Decision #60/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 30, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on January 30, 2003 and again on May 7, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond January 10, 2001.

Decision

That the worker is entitled to wage loss benefits beyond January 10, 2001.

Decision: Unanimous

Background

While employed as a health care attendant on February 24, 1999, the claimant was pivoting a client from the toilet to the wheelchair when the claimant slipped and the client fell on top of her. The claimant reported injuries to her left ear, jaw, left shoulder and neck.

The claimant was seen at a hospital emergency facility on the date of accident. The diagnosis rendered was a contusion to the left side of her head and neck. A Doctor's First report dated February 25, 1999, diagnosed the claimant with a left neck, shoulder and rib injury. An x-ray taken of the cervical spine on February 24, 1999, showed focal kyphosis at the C5-C6 level. There was no soft tissue swelling and there was mild degenerative changes noted in the lower cervical facet joints. A fracture dislocation was "not appreciated with the three conventional views provided."

The claim for compensation was accepted by the Workers Compensation Board (WCB) and the claimant was paid wage loss benefits commencing February 25, 1999.

In a report to the attending physician dated March 25, 1999, an otolaryngologist stated that the claimant sustained a left inner ear concussive injury with both cochlear and vestibular symptoms. In a further report dated April 26, 1999, the specialist commented that the claimant had completely recovered from her left inner ear injury but still had tinnitus and her unsteadiness was improving.

In a report to the attending physician dated May 12, 1999, a neurologist outlined his examination findings and commented that the claimant complained of a lump in her throat which was worse when flexing or extending her head. The neurologist was of the opinion that the claimant's current symptoms were consistent with a cervical muscular strain. There was some evidence of chronic cervical spine disease and there was no evidence of cerebral contusion or concussion. The neurologist commented that the claimant seemed to be improving and he expected a complete recovery.

An MRI of the brain was performed on May 18, 1999. The results were reported as being normal.

In a progress report dated June 7, 1999, the attending physician stated that the claimant was fit to return to full duties as of June 7, 1999.

In a memo dated June 17, 1999, a WCB adjudicator recorded that the claimant had worked full shifts on the 6th, 7th, 9th and 10th of June 1999 but she had not been back to work since. The claimant complained of losing her balance and of ongoing neck difficulties.

Following an examination on June 30, 1999, a WCB medical advisor noted that the claimant showed evidence of a resolving muscular strain to the trapezium and sternocleidomastoid muscles on the left side. In a memo dated June 30, 1999, a WCB adjudicator noted that it was the opinion of the medical advisor that the claimant would be off work for 3 more weeks.

On July 20, 1999, a CT scan of the cervical spine showed moderate degenerative disc disease and anterior degenerative osteophytes involving the mid and lower cervical spine associated with some reversal of normal lordosis presumably related to muscle spasm. There was no evidence of any disc protrusion, stenosis or fracture.

In a progress report dated July 26, 1999, the attending physician stated that the claimant was back at work as of July 27, 1999 and that she should continue with physiotherapy treatments for two more weeks. Wage loss benefits were paid to the claimant up to July 26, 1999 inclusive and final.

In a February 15, 2000 progress report, the attending physician suggested that a WCB medical advisor examine the claimant as the claimant was experiencing neck pain with decreased range of motion and a choking sensation.

On March 23, 2000, a WCB medical advisor found that the claimant continued to suffer from tightness and muscular irritability relating to the left sternocleidomastoid. The claimant also continued to be aware of an ongoing throat pressure or 'choking' feeling, which she related to tightness about the distal insertion point of the left sternocleidomastoid muscle. Recommendations were made for thyroid function tests and a trial of acupuncture. It was also felt that there was no contraindication for the claimant to perform light duty tasks at work.

Ongoing medical reports showed that the claimant received acupuncture and physiotherapy treatments.

On November 15, 2000, a WCB medical advisor examined the claimant and opined that the current diagnosis to account for the claimant's neck symptoms was mechanical neck pain, likely on account of irritability involving the left-sided paracervical and sternomastoid soft tissues and degenerative changes in the lower cervical spine. The claimant's throat symptoms were not accounted for in relationship to the February 23, 1999 workplace incident. The medical advisor commented that further medical treatment would not significantly change the claimant's symptomatology or neck mobility. There were also no restrictions relative to the cervical strain injury sustained on February 23, 1999.

In a letter dated December 27, 2000, the claimant was advised by primary adjudication that it was the medical advisor's opinion that restrictions on workplace activities would not be imposed in relation to her neck strain. It was therefore the WCB's position that any current difficulties experienced by the claimant were not due to the compensable injury. Based on section 39(2) of The Workers Compensation Act (the Act), wage loss benefits would be paid to January 10, 2001 inclusive. On February 20, 2001, legal counsel for the claimant appealed this decision to Review Office.

Prior to considering the solicitor's appeal, Review Office sought the medical advice of a WCB orthopaedic consultant, whose comments are contained in a memo dated February 22, 2001.

In a decision dated February 22, 2001, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond January 10, 2001. Review Office agreed with the opinion expressed by the WCB medical advisor and orthopaedic consultant that the choking sensation being experienced by the claimant, which did not appear until one-year post-accident, was not related to the accident. Review Office further stated that the claimant's physician provided absolutely no findings to conclude that the claimant could never resume her former type of employment. Given that the accident produced primarily a soft tissue injury, Review Office believed that the claimant achieved recovery from her accident by January 10, 2001.

On August 8, 2001, the claimant's solicitor pointed out to Review Office that there were several reports on file which showed that the claimant had experienced a choking sensation within a few short months of the workplace accident. The solicitor asked Review Office to clarify why the file was sent to an orthopaedic specialist for review, if this were only a soft tissue injury. A report from a physical medicine and rehabilitation specialist (physiatrist) dated June 28, 2001 was submitted for consideration.

Prior to rendering a decision, Review Office forwarded the case to a WCB physiatrist for comment on the file information and the June 28, 2001 report from the treating physiatrist. His response to Review Office is dated November 15, 2001.

In a decision dated November 16, 2001, Review Office noted that it had erred in its first decision letter with respect to the onset of the claimant's choking sensation. The choking did in fact occur within a few months of the accident and not one year post-accident as earlier indicated. Review Office noted, however, that this choking sensation was not present on March 25, 1999 when the claimant was being assessed by an ENT specialist and when the family doctor responded to a WCB enquiry on March 29, 1999. The WCB's physiatrist indicated that the textbook on myofascial pain and dysfunction did not reference choking symptoms from involvement of the sternocleidomastoid muscle. Review Office agreed with the WCB's physiatrist that this particular symptom was not related to the accident and that there were no disabling conditions from this accident which would have rendered the worker incapable of employment beyond January 10, 2001. On March 6, 2002, the claimant's solicitor appealed Review Office's decision and requested an oral hearing. Additional medical reports were later submitted dated May 15, 2002 and October 9, 2002 for consideration.

Following the oral hearing that took place on January 30, 2003, the panel requested up-dated medical information be obtained from two of the claimant's treating physicians. Up-dated medical reports were later received and copies were forwarded to the interested parties for comment. On May 7, 2003, the Panel met further to discuss the case and render its final decision.

Reasons

After thoroughly reviewing the materials on file up to the adjudication by Review Office, it became readily apparent that the physicians involved with this case were having considerable difficulty establishing a physiopathologically plausible cause and effect relationship between the claimant's choking sensation and the original compensable injury. However, we have subsequently obtained medical reports from the treating otolaryngologist and the physical medicine and rehabilitation specialist, which deal with their assessment of the claimant's condition relative to the compensable injury.

In particular, we attached considerable weight to the following comments contained in each of their respective reports:
  • January 11th, 2002 letter from treating otolaryngologist to the claimant - "It is my strong opinion that the choking symptoms as well as lump feeling in the throat are muscular in origin and I have no hesitation in stating that these are compatible and directly related to the workplace injury which occurred on February 24, 1999."
  • June 26th, 2002 review prepared by the treating physical medicine and rehabilitation specialist - "She had significant irritability in the sternocleidomastoid muscle on the left. Palpable taut bands were identified within the body of the sternal aspect of this muscle. Continuous squeezing of the tender spots in the upper third of the left syernocleidomastoid created the choking sensation. She noted the right side didn't create the same sensation and the muscle was not significantly tender.
        I feel the symptoms of altered sensation in her face as well as the sense of choking and hoarse this (sic) of her voice are related to myofascial trigger points in the sternocleidomastoid and also the posterior cervical ligaments. Her condition has essentially not changed.
        My sense is that this condition is not going to change significantly as it has been over three years since the onset of symptoms. I don't believe she is able to perform the duties of her pre-accident employment in that any physical effort through the kinetic chain of the left arm, shoulder and neck aggravated her symptoms considerably."
We find based on the weight of evidence that the claimant has not, on a balance of probabilities, fully recovered from the effects of her compensable injury. Accordingly, we further find that the claimant is entitled to wage loss benefits beyond January 10th, 2001.

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 23rd day of May, 2003

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