Decision #13/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 20, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 20, 2003 and again on January 5, 2004.

Issue

Whether or the worker is entitled to wage loss benefits and services beyond December 17, 2002.

Decision

That the worker is entitled to wage loss benefits and services beyond December 17, 2002.

Decision: Unanimous

Background

In early October 2001, the claimant reported left shoulder, neck and upper back complaints which he related to his employment activities as a butcher, which included banging, opening, cutting and bunging activities. The diagnosis rendered by the attending physician following examination of the claimant on October 2, 2001 was a myofascial trapezius strain. The Workers Compensation Board (WCB) accepted the claim and compensation benefits were paid during the claimant’s absences from work.

On December 18, 2001, a WCB medical advisor reviewed the file information which contained progress reports form the treating physician along with physiotherapy reports. The medical advisor commented that the current diagnosis was “muscular (? Myofascial) pain traps and rhomboid.” The normal recovery time for such a diagnosis was variable. The medical advisor felt that the claimant could attempt modified duties starting at 3 hours per day, twice per week.

Between December 18, 2001 and February 19, 2002 ongoing progress reports were received from the treating physician. On February 19th, the claimant was noted to have tenderness in his trapezius and left rhomboid region.

In a report dated June 4, 2002, a physical medicine and rehabilitation specialist’s (physiatrist) clinical impression of the claimant was mechanical neck and shoulder pain with regional myofascial trigger points of several muscles. The claimant suffered repetitive straining of the neck and shoulder girdle muscles and ligaments. There was no evidence of any radiculopathy due to disc herniation. Treatment recommendations included trigger point injections and a self management home exercise program.

On June 18, 2002, a WCB medical advisor reviewed the case including hand written charts notes prepared by the claimant’s physician dated February 2002 through to May 24, 2002. The medical advisor noted that the clinical signs were initially left sided and now they were mostly right sided. Spinal stenosis was being queried. As a result, the medical advisor concluded that the claimant’s symptoms appeared to be unrelated to his compensable injury.

A CT scan of the cervical spine was performed on July 2, 2002. The results revealed central disc bulging at the C6-7 level and a tiny central disc herniation without spinal stenosis or nerve root entrapment. There was no evidence of disc herniation, spinal stenosis, or nerve root compression at any of the other imaged levels. No other abnormality was identified.

The claimant was examined by a WCB medical advisor on July 31, 2002. The medical advisor stated, in part, that the claimant had mild pre-existing degenerative changes in his cervical spine and also myofascial discomfort in the trapezius muscle and the rhomboids bilaterally. The medical advisor stated that the claimant’s body habitus was simply mismatched for the heavy and repetitive duties that he had to perform over the months leading up to his symptoms. The medical advisor felt that the claimant should be matched with employment that avoided excessive stresses to the upper shoulder girdle, upper limbs and neck. The medical advisor also outlined restrictions and stated that these restrictions could be lifted once the claimant was matched with the type of work that his body could handle.

In a report dated August 19, 2002, the claimant was diagnosed with a vague myofascial-type pain, which was not getting much better with the claimant’s being off work for a few months. The physician was of the view that the claimant should get a lighter type job so that his complaints would be less and so that he could at least continue to work.

The claimant underwent a functional capacity evaluation at the WCB on October 11, 2002. The results of this evaluation are on file.

In a memo dated October 28, 2002, a WCB medical advisor stated, in part, “…this young & small statured individual ought to have recovered from his myofascial pain relevant to C.I. [compensable injury]. I strongly agree that clm’t must get back to work.”

On November 14, 2002, a physician from the pain and injury clinic noted that he had treated the claimant twice with acupuncture with no benefit. A referral was made for the claimant to undergo massage treatment to the soft tissues of the upper back.

On December 2, 2002, a WCB medical advisor reviewed x-ray and CT scan evidence and was of the view that the degenerative processes identified were not as a result of the claimant’s work history with the accident employer or to employment with his previous employers.

In a letter dated December 9, 2002, the claimant was advised that his wage loss benefits would be paid to December 17, 2002 inclusive and final. This decision was based on the weight of medical evidence, which did not support an ongoing relationship between the claimant’s current condition and his compensable injury. On January 8, 2003, a union representative, acting on behalf of the claimant, disagreed with this decision, being of the view that the claimant was entitled to wage loss benefits up until he was able to secure different work with a different employer.

On February 13, 2003, a WCB case manager advised the claimant and his union representative that no change would be made to the earlier decision. The case manager acknowledged that the mechanism of injury or the excessive workloads leading to the injury were never in dispute. Any suggestion that the claimant should avoid certain work activities was considered preventive in nature and was not directly related to the compensable injury. The case manager felt that the claimant would not qualify for vocational rehabilitation services under the WCB’s preventive policy as the claimant had not experienced any other WCB claims. On February 20, 2003, the union representative appealed the WCB’s decision to Review Office.

On March 14, 2003, Review Office confirmed that the claimant was not entitled to benefits and services beyond December 17, 2002. Review Office noted that the claimant had received all of the treatment modalities that one would expect for myofascial pain type symptoms and yet his complaints continued. Review Office was concerned about the claimant’s failing 4/5 validity tests during his Functional Capacity Evaluation (FCE) and commented that credibility was a significant issue when dealing with subjective complaints of pain where there is very little clinical objective evidence to support the complaints. It was difficult for Review Office to relate the claimant’s subjective complaints of pain in his neck, both shoulders, mid and upper back, to the claimant’s regular duties of October 1, 2001.

Review Office also commented that any restrictions being placed on the claimant’s return to work would not be deemed compensable, but rather preventive in nature and out of respect of the claimant’s physical stature as opposed to any compensable reason. This decision was further confirmed by Review Office in a letter dated April 9, 2003. On September 16, 2003, the union representative appealed Review Office’s decisions and an oral hearing was arranged.

Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the specialist who had examined the claimant in the latter part of 2003. A report from the specialist was later received dated August 15, 2003 and was forwarded to the interested parties for comment. On January 5, 2004, the Panel met to discuss the case further and to render its final decision.

Reasons

In determining whether or not this worker is entitled to benefits and services beyond December 17, 2002, we have concluded that the claimant’s difficulties in December 2002 were causally related to his compensable injury of October 2001 and that he had not recovered from the effects of the compensable injury as of that date.

As the background notes indicate this claimant suffered left and right shoulder, neck and upper back complaints while performing repetitive duties on a hog processing line. He discontinued work on October 1/01.

The claimant sought medical treatment for his difficulties and returned to his pre-accident duties for a period of time in October 2001 and then was off until February 2002. His evidence was that the work was very physical and highly repetitive and that he sometimes was doing the work of two people on the line. He described being in pain most of the time.

By mid May 2002 the claimant was not able to continue the work and on the advice of his family physician he left his employment. He was seen by a WCB medical advisor in July 2002 who diagnosed him as having a myofascial trapezius strain. He was referred for acupuncture and was advised to commence a graduated return to work program with restrictions. A further assessment was to be conducted to determine his ability to handle the heavy work.

The evidence at the hearing was that the accident employer could not accommodate a graduated return to work program. Consequently no actual workplace assessment took place to determine the worker’s capabilities on the hog processing work. The claimant testified that throughout the fall of 2001 he continued to seek medical treatment and had further medical investigations. Upon receiving medical advice on several occasions to look for lighter work, he made the decision to pursue educational retraining to develop his English skills so that he could eventually move to lighter employment.

The union representative indicated that there appeared to be communication difficulties throughout the file because of the language barrier and this seemed to have an impact on instructions given to the claimant and specifically on the results of the Functional Capacity evaluation. She argued that without an actual workplace assessment it is difficult to know how much heavy repetitive work if any the claimant could do.

After reviewing the file information and hearing the oral evidence, the panel finds the claimant had not recovered from the effects of his compensable injury. We also find, on a balance of probabilities, that the claimant’s medical condition after December 2002 was causally related to the compensable injury of October 1, 2001.We base this determination on the following:

  • The claimant’s evidence at the hearing was that he has never fully recovered from the highly repetitive heavy work and that his symptoms have fluctuated over time. The panel notes the medical consistency throughout the file as well as the worker’s evidence, confirming he was treated for the same anatomical areas of his body noted at the time of injury.
  • A WCB medical advisor notes that the heavy occupation was not suited to the claimant’s small stature. While a person’s stature may limit certain activities, we note this claimant was able to work not only at this particular heavy demanding employment but also concurrently as a butcher. His stature does not limit his entitlement to WCB benefits as long as there is a causal relationship between his ongoing difficulties and the compensable injury.
  • The panel accepts that the claimant’s work of opening, cutting and bunging on a hog line was highly repetitive for any person no matter what their physical stature.
  • The WCB medical advisor in October 2002 commented, “The claimant ought to have recovered from myofacial pain.” The panel notes there is no medical consensus to indicate the claimant had recovered from the effects of his compensable injury by December 2002 and that none of the restrictions that had been implemented by the WCB were lifted. Clearly, the claimant had not returned to his pre accident medical status by that date.
  • An Occupational Medicine physician in a report of June 26, 2003 notes taut, tender bands in the right levator scapulae, in the interscapular region and in the shoulder girdle rhomboids and medial trapezius.
  • A specialist in Physical Medicine and Rehabilitation in an August 15, 2003 report states “There was soft tissue tenderness in the trapezius and posterior shoulder girdle muscles as well as with palpation over the posterior cervical muscles. No referral phenomena were reported with palpation, but there was pain locally.”

In conclusion, the panel accepts the claimant had not recovered from the effects of his compensable injury as of December 17, 2002 and is therefore entitled to benefits and services beyond that date. His appeal is therefore allowed.

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 21st day of January, 2004

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