The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 9, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to compensation benefits after August 12, 1999.

Decision

That the claimant is entitled to vocational rehabilitation assistance once she contacts the Workers Compensation Board and agrees to participate fully in a mutually agreed upon plan.

Decision: Unanimous

Background

In October 1997, the claimant filed a claim with the Workers Compensation Board (WCB) for pain in both arms which she related to her work activities as a data entry operator prior to 1997. The claimant was initially diagnosed with epicondylitis and a repetitive strain injury and later with myofascial pain syndrome. The claim was accepted by the WCB and benefits were paid accordingly.

On August 25, 1999, following consultation with a WCB medical advisor, primary adjudication advised the claimant that based on the weight of medical evidence including the diagnosis, subsequent investigations, current clinical findings and the time that had passed, a cause and effect relationship no longer existed between her ongoing difficulties and the compensable injury of March 1, 1997. As a result, wage loss benefits were paid to August 12, 1999 inclusive and final. As the claimant disagreed with the decision, the case was considered by both Review Office and the Appeal Commission and the decision by primary adjudication was upheld. For further details regarding a summary of this claim and the decision rendered by the Appeal Commission, please refer to Appeal Panel Decision No. 14/01.

In a submission to the Chief Appeal Commissioner dated September 23, 2003, legal counsel for the claimant requested reconsideration of Decision 14/01 based on section 60.91 of The Workers Compensation Act (the Act). Included with the submission were copies of the following reports:

• letter from the claimant's family physician dated August 28, 2003;
  
  
• letter from the claimant's treating physiatrist dated December 30 2002;
  
  
• letter from a physiotherapist dated July 2, 2002 and
  
  
• letter and clinic notes dated July 21, 2003.

In a response to legal counsel dated November 18, 2003, the Chief Appeal Commissioner granted the request for reconsideration by stating that some of the submitted material met the test of being "new, substantial and material to the decision, and non-existent at the time of the earlier decisions." Accordingly, the case was heard by a different Appeal Panel on March 9, 2004.

Reasons

The weight of evidence suggests that the claimant has not completely recovered from the effects of her compensable injury. However, this same body of evidence does not, on the other hand, confirm that the claimant has a total loss of earning capacity. In particular, we note certain comments of the Medical Review Panel (MRP) contained in its October 23rd, 2000 report: "The Panellists agree that Mrs. [the claimant] could do work which does not require repetitive upper extremity movements."

Inasmuch as the claimant has not yet returned to her pre-accident state, we are of the view that she should be entitled to vocational rehabilitation benefits. Notwithstanding the claimant's entitlement to benefits, it should be pointed out that the claimant has made little or no attempt since the termination of her benefits to seek alternate employment, which would by and of itself respect her upper arm difficulties. In addition, the claimant has failed to take steps to improve/upgrade her present transferable skills i.e., several years of university education and to increase her functional capabilities such as undertaking muscle strengthening and endurance exercises.

We further find that the claimant has clearly failed to mitigate the consequences of her accident. Accordingly the claimant's entitlement to vocational rehabilitation benefits should not in our view commence until such time as she enters into a mutually compliant vocational rehabilitation plan with the WCB and she agrees to participate and cooperate fully therein.

We would also like to recommend that the WCB, in conjunction with the implementation of a vocational rehabilitation plan, promote the following treatment measures that were outlined by the MRP. We are especially concerned with respect to the first recommendation.

"The Panellists agree that Mrs. [the claimant] should be weaned off narcotics. This medication should be replaced with tricyclics and simple anti-inflammatory medications.

The Panellists suggest that investigation may reveal other medical/psychological conditions which may require treatment.

Following the suggested investigations, it may be appropriate for a further short period of soft tissue therapy. Vocational Rehabilitation may also be required."

The claimant is entitled to compensation benefits after August 12, 1999 as specifically outlined above.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of April, 2004