The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 30, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on September 30, 2004 and again on January 10, 2005.

Issue

Whether or not responsibility should be accepted for any time loss or medical expenses beyond January 14, 2002; and

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That responsibility should not be accepted for any time loss or medical expenses beyond January 14, 2002; and

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

During the course of his employment as a bridge construction inspector on November 29, 2000, the worker reported that he strained his neck when he slipped on black ice on a bridge deck. Initial medical information diagnosed the worker with a neck strain and physiotherapy treatments were arranged. File information also revealed that the worker has prior claims with the Workers Compensation Board (WCB) for neck injuries that he sustained in 1987, 1988 and 1994 due to workplace injuries.

On December 13, 2000, x-rays were taken of the worker's neck which revealed mild cervical torticollis convex left. No fracture or dislocation was seen and the disc spaces and facet joints were normal.

On December 18, 2000, the treating physiotherapist noted that the worker complained of longstanding chronic neck/shoulder pain of six years duration which was aggravated by a slip and fall at work on November 29, 2000. Clinical findings were documented as "severe chronic myofascial pain in muscle groups described above, tendonitis both flexors and extensors of right thumb."

The worker was seen by a physiatrist on January 11, 2001. The diagnosis rendered was myofascial pain syndrome in the posterior neck. Treatment consisted of trigger point injections.

On January 29, 2001, the treating physician stated that the worker could return to work as of February 5, 2001 at modified duties with no stressing or loading of the neck.

On February 7, 2001 the physiatrist noted that the worker's headaches were very minor and that his neck was still stiff and sore especially in the morning.

The worker underwent a CT scan of the cervical spine on February 9, 2001. The results revealed, "…no central or lateral spinal stenosis or disc herniation… The intervertebral foramina are relatively symmetric throughout the visualized levels."

On June 8, 2001, the physiatrist referred the worker to the Pain Clinic for complaints of chronic neck discomforts and headaches stemming from his WCB injury.

The case was reviewed by a WCB medical advisor on September 13, 2001 at the request of primary adjudication. The medical advisor noted that the compensable diagnosis stemming from the November 29, 2000 compensable accident was "aggravation myofascial pain syndrome not yet settled." He further commented that there was likely an ongoing cause and effect relationship between the worker's current signs and symptoms and the compensable injury.

On January 7, 2002, the WCB advised the worker that there was no basis to extend ongoing wage loss or medical aid benefits beyond January 14, 2002. Based on the weight of evidence including the opinion expressed by a WCB medical advisor, the WCB made the determination that the worker had recovered from the aggravation of his pre-existing myofascial pain syndrome and that any ongoing difficulties were not related to the November 29, 2000 workplace injury.

An MRI of the cervical spine dated January 28, 2002 revealed mild degenerative changes most severe at the C3-4 level. On March 15, 2002, a WCB medical advisor commented that the minor degenerative changes noted on the MRI were insignificant in the overall presentation. He commented that the worker's problem was muscular in nature.

On May 2, 2003, a worker advisor, acting on the worker's behalf, provided the WCB with a report from the Pain Clinic dated April 23, 2003. Based on this report, the worker advisor contended that the claimant's pre-existing neck and upper back condition was enhanced by the November 29, 2000 compensable injury.

After consultation with a WCB medical advisor, primary adjudication wrote to the worker advisor on June 3, 2003 to state that no change would be made to its previous decision. The case manager stated that the medical advisor did not agree with the Pain Clinic's physician that the November 29, 2000 work injury resulted in an enhancement of the worker's pre-existing conditions. The medical advisor still was of the view that there was an aggravation of the pre-existing condition and that this had resolved. Any further problems experienced by the worker were not considered to be related to the original compensable injury.

On June 9, 2003, the worker advisor appealed the above decision to Review Office. In the event that Review Office decided not to accept responsibility for the worker's neck and upper back condition beyond January 14, 2002, a Medical Review Panel (MRP) was requested pursuant to subsection 67(4) of The Workers Compensation Act (the Act). On June 30, 2003, Review Office determined that further information was needed before deciding the appeal and the case was forwarded back to primary adjudication to obtain the information.

Between July 2003 and February 2004, primary adjudication gathered additional information from the worker concerning medical treatment dates, the time that he missed from work because of neck difficulties, etc. Primary adjudication also obtained additional medical information consisting of hospital reports, reports from his treating physician and a chiropractic report. In January 2004, a WCB medical advisor reviewed the additional information at primary adjudication's request.

On February 11, 2004, the WCB advised the worker that all medical information had been reviewed by a WCB medical advisor who was of the opinion that the worker had sustained an aggravation of a pre-existing condition and that this aggravation had now resolved. Therefore, no change would be made to the decision of June 3, 2004.

On April 30, 2004, Review Office confirmed that no responsibility could be accepted for the worker's ongoing neck complaints or headaches beyond January 14, 2002. Review Office noted that it had obtained the opinion of a WCB orthopaedic consultant who believed that the worker had no significant cervical spine pathology to account for his ongoing symptomatology. The consultant felt that the mechanics of injury were consistent with neck strains and was of the view that the degenerative changes reported on a January 23, 2002 MRI were of questionable significance. In conclusion, the consultant opined that the worker's ongoing neck pain and headaches could not reasonably be associated with any of his compensable injuries.

On May 26, 2004, the worker advisor requested an MRP as she felt there was a clear difference of medical opinion based on the report submitted by the physician at the Pain Clinic dated April 23, 2003 and the opinion expressed by the WCB orthopaedic consultant on April 27, 2004.

On June 3, 2004, a WCB manager wrote to the worker advisor, stating that a full statement of facts and reasons supporting a medical conclusion that was required for an MRP had not been met and there was no basis to convene a MRP. This decision was also upheld by Review Office in a letter to the worker advisor dated July 15, 2004. In August 2004, the worker advisor appealed Review Office's decisions to the Appeal Commission and an oral hearing was held on September 30, 2004.

Following the oral hearing, the Appeal Panel asked for up-dated medical information from the worker's treating physiatrist and for the worker to be seen by an independent physiatrist with respect to his current physical condition and its relationship to the compensable injury of November 29, 2000. On December 9, 2004, all parties with a direct interest were provided with copies of the treating physiatrist's up-dated reports and the report from the independent physiatrist dated November 3, 2004. On January 10, 2005, the Panel met to further discuss the case and considered a final submission from the worker dated January 10, 2005.

Reasons

We were asked to address two issues. The first issue was whether responsibility should be accepted for any time loss or medical expenses beyond January 14, 2002. For the appeal to be successful on this issue we must find that the worker continues to suffer a loss of earning capacity as a result of the November 29, 2000 workplace injury. We must also find that the worker's medical expenses after January 14, 2002 are for treatment of a workplace injury. We were not able to make this finding.

The second issue was whether an MRP should be convened pursuant to subsection 67(4) of the Act. For the appeal to be accepted on this issue we must find that the requirements of subsection 67(4) have been met. We were not able to make this finding.

Evidence at Hearing

The worker was represented at the hearing by the Worker Advisor Office. The worker's representative made a submission on the worker's behalf. The worker answered questions posed by his representative and by the Panel.

The worker reviewed a series of accidents that he had since 1992. He described a motor vehicle accident which occurred in 1992, a slip and fall at the work site in 1994 and his last accident, a slip and fall which occurred on November 29, 2000. He advised that he recovered fully from the 1992 and 1994 accidents. Contrary to information in the claim file, the worker is not attributing any of his symptoms to his prior injuries.

He attributes his current condition to the November 2000 injury. He notes that he did not take medications before the 2000 injury and that he was very active before the injury and since the injury has had to cease participating in sports. He also advised that he is unable to perform most duties at home.

The worker identified the treatments he has received or is currently receiving. He has seen several specialists and received a variety of treatments including; dry needling, trigger point injections, massage therapy, chiropractic adjustment, craniosacral therapy, acupuncture, traction, and physiotherapy. He has also used a TENS machine and patches which remove toxins from his body. He is currently seeing a physiatrist and continues to receive deep muscle massage therapy. He has found that none of the treatments have eliminated his pain, although he does get temporary relief from certain treatments.

He described his current symptoms as severe stiffness and pain in the neck area which comes right up the back of his head and into the base of the skull. He then gets headaches right above the eyes and in the sockets. He takes a muscle relaxant and a narcotic based drug and indicated that he cannot function without the medication. He also advised that he has no trouble sleeping, in his words "That's my best time of the day." However, the pain is present as soon as he awakes.

At the time of the hearing the worker was off work. In addition to WCB wage loss benefits the worker has taken two months of sick leave, he also used vacation and banked time. He noted that his family physician would only authorize two months of sick leave. He has not applied for disability benefits. He was planning on returning to work soon after the hearing. He indicated that he can work provided that he is using his medications.

The worker's representative reviewed medical reports from treating physicians which support the worker's claim for benefits. The representative asked that if we did not agree to award benefits to the worker that we convene an MRP under subsection 67(4) of the Act. She contrasted the reports from treating physicians with a WCB medical advisor's opinion and noted there is a difference of opinion as required by the Act.

Analysis

Issue 1: Whether or not responsibility should be accepted for any time loss or medical expenses beyond January 14, 2002.

The worker has seen several specialists and received a broad array of treatments with little or no resolution of his symptoms. To assist us in addressing the issues, we arranged for the worker to be examined by an independent third party physiatrist. This examination took place on November 1, 2004 and a report was received at the Appeal Commission on November 8, 2004. We reviewed the report and also a submission from the worker.

We found on a balance of probabilities that responsibility should not be accepted for any time loss or medical expenses beyond January 14, 2002. We were not able to find a relationship between the worker's November 2000 injury and prior injuries and his ongoing symptoms. We made this decision after considering all the information, including the worker's testimony at the hearing. In making this decision we place significant weight upon the opinion of the independent physiatrist who examined the worker in November 2004. We note the following comments from this physiatrist:

"In summary the claimant has little if any objective findings on physical examination. He generally presents with a cervical range of motion that is within reasonably normal limits and an unremarkable soft tissue examination. If anything the asymptomatic left side is somewhat more tender on this examination. Despite presenting today with pain rated at 7.5/10, there are no signs of autonomic arousal or indications that he is uncomfortable throughout the approximately 2 hour evaluation period. Accordingly there is little to find to medically objectify the claimant's apparently significant pain complaint. …

The temporal relationship between the aggravation of his symptoms in 2000 is confounded by his numerous presentations to the emergency treatment of headache pain prior to 2000. The work-related incident in November 2000 appears no more significant an aggravating factor that any of the preceding events. Accordingly the temporal relationship is not strongly supported (sic) of a sudden aggravation of the claimant's prior neck and headache pain condition.

Given the above, and with a reasonable degree of medical certainty, it is improbable that the most recent slip and fall in November materially contributed to a cause and effect relationship.

Work Capacity

There is currently no objectifiable medical diagnosis upon which to base medical restrictions. Up to now the claimant has been restricted based on his subjective pain complaint rather than on the basis of some mechanical or anatomic derangement. This is arbitrary and does not make medical sense.

The claimant's condition does not:

• preclude travel to and from the workplace
• limit the performance of the essential tasks of his occupation
• pose a safety risk to the claimant or to his co-workers

Moreover, it is improbable, especially given the chronic unstable history of his condition that performing the essential tasks of his occupation will adversely affect the natural history of his condition. Accordingly, there is no basis for medical restrictions."

In addition to the physiatrist's report we note the worker's testimony that his own family physician would not provide a medical authorization for the worker's absence from work after an initial two month period. We also note the worker's testimony that he is able to do his job and his advice that he is returning to work.

We also note the WCB's orthopedic consultant's comments in a memo dated May 4, 2004. When asked whether the worker's compensable injuries continue to play a significant role in his ongoing symptomatology, he replied "No. The claimant has no significant c-spine pathology to account for symptoms."

Issue 2: Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Under subsection 67(4), a worker is entitled to have an MRP when there is a difference of opinion between his physician and a WCB medical advisor on a medical matter affecting entitlement to compensation. Opinion is defined under subsection 67(1) as a full statement of the facts and reasons supporting a medical conclusion.

In requesting an MRP, the worker's representative contrasted the comments of the WCB's orthopedic consultant with the comments of two physicians who have treated the worker. We have considered these reports and find that the requirements of subsection 67(4) have not been met and that an MRP is not to be convened.

One of the worker's physicians commented in an April 23, 2003 report that "…there continues to be a cause/effect relationship between [the worker's] pre-existing neck condition and the November 26, 2000 workplace injury." This physician goes on to state there has been an enhancement of the worker's pre-existing neck condition. It is unclear as to what this physician considers to be the worker's pre-existing condition. The physician notes that an MRI scan found some mild degenerative changes at C3-4 with no evidence of spinal cord or nerve root compression but does not explain how this condition has been enhanced. When asked at the hearing, the worker's representative was unable to identify the pre-existing neck condition which forms the basis of the physician's comments. We find that this physician's report is not a full statement of the facts and reasons supporting a medical conclusion as required by the Act.

The worker's other physician commented that evidence of taut bands in the muscles around the worker's neck is consistent with the mechanism of injury but does not provide a full statement of facts and reasons supporting his comments.

The worker's appeal on both issues is dismissed.

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 15th day of February, 2005