The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 26, 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 a Medical Review Panel must be convened under subsection 67(4) of The Workers Compensation Act; and

Whether or not the worker is entitled to wage loss benefits after September 24, 2003.

Decision

That a Medical Review Panel shall not be convened under subsection 67(4) of The Workers Compensation Act; and

That the worker is not entitled to wage loss benefits after September 24, 2003.

Decision: Unanimous

Background

During the course of his employment as an automotive technician on January 8, 2003, the worker injured his right shoulder when he twisted and turned while repairing a heater box. On the same day, the worker attended his family physician for treatment and was diagnosed with a strained right shoulder girdle. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the worker commencing January 9, 2003.

On January 9, 2003, the worker sought treatment from a chiropractor. The worker's description of accident to the chiropractor was "working on a vehicle and felt strain/pain in R shoulder, neck, upper back". The diagnosis rendered was "strain/sprain R cervical/thoracic/shoulder area."

On February 14, 2003, the family physician reported that the worker was attending physiotherapy treatments and was being referred to a specialist.

X-rays of the right shoulder taken on January 30, 2003 revealed no fracture, dislocation or subluxation. X-rays of the thoracic spine dated February 4, 2003 demonstrated normal vertebral bodies and no lesion of the paravertebral tissues.

On April 10, 2003, an assessment report and progress notes were received from the treating physiotherapist.

In a memo to a WCB chiropractic consultant dated April 10, 2003, a case management representative noted that the worker was presently working 6 hours per shift, 5 days per week, in a supervisory position. The case management representative asked for an opinion as to whether or not the worker could increase his work activities/capabilities and to outline restrictions and duration. On April 21, 2003, the chiropractic consultant stated that he had spoken with the treating chiropractor and it was mutually determined that the worker was capable of attempting unrestricted workplace activities at this time. On April 24, 2003, the WCB confirmed to the worker that he was capable of returning to his pre-accident duties effective April 28, 2003.

In a telephone conversation with the worker on May 21, 2003, a WCB case manager documented that the worker was working and managing but had to watch himself. The worker stated that he had some right sided numbness in his face and was not sure what this was from.

In a June 27, 2003 report, a physical medicine and rehabilitation specialist (a physiatrist) reported that he examined the worker in late May 2003 and that his findings were basically muscular tenderness in and around the right shoulder and shoulder girdle.

On June 4, 2003, the worker advised the WCB that he hurt his back at work from lifting a tire to put onto a vehicle. In a further conversation on June 11, 2003, the worker advised the WCB that he twisted and turned to lift the tire and that he experienced immediate pain in his back which was in the same area as before. The WCB advised the worker that the June 4, 2003 incident would be considered a new accident and that a new file would be made.

On June 13, 2003, the treating chiropractor reported that the worker had been examined on June 4, 2003. The worker's description of injury was "lifting a tire + felt a strain in R shoulder, neck and T/S (thoracic spine)". The diagnosis rendered was a re-strain/sprain to the cervical and thoracic spines and right shoulder. The chiropractor noted that the worker was capable of modified work with restrictions.

On June 13, 2003, the attending physician reported that the worker had been examined on June 5, 2003. The physician noted that the worker was tender over the T2-T5 region and muscle area. The diagnosis rendered was a back strain.

On June 16, 2003, the worker advised the WCB that he was returning to regular duties on June 18, 2003.

In a memo to file dated June 16, 2003, a WCB adjudicator noted that the claim was being accepted on the basis of a back sprain and that responsibility for the shoulder was to be assumed under the worker's earlier claim. Full wage loss benefits were paid to the worker from June 5, 2003 to his return to work date of June 18, 2003 inclusive and final.

In a memo to file dated August 25, 2003, a WCB adjudicator documented that he spoke with the worker on August 21, 2003 and that the worker injured his back again while lifting a tire off of a vehicle. The worker pulled the tire off the hub which caused the tire to drop towards the ground resulting in his arm being jerked down while he tried to slow the descent of the tire and wheel. The worker felt a 'clunk' in his shoulder with immediate accompanying pain. The worker told the adjudicator that he saw his chiropractor and was told to remain off work. The chiropractor adjusted his back and told him that he had a couple of ribs out.

On August 22, 2003, the treating chiropractor reported that he examined the worker on August 21, 2003. The diagnosis rendered was "strain/sprain R C-T - Shoulder area (re-strain)".

The worker was paid full wage loss benefits from August 22, 2003 to August 27, 2003 inclusive and final, when he returned to work.

On September 25, 2003, the worker advised the WCB that his employment with the accident employer was terminated as the owner of the company said he was "downsizing".

In a progress report dated October 28, 2003, the treating chiropractor confirmed that the worker could perform his regular duties.

On March 26, 2004, the worker advised his WCB case manager that he tried to return to work and was laid off as a result of his compensable injury. The worker indicated that he tried working with various employers but was unsuccessful. He was currently collecting employment insurance.

On June 11, 2004, the treating chiropractor provided the WCB with the dates that he treated the worker between October 30, 2003 and May 13, 2004 along with treatment information and examination findings. The WCB also received the results of a CT scan that was carried out on the worker's cervical spine on April 13, 2004 and a narrative report from his treating physician dated June 21, 2004.

Following consultation with the WCB's healthcare branch on June 24, 2004, a WCB case manager informed the worker that a cause and effect relationship could not be established with respect to his current symptoms and the June 4, 2003 compensable injury based on the following conclusions:

1. "Reports obtained demonstrate that treatment was administered for the cervical/thoracic spine and right shoulder. This claim is for a mid - back injury.
   
   
2. The reports also demonstrate that treatment for this problem pre-dates the compensable (sic) by approximately six months."

On August 19, 2004, a worker advisor wrote to the WCB outlining his position that the worker had never fully recovered from the effects of his right shoulder injury which occurred on January 8, 2003 or from his June 4, 2003 injury and that he was entitled to wage loss benefits beyond September 24, 2003. In support of his position, the worker advisor submitted a report from the worker's treating physician dated August 16, 2004 for consideration. The worker advisor also contended that a Medical Review Panel (MRP) should be convened in accordance with subsection 67(4) of The Workers Compensation Act (the Act).

In a letter addressed to the worker advisor dated August 23, 2004, a second treating physiatrist reported that he saw the worker in consultation on July 21, 2004 on the referral of his family physician. The physiatrist stated that the worker presented with a principle symptomatic complaint of right shoulder blade area pain without any specific neurologic symptoms or deficits.

In a decision dated October 7, 2004, the WCB determined that no further responsibility would be accepted for the worker's ongoing shoulder difficulties. Following consultation with the WCB's healthcare branch on October 1, 2004, the case manager concluded that the worker's ongoing problems were attributable to degenerative changes to his cervical spine.

On October 8, 2004, a WCB sector services manager determined that an MRP would not be convened as "…there is an absence of a full statement of facts in Dr. [treating physician's] narrative to support this worker's contention the ongoing shoulder symptomatology is work-related. Thus, a comprehensive medical opinion is not provided to support this contention." On October 13, 2004, the worker advisor appealed the WCB's decisions of October 7, 2004 and October 8, 2004 to Review Office.

On November 22, 2004, Review Office confirmed that the worker was not entitled to benefits beyond September 24, 2003 and that an MRP should not be convened. With respect to the first issue, Review Office was of the opinion that the worker sustained a shoulder strain/sprain at the time of his January, June and August 2003 injuries and that he recovered from these injuries based on the medical information. With respect to the convening of an MRP, Review Office made reference to the family physician's report of June 2004 which was referred to by the worker advisor. Review Office concluded that the report did not meet the test of being an opinion as defined in the Act. On January 18, 2005, the worker advisor appealed Review Office's decisions and an oral hearing was arranged.

Following the oral hearing, the Panel decided to obtain additional medical information from the worker's treating orthopaedic specialist prior to discussing the case further. On April 14, 2005, the worker was provided with a copy of the medical information that was received by the Panel and was asked to provide comment. On April 29, 2005, the Panel met to render its final decision with respect to the issues under appeal.

Reasons

None of the worker's treating physicians are suggesting any disability, which would prevent the worker's returning to his pre-accident work duties. After having thoroughly reviewed all of the medical evidence, we cannot find a difference of medical opinion in respect of a medical matter affecting entitlement to compensation as is required by subsection 67(4) of the Act. Therefore, there is no basis to compel the convening of a medical review panel pursuant to subsection 67(4) of the Act. Accordingly, the appeal of this issue is hereby dismissed.

As to the second issue, we note that the worker's treating chiropractor cleared the worker to return to regular work duties without restrictions on August 27, 2003. The worker did in fact return to regular duties in August of 2003 and he did perform these duties up to and including his date of layoff in September 2003. There is no medical evidence on file subsequent to the foregoing date suggesting an inability on the part of the worker to perform his pre-accident duties. The worker confirmed at the hearing that his being laid off by the employer was solely due to economic reasons and had nothing to do with his compensable injury. In other words, the worker's layoff was not related to his perceived inability to perform his pre-accident duties.

The treating chiropractor again confirmed the worker's ability to work without restrictions on October 28, 2003. The worker did in fact return to work with a different employer in January and February of 2004. In the meantime, the worker applied for employment insurance, which in our view confirmed his ability to work. The evidence further established that the worker collected regular employment insurance benefits from February 2004 to approximately mid August 2004 when he secured full time employment.

We find based on the preponderance of evidence that the worker is not entitled to wage loss benefits after September 24, 2003. Accordingly, the appeal of this issue is also 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 8th day of June, 2005