The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 22, 2004, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on April 22, 2004 and again on July 19, 2004.

Issue

Whether or not the claimant experienced a recurrence of injuries sustained February 13, 1994;

Whether or not a new accident occurred arising out of and in the course of the claimant's employment;

Whether or not the claimant is entitled to payment of wage loss benefits beyond July 13, 1994.

Decision

That the claimant did not experience a recurrence of injuries sustained February 13, 1994;

That a new accident has not occurred arising out of and in the course of the claimant's employment;

That the claimant is not entitled to payment of wage loss benefits beyond July 13, 1994.

Decision: Unanimous

Background

On February 13, 1994, the claimant was changing a unit battery which weighed approximately 500 lbs. during the course of his employment as an electrician. This activity involved lifting, pulling, pushing, adjusting and connecting the battery electrically. The following day, the claimant reported pain in his back, neck and head.

Medical information confirmed that the claimant sustained an acute cervical/lumbosacral strain injury as a result of the above incident. The claimant was also reported to have a pre-existing condition which was documented as degenerative cervical spine and lumbosacral disc disease with associated spondylosis. On April 12, 1994, a physiotherapy report suggested that the claimant had myofascial pain in his upper and lower back.

Following an examination by a medical advisor with the Workers Compensation Board (WCB) on May 5, 1994, it was determined that the claimant had recovered from the effects of the compensable injury and that his ongoing problems were most likely related to pre-existing degenerative disc disease. Restrictions were outlined for a six week period. By June 11, 1994, the claimant returned to regular full time duties.

Subsequent file records showed that the claimant began to experience pain and headaches in the third week after returning to work. On July 19, 1994, he advised the WCB that there was no specific injury to account for his difficulties and that he did not engage in any extra curricular activities which might have triggered his concerns.

In a report to the WCB dated August 13, 1994, the attending physician was of the view that most of the claimant's current back complaints were related to the longstanding process of repeated strain injuries to the spine, mostly in the course of his employment, eventually resulting in a progression of degenerative spinal changes.

Following consultation with the WCB's healthcare branch on September 1, 1994, the WCB informed the claimant that wage loss benefits were not payable after July 13, 1994, as it was the WCB's opinion that he had recovered from his compensable injury and that his ongoing problems were primarily related to his degenerative disc disease. In February 1995, this decision was appealed by an advocate, acting on behalf of the claimant.

On June 23, 1995, Review Office issued the following decisions after reviewing the file information:

• that a new accident did not occur arising out of and in the course of the worker's employment. Review Office felt that a relationship between an injury and an accident had not been established and that the claimant's absence from work beyond July 13, 1994, would not be considered a new accident.
  
  
• that the claimant did not experience a recurrence of injuries sustained on February 13, 1994. Review Office acknowledged that the claimant had degenerative disc disease in the spine which was not caused by or related to the injuries sustained in February, 1994. The initial accident on February 13, 1994 was described as a soft tissue strain from which the claimant had recovered. Review Office noted that the claimant experienced some back pain, headaches and other symptoms after the third week of returning to work but could not identify any incident which may have caused these difficulties and he did not discuss or report his problems to his supervisor until July 13, 1994.
  
  
• The claimant's stoppage at work in July 1994 was not a recurrence of the injuries sustained on February 13, 1994 and therefore he was not entitled to the payment of wage loss benefits.

On October 2, 1995, an Appeal Panel hearing was convened following receipt of an appeal by the claimant. After the hearing and after discussing the case, the Panel requested further information. This consisted of medical information from the company's physician, an examination by a WCB physiatrist consultant and additional comments from the physiatrist consultant dated January 25, 1996.

In a letter dated December 01, 1995, the company's physician advised that he had assessed the claimant on August 30, 1994 and his assessment was that of fibromyalgia.

The WCB physiatrist consultant in a memorandum dated November 14, 1995, noted that he had examined the claimant on November 7, 1995 and conducted a file review. The most prominent feature of his examination was tenderness to palpation with approximately 16 of 18 tender points of fibromyalgia syndrome present.

In response to a memo from the Appeal Board dated January 17, 1996, the WCB physiatrist was asked to consider the potential for a diagnosis of myofascial pain syndrome. He responded that the current findings and history were compatible with a prominent fibromyalgia syndrome. While the physiatrist noted that occasionally both fibromyalgia and myofascial pain can occur together, in his opinion "there was no evidence of myofascial pain syndrome activity as of the examination dated November 7, 1995."

The WCB physiatrist went on to observe that there is no evidence that the onset of fibromyalgia occurs related to activity although individuals with fibromyalgia are frequently very sensitive in term of developing symptoms following activity. He noted that this usually does not mean injury.

In Appeal Panel Decision No. 28/96, the Panel confirmed the three decisions that were rendered by Review Office, namely that: i) the claimant did not experience a recurrence of his February 13, 1994 injuries, ii) the claimant did not incur an accident as defined under the Act on or about July 13, 1994; and, iii) the claimant was not entitled to benefits beyond July 13, 1994.

In early July 1997, the claimant requested re-consideration of Appeal Panel Decision No. 28/96 based on a February 14, 1997 report from a physiatrist. In that report, the claimant's physiatrist noted that he initially saw the claimant on October 10th, 1996 approximately 2¼ years after the claimant's stoppage of work in July, 1994. Based upon that examination, the claimant's physiatrist diagnosed multiple muscle myofascial pain syndrome. In making his diagnosis, he noted that myofascial taut bands and tender trigger points causing local and referred pain are specific findings of myofascial pain syndrome.

In a response from an Appeal Commissioner dated July 14, 1997, the claimant was advised that his physiatrist's report did not disclose any new evidence as contemplated by the Act as at the time of the original hearing, the Appeal Panel also had evidence before it suggesting that his ongoing difficulties were related to myofascial pain syndrome. The claimant's request for reconsideration of the previous decision was denied.

On November 21, 2003, a request for re-consideration was granted and the case was heard again on April 22, 2004. At this time, the file contained further reports from the claimant's physiatrist dated July 9, 1997 and October 6, 1997 and a medical certificate from the treating physician dated May 3, 2001.

At the April 22nd appeal hearing, the claimant argued that the myofascial pain syndrome diagnosis by his physiatrist should be preferred to the earlier fibromyalgia diagnosis of the WCB physiatrist given that his physiatrist's treatment enabled him to return to work.

Following the April 22nd hearing, the Panel met to discuss the case and it requested a copy of the claimant's application for disability benefits that he completed in July 1994 along with supporting medical documentation. After consulting with the claimant's treating physician, Sunlife of Canada and an Employee Service Representative with the accident employer, the Panel was unable to obtain this information as it was either destroyed or misplaced. On June 30, 2004, all interested parties were provided with the information that was obtained and were invited to provide comment. On July 21, 2004, the Panel met to render its final decision.

Reasons

In making its decision, the Panel has reviewed and considered the entirety of the record including the claimant's testimony at the oral hearing and the various medical opinions on file.

As a starting point, it is important to understand that no one disputes the reality of the pain experienced by the claimant and its impact upon his ability to work in July of 1994. What is at issue is whether, on a balance of probabilities, the problems experienced by the claimant in July of 1994 were or were not related to a compensable injury in the workplace. This determination is complicated by the reality that, at the time the claimant suffered the work place injury of February 13, 1994, he was suffering from a pre-existing degenerative cervical spine and lumbosacral disc disease with associated spondylosis.

Put another way, it is clear that the claimant had problems with his back. What the Panel must determine is whether the back problems which were affecting the claimant's ability to work in July of 1994 were, on a balance of probabilities, related to a work place injury.

Issue 1: The claimant did not experience a recurrence of injuries sustained February 13, 1994

It has been established that the claimant did suffer an injury in the workplace on or about February 13, 1994 when he was changing a unit battery. The Panel notes and accepts the medical information at the time of the injury which confirmed that the claimant sustained an acute cervical/lumbosacral strain injury as a result of the incident.

However, the Panel concludes, based upon a balance of probabilities, that the workplace injury of February 13, 1994 was not related to the problems experienced by the claimant in July, 1994. In making this determination, the Panel relies upon the May 5, 1994 conclusion of the WCB medical advisor who determined that the claimant had recovered from the effects of the compensable injury and that his ongoing problems were most likely related to the pre-existing degenerative disc disease which was not considered to be a work related injury.

The Panel's conclusion is supported by the reality that the claimant returned to his full time duties on June 11, 1994 and performed those responsibilities for two weeks without expressing any concerns to his supervisor. If the soft tissue strain suffered in February, 1994 was continuing to affect the claimant's ability to work, then the Panel would have expected the onset of symptoms to closely correspond with the claimant's return to full time duties rather than to rise to prominence in the third week after his return to work. In sum, the Panel was unable to relate the symptoms suffered by the claimant in July, 1994 to the compensable injury of February, 1994.

The Panel would note that the claimant's physiatrist in his letter of February 12, 1997 suggests that the claimant suffered an initial muscle strain in February 1994 with subsequent development of myofascial trigger points. The Panel is also aware of the claimant's evidence that he was able to return to work following his physiatrist's treatment for myofascial pain syndrome.

The Panel notes however, that the claimant's physiatrist did not have an opportunity to examine him until October 10th, 1996 well over 2 ¼ years after the injury in February, 1994. Assuming without deciding that the 1996/97 diagnosis by the claimant's physiatrist was correct, the passage of time makes it difficult to link the 1996/1997 diagnosis to the 1994 injury.

This is especially the case when the panel considers that the WCB physiatrist had an opportunity to examine the claimant in November, 1995 and at that point in time, specifically excluded the diagnosis of myofascial pain syndrome. In his view, "there was no evidence of myofascial pain syndrome activity as of the examination dated November 7, 1995."

Both the WCB and the claimant's physiatrist are well qualified specialists. In the Panel's view, if the February 1994 workplace injury lay at the root of the 1996/1997 diagnosis by the claimant's specialist, one would have expected the 1995 examination by the WCB specialist to have revealed some evidence of myofascial pain syndrome activity. The WCB physiatrist's finding of no evidence of myofascial pain syndrome activity as of November 7, 1995 reinforces the Panel's conclusions that, on a balance of probabilities, the claimant's problems of July, 1994 were not a recurrence of injuries sustained February 14, 1994.

Issue 2: The claimant did not suffer a new injury arising out of and in the course of his employment

The claimant noted in his July 19, 1994 report to the WCB that there was no specific injury to account for the headache and back pain which became of concern to him in the third week after his return to full time duties. Given the claimant's own evidence, the record of this proceeding does not support the suggestion that there was a new workplace injury that would account for his symptoms. As a consequence, the Panel concludes, on a balance of probabilities, that the claimant did not suffer a new injury arising out of and in the course of his injury.

Issue 3: The claimant is not entitled to payment of wage loss benefits beyond July 13, 1994.

As noted above, the Panel has found that:

a) the claimant did not experience a recurrence of injuries sustained February 13, 1994; and,

b) the claimant did not suffer a new injury arising out of and in the course of his employment.

Given its findings that the claimant's problems of July 1994 were not as a result of a compensable injury, the Panel concludes that there is no basis under section 39(2) of the Act to provide the claimant with wage loss benefits beyond July 13, 1994.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of August, 2004