The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 19, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 19, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 23, 2001.

Decision

That the worker is not entitled to wage loss benefits beyond September 23, 2001.

Decision: Unanimous

Background

While employed as a nursing assistant on May 14, 1999, the claimant injured her right shoulder while transferring a patient into a reclining chair. The diagnosis rendered by the attending physician was a right shoulder girdle strain and physiotherapy treatments were arranged. The claim was accepted by the Workers Compensation Board (WCB) and benefits were to be paid to July 18, 1999, when it was anticipated that the claimant would be able to return to full duties following a graduated return to work program.

Subsequent reports revealed that the claimant began to develop pain in both shoulders, neck and low back during the return to work program with no new accident or incident. Reports from the attending physician indicated that the claimant was exhibiting symptoms of a cervical radiculopathy. Wage loss benefits were reinstated effective July 20, 1999.

On September 30, 1999, a WCB medical advisor assessed the claimant and it was felt that the claimant likely had a muscular strain of her right paracervical and upper trapezius musculature. Recommendations were made to await the results of a CT scan. If there was no disc protrusion present, it was suggested that the claimant undergo chiropractic treatment and trigger point needling.

A CT scan was performed on September 30, 1999. It revealed degenerative changes in the cervical spine and no disc herniation was present.

On December 20, 1999, the claimant attended a physician at a Pain and Injury Clinic. He reported that the claimant had normal range of motion of her neck and right shoulder. Impingement was negative and neurological exam was normal. There was marked shortening of the right trapezius and scalenes. A short course of trigger point acupuncture was recommended. On February 10, 2000, the physician reported that the claimant’s arm symptoms had improved but she still had persistent pain in the right neck and shoulder. Treatment included a trial of B12 vitamin replacement and Amitriptyline. He suggested that the claimant return to light duties with restrictions to avoid lifting over 10 lbs.

On March 22, 2000, a WCB medical advisor spoke with the attending physician. The attending physician expressed his view that the claimant would not succeed in a return to work program as the claimant had ongoing trapezius spasm and dysfunction due to an underlying radiculopathy.

The claimant attended a sports medicine physician for treatment on March 28, 2000. The diagnosis rendered was cervical dysfunction, myofascial pain and mild impingement. Treatment included a referral to a physiatrist, possible vocational rehabilitation and to await the results of an MRI test.

An MRI examination of the cervical spine dated April 9, 2000, revealed no evidence of disc herniation, spinal stenosis, spinal cord or nerve root compression at any of the imaged levels. There was no evidence of abnormal spinal cord signal intensity.

On May 18, 2000, a WCB medical advisor reassessed the claimant. The claimant continued to demonstrate muscular irritability at the right sternocleidomastoid, scalene and upper trapezius musculature.

Reports were received from a physiatrist dated June 6, 2000 and October 13, 2000. On October 13th, the physiatrist was of the impression that the claimant still had some mild residual pain syndrome but could return to a lighter duty position than her previous job.

On November 2, 2000, a WCB medical advisor reviewed the case at the request of primary adjudication. The medical advisor diagnosed the claimant with right shoulder myofascial pain and was of the view that the claimant had ongoing trigger point irritability. Restrictions were outlined to avoid lifting over 25 lbs. for a four week period, after which it was hopeful that the claimant would be able to return to full regular duties.

On March 13, 2001, a WCB physiatrist assessed the claimant. The physiatrist found minor subjective tenderness of the right trapezius and right lateral neck soft tissues. There was no evidence of any active myofascial pain syndrome activity. There was good screening of the cervical spine, shoulder range of motion and no evidence of any neurologic abnormality. There was no evidence of any cervical or shoulder articular involvement or of rotator cuff involvement. The physiatrist was uncertain as to the exact cause of the current minor soft tissue sensitivity to pressure. However, he expected resolution of the soft tissue symptomatology related to the apparent muscle strain would have occurred long ago. On April 10, 2001, the physiatrist suggested that the claimant increase her return to work program one hour every two weeks until she was back at her full regular duties.

On June 29, 2001, the claimant contacted the WCB indicating that she developed a muscle flare-up when she was performing a 2 person transfer by herself.

In a report dated July 9, 2001, the treating physiotherapist commented that the claimant’s work activities were aggravating her signs and symptoms. It was very difficult to increase the claimant’s strengthening exercise program when she was aggravating her right upper extremity to the point that it was non-functional. The physiotherapist believed that the claimant was susceptible to re-injuring herself in the workplace.

On July 25, 2001, the treating physiatrist noted that the claimant was last assessed on July 9, 2001 when she reported that she had re-aggravated her right upper back and right shoulder while performing a transfer. Examination showed that the claimant had slightly weak supraspinatus tests, otherwise range of motion was normal. The claimant was advised to continue with physiotherapy treatments and to continue with her graduated return to work program. When last seen on July 16, 2001, the claimant reported that she was working 8 hour shifts on light duties and was continuing physiotherapy treatment.

On September 12, 2001, primary adjudication confirmed to the claimant that it was the WCB’s opinion that she had recovered from the effects of her May 14, 1999 work injury such that she was capable of returning to her full time regular employment. The return to work program would be extended for one week and wage loss benefits would be paid to September 23, 2001 inclusive and final.

In a September 14, 2001 letter, the treating physiatrist noted that the claimant had been seen on September 10, 2001. He determined that the claimant sustained a new pain problem and a new injury in June 2001. “In June she indicated on a pain diagram pain inferior to the inferior angle of the right scapula. All her old prior pain diagrams did not indicate discomfort in that area, but were localized in the upper border of the right trapezius. This is suggestive of a new pain problem, and a new injury that occurred in June.” The physiatrist noted that the claimant was quite frustrated overall and that she was now looking for a new line of work.

On September 14, 2001, the claimant advised the WCB that she had found alternate employment and would be starting this new job on September 17, 2001.

In a letter dated September 19, 2001, the treating physiotherapist indicated that the claimant tried her best with the graduated return to work program but felt she would not be able to tolerate her regular duties at this time. There remained tenderness to SITS insertions and irritability to the trigger points of the right upper fibers of the trapezius, scalenes, levator scapulae, cervical paravertebral, lower fibers of trapezius and rhomboids. The physiotherapist felt that the claimant should find alternate employment for the sake of avoiding further aggravation of her signs and symptoms.

On September 24, 2001, primary adjudication sought the advice of a WCB medical advisor as to whether or not there were any physical findings that would support the contention that the claimant was incapable of performing her pre-accident employment. In response, the medical advisor stated that there were no physical findings to support the claimant’s belief that she was unable to perform her pre-accident employment. This opinion was based on the letters received from the treating physiatrist dated July 25, 2001 and September 10, 2001.

In a letter dated November 1, 2001, primary adjudication advised the claimant that full wage loss benefits were paid up to September 23, 2001 but only should have been paid to September 16, 2001 as the claimant had found alternate employment as of September 17, 2001. The claimant was advised that she was responsible for repaying the full amount of the overpayment.

In a letter addressed to a union representative dated November 14, 2001, the treating physiatrist indicated that the claimant was at her maximum medical improvement regarding her right shoulder.

On December 7, 2001, a union representative wrote to Review Office appealing the WCB’s decision that the claimant had recovered from the effects of her compensable injury and argued that the claimant was entitled to vocational rehabilitation benefits and partial wage loss benefits.

On March 22, 2002, Review Office considered the union representative’s appeal and also took into consideration a submission provided by the employer’s advocate dated February 14, 2002. Review Office determined that the claimant was not entitled to payment of wage loss benefits after September 23, 2001. Review Office found no evidence to support that the ‘work injury’ continued to be responsible for the claimant’s loss of earning capacity or her inability to return to full time regular duties. Review Office placed weight on the physiatrist’s examination findings in March 2001, the opinion expressed by the treating physiatrist on July 24, 2001 and the examination findings by a physician on September 21, 2001 who reported few findings. On May 9, 2002, the union representative appealed Review Office’s decision and an oral hearing was held.

Reasons

As the background notes indicate, a WCB medical advisor examined the claimant on March 13th, 2001. He recorded the following comments in his examination notes: “There may be some benefit to arranging a graduated return to work to her regular work duties, with some concurrent physiotherapy and possible limited further needling treatment, if any irritation develops. I would expect that she should be able to progress to return to her full regular work duties without the need for any restrictions.”

This recommendation for the claimant to get involved in a graduated return to work program was further endorsed by her treating physician. In a letter to the WCB dated July 25th, 2001, he advised: “In my opinion Ms. [the claimant] is progressing very well. She should continue with light duties until she reaches 12 hrs. per shift, then work for 3 weeks and then try regular duties for 12 hours.”

On August 14th, 2001, representatives of both the WCB rehabilitation services and the employer met to arrange a work activity/ergonomic plan for the claimant. The parties decided as follows: “A plan of gradual increase in activity as well as hours was discussed. It was agreed that a ‘buddy’ will be available at all times throughout the program to allow [the claimant] to plan rest periods and breaks when necessary and she will work as an extra person on staff. [The claimant] will start with light duties and gradually progress to full duties. [The claimant] will continue to receive WCB benefits while on the return to work program. [The claimant] will continue to see Dr. [name] throughout the program as necessary and at the end of the program regarding ability to return to full duties.”

The claimant unilaterally decided to withdraw from the graduated return to work program while the WCB and the employer were in the midst of attempting to facilitate a full-time return to work to her pre-accident job. There is no medical evidence on file to support the claimant’s belief that the return to work program would fail. Accordingly, we find that the worker is therefore not entitled to wage loss benefits beyond September 23rd, 2001. The claimant’s appeal is hereby dismissed.

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 16th day of October, 2002