The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 15, 2005, 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 beyond January 15, 2001.

Decision

That the worker is not entitled to wage loss benefits beyond January 15, 2001.

Decision: Unanimous

Background

On May 25, 2000, the worker reported that a heavy, metal framed, chipboard about the size of a door, fell off thetop edge of a brochure shelf unit and struck her on the left side of her head.

Initial medical information consisted of a hospital emergency report dated May 26, 2000 which showed that the worker complained of a left sided headache, visual disturbance, pain in her left shoulder and neck along with numbness down her left hand. The diagnoses rendered were a concussion and possible radiculopathy at C5-6.

On July 25, 2000, the family physician referred the worker to a sports medicine facility for treatment. The physician noted that the worker had a prolonged history of muscle aches and pains involving the upper shoulders, neck and lower back. The worker had a number of motor vehicle accidents and falls which seemed to flare this up. Since the accident in May 2000, the physician stated that the worker had headaches, mild vertigo and unsteadiness. The worker had limited range of motion of the neck in all directions and a moderate degree of muscle tension and aching in the upper shoulders.

On September 20, 2000, the family physician reported that the worker had shown some improvement since attending physiotherapy, however, the range of motion in her neck seemed moderately impaired. It was hoped that the worker would be able to return to work after her physiotherapy treatments ended in October 2000.

The claim for compensation was accepted by the Workers Compensation Board (WCB) on October 10, 2000 and benefits were paid to the worker during her absences from work.

On October 20, 2000, the family physician diagnosed the worker with exacerbation of chronic neck pain, fibromyalgia and chronic fatigue.

In a report dated October 27, 2000, the family physician noted that the worker's condition had clearly improved but the improvement was slight and slow. The physician felt it was reasonable for the worker to attempt a return to work starting November 6, 2000 at four hours a day in the morning with a one hour lunch break.

On November 29, 2000, the family physician stated that the worker's condition had plateaued and that she was now starting to manifest more and more chronic pain syndrome/fibromyalgia symptoms. The physician commented that the worker continued to have great difficulty at work and needed housekeeping services once a week.

The case was reviewed by a WCB medical advisor on January 8, 2001. The medical advisor felt it was clear that the worker had chronic fatigue and fibromyalgia which was likely aggravated by the May 26, 2000 accident. It was also his opinion that the worker's conditions were no longer related to the compensable injury.

In a decision dated January 9, 2001, Rehabilitation and Compensation Services advised the worker that based on the opinion expressed by the WCB medical advisor, the WCB felt she had recovered from the effects of her compensable injury and that partial wage loss benefits would be paid to January 15, 2001 inclusive and final.

On November 5, 2001, the worker contacted the WCB to report that she had been off work since August 2001 and that she was having problems with her hip and shoulder which she related to the compensable injury, i.e. 'misadministered acupuncture treatment' at the sports medicine facility and being 'pinned against the wall' by a door while waiting for a ride at the sports medicine facility. On November 6, 2001, a WCB adjudicator advised the worker that she needed to appeal the January 9, 2001 decision.

In a November 16, 2001 report to the sports medicine consultant, the family physician noted that the worker suffered from severe myofascial pain syndrome, chronic fatigue syndrome and many features of fibromyalgia. He stated that as a result of minor trauma and motor vehicle accidents, the worker had deteriorated since 1998. He noted that the worker suffered acute deterioration following acupuncture therapy on November 28, 2000 and that she had been struck by an automatic door which pinned her against the wall at the sports medical centre causing pain in her right hip, thigh, shoulder and arm. He considered the worker incapable of returning to even four hours of work. In a further report dated September 23, 2002, the physician stated that the worker continued to complain of fatigue and various aches and pains.

On April 20, 2004, the worker appealed the WCB's decision of January 9, 2001 and submitted medical information from her family physician in support of her appeal.

On June 14, 2004, primary adjudication asked a WCB medical advisor to review the file information and to provide comments as to whether or not there was an ongoing cause-effect relationship between the workplace injury and the worker's current signs and symptoms.

In a decision dated June 17, 2004, Rehabilitation and Compensation Services confirmed to the worker that following review of her claim and after consulting with the WCB's healthcare branch, it was still the WCB's position that she had recovered from the effects of her work injury and that any ongoing complaints were due solely to a pre-existing condition. On June 23, 2004, the worker disagreed with this decision and the case was forwarded to Review Office for consideration.

On July 30, 2004, Review Office outlined its opinion that, on a balance of probabilities, the worker's ongoing physical complaints could not be attributed to the May 25, 2000 accident and were more likely due to the worker's pre-existing generalized complaints, which had been diagnosed differentially as severe myofascial pain syndrome, chronic fatigue syndrome and fibromyalgia. Review Office concluded that the worker had been reasonably compensated for the effects of her compensable injury and was not entitled to benefits beyond January 15, 2001. On December 3, 2004, a worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

After having considered all of the evidence as well as the presentation by the worker's worker advisor, we find based on the weight of evidence that the worker sustained an aggravation of a pre-existing condition at the time of her compensable accident and that this injury had, on a balance of probabilities, fully resolved by the time the worker's benefits were terminated in January 2001.

In coming to these conclusions, we attached particular emphasis on the following body of evidence:

• January 8, 2001 medical advisor memorandum to file - This is a complex problem. However it is clear this lady has chronic fatigue, & fibromyalgia which was likely aggravated by May 26/2000 accident. Recent medical reports suggest her pain - chronic & related to fibromyalgia (Nov 29/2000 Dr. [treating physician] ) Therefore no longer related to CI.
  
  
• November 16, 2001 treating physician's letter to sports medicine consultant - She suffers from severe myofascial pain syndrome, chronic fatigue syndrome and many features of fibromyalgia. As a result of minor trauma and motor vehicle accidents, she has deteriorated since 1998.
  
  
• September 23, 2002 treating physician's letter to the WCB - …It is unclear why she has complaints regarding her L eye and head. Although she attributes this to being struck on the head by a cork board, I don't think this is sufficient. She has had a previous neg CT and review by Dr. [treating neurologist] revealed no abnormalities.
  
  
• June 14, 2004 medical advisor memorandum to file - I have reviewed the file in its entirety and am in agreement with [previous medical advisor]. Her symptoms, objective medical findings suggest chronic fibromyalgia pain, fatigue preceding the Sept 11/00 (sic) injury and as Dr. [treating physician] previously reported, she had severe unrelenting problems dating back to 1998.

Finally, we further find that the worker is not entitled to wage loss benefits beyond January 15, 2001. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of April, 2005