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 the appeal and made its determination on that date.

Issue

Whether or not the worker is entitled to further compensation benefits after December 12, 1998; and,

Whether or not a Medical Review Panel should be convened under section 67(4) of The Workers Compensation Act (the Act).

Decision

That the claimant is entitled to further compensation benefits beyond December 12, 1998.

Given the first finding, there is no need to convene a Medical Review Panel under section 67(4) of The Act.

Decision: Unanimous

Background

In February 1997, the claimant filed an application for compensation benefits with the Workers Compensation Board (WCB). She reported right elbow, shoulder and wrist pain along with a loss of feeling in her right hand. The claimant attributed her injuries to her work activities. In particular, she cited the repetitive motion and constant looking down associated with her work.

Initial medical information revealed that the claimant was assessed by a chiropractor on February 17, 1997 and by a general practitioner in March of 1997. The diagnoses provided by the general practitioner was a right shoulder rotator cuff tendonitis and right tennis elbow. Physiotherapy treatments were prescribed as a form of treatment. The claim was accepted as a WCB responsibility and benefits began on March 13, 1997.

On July 11, 1997, a WCB medical advisor assessed the claimant. The medical advisor found that the claimant’s complaints and initial clinical findings could be consistent with a muscular strain of the posterior shoulder and that the normal recovery period from this injury would be approximately 4 to 6 weeks. The medical advisor was unclear regarding the relationship between the claimant’s present complaints and physical findings and the workplace accident. In his view, there was an abnormal pain focus. The claimant was advised to increase her arm movement and to focus on function rather than pain. The medical advisor agreed with the attending physician that the claimant could benefit from a course of acupuncture for pain relief.

In a narrative report dated August 7, 1997, a sports medicine specialist reported that the claimant’s symptoms were myofascial in origin and were not a result of any underlying joint abnormality or neurological disorder. It was suggested that the claimant focus on her myofascial pain symptoms by performing exercises to help relieve tightness in the muscles around her neck and shoulder and to strengthen the relevant muscles. The specialist recommended that the claimant return to her previous line of work in a gradual fashion which would allow for an easier adaptation to the stress placed upon her myofascial symptoms by her work place.

In a report dated August 25, 1997, a pain and stress management specialist outlined his examination findings. He diagnosed the claimant with sleep disturbance/depressive symptoms and myofascial pain of the infraspinatus muscle. The specialist’s treatment plan included trigger point acupuncture applied to the infraspinatus and pectoral muscles, and muscles along the referral pattern of the infraspinatus. The trigger point acupuncture treatments were authorized by the WCB.

On September 28, 1997, the claimant began a three week graduated return to work program with the accident employer. The graduated return to work program was extended as the claimant continued to experience difficulties with her right arm and shoulder movements. On June 16, 1998, a WCB rehabilitation specialist attended the work site and performed a work site analysis. The specialist felt that the work environment was fast paced and required a high degree of concentration when working. He noted that both upper extremities carried out repetitive movements that involved the shoulder, elbow and wrist. The specialist concluded that little modification could be done in terms of the operation of the work activities.

Updated reports were received from the pain and stress management specialist concerning the claimant’s progress. On June 30, 1998, the specialist noted that the claimant still complained of recurrent pain involving her right neck and shoulder which were aggravated by her work activities. The claimant showed objective evidence at each visit of myofascial activity involving the right neck, shoulder and arm. By August 1998, the claimant was performing light duties which included security and reception duties.

On September 1, 1998, a WCB physiatrist assessed the claimant. The examination revealed widespread report of symptomatology, no evidence of any rotator-cuff impingement, no evidence of any acromioclavicular joint involvement and no evidence of any joint involvement peripherally. There was no evidence of any medial or lateral epicondylitis or of any definite peripheral nerve entrapment syndrome. There was diffuse muscular tenderness not fitting with any organic muscle syndrome. Of particular note is the observation that a localized area of regional myofascial pain syndrome in the inferior scapular area could not be ruled out on the basis of the current clinical examination. The medical advisor outlined recommendations for treatment including further directed trigger-point-needling at the inferior scapular muscle.

In a memo to file dated December 8, 1998, a WCB adjudicator indicated that she had discussed the case with the WCB physiatrist and concluded that the claimant had recovered from the effects of the compensable injury. The adjudicator based her decision on a review of the claimant’s job duties, the course of treatment over the past year and the September, 1998 examination findings. On December 11, 1998, the claimant was advised that her WCB benefits would be paid to December 17, 1998 inclusive and final.

A medical certificate from the treating physician dated December 17, 1998, indicated that the claimant was unable to work for the next 4 to 6 weeks because she was suffering from depression, anxiety and persistent right shoulder impingement.

In January, 1999, the claimant was treated by an orthopaedic surgeon who noted tenderness over the right trapezius muscle and over the supraspinatous and infraspinatous muscles. He also suggested that the shoulder pain might be radiating to the right hand. His treatment included a cortisone injection to the subacromial area.

On February 9, 1999, another note was received from the treating physician indicating that the claimant was unable to work for a further 6 weeks.

On May 31, 1999, a worker advisor filed an appeal of the WCB’s decision that the claimant had recovered from the effects of her compensable injury and was able to return to her pre-accident work. The worker advisor referred to the January 29, 1999 opinion expressed by the orthopaedic specialist in which tenderness over the right trapezius, supraspinatous and infraspinatous were identified and for which injections were provided.

The worker advisor also made reference to a report authored by an occupational health physician dated April 29, 1999 which identified findings of active trigger points in the same area that the orthopaedic specialist had found problematic. The occupational health physician stated “there is a strong empiric evidence that she has developed a chronic myofascial pain condition in her fight (sic) shoulder and arm, and that her usual work as a card dealer has been the cause.”

Following consultation with the WCB’s healthcare branch on June 22, 1999, primary adjudication wrote to the claimant on June 29, 1999. Primary adjudication stated, “our Health Care Advisor indicated the diagnoses of chronic myofascial pain and rotator cuff tendonitis were not present at the time of the examination at the Workers Compensation Board. There were no objective findings to confirm these diagnoses and [we are] therefore unable to establish a cause and effect relationship between the compensable injury and your current difficulties.”

On July 29, 1999, the worker advisor submitted correspondence from the treating physiatrist dated July 20, 1999. The worker advisor was of the view that this report along with the reports from the treating orthopaedic specialist and occupational health physician confirmed that the claimant had not recovered from the effects of her compensable injury and that she was not able to return to her pre-accident work.

Following consultation with the WCB’s healthcare services branch on August 11, 1999, primary adjudication wrote to the worker advisor on August 20, 1999. Primary adjudication noted that the claimant had a localized area of myofascial pain at the time of the WCB examination in September 1998 and that the claimant received trigger point acupuncture from September 1997 to October 1998 along with physiotherapy treatment. The new report from the treating physiatrist indicated that the claimant had multiple trigger points and that she required trigger point needling. As the claimant had multiple trigger points and she had not been working since December 1998, it was the WCB’s opinion that her ongoing problems were not related to the compensable injury.

On November 9, 1999, the worker advisor appealed primary adjudication’s decisions of December 11, 1998 and August 20, 1999 to the Review Office. The worker advisor contended that the claimant had not recovered from the effects of her compensable injury and recommended that Review Office take into account the opinions of the three treating specialists who disagreed with the WCB consultant. If more information was needed to make a decision, the worker advisor requested that a Medical Review Panel be convened in accordance with Section 67(4) of the Act.

On January 28, 2000, a representative for the employer wrote to the WCB Review Office and took the position that there was no basis for a claim beyond December, 1998. She suggested that the employer had been willing to provide modified employment to the claimant for the time period between December 17, 1998 and June of 1999. Reference was also made to notes from the claimant’s treating physician from December of 1998 and February of 1999 which indicated that the claimant was unable to work for successive 6 week periods.

Prior to considering the appeal, further reports were obtained from the treating orthopaedic specialist which included MRI and bone scan results. Review Office also obtained a report from the treating physiatrist dated June 20, 2000 and an opinion from a WCB physiatrist dated July 12, 2000.

In a decision dated September 8, 2000, Review Office determined that the claimant was not entitled to further compensation benefits after December 12, 1998. Review Office was of the opinion that, in the absence of any overuse or repetitive work activities, it was unable to identify any work related mechanical stress factors that would perpetuate the claimant’s continuing myofascial pain beyond December 1998. It was felt that the claimant received the appropriate treatment for her myofascial pain prior to her claim ending in December 1998 and any ongoing chronicity or perpetuation of this was not the result of any employment or a consequence of her compensable injury. Any loss of earning capacity or requirement for further treatment after December 12, 1998 was unrelated to the workplace injury in the opinion of Review Office.

On November 24, 2000, the worker advisor requested the convening of a MRP in accordance with Section 67(4) of the Act. The worker advisor felt there was a difference of opinion between the claimant’s treating physicians and those of the WCB consultant dated July 12, 2000.

Prior to considering the request, a WCB case manager requested and obtained a report from the claimant’s sports physician dated May 22, 2001. The report noted that the claimant’s right shoulder was assessed in January, February and March 2001. The report also indicated that the claimant re-injured her right shoulder from a fall at work. (File records showed that the claimant’s right shoulder injury occurred on September 9, 2000 when her foot hooked onto a chain link fence that she was trying to jump over on her way to a coffee break. The claimant was diagnosed with an acute right shoulder strain/rotator cuff tendonitis as a result of the accident. The claim was rejected by the WCB as it was established that the claimant’s injuries were the result of personal activities unrelated to her employment and there was no contributing hazard.)

On July 19, 2001, the sector manager denied the request for the MRP. He believed there was no difference in medical opinion in the sense that was required under section 67(4) of the Act based upon the reasons provided by the WCB medical advisor and those provided by Review Office in its decision of September 8, 2000. The case was then sent to Review Office for further consideration.

On September 14, 2001, Review Office denied the request for a MRP stating that subsections 67(4) and 67(1) of the Act had not been met. On May 30, 2002, a union representative, acting on the claimant’s behalf, appealed Review Office’s decisions of September 8, 2000 and September 14, 2001 and requested an oral hearing.

Reasons

Based upon its review of the evidence, the Panel is satisfied that as of December 12, 1998, the claimant continued to suffer a compensable loss of earning capacity as she was not fully recovered from the effects of her compensable injury. In coming to its conclusion, the Panel places particular emphasis on the two medical reports closest in time to the December, 1998 WCB decision that the claimant was fully recovered from the effects of her compensable injury.

The Panel notes that, as of September 1, 1998, the WCB physiatrist was unable to rule out regional myofascial pain syndrome in the inferior scapular area and that the January 29, 1999 report of the orthopaedic surgeon identified symptoms in the infraspinatus area which were treated with injections. It is also worthy of note, that the April 29, 1999 report of the occupational health physician appears to be consistent with the finding of chronic myofascial pain related to the claimant’s work activities. Taken together, these reports suggest that as of December 12, 1998, the claimant was continuing to suffer from the physical effects of her compensable injury, and was unable to return to her pre-accident job.

As to the issue of ongoing wage loss benefits, we make note that this is a matter that shall be referred to the WCB for further adjudication, both for the length of benefits and for the amount. Although the accident employer had a modified duty program at its workplace, these duties have yet to be assessed against the residual medical restrictions in place on her after December 18, 1998, and whether the claimant’s non-participation at the workplace after December 18, 1998, was appropriate for that period, based on the medical information on the file. The Panel notes the existence of two medical notes from December 17, 1998 and February 9, 1999 relating to the claimant’s availability to work.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of November, 2002