Decision #119/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 19, 1999, and reconvened on June 29, 1999, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on June 29, 1999.

Issue

Whether the claimant is entitled to further benefits after October 17, 1997, in respect to her work related accident of March 27, 1996; and,

Whether the claimant sustained an accident arising out of and in the course of her employment on or about June 24, 1998; and,

Whether a Medical Review Panel should be convened under Section 67(4) of the Workers Compensation Act.

Decision

That the claimant is entitled to further benefits after October 17, 1997, with respect to her work related accident of March 27, 1996; and,

That the claimant did not sustain an accident arising out of and in the course of her employment on or about June 24, 1998; and,

That a Medical Review Panel should not be convened.

Decision: Unanimous

Background

Claim No. 9604 1102/1M

This claim has been subject to a previous Appeal Panel review on April 4, 1997, decision no. 82/97, and as such, full details surrounding this claim will not be repeated at this time. Briefly, while performing her duties as a sewing machine operator on March 27, 1996, the claimant experienced pain in her right arm and neck. Primary Adjudication determined that the claim was not acceptable, however on appeal to the Review Office, the decision was overturned. The employer filed an appeal with the Appeal Commission requesting consideration with respect to whether the claim was acceptable. By decision dated April 14, 1997, the panel determined that the claim for compensation was acceptable.

In their decision dated November 1, 1996, the Review Office, in determining that the claim was acceptable, stated the following:

    "In this worker's case she did not sustain what could be called a specific incident or accident to have accounted for her medical diagnosis. Review Office believe, however, that the constant pulling on the elastic to sew them into pants is responsible for the worker's myofascial pain condition in her shoulder area on the right side."

In keeping with the Review Office decision, the Workers Compensation Board (WCB) provided the claimant with the payment of wage loss benefits retroactive to March 28, 1996. Benefits were paid to the claimant to April 21, 1997. By letter dated March 21, 1997, Primary Adjudication advised the claimant that the decision to pay benefits to April 21, 1997, was based on the results of the claimant's examination by the WCB's physical medicine & rehabilitation consultant which occurred on January 14, 1997. At the time of the examination, the consultant concluded the claimant presented with some myofascial pain syndrome activity in the medial scapular musculature on top of the shoulder musculature primarily on the right. Recommendations were made for a trial of trigger point needling treatment and associated physiotherapy. The WCB's consultant arranged for these referrals. This form of treatment was thought to be required for a period of three months following which, the claimant's condition should have resolved allowing her to resume regular duties. However, as the claimant was pregnant, she was unable to undergo the recommended treatment which in the opinion of Primary Adjudication, prolonged recovery from the injury. Although it was determined the claimant did not have an entitlement to wage loss benefits beyond April 21, 1997, the WCB did advise that they would accept financial responsibility for the recommended treatment which was scheduled to commence on May 1, 1997.

At the request of the WCB, the claimant was assessed by a physician on June 2, 1997, for treatment of her myofascial pain. Based on the assessment, the physician recommended the claimant be started on a course of Serzone medication to improve her sleep disturbance. Once the sleep disturbance improved, treatment of the myofascial pain would commence.

The claimant continued to seek medical treatment. By letter dated October 30, 1997, an orthopaedic surgeon who was also treating the claimant, provided the WCB with a report stating that when assessed on October 17, 1997, the claimant presented with almost full range of movement of the shoulder, with slight decrease in power. There were some findings suggestive of a possible carpal tunnel syndrome however the claimant was being referred for testing for this. With respect to the shoulder condition, it was the orthopaedic surgeon's opinion that the claimant had recovered sufficiently and could return back to activity.

On November 24, 1997, the physician who treated the claimant's myofascial pain, spoke with the adjudicator and advised that the claimant was ready to return to work however, the claimant had expressed concern about her ability to perform her pre-accident duties. The physician inquired whether the WCB could assist the claimant to find suitable alternate work however in light of the previous adjudicative decision, the physician was advised that this kind of assistance would not be offered to the claimant.

In early December 1997, an advocate acting on behalf of the claimant submitted a letter to the WCB Review Office requesting reconsideration of Primary Adjudication’s decision to deny the claimant further wage loss benefits and services. The matter was reviewed by a Supervisor of Case Management at the WCB who telephoned the claimant on January 29, 1998, to discuss the claim. In the memorandum covering the telephone conversation, the Supervisor noted the following:

  • the claimant gave birth on April 22, 1997, and collected UIC maternity benefits from about April 15 to October 24, 1997,
  • the claimant continues to see a physician for treatment of her myofascial pain approximately once per week but had not seen the orthopaedic surgeon since October, 1997,
  • the claimant has not seen her family physician for a number of months,
  • the decision to suspend wage loss benefits effective the date of the birth of the baby was correct and based on medical information from the orthopaedic surgeon and the physician treating the myofascial pain, the claimant had recovered by October 17, 1997.

By letters dated January 29, 1998, and again on April 21, 1998, the claimant and her advocate were advised that the claimant was considered to have recovered from her compensable accident by October 17, 1997, and therefore no further consideration could be provided to the file beyond that date.

Claim 9804 2958/8L

On July 31, 1998, the claimant completed a Worker’s Report of Injury or Occupational Disease claim form establishing a claim with the WCB for an aggravation of her myofascial pain condition. The claimant’s report indicated that she returned to work as a sewing machine operator with a new employer on June 24, 1998. While in the course of her duties on that date, the claimant states that she aggravated her condition. On her claim form, the claimant reported that she was not able to continue working beyond July 17, 1998.

Medical treatment was sought from the family physician on June 26, 1998, and in the doctor’s first report, he states the claimant experienced pain in the right shoulder and neck since returning to work on June 24, 1998. The family physician diagnosed bursitis of the right shoulder and referred the claimant to a physical medicine and rehabilitation specialist with the appointment scheduled for July 28, 1998. The physician stated the claimant was considered totally disabled from work effective July 20, 1998.

By letter dated September 23, 1998, Primary Adjudication advised the claimant that responsibility for her claim could not be accepted as responsibility of the WCB. In reaching this conclusion, the adjudicator stated the following:

“In order to accept responsibility as provided for under Section 4(1), we must find that the information establishes a relationship between the injury and an accident as defined in Section 1(1).

In this case, the worker states she never recovered from a previous injury in 1996. She has had ongoing shoulder, neck and arm pain since 1996, and has attended for continuous treatment of her symptoms. She started a new job as a sewing machine operator on June 24, 1998. She complained of shoulder pain, but did not relate this to anything specific. The supervisor indicates that no other operators have ever complained of shoulder problems, and the work is light, with no pulling required.

Based on the information available, Claims Services cannot substantiate that the worker suffered a new injury due to an accident arising out of and in the course of the employment. Therefore, the claim is not acceptable.”

The claimant’s advocate wrote to the WCB Review Office on October 9, 1998, requesting reconsideration on both the 1996 and 1998 claim files.

It was the advocate’s position that the medical evidence strongly supported the claimant’s entitlement to benefits and services. The advocate requested, should the WCB not overturn its previous decision, that the matter be referred to a Medical Review Panel (MRP).

In their decision dated November 27, 1998, the Review Office denied the claimant’s appeal for entitlement to further benefits beyond October 17, 1997, in relation to the March 1996, accident or her employment activities on or about June 24, 1998. The Review Office also denied the request to convene a MRP. In reaching their conclusion, Review Office acknowledged that the claimant had suffered a work related accident involving her neck and right shoulder in March, 1996 however, taking into account the nature of the injury, expected recovery norms and the medical evidence on file, it was felt that she had reasonably recovered by October 17, 1997. With respect to the request for a MRP pursuant to subsection 67(4) of the Workers Compensation Act (the Act), Review Office did not find that a difference of medical opinion existed.

The claimant’s advocate completed an application to appeal on February 4, 1999, and requested that an Appeal Panel be convened to determine issues relating to the claimant’s entitlement to benefits and to a MRP.

The Appeal Panel convened a Standard Oral Hearing on April 19, 1999. Subsequent to the hearing, the Appeal Panel referred the files to the Office of the Registrar at the Appeal Commission in order to clarify the issues under appeal. This was done as the claimant’s representative expressed disagreement with the framing of the original issues. The panel also asked that current medical information be obtained from the claimant’s three treating physicians and that a current report be received from the claimant’s physiotherapist. In the interim, the panel suggested that the claimant’s advocate arrange to obtain a complete copy of the claimant’s file(s) from the WCB’s File Access Coordinator. This was recommended as the advocate contended he had not been provided with a complete copy of the claimant’s file(s).

The hearing was reconvened on June 29, 1999, and prior to this, the interested parties were provided with copies of all information requested and received by the Appeal Panel. Upon completion of the hearing portion of the appeal, the panel met to render their decision.

Reasons

The Appeal Panel is unanimously of the opinion that the claimant had not fully recovered from her work related accident of March 27, 1996 and that she is consequently entitled to further benefits beyond October 17, 1997. In support of this conclusion the Panel has noted that the majority of the medical evidence on the claimant's file indicates that she was not fully recovered from her injuries by the time she finished her maternity leave in October, 1997. It appears to the Panel that the claimant's benefits were discontinued too soon, possibly as a result of her maternity leave with no attempt to integrate her gradually back into the work force as recommended in the medical reports. Furthermore, as little medical assistance and rehabilitation was provided for the claimant while she was on maternity leave and none after, she was not in a position to return to work at that time. Time off work alone was not enough to help the claimant heal enough to return to her full time duties.

The medical evidence on file in 1997 indicates that while the claimant was not totally disabled she did have some restrictions. The physical medicine and rehabilitation specialist in examination notes dated January 14, 1997 was of the opinion that at that time the claimant required a trial of trigger point treatment and that associated with this she needed a flexibility program for the neck, shoulder girdle and arm musculature. She also had temporary restrictions of "light duties avoiding repetitive force pulling movements of the right upper extremity." These restrictions were to continue over a three month period and the expectation was that with treatment they would be lifted. The specialist specifically confirmed that the claimant was experiencing some regional myofacial pain syndrome activity. "The repetitive job demands for extension of the right arm retraction of the right scapula and for scapular elevation on a repetitive basis were likely the significant factors in the onset of this activity" in the opinion of the specialist.

The opinion of the WCB medical specialist concurred with that of the specialist and in his notes dated February 11, 1997, he suggested that in the near future the claimant could return to work on a graduated basis starting with four hours initially and working up to the full shift over three to four weeks.

On April 22, 1997, the claimant delivered a healthy baby boy. One of the problems on this file is that due to her pregnancy and subsequent maternity leave, the claimant was unable to continue with the treatments recommended by the doctors such as needling and physiotherapy. She also could not have attempted a graduated return to work during this period. Accordingly, by the time her maternity leave had finished, the claimant was cut off of WCB benefits even though the doctor's plans had never been completed and she had not been assisted with a graduated return to work. Time off work alone was not enough to heal the claimant which was erroneously the assumption of the WCB.

The claimant has maintained throughout her ordeal that she could not go back to her pre-accident employment. However, she did not consider herself totally disabled in the evidence she gave at the hearing of this matter. Her assertions appear to have been correct because when she did return to work on her own on a full time basis by June, 1998, it became quickly apparent that she could not do the job and that she had not sufficiently recovered from her accident in October, 1997, to return to full time duties doing similar work. Consequently, the medical evidence from the summer of 1998 continues to suggest that the claimant had "right upper extremity shoulder and neck regional myofacial neck pain syndrome manifested by active trigger points, spasm and restriction of movements of the neck and right shoulder joint."

In a report by a physical medicine and rehabilitation specialist dated June 9, 1999, the claimant's condition is referred to as being "long standing soft tissue and mechanical neck pain syndrome."

On the basis of all of the above noted information, the Panel is of the opinion that the claimant had not recovered from her workplace injury by the time she finished her maternity leave in October of 1997. It was clear that the claimant required further medical and other resources to assist her in returning to full time employment after her maternity leave.

With respect to the second issue of whether or not the claimant sustained an accident on or about June 24, 1998, the Panel is of the opinion that she did not. On the basis of the above reasoning, the claimant had not fully recovered from her accident of November, 1996, by the time she attempted a return to full time employment by June, 1998.

With respect to the third issue, the Panel is of the view that a Medical Review Panel should not be convened in light of the above noted decision.

Panel Members

K. Dunlop, Presiding Officer
P. Challoner, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of August, 1999

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