The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on December 21, 2005. Present at the hearing was the worker and her legal counsel as well as two employer representatives. The panel discussed the appeal on December 21, 2005 and again on April 12, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits from February 7, 2004 to September 1, 2004, inclusive;

Whether or not the worker is entitled to medical aid between November 30, 2003 and January 5, 2004, inclusive; and

Whether or not the worker is entitled to medical aid beyond February 6, 2004.

Decision

That the worker is not entitled to wage loss benefits from February 7, 2004 to September 1, 2004, inclusive;

That the worker is entitled to medical aid between November 30, 2003 and January 5, 2004, inclusive; and

That the worker is not entitled to medical aid beyond February 6, 2004.

Decision: Unanimous

Background

The worker filed a claim with the Workers Compensation Board (WCB) for neck and shoulder difficulties that she related to her job activities in October 2003 which involved lifting, pushing, carrying, bending and stacking metal chairs and wooden table tops. The worker referred to two incidents and reported a gradual onset of symptoms. The WCB accepted the claim based on the diagnosis of an upper back and neck strain. The worker was paid wage loss benefits commencing October 31, 2003.

In a November 1, 2003 report, the treating chiropractor advised that the worker could return to work with restrictions, however, the employer was unable to accommodate the worker with suitable duties. The worker then attended physiotherapy treatments 2 to 3 times per week commencing November 8, 2003. On November 17, 2003, the worker told her case manager that she was noticing some minor improvement with her condition.

On December 2, 2003, the treating physician reported that the worker continued to complain of neck and shoulder pain, mainly in the upper back and subscapular region.

On December 5, 2003, the worker went on vacation overseas and was expected back in Manitoba by January 5, 2004.

In a telephone conversation with her WCB case manager on January 8, 2004, the worker indicated that she was actively engaging in her home exercise program and reported no other accidents or incidents during her vacation. The worker felt her condition had improved but she was not 100% better. She indicated that her doctor told her to return to modified duties on January 7, 2004 for a two week period.

The WCB case manager spoke with the treating physician on January 8, 2004. The physician indicated that the worker was suffering from tenderness and discomfort in her neck and shoulder areas. The physician said it was difficult to determine whether or not the worker had recovered from her work related injury and suggested an examination by a WCB medical advisor. The physician further stated that the worker was capable of returning to work at this time but was not sure whether it should be at regular or modified duties.

On January 8, 2004, the case manager advised the worker that in his opinion, she was now fully recovered from the effects of her work related injury and was capable of returning to her full regular duties. Based on this decision, no wage loss benefits would be extended beyond November 29, 2003.

On February 5, 2004, the worker appealed the case manager's decision that she had fully recovered from the effects of her compensable injuries.

In a progress report dated March 3, 2004, the treating physician noted that the worker's pain still persisted in her upper back, neck and scapular regions. He stated that the worker said she was unable to return to her regular duties.

The worker was seen by a rheumatologist in April 2004.

On April 8, 2004, the worker was assessed by a neurologist. His impression of the worker's condition was as follows: "I cannot find any significant neurological defect apart from the winging of the scapulae, left more than right. However, I do not think this is related to her right shoulder neck injury. I think this is probably dystrophic, mild and I am requesting EMG and nerve conduction studies in this regard."

A nerve conduction study report dated June 22, 2004 revealed no evidence of a neurologic abnormality to explain the worker's pain.

A report was received from the employer's occupational health physician dated May 6, 2004. It was the physician's opinion that the worker was not fit to perform modified or regular duties.

On June 28, 2004, the WCB case manager advised the worker that based on the neurologist's report and nerve conduction study findings, there was no new evidence to warrant a change in his initial decision of January 8, 2004. On July 27, 2004, the worker appealed the decision to Review Office.

In a decision dated September 2, 2004, Review Office determined that WCB responsibility for time loss from work and treatment was to be extended for the period of January 6, 2004 to February 6, 2004 inclusive. Review Office stated in its decision that there was no definitive diagnosis on file to account for the worker's subjective complaints of pain. Beyond February 6, 2004, the medical evidence focused on the worker's scapular region and the treating neurologist did not feel that his findings in this region had a relationship to the October 2003 injury. Without a definitive diagnosis, Review Office could not relate the worker's findings at 11 months post-injury to a strain type injury that occurred in October 2003.

The worker was seen by a physical medicine and rehabilitation specialist who provided a report dated October 12, 2004. The specialist's clinical impression of the worker's condition was "…significant cervical scapular strain, interspinous ligaments of C5 to T1, regional myofascial taut bands and trigger points of the right cervical scapular muscles and mild symptoms of right C5 and C6 radiculitis."

The worker appealed Review Office's decisions to the Appeal Commission. Following its file review on April 20, 2005, it was determined by the appeal panel that the worker's appeal should be heard by way of an oral hearing.

Prior to the convening of an oral hearing, additional medical reports were received dated October 2, 2004, May 13, 2005, August 28, 2005, October 26, 2005, October 31, 2005 and December 5, 2005.

On December 21, 2005, an oral hearing took place and the appeal panel requested additional information from two of the worker's treating physicians. On March 20, 2006, all interested parties were provided with copies of the medical information that the Panel received and were asked to provide comment. On April 12, 2006, the panel met to consider the new information and to render its final decisions on the issues under appeal.

Reasons

The worker has appealed three issues.

The first issue was whether the worker is entitled to wage loss benefits from February 7, 2004 to September 1, 2004, inclusive. For the appeal to succeed, the panel must find that the worker suffered a loss of earning capacity during the noted period as a result of her workplace injury. In other words, the panel must find that the worker was unable to work during the noted period due to her workplace injury. The panel did not reach this conclusion. The panel finds that the worker is not entitled to wage loss benefits during this period.

The second issue was whether the worker is entitled to medical aid between November 30, 2003 and January 5, 2004. For the appeal to succeed on this issue, the panel must find that the worker continued to suffer the effects of the workplace injury during this period. The panel finds that the worker is entitled to medical aid during the noted period.

The final issue before the panel was whether the worker is entitled to medical aid beyond February 6, 2004. For this appeal to succeed the panel must find that the worker continued to suffer the effects of the workplace injury after February 6, 2004. The panel did not reach this conclusion. The panel finds that the worker is not entitled to medical benefits after this date.

Worker's Position

The worker attended the hearing with legal counsel who made a submission on the worker's behalf. The worker made a statement to the panel regarding her injury. She also answered questions posed by the panel.

The worker described her duties and the incidents which resulted in her injury. She described the symptoms she experienced and the treatments she has received. The worker also described her dealings with the WCB and her employer. The worker advised that she has spent her personal funds for treatments and medications. She advised that she has found employment and is seeking wage loss benefits for the period from February 7 to September 1, 2004. She also advised that she is still in need of treatment for the workplace injury and is seeking ongoing medical aid.

The worker's counsel submitted that the proper diagnosis of the worker's injury was a strain on her cervical spine which led to disc tears and herniation causing irritation and compression of the right C6-C7 nerve roots. She attached significant weight to the opinion of the physical medicine and rehabilitation specialist who first saw the worker in September 2004. Counsel submitted there is no other evidence to contradict the opinion of the specialist. Counsel noted that the occupational health physician retained by the employer found the worker unfit to return to regular modified duties.

Counsel pointed to the consistency of the worker's complaints in support of the assertion that the worker has not recovered from the workplace injury. She stated there is no evidence of any pre-existing injury or intervening event that has contributed to the workplace injury.

Employer's Position

The employer was represented by two staff persons. One of the representatives made a submission on behalf of the employer.

Regarding the second issue, the employer's representative stated it was reasonable to accede to the worker's request for medical aid between November 30, 2003 and January 5, 2004, given the WCB decision which accepts responsibility to February 6, 2004. The employer representative said any medical aid entitlement for this period should be paid at the rate paid in Manitoba.

Regarding the worker's entitlement to wage loss benefits from February 7, 2004 to September 1, 2004 and entitlement to medical aid beyond February 6, 2004, the employer's representative submitted that the evidence does not support the nexus between the problems noted after February 6, 2004 and the workplace injury. The employer's representative disagreed with the diagnosis advanced by the physical medicine and rehabilitation specialist. He suggested that such a diagnosis is not consistent with the gradual onset of the worker's symptoms. The worker's representative referred to the findings of the neurologist and rheumatologist who saw the worker in April 2004 in support of the employer's position that the worker has no further entitlement arising from the workplace injury.

Analysis

With respect to the first and third issues, after considering all the evidence including the evidence and argument advanced at the hearing and the reports provided after the hearing, the panel finds on a balance of probabilities that the worker is not entitled to wage loss benefits for the period from February 7, 2004 to September 1, 2004 and is not entitled to medical aid beyond February 6, 2004.

The worker's counsel placed significant weight on the report of the physical medicine and rehabilitation specialist. The panel does not do so. The panel has considered the mechanism of injury and finds that that it is unlikely the worker would suffer a traumatic disc herniation from moving the tables and chairs, especially given the reported gradual onset of symptoms.

The panel also notes that the specialist's diagnosis was to be confirmed by a CT scan, however, the CT scan was not definitive. In a report dated October 2, 2004, the radiologist commented "questionable right foraminal C6-C7 disc herniation. The CT findings are not definitive, and further evaluation by MR is recommended." An MRI was not conducted.

The panel notes the initial medical reports (for example December 2, 2003 from the treating physician), referred to reduced range of motion and tenderness of the neck and upper back. These early findings contrast with the findings of a neurologist and rheumatologist who saw the worker in April 2004. The panel also notes that no radiculopathic symptoms were reported during the initial stages of the injury.

The worker was seen by a neurologist on April 8, 2004. In a report dated May 27, 2004 the neurologist reports that the worker complained of "…winging scapula, deteriorating muscles in right arm, getting a cold right hand." She also reported pain in the right shoulder and intermittently, low back pain when she sits for a long time. The panel notes there was no reference to low back pain in the initial medical reports.

The neurologist examined the worker and reports no significant neurological symptoms except bilateral winging of the scapulae. He commented:

"Surprisingly, she complains of weakness and winging of the right shoulder where she sustained injury. However, the winging of the left scapula is more marked than on the right. I think this is probably long standing…I do not think this is related to her right shoulder neck injury."

The neurologist comments later that "The findings do not suggest that the problem is related to her recent right shoulder injury."

On examining the worker, the neurologist did not detect any muscle weakness. He found the movement at the shoulder joint was normal, cervical compression test was normal, neck movements were normal, no paraspinal muscle tenderness or spasm and no tenderness of neck.

The panel notes that on June 22, 2004 a second neurologist examined the worker and conducted an electrophysiologic test. The second neurologist reports "This electrophysiologic study and clinical exam do not show any evidence of a neurologic abnormality to explain her pain."

The panel also notes that the worker was examined by a rheumatologist in April 2004. In a report dated April 20, 2004, the rheumatologist notes the neurological examination revealed normal strength and reflexes to the upper extremities. He notes that the worker has slightly decreased forward flexion of the cervical spine and that other movements are full and pain-free. Regarding the right shoulder he reported that shoulder movement revealed painful but full active range of motion, a painful arc of abduction at 90 degrees, passive movement is full and pain-free, resisted internal and external rotation are pain free, no tenderness to the SC, AC joints nor the subacromial bursa or bicipital tendon.

The panel places significant weight upon the findings reported by the neurologists and rheumatologist, and finds, on a balance of probabilities, that the worker's symptoms after February 6, 2004 are not related to the workplace injury and that the worker is not entitled to wage loss benefits nor medical aid benefits after this date.

The panel notes the worker's assertion that she still experiences symptoms in her shoulder/neck region but the panel is unable to relate these symptoms to her 2003 workplace injury.

Regarding the second issue, the panel finds that the worker is entitled to medical aid for the period between November 30, 2003 and January 5, 2004. This is consistent with the WCB's Review Office decision to accept responsibility for the claim until February 6, 2004.

The worker's appeal is denied on the first and third issues but is allowed on the second issue.

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 29th day of May, 2006