The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 27, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being April 2, 2002.

Issue

Whether or not the worker's right shoulder and neck complaints are causally related to the compensable injury of November 26, 1999.

Decision

That the worker's right shoulder and neck complaints are causally related to the compensable injury of November 26, 1999.

Background

On November 26, 1999, the claimant injured her right arm when she attempted to place a hoyer lift sling under a resident seated in a wheelchair, which accidentally tipped backwards. As a result of the incident, the claimant struck her right arm against the wheelchair and developed right elbow and forearm pain.

On the day of accident, the claimant attended her family physician for treatment and was diagnosed with an elbow contusion and hematoma. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid up to December 1, 1999 when the claimant returned to her regular duties.

In February 2000, the claimant contacted the WCB indicating that she was off work effective February 7, 2000 due to ongoing difficulties. The claimant advised that she had never been pain free since returning to work in December 1999 and that she had continued to perform her regular duties. The claimant advised that she was taking physiotherapy treatment. Wage loss benefits were reinstated effective February 8, 2000.

On March 30, 2000, the claimant was advised by primary adjudication that a graduated return to work program had been arranged with the employer to begin on March 23, 2000 and to run a period of 6 weeks. It was expected that the claimant would return to full duties by April 15, 2000 and that wage loss benefits would be paid to April 14, 2000 full and final.

A progress report prepared by the attending physician dated May 5, 2000 noted right shoulder, arm and elbow pain and a diagnosis change to possible fibromyalgia. On June 6, 2000 a different physician diagnosed the claimant with shoulder and forearm muscle strain and epicondylitis.

On July 10, 2000, a WCB adjudicator spoke with the claimant. The claimant reported that her right arm continued to bother her after she had returned to regular duties in April 2000. She advised that her co-workers were aware of her ongoing pain as they had been assisting her with the heavier duties. The claimant denied having any new incident at work and felt that her current symptoms were related to the 1999 injury. The claimant indicated that she was thrown against the wall and hit her elbow at the time of the accident and did not remember much as she blacked out temporarily. On August 4, 2000, primary adjudication obtained a signed statement from the claimant with respect to her ongoing difficulties.

In a letter to the claimant dated September 1, 2000, primary adjudication noted that when the claimant had contacted the WCB in June 2000 she indicated that she had been thrown against the wall during her accident. As a result of the difference in accident descriptions, statements were taken. Primary adjudication's letter stated, in part, "In your statement, you indicate that the wheelchair struck the underside of your right elbow, throwing you backwards. You advised that initially, you had pain and burning in the right elbow. You indicated that the pain in your shoulder did not appear for two months." After a complete review of the file including a consultation with the WCB's health care advisor, it was the WCB's opinion that there was no relationship between the claimant's right shoulder and neck complaints and her elbow injury of November 26, 1999.

In December 2000, a union representative submitted additional information from a chiropractor and a physiotherapist for primary adjudication's consideration. In January 2001, primary adjudication advised the union representative that the additional information had been reviewed, however, no change would be made to the decision of September 1, 2000. On July 20, 2001, a different union representative formally appealed primary adjudication's decision of September 1, 2000 to Review Office.

In an August 17, 2001 decision, Review Office made reference in its decision to an orthopaedic specialist's report of November 15, 2000, a chiropractic report of October 23, 2000, the comments expressed by a WCB medical advisor on January 11, 2001, and a physiotherapist's report dated December 21, 2000. Based on these reports, Review Office was of the opinion that the shoulder and neck complaints, which were first brought to light on file in a medical report dated May 5, 2000, were not related to the claimant's right elbow injury of November 26, 1999. On September 10, 2001, the claimant appealed Review Office's decision and an oral hearing was convened.

Following an Appeal Panel hearing held on November 27, 2001, the Panel requested that an independent sports medicine specialist assess the claimant's condition. This assessment took place on February 28, 2002. The sports medicine specialist's examination report of March 2, 2002, was forwarded to the interested parties for comment. On April 2, 2002, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

Chairperson MacNeil and Commissioner Monk:

At our request, a sports medicine specialist conducted an independent examination of the claimant on March 2^nd, 2002. Prior to his conducting this examination, the specialist took the opportunity to review all of the relevant medical and collateral information contained on the claim file. In arriving at our decision, we attached considerable weight to the independent specialist’s opinion. We noted, in particular, his following comments:

“In my opinion, the most probable diagnosis of Ms. [the claimant’s] November 26, 1999 compensable injury was a right elbow region contusion. As a direct consequence of the contusion, it is my opinion that the patient sustained some medial humeral epicondylar pain at the enthesis of the elbow flexors. Based on the available information, the patient’s testimony, and the balance of probability in conjunction with the patient’s description of her injury, she likely also sustained a right shoulder rotator cuff strain and a cervical regional muscular strain.”

“At this time, the patient has right shoulder scapular dysfunction with lateral placement and muscle imbalance with shortening of the anterior pectoral musculature and weakness of the scapular retractors and the inferior pole scapular stabilizers. She has local muscular irritability of the posterior rotator cuff, specifically the infraspinatus. In my opinion, the patient’s right elbow symptoms bear a probable direct causal relationship to the incident in question. In my opinion, on the balance of probability, the patient’s other upper extremity and cervical region complaints would bear a direct cause effect relationship to the event in question. In this case, the notion of medical probability or reasonable probability indicate the notion that is more probable than not, from a medical standpoint. It indicates a greater than 50% likelihood that the event would be related.”

“Therefore, in conclusion, in my opinion, on the balance of medical probability, and given the information at my disposal, there is a medically probable causal relationship between the patient’s right upper extremity symptoms, right shoulder girdle symptoms, and cervical spine symptoms, and the event in question.”

After having taken into account and thoroughly weighing all of the evidence, we find that the worker’s right shoulder and neck complaints are, on a balance of probabilities, causally related to the compensable injury of November 26^th, 1999. Accordingly, the claimant’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller
R. W. MacNeil,

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of May, 2002

Commissioner's Dissent

Commissioner Finkel’s dissent:

The worker in this case was provided with benefits for a workplace accident that took place on November 26, 1999, when a wheelchair tipped back and hit her on the right elbow. These benefits were ultimately terminated on April 14 2000, after a graduated return to work was completed. The worker then claimed that she continued to suffer right shoulder and neck complaints that are related to the original compensable injury. The adjudicator and then the Review Office concluded that these medical conditions are not related to the injury. The worker has appealed the Review Office’s decision to this panel.

Section 39(2) indicates that a worker will be entitled to benefits until such time as her loss of earning capacity ends. For the worker to succeed in her appeal, I would have to find that her medical conditions are causally related to the compensable injury and the workplace event, on a balance of probabilities. I was not able to make such a finding in this case.

A review of the file indicates that the worker was originally diagnosed with a right elbow contusion. She lost five days of work and then returned to work for another two months. She then complained of ongoing problems, and was then off work for another 2.5 months.

The medical information indicates that the worker was first diagnosed with a right elbow contusion, and made continuing complaints of right elbow tenderness. By February 14, 2000, right forearm pain was reported. When her benefits were restored in February 2000, she received physiotherapy three times a week for her right elbow/forearm, and the physiotherapy provided a diagnosis in a March 15, 2000 report of a right elbow tendinitis. A medical report of April 7, 2000 notes continuing right forearm pain.

The first mention of a right shoulder problem by the attending physician is in a report dated May 5, 2000, with objective findings of “right shoulder/elbow” and queries a possible diagnosis of fibromyalgia. By June 8, 2000, a chiropractor provides a lengthy diagnosis that in part includes “post-traumatic right glenohumeral, clavicular articulations subluxation complex of cervical, costal, clavicular regions, and cervical reflexive myograms, pareses and parasthesias.”

These diagnoses were reviewed by a WCB medical advisor on August 16, 2000. He notes that the original diagnosis was for an elbow contusion, from which full recovery could be expected.

The worker was later examined by an orthopaedic specialist on November 15, 2000 who does not note any neck complaints. In respect of the right shoulder, he reports:

“Much of the discomfort is located at the lateral aspect of the right shoulder, posterior aspect of the right shoulder and also ulnar aspect of the right elbow. She feels weak. She takes the occasional Advil….

The right shoulder has no obvious deformity. She does have mild tenderness over the AC joint and subacromial space as well as the infero and supra spinatous fossa. Range of motion of the right shoulder though is very well preserved. Drop arm test is negative. The shoulder is stable. Impingement test is negative.”

Because of the complexity of this matter, the panel arranged for the worker to have an independent medical examination by a sports medicine specialist, who provided a report dated March 2, 2002. He reports the worker’s complaints as follows:

“I asked [the worker] to prioritize her current complaints. They are as follows from worse to least bothersome:

· Bilateral shoulder region pain felt over the posterior aspect

· Cervical spine pain felt posteriorly

· Headaches

· TMJ pain

· Right elbow pain

· Right arm weakness

· Right hand parasthesia.”

His physical examination notes relatively normal cervical, thoracic and lumbar alignment, mild wasting of the rotator cuff on the right side posteriorly, full pain-free glenohumeral range of motion, no painful arc with arms. He also notes “There was no AC joint tenderness bilaterally. There was no evidence of glenohumeral instability. There was no sulcus sign. There was no clavicular or sternoclavicular tenderness. She has rounding of the shoulders with evidence of anterior pectoral shortening. Impingement signs of both shoulders were negative.”

The specialist also performed a file review and notes that the documentation of shoulder discomfort is “less than six months” after the compensable injury. He later concludes that,

“She likely also sustained a right shoulder rotator cuff strain and a cervical regional muscle strain. At this time, the patient has right shoulder scapular dysfunction with lateral placement and muscle imbalance with shortening of the anterior pectoral musculature and weakness of the scapular retractors and the inferior pole stabilizes. She has local muscular irritability of the posterior rotator cuff, specifically the infraspinatus. At this time, I see no other specific diagnostic entity of the cervical spine. Ther was no specific diagnostic entity of the thoracis spine.”

The specialist notes on a balance of probability that the worker’s “other upper extremity and cervical region complaints would bear a direct cause effect relationship to the event in question.” However, he later adds the following comments:

“The primary diagnosis in question of a contusion would not develop without the workplace exposure described. However, the other areas such as cervical spine and shoulder discomfort can become symptomatic without trauma in the workplace. Rotator cuff irritability and tendinopathy are very common in the general population. They are often related to postural anomalies as manifested by this patient. They are frequently encountered in people who have to work in an overhead position for a prolonged period of time….

It also seems reasonable from a biomechanical perspective that the other withdrawal maneuvers by the patient could have led to muscular strains of the posturally predisposed tissues in the patient’s cervical spine and shoulders.”

After a review of the medical information, I find on a balance of probabilities that that the worker’s current shoulder and neck complaints are not related to the compensable injury. I place particular weight on the significant delay in reporting of shoulder and neck problems to the health care practitioners involved with the worker; if an extreme withdrawal maneuver had in fact occurred, one would expect these symptoms to be present much earlier. As well, I note that the claimant’s first complaints were about pain to the anterior of the right shoulder only, while current shoulder complaints are now bilateral in nature and to the posterior of the shoulders. I can find no basis for establishing this bilateral condition as a reasonable sequela of the original injury to the right elbow. The sports medicine specialist does notes that the worker has postural problems (rounded shoulders) which can lead to the kinds of symptoms of the shoulders and neck reported by her, which would be a non-compensable condition.

For these reasons, I find that the current shoulder and neck problems are not related to the original workplace injury of November 26, 1999. Accordingly, I would deny the worker’s appeal on this issue.

A. Finkel, Commissioner