The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 3, 2004 at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond March 24, 2002; and

Whether or not an MRP should be convened.

Decision

That the worker is not entitled to wage loss benefits and services beyond March 24, 2002; and

That an MRP should not be convened.

Decision: Unanimous

Background

On January 21, 2002, the worker reported a strain injury to his left bicep region when he lifted a box during the course of his employment as a dock worker.

In a letter to the Workers Compensation Board (WCB) dated February 18, 2002, the attending physician diagnosed the worker with left lateral epicondylitis and a left forearm muscle strain. Treatment consisted of medication, physiotherapy and a home exercise program.

In a progress report dated February 27, 2002, the attending physician documented that the worker was capable of alternate or modified work with restrictions of no lifting above 20 lbs., no carrying above 10 lbs, and no pushing or pulling. It was felt that the worker could operate a fork lift. In a doctor's certificate dated March 14, 2002, it was noted that these restrictions were to be in place for the next 2 to 3 weeks.

During several discussions with a WCB case manager in February and March 2002, the worker suggested that he could return to work but would not be able to continue for long as his whole body ached. The worker referred to his 1993 and 1997 compensation claims as possible causes for his complaints.

On March 12, 2002, a WCB case manager provided a file summary of the worker's 1993 and 1997 claims. On November 16, 1993, the worker was knocked unconscious when he was hit in the head by a dock plate. The worker was diagnosed and treated for an acute contusion of the head and a cervical spine sprain. By March 15, 1995, restrictions were lifted and the worker returned to his regular work duties. On November 17, 1997, the worker lifted a 50 lb. box and felt a cramp in his neck which cramped up his shoulder and back shortly afterwards. The initial diagnosis was an acute sprain of the neck and upper back. The worker was treated with trigger point needling, work hardening and was seen for personality problems. The worker returned to work on this claim on May 14, 1999.

On March 21, 2002 the worker was advised that his WCB benefits would be paid based upon his return to modified duties on March 25, 2002 and based on his participation in the return to work program. On March 25, 2002, the worker contacted his case manager stating that he tried to work but couldn't continue due to neck pain.

In a memo dated March 26, 2002, a WCB medical advisor outlined his opinion that the worker's current functional limitations were not considered to be work related. The medical advisor described the worker's condition as being diffuse with generalized pains and abnormal pain behavior.

In a letter to the WCB dated April 3, 2002, the family physician made reference to the January 21, 2002 work injury and stated that the worker's "aggressive physiotherapy" had precipitated pre-existing injuries from the worker's 1993 workplace accident. The new complaints consisted of neck pain, upper back pain, lower back pain, exacerbation of left arm pain and increasing left hand/arm weakness. The physician concluded that the worker had sustained a number of work related injuries and should be retrained for a less physically demanding occupation.

On April 8, 2002, the WCB advised the worker that the up-dated medical information revealed no new findings that related his compensable injury to his current condition. Based on the weight of evidence, the WCB considered that the worker had recovered from his January 21, 2002 workplace injury.

On April 30, 2002, the worker was advised that the WCB had reviewed his 1993 and 1997 claims and that there were no new findings to relate either compensable injury to his current condition.

In a submission dated December 5, 2003, a worker advisor referred to new medical evidence from a physiatrist dated December 10, 2002 and November 24, 2003. The worker advisor argued that the new information demonstrated that the worker had a condition which prevented him from returning to his regular duties as a dockworker and that his wage loss benefits should not have been discontinued effective March 21, 2002. In the event that the WCB was unable to reverse its decision, a Medical Review Panel (MRP) was requested.

Following an assessment at the WCB's Pain Management Unit (PMU) on December 11, 2003, it was determined that the worker did not meet the diagnostic criteria for chronic pain syndrome as per WCB criteria, due to pre-existing congenital/developmental personality factors which predated the worker's compensable injury. Based on the PMU assessment along with a review of all claim files, the WCB determined that the worker was not entitled to further services or benefits and that the decision of April 8, 2002 would remain unchanged.

On March 2, 2004, the worker advisor submitted a February 11, 2004 report from an occupational health physician for consideration by primary adjudication. The worker advisor noted that both the occupational health physician and the treating physiatrist were in disagreement with the WCB medical advisor's opinion that the worker's current functional limitations were not work related. Based on this, the worker advisor felt that an MRP should be convened.

In an April 2, 2004 decision, a WCB manager denied the request to convene an MRP as in his view, the occupational health physician and physiatrist did not provide a full statement of the facts and reasons substantiating the worker's ongoing symptoms in relation to his workplace accidents. This decision was upheld by the Review Office on June 15, 2004.

In a further decision dated July 22, 2004, Review Office clarified that the worker was not entitled to wage loss benefits or services beyond March 24, 2002. Review Office stated, "…it is far more likely that the worker's ongoing subjective complaints of pain in the upper back and neck would have a relationship to the chronic fibromyalgia condition he has described in the aforementioned conversations with his Case Manager, as opposed to any potential relationship to these three claims." On August 10, 2004, the worker advisor appealed Review Office's decisions and an oral hearing was arranged.

Reasons

We were asked to address two issues. The first issue was whether the worker is entitled to wage loss benefits and services beyond March 24, 2002. For the worker's appeal to be successful, we must find that the worker's loss of earning capacity after March 24, 2002 was due to a work related injury. We were not able to make this finding.

The second issue before us whether an MRP should be convened. For the worker's appeal to be successful we must find there is a difference of opinion between a WCB medical advisor and the worker's physician. We did not find a difference of opinion as required under the Act and therefore declined to find that an MRP should be convened.

Applicable Legislation

With respect to the first issue, subsection 39(2) of the Act provides that wage loss benefits are payable to a worker until the worker's loss of earning capacity ends, as determined by the WCB.

39(2) - Duration of wage loss benefits

Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

The entitlement to an MRP is set out in section 67 of the Act. Of specific application to this case are subsections 67(1) and 67(4).

67(1) - Definitions

In this section,

"opinion" means a full statement of the facts and reasons supporting a medical conclusion;

"panel" means a medical review panel.

67(4) - Reference to panel on request

Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Evidence and Argument at Hearing

The worker was represented by a Worker Advisor who made a presentation on the worker's behalf. He reviewed the worker's WCB claim history and submitted that the worker's loss of earning capacity after March 2002 was related to the worker's prior claims. He also noted that the occupational medicine physician linked the worker's multiple symptoms after March 2002 to the 2002 injury.

The Worker Advisor reviewed the medical reports provided by the worker's physicians and the WCB medical advisor. He concluded that the requirements for an MRP have been met.

The worker answered questions posed to him by the worker advisor and the Panel. He described the treatments he received for his 1993, 1997 and 2002 injuries and compared the pain he felt in 2002 with the pain caused by his prior injuries. The worker described the difficulty he had in performing the light duty work that was provided after his 2002 injury. This position involved driving a forklift. Unfortunately, the worker was only able to work at this position for 1.5 hours. The worker also described his current condition.

The employer was represented by an advocate who participated in the hearing via a conference call. The advocate did not make a submission.

Entitlement to Wage Loss Benefits Beyond March 24, 2002

As noted previously the worker takes the position that he was not able to perform the light duty employment that was offered to him in March 2002. Although the light duty employment took into account the restrictions arising from his January 2002 workplace injury, it did not consider restrictions related to his 1993 and 1997 injury. We note however that there were no restrictions in place with respect to these earlier injuries in March 2002.

On March 14, 2002, prior to the worker's return to work on March 25, 2002, the worker's family physician indicated the worker could return to work with the following restrictions: no use of left arm/hand next 2 to 3 weeks, no repetitive use, no grasping, no lifting, no holding, and no carrying. All restrictions were related to his left elbow region injury.

The light duty position involved operation of a forklift. The worker reported that the position involved constant neck rotation particularly when backing-up the forklift. After working only 1.5 hours at this position, the worker left the jobsite indicating that he could not perform the duties. As of the date of the hearing, the worker has not returned to this or any employment.

On March 25, 2002, shortly after the worker stopped the light duty position, he reported to his family doctor that he had neck pain, upper back pain, pain with movement, left elbow pain, left forearm pain, left arm weakness. The family physician reported an exacerbation of pre-existing work related injuries.

Having considered all of the evidence, including the worker's testimony at the hearing, we find that the worker's loss of earning capacity after March 24, 2002 is not related to his 2002 workplace injury or to his other prior workplace injuries.

In arriving at this conclusion we place significant weight on the fact that the worker had not been treated for his prior injuries for several years. The last treatment for his 1997 injury was in 1999 and the last treatment for the 1993 injury was in 1995. The worker had returned to work prior to his 2002 injury for a considerable period of time. His duties were very physical yet he was able to perform the work.

We note the comments from his treating physiatrist regarding his return to work. In a report dated November 24, 2003 he commented:

"…It is clear that he was able to return to work after the 1993 as well as the 1997 work related injuries including return to regular duties with no restrictions ….Based on his return to work and relatively heavy physical labour with no restrictions, it is evident that he recovered satisfactory function to be able to carry out the job required… At the time of his most recent work related claim of January 2002, his initial complaints to [family doctor] as well as physiotherapist, were localized to the left elbow, biceps and forearm regions indicating that he did not suffer an immediate onset or exacerbation of neck, left shoulder or thoracic regions."

We also attach significant weight to the opinion of the WCB medical advisor who commented that the worker's generalized pain and abnormal pain behaviour are not related to the workplace injury.

We find that the workplace injury of January 2002 did not cause the multiple symptoms reported by the worker to areas beyond the elbow region. We also find that the light duties performed on March 25 for 1.5 hours were far less physical than his regular duties and did not cause the multiple symptoms of which the worker complained. We find that the light duty position was consistent with the worker's restrictions and was appropriate.

It was suggested by the family physician in a report dated April 3, 2002 that more aggressive physiotherapy has precipitated pre-existing injuries of a 1993 workplace accident. It was noted by the occupational medicine physician that the worker's therapy included instructions to lift five pound dumbbells for elbow flexion, shortly after which his left shoulder, then right shoulder and neck flared up, manifestations of his earlier injuries of 1993 and 1997.

We note the comment of the treating physiatrist on this issue in his report of November 24, 2003. He commented:

"[worker] stated that pain symptoms of a more widespread nature did not begin until he carried out more intensive resistive exercises during physiotherapy in late February and early March 2002. Restrictive exercises can irritate and aggravate pre-existing myofascial trigger points causing latent trigger points to become active. However, the type of work he carried out over the years was far more intensive than the type of weights he was lifting in physiotherapy and he was able to continue at work despite any ongoing intermittent pain symptoms…"

We agree with the treating physiatrist and find that the worker's physiotherapy treatments did not cause a precipitation or flare-up of the worker's pre-existing injuries. The worker's regular work duties which he tolerated for many years were far more intensive yet did not cause such a flare-up.

At the hearing the worker acknowledged that he could perform his regular duties but that his neck did not feel right. He also acknowledged that he had a fear of re-injury and that his co-workers may be abusive. The worker advised that he has looked for employment but has not yet found a position. He has not contacted his accident employer about a return to work.

We note that in December 2003 the worker was assessed by the WCB Pain Management Unit (PMU) which consists of a psychologist and medical advisor. The PMU report notes that barriers to the worker's recovery appear to be pre-existing congenital/ development personality factors.

Based on these findings, on a balance of probabilities, we conclude that the worker's loss of earning capacity was not due to a workplace injury and accordingly, the worker is not entitled to benefits after March 24, 2002.

Medical Review Panel

The worker has requested that an MRP be convened in accordance with subsection 67(4) of the Act. This subsection must be considered with subsection 67(1). Where the requirements of these subsections are met an MRP must be convened. The requirements which must be met are:

- There must first be an opinion which is defined as full statement of the facts and reasons supporting a medical conclusion;

- The opinion of the worker's physician must differ from the opinion of the WCB medical advisor; and

- The difference of opinion must be on a medical matter which affects compensation.

The worker's representative noted that on March 26, 2002 a WCB medical advisor provided the opinion that the worker's current functional limitations appear to be unrelated to the recent left elbow region problem and are more diffuse with generalized pains and abnormal pain behaviour. He concluded that the worker's current limitations are not work related.

The worker's representative contrasts this opinion with the opinions provided by the worker's treating physiatrist and an occupational medicine physician. The physiatrist provided three reports dated December 10, 2002, June 6, 2003 and November 24, 2003. The occupational medicine physician provided two reports dated February 11, 2004 and October 27, 2004. The worker's representative wrote that these physicians "…have provided a full statement of the facts and reasons substantiating the claimant's ongoing symptoms in relation to his workplace accidents."

Prior to December 5, 2002, the physiatrist last treated the worker in 1998 for his 1997 workplace injury and in 1994 for his 1993 workplace injury. The physiatrist does not unequivocally relate the worker's symptoms as reported in December 2002 to the January 2002 injury or the prior 1993 and 1997 injuries.

With regard to the relationship, the physiatrist states in his November 24, 2003 letter that:

"In my December 10, 2002 report, I stated that he had never completely recovered from the previous work related injuries to his muscles. This was based on Mr. [the worker's] own statement. I was fully aware of his symptoms, diagnosis and treatment in relationship to his 1993 as well as 1997 work related injury since I was involved in his treatment in relationship to both of those work related injuries. I did not see him again after concluding my treatment during 1998 until he was referred back to me in December 2002. It is clear that he was able to return to work after the 1993 as well as the 1997 work related injuries including return to regular duties with no restrictions as documented in the submitted reports. I note that he had two other work related injuries to other areas not related to his current condition and was able to return to his regular duties in April 2001 and worked for a further period of 9 months prior to his latest claim of January 2002. Based on his return to work and relatively heavy physical labour with no restrictions, it is evident that he recovered satisfactory function to be able to carry out the job required. His own history indicates that he was able to carry out the work but continued to have intermittent symptoms involving his neck, upper trapezius, thoracic and shoulder girdle regions, as documented by Dr. [name], his family physician. Nevertheless, he continued to work on a regular basis with no restrictions. At the time of his most recent work related claim of January 2002, his initial complaints to Dr. [family physician] as well as physiotherapist, Mr. [name], were localized to the left elbow, biceps and forearm regions indicating that he did not suffer any immediate onset or exacerbation of neck, left shoulder or thoracic regions. Mr. [the worker] stated that pain symptoms of a more widespread nature did not begin until he carried out more intense resistive exercises during physiotherapy in late February and early March 2002. Resistive exercises can irritate and aggravate pre-existing myofascial trigger points causing latent trigger points to become active. However, the type of work he carried out over the years was far more intensive than the type of weights he was lifting in physiotherapy and he was able to continue to work despite any ongoing or intermittent pain symptoms. Any causal relationship between his WCB work related claims prior to January 2002 are based on symptoms of complaint. I did not examine after 1998 (sic) or any time prior to his January 22, 2002 work related injury in order to objectively document the presence of latent or active myofascial trigger points. Clearly, they were present when I examined him on December 5, 2002."

We find that these comments by the treating physiatrist do not constitute an opinion as required by the Act. The physiatrist readily acknowledges that he has repeated the worker's statement on the relationship between the prior accidents and the December 2002 symptoms. He did not provide his own opinion based upon a full statement of the facts.

We also find that the treating physiatrist's comments do not demonstrate a difference on the issue of the relationship between the symptoms reported by the worker in December 2002 and the previous workplace injuries. The treating physiatrist repeats the worker's statements regarding the failure to recover from the earlier workplace injuries and continuation of symptoms. The physiatrist then appears to refute the statements by noting the worker's successful return to work after his workplace injuries.

With regards to the occupational medicine physician, we find his reports are based largely upon the statements of the worker as to the lack of recovery from the previous injuries and upon the reports of the treating physiatrist. We have already commented in our consideration of the first issue about the findings of fact that we have accepted as being the basis of that decision. Rather than provide an opinion based on a full statement of facts, the occupational medicine physician has based his opinion on the worker's reports that he never recovered from the prior injuries. We find this opinion does not meet the requirements of the Act.

The worker's request for an MRP is denied as the requirements of the Act have not been met.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 23rd day of November, 2004