The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 23, 1999, at the request of the claimant.

Issue

Whether or not the claimant is entitled to benefits and/or services beyond May 1994 in relation to injuries sustained in July 1990;

Whether or not the claimant's injuries sustained in August and October 1996 were caused by an accident arising out of the employment or as a direct consequence of some previous work-related injury; and

Whether or not the claimant is entitled to benefits and/or services as a result of the injuries sustained in August and October 1996.

Decision

That the claimant is not entitled to benefits and/or services beyond May 1994 in relation to injuries sustained in July 1990;

That the claimant's injuries sustained in August and October 1996 were not caused by an accident arising out of the employment or as a direct consequence of some previous work-related injury; and

That the claimant is not entitled to benefits and/or services as a result of the injuries sustained in August and October 1996.

Background

On July 27, 1990, while carrying a box weighing approximately 30 pounds, the claimant indicated that he tripped, lost his balance, and lurched forward to save the box from hitting the ground. As a result he twisted his body in an awkward position. The claimant reported pain in his lower back, shoulder blade, right neck area, extreme headache and right leg pain. Also noted were the claimant's prior compensable back claims dating from 1964 through to 1980.

In a letter, dated February 5, 1991, the attending physician reported that the claimant suffered back and neck injuries from the July 27, 1990, work accident and that he had been making slow progress with respect to physiotherapy treatment and anti-inflammatory medications. The claimant continued to suffer from continuous headaches related to muscle spasm in his paracervical and shoulder girdle musculature. His back had not returned to his pre-accident condition. The claimant was considered unfit to return to work.

On June 10, 1991, a neurologist reported that the claimant appeared to have a torticollis, likely secondary to muscle spasm. In a follow up report, dated September 10, 1991, the neurologist indicated that the claimant was still suffering from some form of muscle spasm and perhaps a myofascial pain problem.

A report from an orthopaedic surgeon, dated October 9, 1991, indicated that the claimant was recovering from his soft tissue injury to the cervical spine and right shoulder joint and was back at light duties.

On November 12, 1991, a rehabilitation medicine specialist diagnosed the claimant with diffuse fibromyalgia as well as regional myofascial pain syndrome. In a follow up report, dated January 24, 1992, the specialist indicated that the claimant still had diffuse tender points at the classical sites involving virtually all muscles. It was indicated that the claimant's overall problems did not relate solely to his head and neck myofascial pain but to a more diffuse generalized fibromyalgia disorder. This was associated with chronic sleep and mood disorder, both of which serve as perpetuating factors to increased pain.

In February 1992, a Workers Compensation Board (WCB) medical advisor stated that the claimant's current difficulties were purely related to symptomatic pain control and myofascial pain and that the acute effects of the compensable injury had long since dissipated. In a decision, dated March 20, 1992, the WCB's Benefits Division determined that the claimant had recovered from his compensable injury and that he was not entitled to further temporary total disability/vocational rehabilitation benefits or to a permanent impairment award.

Medical information was received from the claimant's treating physician requesting a TENS machine for the compensable neck and upper back injuries. On November 16, 1993, a WCB medical advisor stated that as the claimant's fibromyalgia condition was a non-compensable condition, responsibility for the rental or purchase of the TENS unit would not be authorized.

The Review Office considered an appeal from the claimant, dated February 15, 1994, as well as a medical report from an occupational health physician, dated December 7, 1992. The physician felt that the claimant's generalized fibromyalgia and sleep/mood disturbance was probably secondary to chronic and persistent pain for over a year and that he had not recovered from the compensable injury. On March 18, 1994, Review Office determined that the claimant had not fully recovered from his work-related accident and that he was entitled to further benefits and treatment.

A WCB physical medicine and rehabilitation specialist examined the claimant on May 8, 1995. The most prominent finding on examination was the clinical presence of a fibromyalgia syndrome and ongoing sleep dysfunction producing heightened pressure-pain sensitivity.

On October 25, 1995, a WCB medical advisor from the Pain Management Unit interviewed the claimant. The medical advisor commented that the claimant demonstrated many symptoms associated with a depressive illness and that he suffered from chronic pain. Recommendations were made for the claimant to remain at work, to continue seeing a psychiatrist for his ongoing depression, and to learn pain management techniques.

In a report, dated April 30, 1996, the treating physician commented that the claimant continued to suffer from headaches, neck pain, low back pain, weakness of the affected areas, irritability secondary to chronic pain, insomnia secondary to chronic pain, intermittent muscle spasm of the affected areas, easy fatigue ability and a mild reactive depression secondary to chronic pain. No further medical or physiotherapy treatment was recommended.

On August 12, 1996, the claimant reported that he was walking down a stairwell at work when his right leg buckled causing him to fall two steps. He stated that this buckling problem had gotten worse since the July 1990 accident. As a result of the fall, the claimant reported a twisting injury to his back, neck, right leg and knee, right arm and right hand.

On October 1, 1996, the claimant reported another accident in which he was carrying a bundle of mail when his right leg went numb causing his knee to buckle. The claimant reported twisting injuries to his upper and lower back, neck and right knee pain, followed by an extreme headache and lower back spasms.

In a doctor's first report, dated October 1, 1996, the attending physician diagnosed a sprain/contusion secondary to the fall at work. On October 3, 1996, another physician reported low back pain with radiation down the L4-5 and S1 dermatome.

A WCB medical advisor reviewed the case on October 18, 1996. The medical advisor indicated that the claimant's time loss from work as of October 1996 was not related to the 1980 or 1990 accidents. There was also no objective medical information on file to warrant the claimant's periodic time loss from work.

In a report from an orthopaedic specialist, dated November 4, 1996, the specialist summarized that clinical and neuroradiological examinations had shown the claimant had spondylotic back pain with right radiculopathy mainly affecting his S1 nerve root. In spite of aggressive conservative treatment in September and October 1996, the claimant had not shown any improvement in his symptoms and in his functional level.

In a letter, dated December 2, 1996, the claimant was advised that no responsibility could be accepted for time loss from work as of October 1996 given the available medical information on file. Also responsibility could not be accepted for sporadic time loss from work from May 1994 to date. In the meantime, arrangements were being made for the claimant to be examined at the WCB on December 12, 1996. Following the examination, the case would be reviewed again to determine whether there would be any change to these decisions.

A WCB neurologist examined the claimant on December 10, 1996. The only neurological finding was a bilateral ptosis, more marked on the right than the left. The neurologist determined that the claimant had this problem since he was a child and that his mother may have a similar difficulty. Other neurological examination was unremarkable. Range of motion testing of the shoulders and neck were within normal range. He had no difficulty with movements of his knees and hips. The claimant was able to sit with his knees extended and hips flexed at 90 degrees and then can stretch down to touch the lower part of the anterior shin. The neurologist indicated there was no signs of any nerve root impingement or irritation. He had no signs of any neurological impairment. "His problem as previously documented is one of persistent diffuse pain without any evidence of new injury. There is no evidence of any objective impairment as a result of an old injury to his back. The current difficulties with pain cannot be accounted for by the CT changes of 1996."

The neurologist concluded there was no objective medical evidence related to any compensable injury. There was no evidence of current objective impairment.

On January 14, 1997, the claimant was advised that, based on the medical advisor's examination findings, there was no basis to change the decision outlined on December 2, 1996. The adjudicator was of the opinion that the WCB was unable to accept responsibility for sporadic time loss from May 1994 to date, nor would responsibility be accepted for the claimant's leg giving way at work on October 1, 1996. On January 23, 1997, the claimant appealed this decision to Review Office.

On February 21, 1997, Review Office rendered the following decisions:

"That present information is sufficient to establish that the claimant's work-related accident in July 1990 probably produced soft tissue injuries to the cervical spine and right shoulder region;

That these soft tissue injuries likely contributed to a right-sided torticollis and associated regional myofascial pain; and

That this type of local trauma (or the specific injuries mentioned above) was unlikely to explain or account for the claimant's more generalized problems which included severe headaches, whole body pain, sleep dysfunction, constant tiredness or fatigue, lack of concentration, and decomposition of coping ability; and

That these more general symptoms, which became the claimant's predominant problem by no later than May 1994, were more likely than not a consequence of fibromyalgia; and

That the condition of fibromyalgia was not, on balance of probability, a consequence of the claimant's work-related accident in July 1990; and

That further benefits are not payable after May 1994 due to the effects of any personal injury by work-related accident in July 1990; and

That no benefits are payable in respect of accidents the claimant experienced in August and October 1996, and any resulting injuries to the lower back."

Review Office believed there was sufficient evidence to establish that the soft tissue injuries and associated muscle spasm from the July 1990 accident reasonably contributed to a second condition of myofascial pain which complicated the claimant's recovery from the effects of the original injury.

Review Office indicated there had not been any residual consequence of either the soft tissue injury or secondary myofascial pain after May 1994, which was a reasonable cause for the claimant's subsequent loss of earning capacity or handicap to his pre-accident employment. The soft tissue injury was not a reasonable cause for fibromyalgia or the claimant's more generalized symptoms of whole body pain, the effects of which were the predominant reason for any loss of earning capacity and or healthcare treatment after May 1994.

Review Office further indicated that it did consider the two separate incidents, which apparently happened at work in August and October 1996. In both cases, the claimant's right knee buckled for no apparent reason causing him to fall and suffer further injuries. Each time there was no evidence of a hazard or position of risk reasonably attributed to the claimant's employment at the time. Review Office was not satisfied there had been sufficient evidence to indicate that instability of the claimant's right knee was reasonably a consequence of a former work-related accident. In summary, Review Office was unable to conclude that the claimant's further injuries in 1996 had been either caused by accident arising out of the employment or a direct consequence of some previous work-related injury.

On November 20, 1998, a solicitor acting on behalf of the claimant, submitted a medical report from the claimant's treating physician who considered that the claimant's fibromyalgia was a direct consequence of his work-related accident of July 1990. Based on this report, the solicitor argued that a difference of medical opinion existed between the claimant's doctor and WCB medical advisor. A Medical Review Panel (MRP) was therefore requested. On December 7, 1998, Review Office denied the request for a MRP under Section 67(4) and 67(1) of the Workers Compensation Act (the Act).

On September 10, 1999, the claimant appealed Review Office's decision and an oral hearing was held on November 23, 1999.

Reasons

The claimant was thoroughly examined by an orthopaedic surgeon on May 7th, 1996. The claimant presented with some ache and discomfort situated around his right shoulder girdle with a burning sensation radiating down to the posterior aspect of his right thigh and right calf. These symptoms, according to the claimant, had been present for the past six years. The orthopedist documented the following findings:

"Examination of both shoulders showed good range of pain free movements. However, his right shoulder girdle appeared to be rather apprehensive towards the extreme range.

Muscular power, sensation and peripheral pulses of upper limbs examined and found to be satisfactory on both sides. Reflexes, namely, triceps, biceps and supinators, were present and equal on both sides as well.

His cervical spine felt to be straight with no localised (sic) tenderness on deep palpation of spinous processes or paravertebral muscles.

Range of motion of his neck examined and found to be satisfactory in all directions.

I found the rest of his spine to be straight with no localised (sic) tenderness. Rotation of thoracic spine found to be satisfactory to both directions. Flexion and extension of lumbar spine, as well as side bendings, appeared to be adequate.

Muscular power of lower limbs examined and found to be within normal limits. Sensation was found to be reduced on the dorsum of the right foot between his big and second toes. Straight leg raising measured to be 80 degs. bilaterally. However, he showed some evidence of apprehension on examination of his right leg.

Reflexes, namely, knee jerk, ankle jerk and plantar responses, were present and equal on both sides.

Examination of range of motion of hips, knees and ankles showed no significant abnormality."

We find, based on the orthopedist's examination findings, that there is no apparent clinical relationship between the claimant's knee buckling episodes in August and October 1996 and his previous compensable injuries. In addition, the claimant testified at the hearing that he had experienced several bouts of his knee buckling prior to his falls in August and October.

On December 10th, 1996, after his August and October incidents, the WCB's neurology consultant examined the claimant. The claimant advised that he was having difficulty walking and that he would develop low back pain, which would subside on sitting. He was also having problems with his legs especially his right leg, which would give way. The claimant said that he would develop a numb feeling with tingling and pain. Apparently, this had been a persistent problem for the past six years. He has no idea what causes his leg to give way at any particular point in time.

In his examination notes, the neurologist recorded the following findings and comments:

"His neurological examination is otherwise unremarkable. He has normal cranial nerve testing. Examination of the limbs is normal in terms of tone, power, coordination, reflexes and sensation. In particular, he has 2-3+ ankle reflexes which is symmetrical. He has no loss of power or sensation in the dermatomal distribution or peripheral nerve distributions. He could straight leg raise to 80 to 75 bilaterally. At that point, he complained of low back and buttock pain which was ipsilateral. He did not complain of any pain radiating down into his foot on straight leg raising. The crossed straight leg raising test was negative. The Bowstring test caused soreness behind his knee but not radiating pain and, similarly, Lasegue's test was negative. On Hoover's testing, there was no downward pressure on attempted elevation of his right leg. He has pain on rotation of his spine to the right. He has widespread pain radiating across his back and into the right buttock of pinching the skin over the L5 spine.

Range of motion testing of his shoulders and neck is within normal range, then he complains of discomfort at extremes of movement. He has no difficulty with movements of his knees and hips.

He can sit with his knees extended and hips flexed at 90 and then can stretch down to touch the lower part of the anterior shin. When he bends forward, he looses a lumbar lordosis.

There are no signs then of any nerve root impingement or irritation. He has no signs of any neurological impairments. His problem as previously documented is one of persistent diffuse pain without any evidence of new injury. There is no evidence of any objective impairment as a result of an old injury to his back. The current difficulties with pain cannot be accounted for by the CT changes of 1996.

There is no objective medical evidence on file that is related to any compensable injury. There is no evidence of current objective impairment. The specialist's reports do not provide any evidence of objective impairment."

We find, in accordance with the weight of evidence, that the claimant's injuries sustained in August and October 1996 were not, on a balance of probabilities, caused by an accident arising out of the employment or as a direct consequence of some previous work related injury. It necessarily follows that the claimant is not entitled to benefits and or services as a result of the injuries sustained in August and October 1996. We further find, based on the preponderance of evidence, that the claimant is not entitled to benefits and or services beyond May 1994 in relation to injuries sustained in July 1990.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of December, 1999