The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 3, 2005, at the request of a worker advisor, acting on the worker's behalf. The Panel discussed this appeal on March 3, 2005 and again on April 12, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 11, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond September 11, 2003.

Decision: Unanimous

Background

On September 18, 2001, the worker was assisting a co-worker pry a piece of steel off a wall when the steel snapped and he was struck in the chest. On the day of accident, the worker was admitted to hospital and was noted to have abrasions on the bilateral pectoral area with no obvious fractures. The admission diagnosis was recorded as "Blunt trauma to the anterior chest" and the worker was kept overnight for observation and pain control.

On September 24, 2001, the worker returned to modified duties at the advice of his family physician but was laid off in late October 2001 as modified duties were no longer available. In November 2001, the worker's wage loss benefits were reinstated by the Workers Compensation Board (WCB).

Subsequent file records revealed that the worker was examined by a WCB medical advisor on January 24, 2002. The medical advisor reported history and findings suggestive of a very significant amount of muscular pain on the right side of the worker's neck which was likely contributing in part to temporomandibular joint (TMJ) dysfunction. She reported that the worker's low back had recovered to baseline and that his cervical complaints were greater than previously experienced. The medical advisor felt that the worker's remaining pain complaints were likely related to myofascial pain and a referral was made to a physician specializing in myofascial and other pain disorders.

On March 4, 2002, the worker was initially assessed by a physician from the Pain and Injury Clinic. Following the assessment, blood work was ordered and the worker was provided with medication for sleep disturbance.

On June 6, 2002, an initial physiotherapy report diagnosed the worker with myofascial neck pain irritating the right brachial plexus. In a discharge report dated July 31, 2002, the physiotherapist noted subjectively that the worker was able to garden/go to the gym but pain was severe. The diagnosis was questionable chronic pain. The worker was instructed to return to regular modified duties if his physician agreed. The worker's Numeric Pain Rating Scale (NPRS) was 9/10.

On September 5, 2002, the worker underwent a Functional Capacity Evaluation (FCE) at the WCB. The worker's participation during the FCE was not a full voluntary effort passing 2 of 4 validity checks. There were significant variances and inconsistencies in performance.

The physician from the Pain and Injury Clinic was asked by a WCB medical advisor to provide the WCB with a narrative report outlining his working diagnosis, treatment outcome, work capabilities, etc. A response from the Pain and Injury Clinic is on file dated September 24, 2002. In short, the working diagnosis had been myofascial pain syndrome of the neck, shoulder and jaw with TMJ disturbance. The physician said there were no contraindications to a trial of a return to work at light or sedentary duty. It was suggested that the worker see an oral surgeon regarding his TMJ complaints.

On December 19, 2002, the worker was examined by a WCB medical consultant specializing in physical medicine and rehabilitation (a physiatrist). He stated there was a significant past history of prior cervical and low back symptoms. Prior to the recent work incident, there were intermittent symptoms following these initial injuries but good function. As a result of the September 18, 2001 accident, the physiatrist stated there appeared to be a musculoligamentous strain to the neck, with blunt trauma to the upper portion of the chest bilaterally. The worker additionally had low back pain and interscapular pain complaints about the scapula and neck. There was no evidence of any significant neurologic involvement and his neurologic symptoms were actually muscular in origin, i.e. pseudo-neurologic. There were minor mechanical symptoms of the cervical spine. He suspected this was a reflection of the significant cervical spine degenerative changes present in the low neck. Treatment plan included a trial of cervical traction, a neck stabilization program, further acupuncture treatment and swimming.

On May 22, 2003, a WCB medical advisor was asked to review the file information and to answer several questions posed by primary adjudication. The medical advisor responded that there was no apparent cause and effect relationship between the workplace accident and the worker's TMJ problems and that the TMJ problems were pre-existing. The medical advisor also commented that the worker's pre-existing neck problem was not enhanced by the workplace accident.

On June 26, 2003, the worker's family physician provided the WCB with a narrative report outlining the dates/conditions that he treated the worker dating back to 1980. Presently, the worker's main complaint was increased pain on severe exertion. The worker also complained of numbness and tingling of his hands and pain in his right jaw down to the neck and shoulder, down the right arm in the chest between the shoulder blades and in the lower back and right leg. With respect to a diagnosis, the physician stated that the compensable accident caused considerable soft tissue injury and was likely the cause of the worker's symptoms. The physician commented that the worker had attempted work but was unable to perform the duties required by his job. His impression was that the worker would unlikely be able to reach a physical level would which permit him to continue in heavy-duty construction.

In a decision letter dated September 4, 2003, a WCB case manager determined that the worker's ongoing physical problems, which he believed were preventing him from returning to work, were not the result of a workplace injury. As the WCB considered the worker to have recovered from the effects of his workplace injury, wage loss benefits would end effective September 11, 2003.

On January 28, 2004, a worker advisor appealed the above decision to Review Office. The worker advisor argued that the decision was not supported by the weight of file evidence nor was the decision in compliance with WCB policy 44.10.20.10.

In a Review Office decision dated March 19, 2004, it was determined that the worker was not entitled to wage loss benefits beyond September 11, 2003. Review Office stated it was unable to accept that the worker's ongoing complaints were due to the September 18, 2001 accident given his wide range of subjective complaints, his failure in 2 of 4 validity checks at the time of his FCE on September 4, 2002, the length of time since his injury and his previous medical history.

Review Office also determined that the arrangements would be made for the worker to see an oral surgeon to confirm or deny a diagnosis of TMJ dysfunction and to determine the relationship of this condition to the compensable accident.

Subsequently, Review Office determined that responsibility should be accepted for the worker's TMJ complaints. However, Review Office was also of the opinion that the acceptance of this condition did not warrant reinstatement of wage loss benefits, as the oral surgeon had categorized the worker's TMJ complaints as being not significantly disabling. Review Office also found that the new medical information from the family physician was not significantly different than that contained in his June 16, 2003 report which was considered at the earlier Review Office ruling. Review Office therefore remained of the opinion that the worker was not entitled to wage loss benefits beyond September 11, 2003.

On December 3, 2004, the worker advisor appealed Review Office's decisions of March 19 and November 18, 2004 to the Appeal Commission and an oral hearing took place on March 3, 2005.

Following the hearing, the Appeal Panel met to discuss the case and it requested additional information from two of the worker's treating physicians. On March 30, 2005, the worker and his advocate were provided with copies of the medical reports that were received by the Panel and were invited to provide comment. On April 12, 2005, the Panel met further to discuss the case and to render its final decision.

Reasons

The panel was asked to determine whether the worker is entitled to wage loss benefits beyond September 11, 2003. For this appeal to be successful the Panel must find that the worker suffered a loss of earning capacity after September 11, 2003 due to the accident. In other words the Panel must find that the workplace injury is preventing the worker from returning to work. We were not able to make that determination.

It should be noted that the worker also has a jaw condition which has been accepted by the WCB as a sequela of this accident. The worker, however, did not advance arguments to indicate that this condition was significantly disabling. As such, this decision does not deal with this condition.

Evidence and Argument at Hearing:

The worker attended the hearing with his wife and a worker advisor who made a submission on the worker's behalf. The worker answered questions posed by the Panel. The employer did not attend the hearing but provided a letter in support for the worker's position.

The worker advisor asked the Panel to note the significance of the workplace accident. She provided a description of the accident which resulted in a musculoligamentous strain to the neck and trauma to the upper chest. The worker advisor compared the early medical reports with later reports and noted that while there was confirmed improvement there remained findings related to the 2001 injury.

The worker advisor referred to Board policy 44.10.20.10, Pre-Existing Conditions, and to a medical report indicating that the worker's pre-existing condition has been enhanced. She submitted that under this policy the worker is entitled to ongoing benefits.

The worker described his abilities and activities before and after the accident. Before the accident the worker was very active, regularly attended a gym and was capable of heavy lifting and heavy work duties. After the accident a regular day consisted of spending 15 - 16 hours lying down due to bad headaches. He is able to make meals, work in his garden and greenhouse and do limited woodworking.

When asked "do you feel that your workplace accident left you totally disabled, like where you can't do anything?" the worker initially responded "yes" but subsequently indicated that he could perform light work. The worker indicated that he is looking for work and that he would prefer full-time work over part-time work. He advised that he could not return to construction as the work is too physically demanding but the work in a greenhouse might be suitable. He noted that he has done some job hunting via the internet.

The worker acknowledged that before the accident he had some symptoms and described them as "I'd still have slight pains in my lower back and my neck and some down my right arm, but it was kept to a minimum by my exercising and my activities that I did." The worker described his current symptoms and advised the Panel that his condition worsened since the accident.

With respect to his medical condition, the worker advised that he sees his family physician once a month. However he has not discussed his pain or management of the pain with his physician. He also indicated that the physician does not prescribe medications for the pain. The worker has recently seen a neurologist and is seeing an oral surgeon for his compensable jaw condition.

Analysis:

We were not able to find that the worker's current loss of earning capacity is due to his workplace injury and accordingly were not able to find that the worker is entitled to wage loss benefits beyond September 11, 2003. We found that the worker has returned to his pre-accident status and that the worker's pre-existing condition has not been enhanced.

We note that the worker suffered from similar symptoms both before and after the accident. With respect to the worker's medical history, the worker's family physician advised in a report to the worker advisor that:

"There is a notation in his chart that he was seen on Nov 21, 1980 with cervical strain accompanied by headache and pain down the back of his neck with pain from his shoulder down to his right arm. He also complained of numbness in the right hand in the distribution of the ulnar nerve."

The above symptoms are similar to the symptoms which the worker described as occurring after the injury and continuing to this time. The worker has indicated that the intensity of the symptoms has increased since the workplace injury, but we were not able to find that this was due to the workplace injury.

We note that x-rays were taken shortly after the accident, and that the x-ray report dated September 20, 2001 notes with respect to the cervical spine "severe degenerative narrowing of C4-5, 5-6 and 6-7 interspaces." There is no radiological evidence that the pre-existing degenerative condition has been aggravated or enhanced by the workplace injury.

The WCB physiatrist who examined the worker on December 19, 2002 commented "There were minor mechanical symptoms on the current examination of the cervical spine. I suspect that this is a reflection of the significant degenerative changes present, especially of the low neck."

We also note that the worker was seen in June 2004 by a neurologist who reported there was no neurologic abnormality to explain the worker's symptoms. As well the worker's family physician advised in a report dated June 26, 2003 that "On examination there is good range of movement, there is good muscle development. The only objective finding is tenderness in the painful areas."

We found the worker's evidence that he was looking for work and wanted full-time work to be inconsistent with his description of his current daily activities (laying down for 15-16 hours each day). We note the worker is not receiving treatment for his various symptoms (other than his jaw) and that the worker confirmed that he has not discussed his pain or management of his pain with his family physician "…because I seem to be managing it myself not too bad." Given this evidence we have difficulty giving weight to the worker's assertion that his condition has worsened significantly since the workplace injury and since his benefits were terminated.

We found that the worker's workplace injury is not preventing him from working. We note that shortly after the accident the worker returned to work, performing light duties for about a month. He was laid-off at that time because of a lack of light duties. We also note that the worker's family physician has continuously since the accident indicated that the worker is fit for light duties. The worker testified that he regularly called his employer but that they had no light duties for him. He advised that he has recently started looking for work. His efforts to date consist of checking the internet for employment opportunities. Had we found that the worker suffered a loss of earning capacity as a result of the accident, we would have found, based on the evidence, that the worker had not mitigated his loss and that benefits should be reduced as a result.

The worker's 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 19th day of May, 2005