The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 24, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant's neck difficulties are related to her compensable injury of January 7, 2003.

Decision

The claimant's neck difficulties are related to her compensable injury of January 7, 2003.

Decision: Unanimous

Background

The claimant has been employed as a baker for 23 years. On January 7, 2003 she sought treatment from a physician for increasing pain in her right shoulder, which she attributed to repetitive heavy lifting while performing her duties at work. A right shoulder x-ray taken on January 7, 2003 revealed slight degenerative changes at the acromioclavicular joint.

On January 13, 2003, when her shoulder did not improve, the claimant sought treatment from a physician and was diagnosed with tendonitis in her right shoulder with mild acromioclavicular osteoarthritis. Pain medication was prescribed and the claimant was advised to stay off work for three days. The claimant did not return to work on January 13, 2003, reporting to her employer that she was unable to do her bakery duties due to her right shoulder and arm difficulties.

The claimant was next examined on January 17, 2003. The attending physician noted tenderness over the claimant's pectoral muscle and shoulder and advised her to remain off work until January 21, 2003, when she was scheduled to see her regular physician.

On January 21, 2003, the claimant was examined by her regular physician. The physician noted continuing right shoulder pain and tenderness in the right rotator cuff and diagnosed the claimant with a rotator cuff injury. The claimant was referred to a physiotherapist for treatment and advised to stay off work for 4 weeks.

On January 29, 2003, a physiotherapist assessed the claimant. The therapist's report to The Workers Compensation Board ("WCB") indicated that the claimant reported an injury to her right shoulder from overuse at work. The claimant described her symptoms as constant and severe pain in her shoulder, throbbing pain that radiated down her right arm, numbness and tingling in her fingers and stiffness in her right neck. The therapist noted that the claimant had no prior history of pain in her shoulder or neck. On examination there was reduced range of motion in the shoulder and cervical spine, decreased C7 reflex and tenderness in the cervical spine. The physiotherapist was of the opinion that the claimant had right C7 nerve impingement causing right arm radiculopathy and repetitive strain injury to her right rotator cuff. He recommended physiotherapy treatments to the claimant's cervical spine and shoulder.

When next examined on February 12, 2003, the claimant's physician referred to the physiotherapist's opinion that the claimant's problems were related to cervical spine nerve root compression. The physician commented that the claimant originally did not have pain in her neck. The physician notes that the claimant is icing her neck 2 to 3 times a day. On examination of the claimant's cervical spine, the physician noted reduced range of motion with pain in the right arm with neck flexion. The physician diagnosed nerve root compression at the C6-7 level and ordered an x-ray of the cervical spine.

The radiologist's report of the cervical spine dated February 14, 2003 noted mild degenerative disc disease with small posterior osteophytes at the C5-6 and C6-7 level. The report also noted that the claimant's normal cervical lordosis was straightened "possibly due to muscle spasm".

On February 17, 2003 the WCB adjudicator contacted the claimant to discuss her symptoms. The claimant indicated that her pain started in her right shoulder and upper arm and traveled to her whole arm and hand. The adjudicator noted "She doesn't have any pain in her neck. She said she has never had any prior neck injuries."

On March 3, 2003 a WCB medical advisor reviewed the file. The medical advisor was of the opinion that the mechanism of injury and clinical findings suggested muscular strain and myofascial involvement related to the muscles of the cervical spine and right shoulder. The medical advisor noted that there was evidence of pre-existing degenerative changes in the cervical spine and right acromioclavicular joint.

On March 4, 2003, the WCB adjudicator contacted the claimant to advise that her claim was accepted and to discuss the degenerative disc condition in her neck. The file notes record the claimant's comments that she was not having any pain in her neck and was not aware of any neck problem until the doctor and physiotherapist told her of the problem.

In a letter dated March 4, 2003, the WCB adjudicator advised the claimant that her claim was accepted based on the diagnosis of a muscular strain of her right shoulder. The letter stated:

"All wage loss and treatment duration and medical expenses will be paid based on that diagnosis. As you know medical information has revealed that you (sic) degenerative disc disease in your neck. WCB will not pay for any time loss from work or treatment related to that diagnosis."

The claimant commenced a graduated return to work on March 17, 2003 with reduced hours and modified duties, while continuing her physiotherapy treatments.

The claimant was examined by her physician on April 16, 2003. The physician noted improved strength in her shoulder and right arm with "some secondary neck stiffness and myofascial pain still". By April 21, 2003, the claimant was working full time in modified duties. In a report dated May 5, 2003, the physiotherapist noted complaints of neck pain and intermittent right shoulder pain but was of the view that the claimant's rotator cuff strain had improved to the point that she could return to her regular duties, which the claimant did on May 12, 2003.

In a memorandum dated April 24, 2003, the WCB medical advisor was asked whether the claimant's pre-existing degenerative condition in her cervical spine was delaying her recovery. The medical advisor stated that there was no direct evidence that the pre-existing condition delayed recovery.

On September 9, 2003, the claimant's union representative notified the WCB that it disagreed with the adjudicator's determination that only the claimant's right shoulder muscular strain was compensable. According to the union representative, the medical evidence indicated that the claimant also had work-related neck problems, which the adjudicator had overlooked. The representative pointed to the physiotherapist's reports documenting the neck problems and physiotherapy treatments provided for both the neck and shoulder areas; evidence of cervical muscle spasms; the WCB medical advisor's opinion that there was muscular strain and myofascial involvement in the muscles of the shoulder and cervical spine; and the physician's description of neck problems being secondary to the shoulder injury.

The WCB case manager referred the matter to a WCB medical advisor to address the relationship between the compensable injury and the claimant's documented neck difficulties. The WCB medical advisor was of the opinion that there was no relationship between the two, stating as follows:

"The neck pain was not mentioned until 3 weeks after the compensable injury, and the attending physician, in a subsequent report, stated that the claimant originally did not have pain in her neck. In my opinion, there is no relationship between the compensable injury and the neck difficulties. The compensable injury relates to her right shoulder difficulties, which subsequently resolved."

By letter dated October 20, 2003, the WCB case manager notified the claimant that the WCB would not accept the claimant's neck difficulties as being related to the injury. The union representative appealed the decision to the Review Office.

On November 28, 2003, the Review Office upheld the adjudicator's decision that the claimant's neck problems were not related to the compensable injury of January 7, 2003. In reaching its decision, the Review Office noted that there was no mention of the neck condition until the physiotherapist's assessment on January 29, 2003 and referred to the claimant's statements recorded on file that she did not have neck pain and was not aware of a neck problem. The Review Office was of the opinion that the physiotherapist was not authorized to treat the claimant for neck problems and should not have done so.

The union representative appealed the Review Office's decision and requested an oral hearing.

Evidence at Hearing

A hearing took place before the Appeal Commission on March 24, 2004. Present at the hearing was the claimant, her union representative, and two employer representatives.

The claimant testified that the majority of her duties involve working and shaping dough, loading dough into pans ranging between 3 by 5 feet to 6 by 8 feet, and lifting these pans from racks or lifting boxes of product from shelves in the freezer. Each day four to six racks of product are loaded or unloaded, each rack containing approximately 20 to 22 pans. In the case of bread products, each pan accommodates 16 loaves weighing over one pound each, for a total of 16 pounds per pan. The claimant also unloads boxes of product weighing 25 to 35 pounds and stacks them in the freezer. The claimant spends a large portion of her day working with dough on a production table, reaching and bending while reshaping and adding ingredients to the dough.

The claimant attributed the constant repetitive lifting of pans onto racks and heavy boxes of product onto shelves as high as 5 feet as the cause of her shoulder pain. She also explained that she does the majority of the baking and has to unload 150 loaves each day, by flipping pans with 4 loaves at a time over her head and dumping them onto a rack using a jerking motion. She believes that this repetitive movement caused her upper body and neck problems.

With respect to the onset of her symptoms, the claimant explained that initially her shoulder and arm were so sore she didn't notice her neck. It was not until her arm starting improving that her neck problems were noticeable. She described her pain as covering the area of her shoulder, radiating down her right arm, elbow, hand, and her neck. The claimant's recollection of discussions with the WCB staff was that she was questioned regarding the cause of her neck difficulties and she told them she never had neck problems before. The focus of these discussions was on the effect of the pre-existing degenerative changes.

The claimant's position is that her repetitive work duties involving heavy lifting and stretching caused a muscular strain injury that affected the closely associated muscle areas in both her shoulder and neck and the WCB should have included the neck difficulties as part of her compensable injury together with her right shoulder problems.

The employer took the position that the WCB correctly adjudicated the claim as a muscular strain to the shoulder only. However, the employer focused its argument on a claim that the appeal was frivolous under Section 60.8(7) of The Worker's Compensation Act (the "Act"). The employer argued that as the claimant had been provided with full wage loss benefits until her return to regular duties on May 12, 2003, and would not receive any additional benefits even if the panel were to find that the neck problems were related to the compensable injury, the panel should consider that the appeal may be an attempt to gain future benefits and determine the appeal to be frivolous.

Reasons

The panel is of the opinion that there is no merit to the employer's argument that the claimant's appeal is frivolous. The claimant is entitled to a determination as to whether or not any particular injury was caused by a work-related accident within the meaning of the Act, regardless of whether or not the claimant will thereby be entitled to additional benefits. These are the types of determinations, which the WCB and the Appeal Commission are legislated to make pursuant to Sections 60(1) and (2) of the Act. Such determinations may very well be relevant in future claims and will be considered by the WCB when such claims come before the board, based on all of the evidence at that time. Furthermore, given the decision of the panel in this matter, it cannot be said that the appeal is frivolous based on a lack of any evidence that the claimant suffered a neck injury arising out of her employment.

The panel has considered all of the evidence and submissions of the parties and concludes that the claimant suffered both a neck and shoulder injury arising out of her work duties. The panel has made this determination for the following reasons:

• The WCB concluded that the claimant's work duties involving repetitive heavy lifting and stretching caused a muscular strain injury in the right shoulder area. The panel is of the view that the evidence of the claimant's work duties indicated that such movement would also likely involve and affect the muscle areas of her upper chest, shoulder and neck;
  
  
• The panel is of the view, after hearing the claimant's evidence, that the claimant did not receive a thorough assessment of all related muscle areas until she was assessed by the physiotherapist and there was evidence early on that the claimant's problems included muscles in the areas surrounding her shoulder. The first physician who examined the claimant on January 7, 2003 appears to have made a cursory assessment and only ordered a shoulder x-ray. When examined on January 13, 2003, another physician noted tenderness in the upper chest muscles as well as the shoulder. The claimant also testified that her shoulder and arm pain was so severe initially that her arm just hung down. When first examined by the physiotherapist on January 29, 2003, the claimant complained of stiffness in her neck. The panel concludes that it is reasonable that neck problems were not considered earlier given the focus placed on the shoulder and the severity of the pain in the shoulder and arm area;
  
  
• In addition to the complaint of neck stiffness, the physiotherapist observed decreased range of motion and tenderness in both the shoulder and cervical spine and recommended physiotherapy treatments to both the cervical spine and shoulder area. These treatments were approved by the WCB with no limitation to the shoulder area;
  
  
• As a result of the physiotherapist's assessment of neck problems an x-ray of the cervical spine was ordered, which revealed that the claimant's normal curvature of her neck was straightened possibly due to muscle spasms in that area;
  
  
• Although x-rays of the cervical spine and shoulder revealed mild degenerative changes, the claimant had no previous symptoms in her shoulder or neck area and the WCB medical advisor was of the opinion that these pre-existing degenerative changes did not play a role in the claimant's recovery;
  
  
• The panel places substantive weight on the opinion of the WCB medical advisor who reviewed the file on March 3, 2003 and concluded that the mechanism of injury and clinical findings suggested muscular strain and myofascial involvement to the muscles in both the shoulder and cervical spine area.

In reviewing the file, it appears that when the WCB adjudicator addressed the claimant's neck problems in March 2003, she focused on whether the claimant's degenerative neck condition was compensable, concluding that the pre-existing condition was not related to her employment and was therefore not compensable. The adjudicator does not appear to have addressed the issue of whether the claimant's neck problems might have nevertheless been related to her injury, given the WCB physician's opinion that there was a muscular strain and myofascial involvement in the muscles of the cervical neck.

The panel also notes that the same WCB medical advisor gave a contrary opinion in September or October of 2003 that the claimant's neck pain was not related to the compensable injury, however, the panel places greater weight on his earlier conclusion that there was likely muscular strain and myofascial pain in the cervical neck area, as that opinion was made closer to the time of injury and was supported by the clinical findings and evaluation of the mechanism of injury referred to above.

Accordingly, the panel concludes that, on the balance of probabilities, the weight of the evidence supports a determination that the claimant's neck difficulties are related to her compensable injury of January 7, 2003 and this appeal is allowed.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of May, 2004