The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 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 compensation benefits beyond December 7, 2003.

Decision

That the worker is not entitled to compensation benefits beyond December 7, 2003.

Decision: Unanimous

Background

On November 27, 2002, the worker reported that he injured his left arm muscles from performing the following work-related activities:

"I was closing the doors on a container and slipped on the ice --- when I fell I hung on to the handle with my left hand to break my fall. My left arm took all of my weight when I did that.

The worker was employed as a short haul truck driver at the time of the injury.

A Doctor's First Report revealed that the worker was assessed on December 12, 2002 for complaints of pain and swelling of his left arm and elbow and that he was unable to drive or lift. The diagnosis rendered by the treating physician was a sprained left elbow. In a subsequent progress report dated December 17, 2002, the treating physician stated that the worker complained of persistent pain in his left arm as well as his shoulder. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker.

Following an assessment on February 21, 2003, a WCB physiotherapy consultant concluded that the worker sustained a strain to the left forearm musculature when he slipped on November 27, 2002. Four sessions of massage therapy focused on the forearm musculature including the supinator was the suggested form of treatment. When examined at a follow-up visit on March 19, 2003, the physiotherapy consultant determined that the worker could return to work with restrictions respecting his left hand.

In a May 28, 2003 report, the treating physician noted that the worker had returned to work but experienced an exacerbation of pain and sudden weakness with his left arm while driving. A referral to an orthopaedic surgeon for treatment was planned.

On June 5, 2003, a bone scan report identified increased uptake in the right acromioclavicular joint, possibly representing early degenerative changes. There was also mild uptake in the medial epicondyle bilaterally, more marked on the left than the right. No abnormality was seen at the radial head of either elbow. A CT scan of the cervical spine dated June 13, 2003 revealed no abnormalities.

The worker was assessed by a sports medicine specialist on June 27, 2003. The specialist diagnosed the worker with left cervical radiculopathy secondary to a brachial plexus traction injury, a left rotator cuff strain with secondary tendonitis, and a left supinator strain with residual weakness. Treatment included an injection to the left subacromial region.

Following an assessment on August 19, 2003, a WCB medical advisor concluded that the worker was unable to return to his regular duties and should undergo an aggressive physiotherapy program to strengthen certain areas and to increase his tolerance for a return to work. The WCB then arranged for the worker to attend a chiropractor at the Wellness Centre for an assessment and a reconditioning program.

On October 28, 2003, primary adjudication advised the worker that the WCB would pay him wage loss benefits up to the completion of his reconditioning program and that he would be considered capable of returning to his pre-accident job duties effective December 1, 2003. On November 13, 2003, primary adjudication changed the December 1, 2003 date to December 7, 2003 as the reconditioning program started on November 5, 2003 as opposed to November 3, 2005.

In a progress report dated December 4, 2003, the treating physician noted that the worker's left arm improved but that his left shoulder was still painful. The physician suggested that the worker needed further physiotherapy to his neck and shoulder before going back to work.

A "Reconditioning Program" report dated December 9, 2003 stated, in part, "There is a consistent picture of left mid cervical, C5-C6 irritation with good ROM. We have educated [worker's name] on postural activities, neck strengthening. We are suggesting that [worker's name] would benefit from a trial of 4-6 treatments specific to his left C6 facet joint. These treatments would be scheduled around his RTW scheduled (sic) and should not impede the RTW process." On December 12, 2003, the WCB denied the neck treatment as it was felt that the worker had received this treatment in the past with no improvement.

On December 15, 2003, the worker advised the WCB that he had returned to his truck driving duties on December 10, 2003 and that he had pain in his left elbow and neck. He stated that he left work on this date because his elbow was "killing him". The worker expressed concerns that he had not yet recovered from his injury and was not ready to return to work. He stated that his problems stemmed from his neck and that this was never properly addressed. He stated that his elbow was very sore and he could not lift his 30 lb. grandson.

In a progress report dated January 5, 2004, the treating physician commented that the worker's shoulder worsened since returning to work and that he was unable to elevate his left arm and had difficulty lifting 20 to 30 lbs. Recommendations were made for the worker to continue physiotherapy and to rest. He was considered capable of light work and was to avoid using his left shoulder.

In a January 8, 2004 memo, a WCB adjudicator documented that she had spoken with an accident employer representative and was told that the worker came to the office on December 10, 2003 stating that his physiotherapist did not support his RTW (return to work) and said he felt rushed to RTW. The worker was offered a truck on December 10, 2003 but he declined. The worker then called on December 12, 2003 and requested his record of employment and refused to RTW as he said the drive home from her office was too much for his shoulder.

On January 19, 2004, primary adjudication wrote to the worker stating that it was the WCB's position that he had recovered from his November 27, 2002 compensable injury and was fit to return to his pre-accident duties effective December 8, 2003. The decision was based on the weight of evidence which included the diagnosis, expected symptom duration, the time that had passed, current clinical findings and the opinion of a WCB medical advisor.

In an appeal dated March 13, 2004, the worker noted that he was still suffering with shoulder and neck pain which affected the use and strength of his left arm. The worker stated that when he drove out to Steinbach from his home on December 10, 2003 there was no work or a truck available. Due to the long drive, he realized that his injuries had not improved at all and that his neck and shoulder were very sore.

After a preliminary review of the case, Review Office advised the worker on April 30, 2004 that arrangements were being made for him to be examined by a WCB consultant specializing in physical medicine and rehabilitation (a physiatrist) prior to its rendering a formal decision. This examination later took place on May 18, 2004 and the report was forwarded to Review Office for consideration.

In a decision dated June 18, 2004, Review Office determined that the worker was not entitled to further compensation benefits of any kind after December 7, 2003. Based on the absence of clinical findings after reviewing the results of the May 18, 2004 examination report, Review Office was unable to explain what was causing the worker's symptoms. Review Office stated that the May 18, 2004 examination failed to identify a structural abnormality or anatomical diagnosis.

Subsequent file evidence contained the result of a left shoulder MRI examination that was carried out on June 26, 2004. The "Impression" read as follows:

"Mildly increased signal within the supraspinatus tendon with associated degenerative cystic change in the greater tuberosity. The findings are in keeping with supraspinatus tendinosis. No evidence suggestive of a rotator cuff tear is identified."

On September 16, 2004, the WCB physiatry consultant provided the following opinion following his review of the MRI results:

• on a balance of probabilities, there was no relationship between the November 27, 2002 injury and the MRI findings.
  
  
• the MRI findings were not consistent with the mechanism of injury, but with degenerative changes.
  
  
• the MRI results would have been expected to pre-exist the injury. The consultant stated that no injury related cause would be present to prevent the worker from performing his pre-accident duties.

A report was received from an orthopaedic specialist who had examined the worker on September 28, 2004. In his report dated October 27, 2004, the specialist outlined his examination findings pertinent to the worker's left shoulder and the accident history. The specialist stated that the worker sustained the left shoulder injury while at work and has had pain in the shoulder ever since. He stated that this opinion was based on the patient's history. He stated that the physical exam was consistent with a left shoulder rotator cuff tendinitis and that the MRI scan was consistent with a left shoulder rotator cuff tendinitis.

In a decision dated November 10, 2004, Review Office indicated that no change would be made to its previous decision that stated the worker was not entitled to compensation benefits after December 7, 2003. Review Office placed weight on the following when arriving at its decision:

• the accident description outlined in the orthopaedic surgeon's report of October 27, 2004 was not the same as what was reported to the WCB, the attending physician and employer immediately following the November 27, 2002 accident.
  
  
• although the orthopaedic specialist reported that the worker sustained a left shoulder injury and has had pain ever since, a review of the file information showed that the worker did not make any complaints of shoulder pain at the time of the accident or immediately thereafter.
  
  
• the MRI findings suggested that the worker had a chronic condition (tendinosis) which was longstanding.

On December 3, 2004, a worker advisor appealed Review Office's decision on behalf of the worker. On March 15, 2005 an oral hearing was held at the Appeal Commission to consider the worker advisor's appeal.

Reasons

At the hearing, the worker's worker advisor advanced the argument that subsequent to the termination of benefits on December 7, 2003 the worker was unable to return to his pre-accident employment specifically because of his left shoulder difficulties.

The worker was reassessed on December 5, 2003 by his physiotherapist after the completion of a four week reconditioning program. In the reconditioning report dated December 9, 2003, there is no mention of any shoulder difficulties contained in the physiotherapist's closing comments. Examination of the shoulders revealed: "Full ROM [range of motion] bilaterally with pain complaints on left shoulder abduction and all isometric strength grades 5/5."

The worker phoned the WCB and spoke to his case manager on December 15, 2003. According to a memorandum on file, the worker reported that "his elbow is very sore and he cannot lift his grandson (30 lbs). He notes that the drive out Steinbach is very hard on his elbow." We note that there was no mention at this time of any shoulder difficulties.

The worker was examined by his treating physician on January 5, 2004 and in his progress report bearing the same date he recorded under subjective complaints the following comment "shoulder worsened since returning to work." The case manager consulted with a WCB medical advisor and asked his opinion if the worker's ongoing shoulder symptoms were in any way related to the compensable injury. The medical advisor responded in a memorandum dated January 14, 2004 by saying, "This does not make sense - objectively was fit - unclear why now should have had symptoms flare; when he never did RTW [return to work]." The evidence clearly confirms that the worker never did return to work other than to drive to his employer's offices.

After having considered all of the evidence, we find no indication that the worker was, on a balance of probabilities, medically precluded from returning to his pre-accident duties at the time his benefits were terminated. Therefore the worker is not entitled to compensation benefits beyond December 7, 2003. Accordingly, the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 25th day of April, 2005