The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 9, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond February 4, 2003.

Decision

That the worker is entitled to wage loss benefits beyond February 4, 2003.

Background

This worker has a prior claim with the Workers Compensation Board (WCB) for a right shoulder and mid back injury that occurred in the workplace on December 8, 1998. Reports on file show that the claimant was treated by a physical medicine and rehabilitation specialist (physiatrist) and was diagnosed with mechanical neck pain syndrome and regional myofascial trigger points on February 9, 2001.

In March 2001, the worker aggravated his neck and shoulder condition when he slipped at work while carrying 40 kg of weights. In a report to the family physician dated April 8, 2001, the physiatrist diagnosed the claimant with a neck strain with mechanical and regional myofascial pain syndrome.

The claimant underwent a CT scan of his cervical and thoracic spine on July 3, 2001. On August 1, 2001, a WCB medical advisor expressed his opinion that the CT scan results revealed degenerative changes and that the claimant had an aggravation of a pre-existing condition.

On September 12, 2001, the claimant underwent a Functional Capacity Evaluation (FCE) in order to determine his physical capabilities. The report revealed that the claimant’s participation during the FCE showed “full voluntary effort passing 5 of 5 validity checks.” The claimant reported symptoms in his left posterior shoulder, his deltoid and triceps area, his left paraspinal neck and central upper thoracic area, and his left scapula. He noted that his whole left arm felt numb and by the end of the FCE he reported numbness in the right arm and that he would be very sore the day after due to his symptoms.

In a discharge report dated November 10, 2001, a physiotherapist reported that the claimant attended 16 treatment sessions commencing October 1, 2001 and had made good progress in the program. Although the pain in his left shoulder was reduced, it had not completely subsided. The therapist was doubtful that the claimant was capable of full duties.

On February 17, 2002, the treating physiatrist advised the WCB that he saw the claimant on February 15, 2002. His impression was as follows, “Mechanical neck pain. There has been no further improvement in his pain and in functional level…. I would like to order a follow-up CT scan to make sure that there is no (sic) any disc herniation. If his CT scan is not indicative of any significant spinal pathology I think he should be encouraged to return to a modified work. ”

The claimant was next examined by a WCB physiatrist consultant on February 19, 2002. The consultant outlined his examination findings/treatment recommendations with respect to the claimant’s cervical mechanical symptoms and mid-back soft tissue symptomatology. The consultant concluded his report by stating, “I would expect he should be able to have resolution of his symptomatic complaints and progress to return to work at his prior work duties. This would likely be best facilitated through a graduated return to work process.”

A second CT scan was carried out on March 21, 2002. The impression read, “the most significant level appears to be C5-6 with a moderate sized posterolateral osteophyte. No definite associated disc lesion is seen and the appearances are similar to that of the scan from July 3, 2001.”

On April 15, 2002, a specialist from the Pain and Injury Clinic advised the WCB of his findings with respect to the claimant’s neck, shoulder and thoracic spine. The claimant was referred for screening blood work to rule out any metabolic causes of his pain and delayed recovery. In a subsequent report dated April 29, 2002, the specialist commented that the claimant’s vitamin B12 was quite low.

The case was reviewed by the WCB’s physiatrist consultant on May 30, 2002. He commented that there were significant pre-existing degenerative changes in the cervical spine shown on the CT scan and that the vitamin B-12 deficiency could delay the claimant’s recovery.

In a report to the family physician dated August 17, 2002, the physiatrist stated, in part, the following, “Clinically and neuroradiologically Mr. [the claimant] has significant osteophyte formation at C5-C6 level which is contacting the thecal sac on the left side and also at the C3-C4 level he has right sided posterolateral osteophyte narrowing of exit foramen. At this point he does not have significant signs of cord compression, but this should be further observed and any heavy work may aggravate his symptoms and may cause cord or nerve root compression.”

The case was reviewed again by the WCB’s physiatrist on November 19, 2002. The consultant, stated, in part, the following,

“As prior notes suggest, the primary ongoing problems on a balance of medical probabilities are related to the pre-existing problems of the spine.

We had offered a brief course of treatment to facilitate progress about 8 months ago. Resolution of any soft tissue aggravation that was not related to the pre-existing problems would have been expected to have occurred to date without specific treatment. I would note that some soft tissue symptoms related to the pre-existing involvement of the spine would be expected.”

On December 23, 2002, an advocate, acting on behalf of the claimant, outlined her position that the claimant’s condition had plateaued and that re-training was in order to facilitate a return to employment.

On January 29, 2003, a WCB case manager wrote to the claimant to advise that wage loss benefits would be paid to February 4, 2003 inclusive. It was the case manager’s opinion that the claimant no longer had a loss of earning capacity as his compensable injuries had now resolved. Any ongoing problems experienced by the claimant were considered to be directly related to his pre-existing medical condition as noted in the CT scan results.

Subsequent file records contained a report from an occupational health physician dated January 15, 2003 which was reviewed by the WCB’s physiatry consultant on May 15, 2003.

On May 28, 2003, the claimant was advised by his case manager that the new information did not alter the WCB’s previous decision that his present medical difficulties were directly related to his pre-existing medical condition. The case was then referred to Review Office for consideration.

In a decision dated July 4, 2003, Review Office confirmed that wage loss benefits were not payable to the claimant beyond February 4, 2003. Review Office agreed with the WCB physiatrist that any soft tissue aggravation incurred on March 28, 2001 would have resolved by February 4, 2003 and that the claimant’s ongoing subjective complaints of pain were due to the findings found at the time of the two CT scans. Review Office felt the claimant was adequately compensated for the soft tissue type injury he incurred on March 28, 2001. On May 28, 2004, the claimant disagreed with Review Office’s decision and an oral hearing was arranged for September 9, 2004.

Reasons

Chairperson Walsh and Commissioner Day:

The issue before the Panel was whether the claimant was entitled to wage loss benefits beyond February 4, 2003.

The claimant was injured in March 2001, during the course of his employment. He filed a claim with the Workers Compensation Board, which was accepted. Wage loss benefits were paid to him as a result, until February of 2003 when it was determined that his loss of earning capacity had ended. A majority of the Panel has determined, however, having reviewed the totality of the evidence including medical reports and oral testimony that the symptoms suffered by the claimant as the result of his original compensable injury have not yet resolved, for the following reasons.

At primary adjudication, it was determined that the claimant "no longer had a loss of earning capacity as his compensable injury had resolved." In so finding, primary adjudication relied on the evidence of the Board physiatrist. That physician, in a report dated February 19, 2002 commented that he felt much of the claimant's symptoms were related to a pre-existing degenerative condition. He made suggestions for brief courses of treatment including chiropractic treatment to deal with the claimant's pain and soft tissue symptomatology. The physiatrist concluded that after these treatments he expected the claimant should be able to have resolution of his symptomatic complaints and progress to return to work at his prior work duties.

The chiropractic treatment was never in fact arranged for the claimant. The WCB physiatrist reviewed the claimant's file again, on November 20, 2002 and was of the opinion that since eight to nine months had elapsed since his last review this would be sufficient time for resolution of any soft tissue aggravation that was not related to the claimant's pre-existing medical problems. On that basis, primary adjudication determined that the claimant's compensable injuries had in fact resolved.

Similarly, when the Review Office considered the claimant's appeal, it relied on the same comments made by the WCB physiatrist and agreed that any soft tissue aggravation incurred as the result of the compensable injury of March 28, 2001 would have resolved by February 4, 2003.

The Panel is aware that the claimant has a pre-existing cervical condition but finds that the symptoms he is currently experiencing do arise out of the compensable injury. Although the WCB physiatrist felt that the claimant's symptoms should have resolved sooner we find that they have not resolved in fact.

At the hearing of this appeal the claimant testified that ever since the accident his right arm has constantly had a tingling effect. He said he continues to have pain in his neck which is aggravated by sudden movement or by lifting. He has also developed headaches which he never had before the accident and which, he testified, his physician has advised him, are related to what is happening in his neck.

A variety of physicians who saw the claimant post-accident, have reported and continue to report that the claimant is not fit to return to heavy work and should return to a modified job or be re-trained for light work which does not require any heavy lifting, repetitive bending or twisting activities of the neck and torso. This is set out, for example, in a report dated August 17, 2002 by a specialist from the St. Boniface Hospital.

In a report dated January 15, 2003 a specialist from the MFL Occupational Health Centre who examined the claimant on that same date, stated that the claimant's condition is work-related. He went on to describe that the claimant had developed significant postural and muscle imbalances from repetitive heavy lifting and from overloading his upper limbs and back that were not likely to fully reverse. The specialist found that there were no significant non-occupational contributors to the claimant's condition. He stated that the development of degenerative spinal changes in the claimant has been accelerated by his work and injury conditions, given their location and the biomechanical loading involved.

Based on the above evidence, we find on a balance of probabilities that the claimant's ongoing problems have not resolved, and are related to the compensable injury of March 2001 rather than to his pre-existing condition. We find, therefore, that he is entitled to ongoing wage loss benefits past February 4, 2003.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of November, 2004