The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 29, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker has a loss of earning capacity related to her 1993 injury.

Decision

That the worker has no loss of earning capacity related to her 1993 injury.

Decision: Unanimous

Background

During the course of her employment duties at a meat packing plant in November 1993, the worker sustained a compensable injury to her right wrist. The worker was initially diagnosed with mild bilateral carpal tunnel syndrome and medial epicondylitis syndrome. Later, the worker began to develop symptoms in her right upper limb. In a December 13, 1993 report, the treating specialist diagnosed the worker with "flexor tendinitis of both the wrist flexors and secondary multiple myofascial pain in the forearm flexors of the same arm." In a report dated November 21, 1994, a physical medicine and rehabilitation specialist (physiatrist) commented that the worker's right shoulder girdle regional myofascial pain had "…very largely settled…".

In June 1995, it was determined that the worker had an ongoing myofascial pain syndrome which had been confirmed by two WCB medical advisors (examinations of January 31, 1995) and by the worker's treating physiatrist (June 7, 1995).

As the worker was not considered to be totally disabled, the case was referred to the WCB's rehabilitation branch in August 1995. The worker then became involved in a vocational rehabilitation program which entailed university courses. The worker successfully completed a Bachelor of Arts degree program and subsequently enrolled in a Bachelor of Education degree program.

On November 12, 1999, a report was received stating that the worker had a severe flare up of her myofascial pain syndrome associated with "note taking and computer work" that began with the start of her Bachelor of Education degree program. On November 9, 1999, the worker withdrew from the Bachelor of Education program because of her difficulties.

In a report dated January 18, 2000, a second physiatrist outlined his examination findings of the worker commencing January 11, 2000. The second physiatrist commented that the worker's signs and symptoms were characteristic of multiple muscle myofascial pain syndrome with trigger points. The specialist located taut band and tender trigger points in the right upper trapezius. The worker was referred for median nerve conduction studies because of numbness reported in both hands.

In March 2000, the claimant began a work assessment with a voluntary organization to learn about the legal process and to offer resources to women attending court.

On June 8, 2000, the worker was assessed by a WCB physiatrist and his impression of the worker was as follows, "…There was no evidence of any active myofascial pain involvement on the current examination. Her history and pattern of shoulder locking suggests a loosebody (sic) in the shoulder. She reports significant improvement in the muscle symptomatology with the directed needling treatment and exercise to date. She apparently had a nerve conduction study done on May 30, 2000. The neurologist felt that there was no indication for surgery. The current clinical examination did not suggest any significant carpal tunnel syndrome present neither. There was no evidence on the current clinical examination of any wrist tendinitis as suggested on the initial file; this has likely resolved."

In a decision dated July 24, 2000, primary adjudication advised the worker that there was no specific medical diagnosis to support the increase in symptoms starting in September 1999. Even though the medical evidence supported a flare-up of pain, the objective medical evidence was insufficient to support the need to withdraw from the university program. Primary adjudication stated there was no indication of any enhancement of the original compensable injury nor any new medical diagnosis for a secondary injury. There was no basis to provide authorization for any payment of wage loss benefits for total disability nor was there any change to the previously imposed restrictions.

Subsequent to the above decision, a report was received from the treating physiatrist dated July 18, 2000. The physiatrist stated in part, that treating the worker's myofascial trigger points eradicated her previous more severe symptoms. The specialist said he made no arrangements to see the worker again as he expected resolution of her last remaining symptoms following the July 10 treatment.

On September 26, 2000, the WCB advised the worker that based on the report from the treating physiatrist dated July 18, 2000 and the comments expressed by a WCB physiatrist on August 24, 2000, it was concluded that she had recovered from the effects of her compensable injuries on a balance of probabilities. The WCB would therefore end responsibility for her claim after December 1, 2000.

On October 4, 2000, the WCB wrote to the worker concerning a secondary injury that occurred on September 14, 2000 at the volunteer organization. The WCB indicated that no responsibility could be accepted for the secondary injury on the basis that there was no compensation coverage in effect at the time as the worker was volunteering her services and was not employed by them nor involved in a work experience sponsored by the WCB.

In a submission to Review Office dated September 25, 2001, a worker advisor presented three issues for Review Office to consider. Included with the submission was a letter from the treating physiatrist dated September 5, 2001. Review Office in turn referred the case back to primary adjudication to consider the new medical information.

In brief, the treating physiatrist stated in his letter of September 5, 2001 that the claimant had not been cured by his previous treatment ending in July 2000 and that the worker has had several recurrences of pain symptoms. He noted that the worker had not remained asymptomatic during physical activities at home or more recently since she accepted a job as a telemarketer starting in February 2001.

In a memo dated November 21, 2001, a WCB case manager spoke with the worker to obtain a status update on her work and medical activities commencing July 2000 through to November 2001.

On December 3, 2001, a WCB case manager determined that the new medical information did not change the previous decision outlined on September 26, 2000. It was noted that the recent medical report was based on an examination that was nine months after the worker's last appointment. The case manager concluded that the medical report did not support an ongoing cause/effect relationship between the compensable injury and the worker's current complaints. The case manager also commented that the worker started a new job in February 2001 which resulted in health issues distinct and separate from her compensable injury.

The case was considered by Review Office on March 22, 2002 at the worker's request. Review Office ultimately determined that the worker did not have a loss of earning capacity related to her 1993 injury and that she had the skill set required to become competitively employable in the occupational classification which included paralegal and related occupations.

With respect to the issue concerning the worker's loss of earning capacity, Review Office accepted that the worker was susceptible to the development of myofascial pain of the right shoulder. Note was made about the number of times that the worker's treatment ended and that her symptoms subsequently returned over the past decade. Review Office commented that the claimant had multiple episodes of myofascial pain, each unrelated to the other. It was Review Office's opinion that the worker's recurrent right shoulder complaints were no longer related to her 1993 injury.

In June 2004, the worker appealed Review Office's decision of March 22, 2002 and submitted new medical evidence from an occupational health physician for consideration. On the day of the hearing, September 29, 2004, the worker submitted further medical information from a neurologist.

Reasons

The issue before us was whether or not the claimant has a loss of earning capacity related to her 1993 injury. As noted in the background, the worker had suffered an overuse injury while working in a meat packing plant and subsequently received wage loss benefits and extensive educational upgrading, prior to termination of her benefits in December 2000. At the hearing the worker confirmed that she is seeking reinstatement of wage loss benefits retroactive to the date that her benefits were terminated by the WCB, specifically to December 1, 2000.

For the worker to be successful we must find that her loss of earning capacity was causally related to her 1993 compensable injury. We were not able to make this determination. However, we note there is an issue regarding a new accident in February 2001 which has not been adjudicated.

The Evidence at the Hearing

The worker attended the hearing and was accompanied by an advisor who did not participate in the hearing.

The worker provided a written submission and answered questions.

With respect to her current condition, the worker described her shoulder locking up in these terms:

"What happens is my shoulder -my shoulder locks up at my side and then there's no way to get dressed or undressed or peel vegetables or -and it consumes my whole life, this thing, just trying to manage a day where I can get a shower, feed myself, and if there is anything more than that it's a plus."

She described her objective each day as:

"My main objective every - I can't say every morning, well I guess I do get up in the morning, sometime in the morning, is to make sure that this arm does not lock to my side and so I heat up and stretch.

Sometimes I can't even stretch because the vertebrae are locked, have locked the muscles into such a position that nothing is going to - nothing moves, nothing will stretch, nothing will - I can't pull it out."

When asked by the Panel whether she considers that her condition has worsened since December 2000 when her benefits were terminated, she replied that her condition has not changed. She also stated that her current condition is the same as it was during the period that she obtained her Bachelor of Arts degree.

The worker advised that she had worked in telemarketing from February 2001 to October 2001. She described the job duties and difficulties she had performing the duties. She indicated that her shoulder was symptomatic during this period and that she returned to see her treating physiatrist. She saw him on several occasions during 2001. However, she formed the impression that the physiatrist had nothing more in the way of treatment to offer her. Her last visit to the treating physiatrist was in March 2002.

In a report dated September 5, 2001, the treating physiatrist outlined job restrictions which he considered to be permanent. These included no heavy repetitive lifting, no repetitive reaching or repetitive manual activity and no sustained manual activity at or above mid chest level. When asked whether she agreed with these restrictions she indicated that daily activities, such as washing her hair, were contrary to the restrictions.

When asked whether she is unemployable, the worker replied that she is. She said that she is unreliable in that she does not know when her shoulder will lock and prevent her from working.

The Worker's Argument

In her written submission the worker notes that

"…the only valid and substantial medical opinion on this file is that the claimant has developed chronic muscle problems related to repetitive strain injuries while employed at the pre-accident employer, including chronic myofascial pain syndrome which responds to treatment but returns quickly with repetitive activities or significant physical exertion. The evidence shows that she has made several attempts to return to work or to school and all such attempts have failed due to the recurrence of the underlying, unresolved myofascial pain syndrome."

Conclusion

We were not able to find that the worker's loss of earning capacity since December 2000 is related to her 1993 injury. In arriving at this decision we have considered all of the evidence in the worker's file and the worker's testimony at the hearing.

We place significant weight on the opinion of the WCB physiatrist who examined the worker in June 2000. He made the following observations regarding the worker's condition:

"There were few findings on the current examination. These restricted to subjective report of tenderness most prominent in a localized area at the medial scapular musculature with some tenderness, but minor, in a number of other muscles. There was no evidence of any active myofascial pain involvement on the current examination. Her history and pattern of shoulder locking suggests a loose body in the shoulder."

The worker has suggested that the opinion of her treating physiatrist should be preferred over that of the WCB physiatrist. We note the worker's treating physiatrist reported in July 2000 that "I have not arranged to treat her again since I expect resolution of her last remaining symptoms following my July 10 treatment." The treating physiatrist did see the worker again commencing in April 2001.

In a report dated September 5, 2001 he notes that the worker:

"… has not remained asymptomatic during physical activities at home or more recently since she accepted a job as a telemarketer. The repetitive use of her right upper limb in operating a computer has also precipitated pain symptoms in the right periscapular region and upper limbs."

This report suggests that an accident may have occurred in February 2001 at a different workplace, which has not been adjudicated.

Although the worker suggests that we accept the treating physiatrist's opinion as noted in his September 5, 2001 report, she does not agree with all the aspects of the opinion. The treating physiatrist notes that the previously established work place restrictions should remain permanent. The worker disagrees with the restrictions and maintains that she is unable to work regardless of restrictions that are in place. As noted above, we place greater weight on the medical reports in 2000 as being more representative of the worker's physical condition at the time her benefits were terminated in December 2000.

At the hearing the worker presented as totally disabled and said she was unemployable. The worker stated unequivocally that her condition has not changed since the time that she was involved in the vocational rehabilitation program. However; we note that while involved in the vocational rehabilitation program the worker earned a Bachelor of Arts degree. The file also records that during this time, the worker participated as an actress in university theater productions. We also note that despite her reported condition, she has not sought treatment for her shoulder for approximately two years. We place greater weight on the above noted medical evidence than on the worker's reports of her condition at the time of the termination of her benefits and currently.

We find that the worker's loss of earning capacity after December 2000 was not caused by her 1993 work injury. Given our findings as noted above, the worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of October, 2004