The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 29, 2002 at the request of the union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 29, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 20, 2001.

Decision

The worker is entitled to wage loss benefits beyond July 20, 2001.

Decision: Unanimous

Background

The claimant was employed as a healthcare aide. On November 15, 1999, the claimant tripped on a mat at work, falling forward onto her hands. The claimant did not suffer any fractures, however, she complained of neck pain radiating to the right and left shoulders. The claimant's pain increased that evening and the following day she attended at the St. Boniface Clinic complaining of stiffness and pain in her neck radiating to her left and right shoulders and down her right arm and dizziness. The Doctor's First Report dated November 16, 1999 noted tenderness in the neck and shoulder area and decreased mobility in the neck and diagnosed the claimant as suffering from cervical (neck) sprain as well as right and left trapezius (shoulder muscle) sprain. The claimant was unable to return to work. The Workers Compensation Board ("WCB") accepted the claim and benefits were paid commencing on November 16, 1999. Physiotherapy was recommended with the WCB medical advisor estimating recovery and return to work within 4 to 6 weeks. The claimant attended 6 weeks of physiotherapy treatment without significant improvement, continuing to complain of upper neck pain and inability to tolerate heavy lifting.

On February 8, 2000, the WCB medical advisor assessed the claimant noting complaints of upper neck pain, right shoulder pain, difficulty sitting for prolonged periods, tingling and burning sensations as well as pain in the right arm, headaches, difficulty sleeping, tenderness in the shoulder girdle and increased pain when performing daily activities. The WCB medical advisor was of the opinion that the claimant was not capable of returning to her heavy duties as a healthcare aide and recommended acupuncture, ongoing physical therapy, cervical spine x-rays and nerve conduction studies to assess the tingling in her right arm and numbness in her fourth and fifth fingers.

The claimant completed 4 additional weeks of physiotherapy and underwent acupuncture treatment without significant relief of her symptoms. A CT scan was conducted on July 5, 2000 and nerve conduction studies were done on July 25, 2000. The findings of the CT scan revealed a left paracentral disc bulging at C5-6 or possible tiny disc herniation. There was no evidence of spinal stenosis or nerve root compression. No other significant abnormality was identified. The WCB medical advisor was of the opinion that the slight bulge was not of a significant size and was not related to the injury. The nerve conduction studies suggested subtle changes of previous C7 root damage but there was no evidence of ongoing denervation. There was no evidence of radiculopathy (spinal nerve disease).

On October 20, 2000, almost one year after the injury, the claimant was examined and assessed by a WCB physical medicine and rehabilitation consultant. The claimant related continuing burning, aching and stabbing pain in her right shoulder and neck, intermittent numbness in her fingers, and difficulty falling asleep. She was taking as many as 9 Advil pills per day for pain. Current examination indicated normal range of movement to the neck and shoulders although symptoms of neck pain and right shoulder pain persisted. The Consultant recommended new cervical spine x-rays and an MRI scan of the right shoulder in view of ongoing complaints of pain. In addition, the Consultant recommended a conditioning physiotherapy program, a further acupuncture trial, pain management counseling and an alternate trial of medication. The Consultant was of the opinion that the soft-tissue symptomology should improve and resolve allowing the claimant to return to her full duties at work.

Subsequent file information indicates that x-rays of the cervical spine and the MRI scan of the right shoulder were normal. The claimant was treated by a clinical psychologist with respect to pain management skills and in March 2001 the claimant began a physical reconditioning program. On April 24, 2001 the physiotherapist assessed the claimant's progress and noted that the claimant's shoulder girdle and upper extremity strength and endurance was limited by objective signs of tremulous movement causing fatigue and pain. The physiotherapist concluded that the claimant was making steady progress but continues to be limited primarily by pain, which significantly affects her ability to function. The physiotherapist expressed concerns regarding the claimant's ability to return to her full duties at work. On May 7, 2001 a case conference was held among the WCB physician, physiotherapist, case manager and WCB physiotherapy consultant to discuss options. Further physiotherapy was recommended as well as consideration of lighter duties at work. A gradual return to work ("GRTW") program over an 8 week period was planned, with restrictions on lifting no more than 10 - 12 pounds, no pivot transfers or lifting above the shoulders.

Difficulties arose during the GRTW program, which began on June 5th and ended on July 22nd, with the claimant reporting that her duties at work resulted in pain flare-ups and tightness making it difficult for her to continue. On June 19th, the claimant transferred a patient causing severe pain in her neck and upper arms. On June 21st, the claimant's physician recommended that she stay off work. According to the claimant, her work duties were outside the restrictions in that she was required on a number of occasions to lift and transfer patients without assistance. The claimant saw her physician again on July 3rd and July 16th for complaints of pain in her neck and shoulders resulting from flare-ups caused by lifting or moving patients. The physician noted tenderness in the claimant's neck and shoulder muscles and a decrease in forward flexion of her neck. In the progress report dated July 16, 2001, the physician recommended continued physiotherapy and that the claimant refrain from lifting objects in excess of 10 pounds and work no more than 4 hour shifts at a time. By this time, the GRTW program required that the claimant work 8-hour shifts with responsibility for heavy care patients requiring lifting and transferring.

On July 11, 2001, primary adjudication wrote to the claimant informing her that her file had been reviewed in consultation with a WCB physical medicine advisor and that, considering the extensive investigations, course of treatments and minimal objective findings, the claimant should have recovered from her compensable injury of November 15, 1999. As a result, wage loss benefits would be paid to July 22, 2001, inclusive and final. On July 19, 2001, the claimant appealed the decision to the Review Office.

On September 28, 2001, the Review Office determined that the claimant was not entitled to wage loss benefits beyond July 20, 2001. The file contains a report dated September 6, 2001 from the claimant's physician who last examined the claimant on August 1st and reported that the claimant continues to show severe spasm of both shoulder muscles. The physician was of the opinion that the claimant cannot return to her duties as a healthcare aid and is only capable of light duties not requiring heavy lifting.

The Review Office sought the opinion of an orthopaedic consultant. The Consultant noted the lack of any significant pathological findings and expressed the opinion that the recovery period for a muscle sprain or cervical spine disc injury far exceeded the norm and therefore the claimant should be performing all pre-accident levels of activity. In its decision, the Review Office concluded that there were insufficient physical findings to substantiate that the claimant remained disabled by reason of her November 15, 1999 work injury. On February 14, 2002, the union representative appealed the Review Office's decision, on behalf of the claimant, and an oral hearing was held on May 29th, 2002.

Reasons

Section 39 of the Workers Compensation Act provides that where an injury to a worker results in a loss of earning capacity, wage loss benefits are payable until the loss of earning capacity ends.

The claimant in this case suffered a muscle sprain or strain to her shoulder and neck that was accepted by the WCB as a compensable work related injury. The issue for this panel to determine is whether, on a balance of probabilities, the compensable injury continued to cause a loss of earning capacity past July 20, 2001. The panel has unanimously determined that it did.

In reaching this decision, the panel considered the evidence of the claimant's condition shortly before her benefits were ended on July 20, 2001. The claimant had completed a conditioning physiotherapy program and was assessed by the WCB physiotherapist as having made some progress, however, it was noted that the claimant continued to be limited in her ability to return to her full work duties due to pain and limited upper extremity strength and endurance.

The case conference held on May 7, 2001, which included input from the WCB physician, physiotherapist, case manager and consultant, unanimously recommended further physiotherapy and a graduated return to work program with specific restrictions on lifting and transferring patients. Unfortunately, no further physiotherapy was undertaken. Although both the worker and employer agreed to the return to work program and its restrictions, the evidence of the claimant indicated that in fact, there was little adherence to the restrictions regarding heavy lifting.

The claimant testified that when she initially reported to work she was assigned to transfer and pull up two patients without assistance, causing immediate flare-up of pain in her neck. Modifications to the schedule were made; however, on a number of occasions in the following weeks the claimant was required to lift or transfer patients far exceeding her weight restrictions. On at least 3 occasions, flare-ups of severe pain to her neck and shoulders caused by heavy lifting resulted in the claimant seeking medical attention from her physician. Specifically, on July 3rd and July 16th, the claimant was examined by her physician who recommended physiotherapy and weight restrictions of 10 pounds, with no more than 4 hour shifts. At this point, it became apparent that the claimant would not be able to comply with the graduated return to work program, which exceeded these restrictions.

The panel noted that during the period that the claimant was experiencing difficulty with the return to work program, a recommendation made by the WCB physician for a second case conference was not followed and no further consideration for physiotherapy treatments or changes to the GRTW program was undertaken. The panel notes the clinical findings of decreased strength made by the physiotherapist in her evaluation of April 24, 2001 as evidence in support of continuing disability as well as the medical reports of the claimant's physician in July and September, 2001. The panel is of the opinion that the decision made on July 11th to terminate benefits was premature and should not have been made without investigation of further treatment modalities or a modified return to work program.

In light of the above, the panel is satisfied, on a balance of probabilities that the claimant's loss of earning capacity is continuing and is related to her compensable injury. The claimant is therefore entitled to benefits beyond July 20, 2001.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of July, 2002