The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 4, 2003, at the request of legal counsel, acting on behalf of the worker. The Panel discussed this appeal on December 4, 2003 and again on November 19, 2004.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 11, 2002; and

Whether or not a Medical Review Panel should be convened under subsection 67(4) of The Workers Compensation Act.

Decision

That the worker is not entitled to wage loss benefits beyond September 11, 2002; and

A Medical Review Panel was convened under subsection 67(3) of The Workers Compensation Act.

Decision: Unanimous

Background

During the course his employment as a labourer on December 28, 2000, the worker picked up a 245 pound blade when he injured his right shoulder and hand. Initial medical information from an out-patient facility diagnosed the worker with right shoulder and upper back strain. The worker was also examined by his family physician who confirmed the diagnosis of right shoulder and upper back strain with radiation down the arm to the right ring finger. The claim was accepted by the Workers Compensation Board (WCB) and the worker continued working modified duties as a forklift operator.

On June 6, 2001, the worker sustained a work related injury to his lower chest and stomach area while flipping a "1/8/96 inch blade". On August 24, 2001, the worker developed pain in both shoulders shooting down to his hands when he dumped debris into a larger bin. On February 15, 2002, the worker was getting down from his fork lift and twisted his left leg and hurt his lower back. Compensation claim files were established for each incident.

On September 25, 2001, a WCB medical advisor concluded that the worker sustained a soft tissue strain/sprain type of injury at the time of his December 2000 accident to the right posterior shoulder girdle area with a component of pseudoradicular pain. There was no evidence of a true nerve root compression or radiculopathy. The examination findings demonstrated a regionalized myofascial pain syndrome with involvement on the left side.

On September 28, 2001, the WCB referred the worker to a physical medicine and rehabilitation specialist (physiatrist) for treatment regarding myofascial pain in both shoulders, neck and chest regions.

Between November 2001 and July 2002, the worker was treated by the physiatrist with needling treatments including trigger point injections and paraspinal blocks. In his report to the WCB dated July 22, 2002, the physiatrist outlined his examination findings from May 22, 2002 to June 28, 2002. He felt that the worker was capable of returning to his forklift position and that he would benefit from strengthening and physical conditioning.

On July 8, 2002, the worker was again evaluated by a WCB medical advisor. Under "Summary & Recommendations", the medical advisor concluded that workplace restrictions were not warranted with respect to the worker's hands, thoracolumbar spine, left hip, pelvis or to the upper abdominal region. It was felt that the worker had recovered from his December 28, 2000 injury which involved the upper thoracic spine.

On September 4, 2002, the WCB determined that the worker was not entitled to benefits beyond September 11, 2002 as it was felt that he had recovered from the effects of his compensable accident and that his ongoing symptoms were unrelated to his workplace injuries.

In a submission to Review Office dated October 2, 2002, the worker contended that he continued to suffer from the effects of his compensable injuries and that he required work restrictions. In support of his position, the worker referred to new medical evidence from his treating physiatrist. In the event that the WCB disagreed with restoring benefits, the worker argued that a difference of medical opinion existed between his treating physiatrist and the WCB medical advisor whom he saw on July 8, 2002.

In a report dated July 21, 2003, the physiatrist stated, "On the balance of probabilities, it is my opinion that Mr. [the worker's] condition related to the work place injury of December 28, 2000 as well as subsequent work related injuries that exacerbated and added to his original symptoms. These episodes that occurred since the December 28, 2000 injury are documented in his WCB file. Mr. [the worker] did not have any preexisting condition in relationship to his head, neck, shoulder girdle, thoracic or abdominal symptoms and related physical findings. It is my opinion that workplace restrictions still exist. He is capable of returning to his modified work duties as a forklift operator or duties of a similar physical nature. He requires further treatment including a functional restoration program prior to attempting to return to the original type of occupation prior to the December 28, 2000 work related injury."

On November 22, 2002, primary adjudication denied the request for a MRP stating, "…there is no difference in medical opinion on file regarding the medical matter affecting entitlement to compensation. …"

In a decision dated February 7, 2003, Review Office determined that the worker was not entitled to wage loss benefits beyond September 11, 2002 based on the available medical evidence. Review Office also found there were no grounds to warrant the convening of a MRP. On September 8, 2003, legal counsel, acting on behalf of the worker, appealed Review Office's decisions and an oral hearing was convened on December 4, 2003.

Following the hearing and after discussion of the case, the Appeal Panel decided to convene a MRP in accordance with subsection 67(3) of The Workers Compensation Act (the Act). An MRP eventually took place on September 17, 2004 and the final report of October 13, 2004 was forwarded to the interested parties for comment. On November 19, 2004, the Panel met to consider the case along with submissions from legal counsel dated November 12, 2004 and from the accident employer's advocate dated November 10, 2004.

Reasons

With respect to the issues before us the Panel decided:

The worker is not entitled to wage loss benefits beyond September 11, 2002; and

That an MRP would be convened in accordance with subsection 67(3) of the Act.

For this claim to be successful and to have the worker receive benefits beyond September 11, 2002 the Panel would have to determine that the worker's ongoing medical conditions are related to the compensable injury of December 2000. We were not able to make that determination.

Evidence and Argument:

Both the worker and the employer were represented by advocates at the hearing.

The worker's treating physiatrist was called as a witness to these proceedings. He provided information on the worker's condition following a referral to him from the WCB in November 2001. He described the worker's entrance complaints as "pain in various parts of his body. He had headaches, neck pain, and pain along the upper trapezius into the shoulder. He had pain radiating down his upper limbs into the forearms and into the palms of his hands. He had pain in the upper thoracic region and he had some pain in the anterior lower chest region and upper abdominal region."

The diagnosis made by this physiatrist was myofascial pain syndrome involving regional areas, cervical and thoracic and shoulder girdle. He advised that after treatments for the soft tissue injury there was considerable improvement and he felt that a reconditioning program would be in order.

This reconditioning program was not authorized by the WCB and this physiatrist was in disagreement with this approach. He felt that this conditioning program would assist in determining the worker's capacity for work. He testified "The reason for doing it is to build up his general cardiovascular and general physical endurance and to strengthen muscles that he hadn't used with heavy exertion for three years now, which will give him the best chance to be able to increase his level of exertion in the kind of work he needs to do."

Worker's Position:

The worker gave evidence to the effect that he had been performing modified duties the date he was injured and continued them until his lay off in April 2002.

Regarding his treatments with the physiatrist he indicated he is noticing a difference and only has pain in the chest area and the hip. He testified regarding his shoulders that "As far as the shoulders, I don't have that really its like an electric shock going from the shoulders to the hands and that's not there, it's staying in the shoulder tips, up on the top of my shoulders here, going into the back. I'm not getting the electric jolts like I was at first."

The worker felt he could return to modified duties at any time and was able to perform them when his WCB benefits were discontinued in September 2002. He also was of the view that he needed reconditioning and that the WCB should not have cut him off without returning him to his employment.

Based on the worker's evidence along with that of the treating physiatrist, the worker's advocate was of the view the worker had not recovered and required further treatment and reconditioning prior to returning to his pre-accident duties.

The Employer's Position:

The employer's advocate was of the view that the worker had recovered after twenty one months of benefits and medical treatment and was not entitled to further wage loss benefits.

The employer felt that in March 2002, it would have been reasonable for the worker to return to work. They based this on the treating physiatrist's March 2002 letter where he reported the worker had major improvement with decreased pain and increased range of motion.

The employer noted that into April 2002 the worker's pain was now cropping up in a number of different body areas. Consequently, he was examined by a WCB medical advisor in July 2002 whose findings indicated a normal examination and a lack of disability relating to the compensable injury.

Medical Review Panel:

Regarding the question of the MRP, the employer advocate summarized that both the WCB medical advisor and the treating physiatrist were not in disagreement on the shoulder and cervical spine; that is, the worker had good range of motion.

The worker's advocate felt there was a clear disagreement on workplace restrictions between the WCB medical advisor and the treating physiatrist.

Reasons:

Based on the file information and evidence presented at the hearing, the Panel decided that further clarification was required. We therefore referred this case to a MRP in accordance with subsection 67(3) of the Act.

In coming to our decision regarding wage loss beyond September 11, 2002 we have considered the information on the entire file, the oral evidence presented at the hearing, as well as the findings of the MRP. We have determined the worker is not entitled to wage loss benefits beyond September 11, 2002. We further find that the worker had recovered from the effects of the compensable injury by that date.

In arriving at this decision, we have placed considerable weight on the WCB July 8, 2002 medical call in examination and the MRP report of October 13, 2004. In the July 8, 2002 examination by the WCB medical advisor we note the following to be significant:

• Active movements of the cervical spine were performed in a fluid fashion and through full range in all planes.
  
  
• The neck range of motion findings were much the same as those described by a physiotherapist on March 1, 2001, a medical consultant on September 25, 2001 and the treating physiatrist on November 15, 2001.
  
  
• No measurable impairment of neck function was found and workplace restrictions to the neck area are not required.
  
  
• Upper neurological exam was normal.
  
  
• The shoulders had no abnormal prominence of either AC joint. There was good muscular development at the shoulder girdles and arms, equal bilaterally.
  
  
• The isometric results were the same as those cited at the medical assessment of September 25, 2001 when it was reported that resisted strength testing for shoulder movements was normal.
  
  
• Impingement tests were negative bilaterally for restriction of movement or provocation of shoulder symptoms.
  
  
• Workplace restrictions pertaining to the right shoulder were not required.
  
  
• A strengthening and reconditioning program was not required as the assessments up to July 2002 from the physiatrist and WCB exam noted no areas of upper extremity weakness.

The Medical Review Panel findings:

One of the questions we asked the MRP was "Based on available evidence, had Mr. [the worker] recovered from his workplace injury by September 2002?" The MRP responded that "Based on the reports of previous physical and radiological findings and the examination today he had recovered from his injury by September 11, 2002."

The MRP also commented on the conditioning program that has been requested by the worker. They indicated that "Mr. [worker] requires a conditioning program with the avoidance of any further specific medical testing or treatment interventions."

We note, however, that no conditioning program was required in July 2002 based on the worker's strength and a full range of motion. We find that such a program may be preventive in nature; however, it is not required as a result of the worker's 2000 compensable injury.

In comparing the medical reports on file we find the worker's condition was essentially unchanged between July 2002 and September 2004. He would therefore be considered to have recovered from the effects of his compensable injury of December 2000 and consequently is not entitled to wage loss benefits beyond September 2002. His appeal is therefore denied.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of January, 2005