The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 15, 2006, at the request of a union representative acting on behalf of the worker. The panel discussed this appeal on the same day.

Issue

Whether or not the worker has recovered from the effects of the January 7, 2003 compensable injury.

Decision

That the worker has recovered from the effects of the January 7, 2003 compensable injury.

Decision: Unanimous

Background

This case was previously considered by an appeal panel with respect to an issue surrounding the worker's neck difficulties and its possible relationship to her compensable injury of January 7, 2003. For a complete background of the case leading up to the appeal panel's decision dated May 13, 2004, please refer to Decision No. 62/04.

Briefly, the worker injured her right shoulder and arm due to the repetitive nature of her work activities as a baker on January 7, 2003. On March 3, 2003, a WCB medical advisor opined that the mechanism of injury and clinical findings suggested muscular strain and myofascial involvement related to the muscles of the cervical spine and right shoulder.

On March 4, 2003, the claim was accepted based on the diagnosis of a muscular strain of the right shoulder. The Workers Compensation Board (WCB) did not accept responsibility for the worker's neck complaints as it was determined that her neck difficulties were related to pre-existing degenerative disc disease and not to the compensable injury. On May 13, 2004, the appeal panel overturned this decision. It concluded that the worker's neck difficulties were related to her compensable injury based on the weight of evidence, particularly the opinion expressed by a WCB medical advisor on March 3, 2002.

On October 25, 2004, the worker contacted the WCB to indicate that since January 2003 she has continued to have difficulties with her compensable injuries. She noted that she worked the same hours at the same job and at the same store. She noted that the store was closing and she had no job to return to. She saw her physician for treatment several times in the past and was referred back to physiotherapy.

In a further conversation on November 4, 2004, the worker told her case manager that she went back to her regular duties during the week of April 12, 2003. Her job duties as the bakery manager included paper work, ordering and scheduling along with actual baking and stocking. The worker noted that the store did not mix their own product but would have frozen precut dough delivered in boxes which meant a lot of moving boxes, proofing, flipping bread off the racks, etc. Her doctor did not want her to work in the bakery any more and she wanted to arrange a Functional Capacity Evaluation (FCE) to determine what she could safely do. The worker asked the WCB to consider her for retraining, job search, time loss, etc.

In a report to the treating physician dated October 12, 2004, a physiotherapist's impression of the worker's medical status was "C6, C5 nerve root compression with resultant affects on R arm and muscular strain and myofascial involvement of the muscles of her neck and R shoulder…"

In a report to the WCB dated October 26, 2004, the treating physician confirmed that the worker continued to have symptoms and decreased function related to her repetitive strain injuries of her upper back, shoulders and neck that were job related. Accompanying the report were progress notes and laboratory test results dating from June 2003 to September 14, 2004. The physician recommended that the worker undergo a functional assessment to sort out what type of employment she was physically capable of handling.

On November 4, 2004, a WCB medical advisor was asked for an opinion regarding the worker's current diagnosis and its relationship to the compensable injury of January 7, 2003. The medical advisor opined that the current diagnosis was most probably degenerative disc disease of the cervical spine which was now symptomatic. The medical advisor felt that the worker had recovered from the effects of her compensable injury. He noted that there were reports of fatigue and generalized musculoskeletal pain involving multiple areas that were unrelated to the compensable injury.

In a decision dated November 26, 2004, the worker was advised that it was the opinion of Rehabilitation and Compensation Services that the diagnosis from her compensable injury of January 2003 had resolved and that her ongoing complaints regarding neck and right shoulder difficulties were related to pre-existing conditions of degenerative disc disease and osteoarthritis. There was also no evidence to support the need for restrictions in relation to the compensable injury. The case manager concluded that the worker was not entitled to vocational rehabilitation services or wage loss benefits as her current loss of earnings were related to the store closure.

On December 16, 2004, the worker's union representative appealed the case manager's decision to Review Office. The union representative stated, in part, "While there may be some evidence of degenerative changes and osteoarthritis, there is also clear evidence of muscle strain and myofascial involvement. The WCB must not overlook the soft tissue problems in favour of the radiographic evidence when it comes to determining the origin of the continued shoulder and neck problems."

In its decision of April 13, 2005, Review Office outlined its opinion that the worker had recovered from her compensable neck and right shoulder strain and myofascial symptoms. This conclusion was based on the attending physician's report of October 2003 indicating a diagnosis of degenerative disc disease and osteoarthritis and the July 2004 report when the worker was diagnosed with fatigue and generalized musculoskeletal pain. Review Office was of the opinion that the worker's job duties may have aggravated her pre-existing conditions but she managed to continue working without prescription medication and with only occasional visits to her physician. Review Office confirmed that a FCE was not the WCB's responsibility and that the worker's loss of earnings were due to economic conditions as opposed to her January 2003 compensable injuries.

On May 24, 2005, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The issue before the panel was whether the worker has recovered from the effects of the January 7, 2003 compensable injury. At the hearing the employer's representative noted that the issue does not identify a date at which the recovery occurred. This was discussed and it was determined that the parties would address whether the worker had recovered by the date that the worker re-contacted the WCB, being approximately October/November 2004. For the appeal to succeed, the panel must find that the worker continued to suffer from the effects of the compensable injury at this time. The panel did not reach this conclusion. The panel found that by October/November 2004 the worker no longer suffered from the effects of the compensable injury.

Evidence and Argument at Hearing

The worker was represented at the hearing by a union representative who made a presentation on behalf of the worker. The employer was represented by an advocate and the Manager of Human Resources. The advocate made a presentation on behalf of the employer.

The worker's representative disagreed with the WCB's decision that the worker had recovered from her compensable injury. She referred to a medical report from the treating physician that stated that the worker continued to have symptoms and decreased function related to her repetitive strain injuries in her upper back, shoulders and neck. She also referred to the October 12, 2004 report from the worker's physiotherapist which notes muscle strain and myofascial involvement. She noted that the worker returned to the same physically demanding work which caused an aggravation of her pre-existing condition and that this work caused the unresolved aggravation to rear its head. She advised that the claim is not related to the closure of the workplace. She asked the panel to consider the worker's entitlement to benefits and services as an injured worker who has been economically disadvantaged as a result of the store closure.

The worker answered questions posed by the panel. She advised that her condition changes constantly, that some days it's worse and others it's better. She has learned what activities she can undertake. The worker indicated that her physician recommended a FCE and said it was not related to the closure of her workplace. She acknowledged that she received severance from her employer as a result of the closure. She believes the store closure is fogging the issue on her claim. She stated that she did not think she could have kept working had the store not closed.

The employer representative noted that the worker was able to return to regular duties and regular hours after the January 2003 accident. She also noted that restrictions were not imposed on her return to work by the WCB. Regarding the medical evidence, she noted the x-ray reports and stated that the reports demonstrate there has been no enhancement of the worker's pre-existing condition. She also noted there are no current medical reports addressing the worker's current status. The representative submitted that the worker is not entitled to further benefits arising from the 2003 injury.

Analysis

The panel has considered all the evidence including the evidence and arguments presented at the hearing, and finds, on a balance of probabilities, that the worker has recovered from the effects of the January 2003 injury. The panels finds that the worker's loss of earning capacity commenced with the closure of her workplace and is not due to her 2003 compensable injury.

In the panel's assessment, the evidence does not show a continuation of symptoms from accident date to October/November 2004. Other than a brief four day period in December 2003, the worker has been able to work her regular duties from April 2003 until the store closed in November 2004.

The panel notes that the worker saw her physician infrequently during this period. The panel also notes that in July 2004, the physician records a broad range of musculoskeletal symptoms including pain in the center of the lower back, SI joints, left hip and upper leg, both legs from knees down, weak arms, pain between shoulder blades, ache on both sides of neck and radiation of pain to upper arm. The physician also noted fatigue and problems with sleep. The panel finds the symptoms extend well beyond the worker's neck and shoulder which were accepted in the 2003 claim. This suggests a much broader disability than that reported subsequent to the 2003 compensable injury. The panel finds no medical basis to relate this broad symptomology to what was originally a neck and shoulder problem.

The panel notes and relies upon the opinion of the WCB medical consultant who opined the worker had recovered from the effects of her compensable injury and noted that the accepted diagnosis was a muscular sprain/strain which resolved. He also noted that she had returned to work and continued to work until November 2004.

Finally, the panel notes that the worker's physiotherapist identifies C5, C6 nerve root compression in her report of October 12, 2004. The panel considers this to be consistent with the worker's pre-existing condition, specifically the osteophytic lipping noted on the x-ray report of September 15, 2004.

In conclusion, the panel finds, on a balance of probabilities, that the worker recovered from the compensable injury by October/November 2004.

The appeal is declined.

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 7th day of April, 2006