The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 26, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on June 26, 2003 and again on September 9, 2003.

Issue

Whether or not the claimant has sufficiently recovered from the compensable injury to the extent that there is no longer a loss of earning capacity.

Decision

That the claimant has sufficiently recovered from the compensable injury to the extent that there is no longer a loss of earning capacity.

Decision: Unanimous

Background

In May 1995, the claimant experienced a sudden onset of right wrist pain during the course of her employment as a sewing machine operator. The claimant was eventually diagnosed and treated for reflex sympathetic dystrophy and myofascial pain syndrome. In 1996, the case was referred to the vocational rehabilitation branch of the Workers Compensation Board (WCB) to assist the claimant in locating suitable employment respecting temporary restrictions to avoid strenuous use of her right arm.

On January 3, 2001, a WCB medical advisor assessed the claimant to determine whether or not there was a continuing relationship between the claimant's current symptoms to the compensable injury of 1995. Based on this assessment and after consulting with the Section Heads of the WCB's Healthcare branch, a WCB case manager wrote to the claimant on February 23, 2001. The case manager indicated that it was the opinion of the healthcare branch that the claimant had recovered from the effects the claimant was essentially pain free prior to the developing an upper respiratory infection. On balance of probabilities, the case manager indicated that the recurrence of the claimant's symptoms was related to this condition as opposed to the compensable injury. The letter also indicated that benefits would be paid to May 18, 2001 inclusive and final based on Section 39(2) of The Workers Compensation Act (the Act).

In the interim, the claimant called her WCB employment specialist to indicate that she completed a two day work assessment and was in considerable pain and stiffness as a result of some of the physical aspects of the job. Her duties included opening boxes of clothing, pricing them and then moving the product out to the floor. On May 23, 2001, the claimant advised that she declined to accept a job offer as she felt that she was not ready physically to accept employment.

A report was received an occupational health physician dated October 4, 2001. The specialist noted that the claimant's treating physiatrist recommended restrictions in February 2000 of no repetitive use of her right arm but he did not mention restrictions on heavy lifting. In January 2001, a WCB medical advisor outlined restrictions for a six month duration which included no repetitive flexion, extension, twisting or grasping of the right hand or forearm, no forceful grasp of the right hand, no lifting, pushing, pulling requiring greater than 10 lbs. of force with the right forearm or hand.

The occupational health physician indicated that he examined the claimant's upper back and shoulders, finding taut, tender bands in the lateral neck restricting lateral neck flexion bilaterally. The claimant had full range of motion in her shoulders. The claimant had restrictions of right rotation and right lumbothoracic back pain. Forward bending was restricted. The occupational health physician was of the opinion that the job duties of unloading a truck load of merchandise in a warehouse was not appropriate given her past injury condition and the definition of restrictions in place as guides for her job search. The occupational health physician felt that some permanent restrictions, as those outlined by the WCB medical advisor previously, should be in place as the claimant was prone to re-injuries both from physical exertions, as well as other stressors such as she experienced with her viral illness in October 2000.

On May 7, 2002, a WCB case manager advised the claimant that he discussed the medical report of October 4, 2001 with a WCB medical advisor and that there would be no change made to his previous decision of February 23, 2001. On June 14, 2002, the claimant appealed the WCB's decision to end her benefits on May 18, 2001 and the case was forwarded to Review Office for consideration.

Following consultation with a WCB orthopaedic consultant on July 2, 2002, Review Office determined, on the weight of evidence, that the claimant had sufficiently recovered from her compensable injury to the extent that there was no longer a loss of earning capacity. In view of the multiple assessments on file, Review Office was of the opinion that the WCB had more than adequately served and compensated the claimant.

On May 9, 2003, legal counsel, acting on behalf of the claimant, appealed Review Office's decision of July 5, 2002 and provided the Appeal Commission with a written submission dated April 30, 2003. Legal counsel stated, in part, that there were no less than five physicians on file who had offered an opinion that the claimant should have either permanent restrictions or that she will never be symptom free. He contended that whenever the claimant was required to use her right arm in a strenuous fashion she experienced a flare-up of her myofascial pain. There was no other more probable cause for this other than the compensable accident of May 16, 1995.

On June 26, 2003, an oral hearing was held to determine whether or not the claimant had sufficiently recovered form the compensable injury to the extent that there was no longer a loss of earning capacity.

Following the hearing and discussion of the case, the Appeal Panel requested additional information from the claimant's treating rehabilitation and medicine specialist prior to discussing the case further. A report from the specialist was later received and was forwarded to the interested parties for comment. On September 9, 2003, the Panel met further to discuss the case and the issue under appeal.

Reasons

After thoroughly reviewing all of the evidence, we find that certainly by May 2001 when the claimant returned to work she had sufficiently recovered from the compensable injury to the extent that there was no longer a loss of earning capacity. In coming to this conclusion, we attached considerable weight to two particular pieces of evidence.

Firstly, the claimant's treating physical medicine and rehabilitation specialist provided a report to the WCB on February 5th, 2001 and advised: "On January 29, 2001, she stated that she had little or no problems with pain since my last treatment one year ago. She should be able to resume her plans for work experience with her daughter in the near future."

Secondly, there is a memorandum on file dated February 19th, 2001 in which a WCB medical advisor recorded the following comments:
"…it is clear that Dr. [physical medicine and rehabilitation specialist] confirms 2 important issues. Firstly, Ms. [the claimant] was pain free and had recovered from her CI as of last year. Secondly, the appearance of MFP [myofascial pain] again in Oct/Nov 2000 was caused by a non-work related condition, namely a viral illness and possibly SAD [seasonal affective disorder]. Therefore, on balance, she is recovered from the effects of CI, and current problems are caused by other factors."

We further find based on the weight of evidence that the claimant's continued loss of earning capacity beyond May 2001 is not causally related to her compensable injury of May 16th, 1995. Accordingly, 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 25th day of September, 2003