The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 17, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 17, 2002, October 28, 2002 and again on April 2, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 7, 2001.

Decision

That the worker is entitled to wage loss benefits beyond May 7, 2001.

Background

While employed as a cleaner on November 24, 1998, the claimant was flipping over a mattress in order to wash a bed when she hurt her right shoulder. The claimant continued working and did not seek medical attention until December 17, 1998. On this date, the claimant was diagnosed with a right shoulder strain with radiation of symptoms down the right arm. The Workers Compensation Board (WCB) accepted the claim and wage loss benefits were paid accordingly.

On June 17, 1999, an orthopaedic specialist concluded that the claimant’s right shoulder pain may represent a subacromial bursitis. The claimant was treated with an injection of Depo-Medrol and Xylocaine and was instructed to continue with physiotherapy treatments. If her pain continued, further testing was advised.

The claimant underwent a CT arthrogram of the right shoulder and cervical spine on July 9, 1999. The right shoulder was reported as being normal. There was a right lateral disc protrusion at C6-7 with disc material sequestered behind the right C6 vertebral body. The disc material appeared to be compressing the exiting right C6 nerve root through the neural foramen at C6-7.

On August 20, 1999, ultrasound results revealed that the supraspinatus tendon was intact and there were no fluid collections seen about the right shoulder or tendon attachments.

On August 27, 1999, a consultant in physical medicine (physiatrist) reported that there were at least four different mechanisms that could be contributing to the claimant’s discomfort. These included a rotator cuff tendonitis, myofascial pain, a ligamentous problem over the right AC joint and C7 spine and a partial frozen shoulder.

An MRI of the cervical spine dated January 19, 2000, identified no definitive cervical spinal abnormality. There was no definite evidence of disc herniation, spinal stenosis, spinal cord or nerve root compression at any of the imaged levels.

In a report dated July 20, 2000, a neurologist commented that the claimant’s described symptomatology and the neurological findings suggested the diagnostic impression of chronic neck pain. Neurological examination did not suggest any evidence of peripheral abnormalities in any of the cervical roots on the right side. There were no abnormalities at the level of C6 or C7. The dermatomes corresponding to the painful sensation were C3, C4, C5 and T2. Prophylactic treatment with Topamax was suggested.

On August 31, 2000, a second neurologist examined the claimant. The neurologist noted a lack of objective neurological deficits. He did not believe that the epidural venous plexus in the cervical spine MRI had any bearing on her complaints. A neurologic disorder was not identified.

On September 14, 2000, the treating physiatrist reported that the claimant continued to have a lot of neck pain and that doing simple activities flared her pain and made her uncomfortable.

The claimant was assessed by a WCB physiatrist on November 16, 2000. The consultant determined that the claimant was suffering from fibromyalgia and he was unable to identify any definite active myofascial pain involvement. He stated there may be focal muscle involvement in the right scapular area.

The claimant was assessed at the WCB’s Pain Management Unit on April 26, 2001 where it was concluded that the claimant did not meet the diagnostic criteria for a chronic pain syndrome as the disability was not proportionate in all areas of functioning.

On April 30, 2001, the claimant was informed by primary adjudication that wage loss benefits would be paid to May 7, 2001 as it was determined that she had recovered from the effects of her workplace injury. This decision was appealed by a worker advisor on June 18, 2001, based on additional medical information from the claimant’s treating physiatrist dated June 8, 2001.

In his report dated June 8, 2001, the physiatrist indicated that the claimant’s right shoulder condition could well be related to the November 24, 1998 injury. He stated that the region where the claimant was tender was where she stated the pain initially commenced. “With my increased understanding of posterior shoulder pain, I believe the ligamentous structures in her dorsal spine and rib attachments in the same area were overloaded by the flipping of the mattress.”

Following consultation with the WCB’s healthcare branch, primary adjudication wrote to the claimant on July 25, 2001, to state that there was no change to its previous decision that the claimant had recovered from the effects of her November 24, 1998 injury. The case was then forwarded to the Review Office for further consideration.

On June 28, 2002, Review Office was of the opinion that the claimant’s ongoing complaints could not be reasonably associated with the muscular strain injury originally sustained in November 1998.

Review Office noted that the claimant continued to work as a cleaner for an entire month prior to laying off due to her right shoulder pain, originally diagnosed as a muscular strain of the right shoulder. Over time, the symptomatology came to involve her neck, right arm, hand and right leg. Numerous investigations had been performed which failed to reveal any pathology in her shoulder. A physiatrist had recommended prolotherapy as he felt the claimant had overloaded the ligamentous structures in her dorsal spine and rib attachments. The Pain Clinic now suggested that the claimant suffered from a regional myofascial pain problem whereas previously a physiatrist had concluded that the primary diagnosis was fibromyalgia.

Review Office stated, “In spite of repeated consultations and medical investigations no other diagnosis has ever been established of either a physical or psychological nature. Likewise, none of the treatment directed at various possible diagnoses has ever proven to be successful in eliminating or significantly reducing her symptomatology.” Based on the entirety of the evidence, Review Office determined that the worker’s appeal must be denied, and that no wage loss benefits were payable beyond May 7, 2001. On July 9, 2002, the worker advisor appealed Review Office’s decision and an oral hearing was held on September 17, 2002.

Following the hearing and discussion of the case, the Panel determined that additional information was required prior to discussing the case further. Specifically, the Panel requested information from the claimant’s treating physiotherapist and physiatrist and the convening of a Medical Review Panel (MRP) in accordance with Section 67(3) of The Workers Compensation Act (the Act).

In a further meeting held on October 28, 2002, the Panel determined that the request for additional information from the treating physiatrist would be left to the discretion of the MRP members.

The MRP delivered its report on March 21, 2003. On March 21, 2003, all interested parties were provided with the MRP’s findings along with the physiotherapist’s report of October 3, 2002 and were asked to provide comment. On April 2, 2003, the Panel met further to discuss the case and to render a decision with respect to the issue under appeal.

Reasons

Chairperson Walsh and Commissioner Day:

On November 24, 1998, the claimant sustained a compensable personal injury for which the Workers Compensation Board (“WCB”) paid the claimant wage loss benefits.

On April 30, 2001, primary adjudication determined that the claimant had recovered from the effects of her workplace injury and that wage loss benefits would only be paid to May 7, 2001.

The claimant appealed this decision. She submitted additional medical information from her treating physiatrist as part of her appeal. Since primary adjudication maintained its denial of the claim, the claimant appealed to the Review Office. The Review Office, however, denied the claimant’s appeal, finding that her ongoing complaints could not be related to the original injury. The issue before this Panel was, therefore, whether the worker is entitled to wage loss benefits beyond May 7, 2001.

The Panel finds, based on the totality of the evidence, that the plaintiff is so entitled.

It is the Panel’s opinion that the claimant has never recovered from the original compensable injury. The Medical Review Panel (MRP) in its report delivered March 21, 2003, identified that the pain suffered by the claimant continues to be described as being present in the same area as was described in the report dated November 24, 1998, relating to the original compensable injury.

Further, the Panel finds that not only has the claimant not recovered from her original compensable injury, she may also have suffered a further injury arising out of the delivery of treatment she received for the original compensable injury.

The claimant described to the Medical Review Panel that she had received prolotherapy and botulinum toxin injections as part of the treatment for the symptoms she suffered from the original injury. The MRP found there was no evidence that the claimant had benefited from either of those therapies. The MRP was unable to be certain if there had been any adverse effects due to the prolotherapy. However, with regard to the Botox injections, the MRP found that these caused weakness of the muscles supporting the head with the need for the claimant to wear a supporting neck collar. The collar was used for 6 - 7 months which, the MRP found, resulted in the claimant’s present stiffness and painful movements of the cervical spine.

In responding to the MRP’s findings, the claimant stated that the symptoms she experienced from the original compensable injury on November 24, 1998, were no different in 2003, despite the extensive treatment. She further advised that while the injections caused her to lose control of her neck muscles and therefore to wear a brace for support, the Botox having now worked its way through her system, she no longer requires the use of the neck brace. She continues, however, to experience the same pain and stiffness as she did prior to receiving the Botox injections.

The employer’s representative had no further submission to make in response to the MRP’s report other than to advise that the employer has made all reasonable attempts at accommodation.

The Panel is of the opinion that to the extent that the claimant’s current condition is caused or has been contributed to by the receipt of Botox injections, those injections constitute a further injury arising out of the delivery of treatment for the original compensable injury, within the meaning of Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury.

Policy 44.10.80.40 provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The Panel finds that the fact that the medical treatment which may have caused a further injury was administered to the claimant after her claim was considered no longer acceptable, does not affect its decision.

After the claimant was informed by primary adjudication that wage loss benefits would be paid only until May 7, 2001, the claimant continued to experience pain. She therefore continued in good faith, to seek treatment in an effort to recover from her original compensable injury.

The Review Office acknowledged that the claimant received a number of treatments, consultations and medical investigations in an effort to eliminate or reduce her symptomatology. The Board was aware that the claimant was receiving treatment from the same physiatrist both prior and subsequent to the discontinuation of her benefits. The Board was also aware that the claimant’s physiatrist was contemplating treatments such as prolotherapy. At no time was the claimant ever advised or warned by the WCB that any of the medical treatment she had received or was contemplating receiving, in her efforts to reduce her symptomatology, would not be acceptable to the WCB. We find that the claimant did not know, nor had she any reason to know, that any of the treatments she was seeking for the symptoms arising from the original compensable injury, would not be acceptable by the WCB.

For all of the above reasons we find the worker’s claim for wage loss benefits past May 7, 2001, acceptable.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of May, 2003

Commissioner's Dissent

Commissioner Finkel’s dissent:

This case deals with a worker who suffered a workplace injury on November 24, 1998, and her entitlement to ongoing wage loss benefits after May 7, 2001. For the worker to be successful in her appeal, I would have to find that her current medical condition is causally related to the original compensable injury.

The claimant’s original complaints were focused on right posterior shoulder pain with some radiation down her right arm with a variety of differential diagnoses offered over the following months. These included a muscular strain, subacromial bursitis, rotator cuff tendonitis, myofascial pain secondary to ligamentous problems, ligamentous problems over the right AC joint and C7 spine, a partially frozen right shoulder and chronic pain syndrome. A series of tests and assessments were undertaken during the claim, and these diagnoses were ultimately not established. The WCB eventually determined in 2001 that her current complaints could not be attributed to the original compensable injury which they stated was a muscular strain injury, and terminated her benefits as of May 7, 2001.

In June 2001, following the termination of her benefits, a treating physical and rehabilitation specialist indicated that the claimant’s problems were with her right scapula, and proceeded to treat her with prolotherapy injections and later with Botox injections along her right shoulder area which, in her words, caused her head to “flop.” The claimant, in fact, wore a heavy neck brace to the hearing to support her head.

After reviewing all the evidence on the file, the evidence and submissions made at the hearing, and the subsequent medical information obtained, I was not able to establish a relationship, on a balance of probabilities, between the claimant’s current medical complaints and her original injury, and would accordingly deny the claimant’s appeal.

In particular, I find that the unauthorized medical treatments were distinct non-compensable intervening events that were outside the control of the Workers Compensation Board, and that the claimant’s medical condition is causally related to those events and not to the original compensable injury.

In making this finding, I place particular weight on the findings of a Medical Review Panel (MRP) that our panel convened, under the authority of Section 67(3) of The Workers Compensation Act. Much of the motivation in convening the MRP was based on the dramatically changing medical picture presented by the claimant to the attending physicians over the years, and in particular, by the claimant having received two treatment modalities – prolotherapy injections and Botox injections -- that were not approved or authorized by the Healthcare Department of the Workers Compensation Board. Indeed, these treatments had been administered after the WCB responsibility for the claim (and control over the medical management of the claim) had ended. The claimant’s evidence at the hearing was that her medical condition deteriorated substantially as a consequence of those unauthorized treatments.

The MRP was focused on the field of physical and rehabilitation medicine (the same field as the specialist who had provided the treatments under review), and had consultants in radiology, neurology, psychiatry, and orthopaedic surgery also participating. In response to our questions, the MRP has provided the following responses, which are quoted in part:

1. What is the diagnosis of the current condition(s) affecting the claimant’s neck and/or right shoulder?

With regard to the claimant’s neck, it appears that a course of Botox injections has resulted in weakness of the neck muscles with resultant difficulty supporting her head.

She wore a neck collar for six to seven months, which very likely, contributed to the present stiffness and painful movement of the cervical spine…. The Panellists describe [the claimant] as having been “centrally sensitized.” This resulted from the injection of irritating substances into the muscles. The Panellists would describe her condition as Chronic Shoulder Girdle Pain.

2. Is the claimant’s current condition causally related to the workplace injury which occurred on November 14, 1998? If yes, please explain the relationship.

…The causal relationship is temporal in nature. Treatment administered has resulted in the present cervical area dysfunction.

4(a) The claimant describes having received prolotherapy and botulinum toxin injections. In the Panel’s opinion, has the claimant benefited from these therapies? If yes, what have been the benefits?

There is no evidence that [the claimant] has benefited from either the prolotherapy or the botulinum toxin injections.

4(b) In the Panel’s opinion, has the claimant experienced any adverse effects from these therapies?

The Panellists are unable to be certain if there have been any adverse effects due to the prolotherapy. With regard to the Botox injections, these caused weakness of the muscles supporting the head, with the need for [the claimant] to wear a supporting neck collar. The collar was used for six to seven months, which length in time resulted in the present stiffness and painful movements of the cervical spine.

The question then turns to what role WCB should have in respect of an unauthorized medical treatment. In this regard, I would note two important findings:

WCB Policy 44.10.80.40,Further Injuries Subsequent to a Compensable Injury, does refer to circumstances where further injuries might be covered by the Board, and in particular, states “A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.”

I find that this policy is directed at situations where there is a dispute between the claimant (and his/her attending physician) and the WCB healthcare department on a treatment modality. This policy clarifies that the WCB’s position will “win out”; if the claimant goes ahead with an unauthorized treatment, the consequences rest with the claimant and not the Board (although it remains open for the Board to consider the outcome of the treatment, at a later date, and reconsider its decision).

There is an argument that this policy implies a reverse scenario: that the WCB will cover an unauthorized medical treatment where the claimant is not informed. However, I find it difficult to accept the proposition that any medical practitioner can wilfully initiate a treatment (where prior approval was either not sought, or was sought and declined) during or after a claim is active, and the worker can seek compensation from the Board on the basis that they did not know that the medical treatment was authorized.

In this type of situation, I find WCB Policy 42.10.10,Elective Surgical Procedures, to be instructive as to the importance of seeking prior approval for medical treatments. In dealing with elective surgery, the policy notes that “If the elective surgery has not been authorized, the WCB will be responsible for no further benefits than the worker would have been entitled to receive if he or she had not received the surgery.” This policy clearly places an onus on the healthcare practitioner to seek authorisation for an elective procedure.

This process is further clarified in WCB Policy 44.120.10,Medical Aid, which deals with new treatment modalities (such as those given to the claimant), and states, in part:

b. Medically Recommended Treatments

i) Other medically recommended treatments include, but are not limited to, acupuncture, massage therapies, swimming, fitness therapies, obus forms, as well as new treatment modalities constantly being introduced to the market place.

ii) The WCB may approve the use of these treatments or medications subject to pre-approval by the WCB on a case-by-case basis. All such treatments must satisfy the WCB that their use will aid in the recovery of an injured worker or minimize the impact of the injury.

As noted above, I have accepted the findings of the Medical Review Panel that the current complaints and diagnosis are related to the two recent treatment programs. I also note that the MRP does not refer to any residual diagnoses that might be related to the original compensable injury. This suggests that, on a balance of probabilities, the original compensable injury was no longer in play at the time of the commencement of these treatments.

I also find that WCB authorization of these new treatment modalities had not been sought by the treating physical and rehabilitation specialist, nor was any scientific evidence presented to the WCB or to this panel by the claimant or the treating physician justifying the appropriateness or success of this treatment. Indeed, the evidence is to the contrary, that these treatments have had a disastrous effect on the claimant.

While I sympathize with the claimant’s current condition, it does not follow that the WCB should take responsibility for the physician’s actions in this case. I find that the subsequent medical treatments are an intervening non-compensable event from which the claimant’s current symptoms have arisen, and accordingly I would find, on the basis of both evidence and WCB policy, that the claimant is not entitled to wage loss benefits beyond May 7, 2001. Accordingly, I would deny the claimant’s appeal.

A. Finkel, Commissioner