The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 1, 2004, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond April 22, 2002.

Decision

That the worker is not entitled to wage loss benefits beyond April 22, 2002.

Decision: Unanimous

Background

During the course of his employment as a healthcare aide on July 4, 2000, the worker was struck by a cabinet that came loose from the wall and reported injuries to his right shoulder, arm, back and neck. The diagnosis rendered by the treating physician was contusion of the right shoulder and neck. The Workers Compensation Board (WCB) accepted the claim for compensation on July 13, 2000.

On August 8, 2000, the worker returned to light duties but experienced increasing pain in his shoulder and neck areas along with numbness down his right arm.

On August 31, 2000, an orthopaedic surgeon diagnosed the worker with post traumatic bursitis of the right shoulder. The worker was treated with Depo-medrol and was given instructions for shoulder and arm exercises. The surgeon felt that the worker could return to work by the following week.

The worker was assessed by a WCB medical advisor on October 5, 2000. It was determined that the worker had difficulties with myofascial pain over his right neck and shoulder. There was no neurological deficit. A treatment plan was outlined and it was felt that the worker could return to work on a graduated basis until he reached full time duties which he did on December 4, 2000.

In June 2001, the worker advised the WCB that he was off work as of May 31, 2001 due to pain and numbness in his neck, down his shoulder and into his right arm. He also complained of pain in his rotator cuff region. On July 10, 2001, a WCB medical advisor felt that there was a relationship between the worker's right shoulder difficulties and his compensable accident.

On July 16, 2001, the worker returned to modified duties with a view to increasing his work hours.

The worker was assessed by a second orthopaedic specialist on September 18, 2001. He felt that the worker's right sided neck problems had some degree of C5-6 degenerative arthritis and that a labral lesion could not be ruled out.

On October 21, 2001, a CT scan of the cervical spine revealed multi-level degenerative changes with minor multi-level foraminal encroachment.

The worker's progress was followed up by the treating orthopaedic specialist on February 19, 2002. The specialist thought that the worker's current symptomatology was likely secondary to cervical spondylosis with a small component of AC joint strain. An arthroscopic debridement of the AC joint was suggested. The worker was advised that he most likely could have residual pain and disability because of his neck problem.

A WCB medical advisor reviewed the file on April 5, 2002. He confirmed the current diagnosis as being cervical spondylosis and right AC arthrosis. He did not believe there was a causal relationship between the compensable injury and the worker's current condition. He felt the compensable injury may have aggravated the cervical spondylosis but adequate treatment and time to recover had passed. The medical advisor recommended no restrictions that applied to the compensable injury. The medical advisor commented that there was evidence of a pre-existing condition that was affecting the worker's recovery, namely degenerative changes in the right joint and cervical spine.

On April 8, 2002, the WCB advised the worker that after a complete review of his claim, it was determined that he had recovered from the effects of his workplace injury. Wage loss benefits would be paid to April 22, 2002 inclusive and final.

A report was received from a neurologist dated May 22, 2002. The neurologist outlined his examination findings and concluded that the clinical picture was most consistent with a myofascial pain syndrome and a residual carpal tunnel syndrome (CTS). Suggestion was made for a referral to a physical rehabilitation medicine specialist. In a letter attached to this correspondence dated June 26, 2002, the neurologist stated that the worker's ongoing symptoms were as a result of his work place accident.

A report was received from the treating physician dated June 24, 2002. He advised that the worker continued to have symptoms as a result of his injuries and that he was being referred for management of post-traumatic fibromyalgia.

On July 15, 2002, another physician outlined his opinion that the worker had a combination of arthritic and musculature pain on the right side of his neck and rotator cuff degeneration or tear type pain in the right shoulder. An ultrasound of the right shoulder was suggested but the physician expected "degenerative confirmation as opposed to a tear because of the lack of impingement signs."

On December 13, 2002, Review Office determined that the worker was not entitled to wage loss benefits beyond April 22, 2002. Review Office noted an opinion had been solicited from a WCB orthopaedic consultant. Review Office stated, "It was his opinion that the worker's ongoing complaints were due to cervical spondylosis and residual carpal tunnel syndrome, rather than due to the contusive injuries sustained at work on July 4, 2002 (sic)."

Review Office was satisfied that the weight of medical evidence supported that the worker was no longer suffering from the effects of his July 4, 2000 accident, and that accordingly, he was not entitled to receive wage loss benefits beyond April 22, 2002. On September 20, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue before us was whether the worker is entitled to wage loss benefits beyond April 22, 2002. For the appeal to be successful, we must find that the worker's loss of earning capacity is caused by his workplace injury. In other words we must find that the worker is unable to work due to his workplace injury. We were not able to make this finding and therefore concluded that worker is not entitled to wage loss benefits beyond April 22, 2002.

Evidence and Argument at the Hearing

The worker represented himself at the hearing. He made a submission on the merits of his claim and answered questions posed by the Panel. The employer was represented by an advocate who made a submission.

The worker described his workplace accident which occurred when a cabinet came loose from a wall and fell on him. He offered the opinion that his injury occurred due to the negligence of this employer in failing to properly affix the cabinet.

The worker advised that he has not returned to pre-accident status and continues to suffer the effects of the workplace injury. The worker described his current symptoms and current restrictions on the use of his right arm which include no lifting, pushing or raising. He advised that he sees his family physician monthly and that the physician referred him to a pain clinic last year. To date the clinic has not contacted him and he does not know the name of the clinic so he has been unable to contact the clinic.

He reviewed the medical information on the claim which he considers supports his position. He expressed concern that a WCB medical advisor changed his opinion regarding the cause of his symptoms.

The worker described his attempts at returning to work and noted that the modified duties were inconsistent with his restrictions.

With respect to finding employment, the worker initially indicated that he had not looked for work but later advised that he made some inquiries and found that employers do not want to hire him because he is injured.

The employer argued that while the worker suffered some degree of injury to his right shoulder as a result of the workplace accident, it would appear that the bulk of the injury was an aggravation to the worker's pre-existing degenerative neck condition. He noted the medical evidence which supports this position and advised that the employer agrees with the Review Office decision.

Analysis

The worker's injury was first diagnosed as a contusion of the right shoulder and neck. Subsequent diagnoses included post-traumatic bursitis, myofascial pain and degenerative arthritis of the cervical spine. The worker also had pre-existing CTS.

The worker attempted modified duties on several occasions but was not able to make a sustained return to work. During the early stages of the claim the WCB attributed the worker's symptoms to the contusion injury. Diagnostic tests subsequently showed the worker suffered from degenerative changes in his cervical spine. The WCB Review Office concluded that the worker's ongoing symptoms were due to the degenerative changes in his neck and the pre-existing CTS.

After considering all the evidence, including the worker's evidence at the hearing, we find, on a balance of probabilities, the worker's ongoing symptoms are not caused by his workplace injury of July 4, 2000 but are more likely caused by his pre-existing degenerative condition. Accordingly the worker is not entitled to wage loss benefits after April 22, 2002. In coming to this conclusion we place significant weight on the following:

• CT scan performed on October 21, 2001 which found multi-level degenerative changes throughout the cervical spine with minor multi-level foraminal encroachments.
  
  
• WCB orthopedic consultant opinion dated November 28, 2002 that the cause of the worker's ongoing complaints are cervical spondylosis (degenerative disc disease), osteoarthritis and CTS.
  
  
• Medical examination performed by an orthopaedic surgeon on February 19, 2002 which found:
  
  "Examination shows an overweight individual. The neck has good motion. However, at the extreme of left lateral flexion, he complains of tightness in the right trapezius area. The right shoulder has no obvious deformity. He has mild tenderness over the AC joint. Range of motion of the right shoulder is well preserved. Impingement test is negative. Adduction of the arm across the chest produces mild AC joint pain. The strength is well preserved today. However, he states that at times, when he is working he feels that his right shoulder tends to get tired very easily. The shoulder is stable."
  
  This physician commented that the worker's current symptomatology is likely secondary to cervical spondylosis with a small degree of AC joint strain.
  
  
• Medical examination report from a physical medicine and rehabilitation specialist on July 19, 2002 which found:

  "Examination revealed a well-looking young man who seems to have a limp on the right side and he says that he has had this for many years if not born with it. The right arm shoulder and neck did not reveal any atrophy. There was minimal tenderness in the right side of his neck and shoulder. All strength appeared intact. There was a scar from carpal tunnel surgery in the right wrist. His range of motion of the neck and right shoulder were normal and he had full abduction with the drop arm test being negative. No painful arc syndrome. The right shoulder though had crepitus on passive range of motion."

This physician commented that he suspects the worker has a combination of arthritic and musculature pain in the right side of the neck and rotator cuff degeneration.

We note that the worker's treating physician considers that the worker is not totally disabled and is fit for suitable work. In his report of June 24, 2002 he suggested restrictions related to the worker's shoulder condition. We also note that the worker has made minimal attempts to find employment.

As previously stated we find that the worker is not entitled to wage loss benefits after April 22, 2002. His appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of January, 2005