The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 2, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on December 2, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond August 3, 1999.

Decision

That the worker is entitled to wage loss benefits and services beyond August 3, 1999.

Decision: Unanimous

Background

During the course of her employment as a licensed practical nurse (LPN) on September 8, 1998, the claimant felt pain in her upper back and side of her neck and shoulder from lifting a patient. The claimant did not miss time from work as a result of the accident until October 29, 1998, when her condition started to get worse.

A Doctor's First Report dated November 13, 1998, diagnosed the claimant with muscular back and neck strain. Initial treatment included rest and medication and on November 24, 1998, the claimant commenced physiotherapy treatments. The Workers Compensation Board (WCB) accepted the claim and compensation benefits commenced on October 30, 1998.

On March 2, 1999, a WCB medical advisor examined the claimant as file information revealed that the claimant was showing little improvement in her condition. The medical advisor believed that the claimant had signs and symptoms consistent with myofascial pain which were related to the compensable injury. The claimant also had moderate sleep disturbance. Treatment recommendations included medication, physiotherapy and acupuncture sessions.

On July 14, 1999, a pain and stress management specialist indicated that he saw the claimant on July 13, 1999. Examination findings revealed full flexion, extension and abduction of the shoulder. There was full rotation and internal rotation. The claimant complained of some pain with abduction. There appeared to be good power of the shoulder and arm. There was some shortening and tenderness of the right infraspinatous with palpation. The specialist felt that the claimant should continue with her home program and that there were no barriers for a graduated return to work.

Following consultation with a WCB medical advisor on July 20, 1999, the claimant was advised by primary adjudication that she was fit to commence a graduated return to work program starting on July 26, 1999. Effective August 23, 1999, it was expected that the claimant would return to her full rotation and duties.

File information showed that the claimant did not commence the graduated return to work program as scheduled as her physician provided a note stating that she would not be able to return to work for another 3 to 4 weeks. On July 30, 1999, primary adjudication advised the claimant that the purpose of the graduated return to work program was to slowly introduce her back to the workplace because it was recognized that she was experiencing symptoms. The claimant was advised that if she decided not to participate in the program, her benefits would be suspended. On August 3, 1999, the claimant's benefits were suspended in accordance with Section 22 of The Workers Compensation Act (the Act).

On January 17, 2000, a neurologist reported that the claimant's symptoms were all related to a musculoskeletal complaint rather than radiculopathy and he recommended that the claimant be referred to a physiatrist.

On July 7, 2000, a worker advisor asked the WCB to reconsider its decision to suspend the claimant's benefits. In support, the worker advisor submitted a letter by the claimant's attending physician dated June 30, 2000 and quoted the following excerpts from that letter:

'It was suggested in August of 99 that she return to work on a graduated return to work program and I have recommended to her that she was certainly not fit to participate in this as in my opinion she was not going to manage the physical capacity of work at that time.' 'Her problem is underlying myofascial pain syndrome and muscle soft tissue swelling involving her right trapezius muscle mainly.'

Arrangements were made for the claimant to be assessed by a WCB physical medicine and rehabilitation consultant on September 12, 2000. On December 14, 2000, a WCB adjudicator spoke with the consultant who indicated that the claimant's symptomatology was in a number of areas but only a small area could be related to the original compensable injury which should have resolved by now. On December 21, 2000, primary adjudication advised the claimant that it was of the view that any current difficulties she had were due to non-compensable issues and not to the September 8, 1998 compensable injury. As a result, no further responsibility would be accepted for the claim.

On February 5, 2001, the treating physical medicine and rehabilitation specialist (physiatrist) reported that the claimant's symptoms and signs "are characteristic of myofascial pain syndrome with trigger points in muscles as described above. She also has C5-C6 supraspinous ligament sprain with sensitized segment at C5. The sensitized spinal segment helps to perpetuate her myofascial trigger points."

On March 22, 2001, primary adjudication wrote to the claimant to advise that after review of the submitted medical documentation, no change would be made to its earlier decision as it was still of the opinion that the claimant's current symptoms were not related to the compensable injury. On August 14, 2001, a worker advisor appealed the decision and submitted a further report by the treating physiatrist dated July 30, 2001.

On February 1, 2002, Review Office considered the worker advisor's appeal and a submission from the employer's advocate dated October 25, 2001. Review Office stated that at present, the worker reportedly had predominantly right sided complaints in her neck, shoulder and arm which a treating physiatrist believed to be myofascial in origin. It was the WCB's belief that the claimant's symptoms were more suggestive of a fibromyalgia syndrome than a true myofascial pain syndrome.

Review Office did not accept that the claimant's ongoing complaints continue to be related to a minor strain injury some 40 months ago. The claimant was able to continue working as an LPN for more than 7 weeks after her injury prior to laying off. While her present complaints were strictly right sided, her initial injuries were clearly localized to her left sided neck and shoulder. Review Office therefore concluded that the worker was not entitled to further wage loss benefits and services.

On July 11, 2002, a worker advisor asked Review Office to reconsider its previous decision and submitted several reports by the treating physiatrist for consideration. These were dated October 18, 2001, August 22, 2001 and May 24, 2002. On August 19, 2002, Review Office determined that no change would be made to its earlier decision. On October 15, 2002, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

This is the case of a healthcare worker who, in September 1998, suffered an injury to her upper back and neck regions while attempting to move a patient. Her claim for compensation was accepted and benefits paid accordingly.

Her symptoms persisted long beyond what is normal for such an injury. In August 1999, the board determined that any continuing symptoms were not related to her compensable injury and her benefits were terminated. This decision was upheld upon reconsideration by the Review Office. She then appealed to this Commission.

We have been asked to determine whether or not she should receive compensation benefits beyond August 3, 1999. For her appeal to be successful, the Panel would have to determine that her medical problems past that date were causally related to her workplace accident. We have come to that conclusion.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding an oral hearing at which we heard testimony from the claimant, her advocate and a representative of the employer.

As noted above, in the 'Background' section, the claimant was subjected to a number of medical examinations by different specialists. These resulted in a number of different opinions as to what was the cause of her medical problems, some of which were compensable, others not so.

It is our view that, to a good extent, this claimant fell through some medical cracks. We take particular note of the following:

• When her symptoms did not resolve as expected, she was examined, in March 1999, by a board medical advisor, who concluded that her signs and symptoms were consistent with myofascial pain and which were related to her compensable injury.
  
  
• She was referred for treatment. She received one treatment of acupuncture. On the second visit, she was examined briefly and told she didn't need to see the doctor again. Her problems continued.
  
  
• Following this treatment, board doctors concluded she was capable of a graduated return-to-work program. Her family doctor, on July 29, 1999, advised her she was totally disabled from work until the end of August.
  
  
• Early in 2000, she was referred to a neurological specialist, who ultimately came to believe her problems to be localized myofascial pain syndrome and referred her to a specialist in this field.
  
  
• Upon examination, in January 2001, this specialist diagnosed:

  "Her symptoms and signs are characteristic of myofascial pain syndrome with trigger points in muscles as described above. She also has C5-C6 supraspinatous ligament sprain with sensitized segment at C5. The sensitized spinal segment helps to perpetuate her myofascial trigger points."

• With treatment by this specialist, she experienced almost immediate relief. Within a short period, she had recovered and was able to return to work.

We do note that, in January 1999, the claimant was involved in a motor vehicle accident. She did see her doctor following that accident, but he found that she had experienced no injury in the accident.

Upon reviewing the evidence, we note that the mechanism of injury as reported by the claimant, at the time of the accident and in her testimony to us, is certainly consistent with the assessment and findings of the physiatrist who was ultimately successful in treating her.

We also note that her symptoms remained consistent over the years. There was an early diagnosis of myofascial pain syndrome, arising from her injury, that appears to have not been fully treated. When full treatment for this condition was rendered - almost two years later - she had almost immediate relief.

This leads us to conclude that - on a balance of probabilities - the claimant's medical problems, as they continued after August of 1999 until treated in early 2001, were causally related to her workplace accident. Thus, she is entitled to benefits beyond August 3, 1999.

The appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of December, 2002