination demonstrates a moderate degree of weakness in her brachial radialis upon the right side the left side is entirely normal. The deep tendon reflexes are decreased in the C6 nerve roots on the right side. I think she may have some evidence of residual cervical disc and radiculopathic syndromes thereby. Due to the significant length of time since her CT investigation and her persistent symptomatology and the Workman's (sic) Compensation involvement, she will be arranged for cervical myelogram in order to delineate her problem. I would be prepared to consider her for surgical therapy if this demonstrates persistent nerve root compression. When this is complete she will return for re-evaluation.
- February 16th, 2001 - Cervical Myelogram findings: At the C5-C6 level, there is some posterior disc bulging versus small shallow central and right posterolateral disc herniation. There is no significant central spinal stenosis or spinal cord compression. The myelogram and post-myelogram CT scan shows no convincing evidence of compression of the C6 nerve roots. There is no other evidence of disc herniation, spinal stenosis, spinal cord or nerve root compression at any other imaged levels. No other abnormality is identified.
- November 23rd, 2001 - Letter from Section of Neurosurgery health Sciences Centre to Appeal Commission. This lady has not been reviewed since her last visit on February 8 at which time a myelogram was arranged.
Panel Members
R. W. MacNeil, Presiding OfficerP. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of March, 2002