The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 18, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on February 18, 1999.

Issue

Whether the claimant is entitled to benefits beyond October 10, 1995.

Decision

That the claimant is not entitled to benefits beyond October 10, 1995.

Background

The claimant filed an application for compensation benefits stating that she had developed back, neck, shoulder and arm pain after repeatedly lifting boxes down from a stack on July 11, 1995. The claim was approved as a non-specific claim by the Workers Compensation Board (WCB) and benefits commenced July 12, 1995.

Initial medical information contained hospital reports dated July 12, 1995 (diagnosis viral illness, leukopenia), July 13, 1995 (diagnosis headache) and July 20, 1995 (diagnosis tendinitis/bursitis shoulder). On July 26, 1995, a chiropractor diagnosed cervicodorsal strain.

On September 18, 1995, chiropractic x-rays were taken and the impression revealed cervical spondylosis and avascular necrosis in the cervical spine. On September 25, 1995, a WCB chiropractic consultant reviewed the file contents and provided the following opinions/comments:

• The need for continuing chiropractic care was related to pre-existing factors and not to the compensable injury;
• The mechanism of injury was consistent with the diagnosis of cervico-dorsal sprain/strain injury. X-rays revealed advanced cervical spine degenerative joint and disc disease. On balance of probabilities, this was more likely causing the claimant's continuation of symptoms.
• The x-rays finding of avascular necrosis was unlikely related to the compensable injury.

On October 2, 1995, the claimant was advised by primary adjudication that wage loss benefits would be paid to October 10, 1995, inclusive and final. Claims Services concluded that:

• The claimant had recovered from the effects of the compensable injury;
• The weighted medical evidence no longer supported a causal relationship between ongoing complaints and the compensable injury; and
• Ongoing symptoms were entirely related to the claimant's pre-existing condition.

On November 24, 1995, an orthopaedic specialist reported that he treated the claimant for left shoulder pain and that the shoulder was injected with Depo-Medrol. The working diagnosis was subacromial bursitis. In addition, the specialist noted that the claimant related her difficulties to the July 1995 injury.

In a letter, dated December 13, 1995, a union representative contended that the claimant's condition was work related and that there was no evidence of a pre-existing condition. In support of his position, the union representative submitted a medical report, dated December 7, 1995, from the claimant's treating physician.

On February 9, 1996, the claimant was assessed by a WCB medical advisor regarding her current status and functional capabilities. Due to the claimant's abnormal illness behavior and inconsistent findings, the medical advisor was unable to support a diagnosis of left subacromial impingement syndrome. The medical advisor did not believe that the WCB was responsible for the claimant's present and varied complaints.

In a decision, dated March 8, 1996, the Review Office determined that the claimant was not entitled to wage loss benefits beyond October 10, 1995. Review Office noted the worker attended the emergency ward of a hospital on two occasions prior to stopping work, claiming injuries to her neck, shoulders and arms. On the first occasion, the worker walked to emergency where a viral illness was diagnosed. On July 13, 1995, the worker arrived in a wheel chair complaining of lower backache, nausea, fever and diarrhea. In the interview with the WCB medical advisor on February 9, 1996, the claimant denied having these symptoms, although they were clearly recorded by the emergency attendant.

The Review Office accepted that the claimant had tendinitis/bursitis of her left shoulder and possibly a cervical dorsal strain resulting from her employment activities. In the opinion of Review Office and on a balance of probabilities, these conditions did not continue to disable the worker from employment beyond October 10, 1995. The Review Office further noted that the attending chiropractor actually discharged the claimant as fit for suitable employment as early as August 25, 1995.

On June 25, 1997, a worker advisor requested Review Office to reconsider its decision of March 8, 1996, based on additional medical information from a physiatrist, dated February 17, 1997. In the event that Review Office did not overturn its decision in favor of the claimant, the worker advisor contended there was basis to convene a Medical Review Panel (MRP) under Section 67(4) of the Act. On August 8, 1997, the Review Office granted the request for an MRP which was later held on October 3, 1997.

On November 14, 1997, the Review Office confirmed that the claimant was not entitled to wage loss benefits beyond October 10, 1995. The Review Office made reference to certain findings of the MRP. According to Review Office, the MRP panelists believed that the worker had sustained a soft tissue strain following the 1995 accident. Review Office, therefore, concluded the claimant had no ongoing physical findings resulting from this accident that would have accounted for the worker's claim of total disability.

The Review Office noted the MRP's findings that the claimant's primary problem was a psychological response to problems the worker had experienced in the workplace, particularly with co-workers and supervisors. The Review Office did not consider the abnormal behavior and any psychological conditions to be compensable since they did not arise directly out of an injury, but rather they arose from interactions within the workplace. The Review Office confirmed its decision on January 14, 1998.

On January 6, 1999, legal counsel for the claimant appealed the Review Office's decision to deny benefits beyond October 10, 1995. An Appeal Panel hearing was then arranged for February 18, 1999.

Reasons

The worker filed a report of injury form claiming to have sustained injuries to her back, neck, shoulders and arms. The treating chiropractor initially diagnosed the claimant's condition as a cervicodorsal strain. An orthopaedic surgeon was later consulted and he rendered a working diagnosis of subacromial bursitis. Eventually, the WCB orthopaedic consultant was asked to review the file. He decided to call the claimant in for an examination because, in his view, subacromial bursitis was "only totaling disabling in the initial acute stages."

The examination took place on February 9th, 1996. The orthopaedic consultant recorded the following comments in his examination notes:

"Based on today's examination, I am unable to provide an anatomical diagnosis for Mrs. [the claimant's] varied complaints and physical findings. This is primarily due to the profound abnormal illness behaviours which she demonstrated. As well, it is difficult to relate her present complaints to a definite workplace incident. Apparently, there is no occurrence which the claimant can remember that initiated the pain nor were there any difficulties prior to July 12, 1995. In summary, due to the claimant's abnormal illness behaviours and inconsistent findings, I am unable to support the diagnosis of left subacromial impingement syndrome. Therefore, I am unable to provide an assessment of the functional capabilities. As well, in my opinion, I do not believe the WCB is responsible for the claimant's present and varied complaints."

In light of these differing medical opinions the Review Office requested that the claimant be examined by a Medical Review Panel (MRP). This process took place on October 7th, 1997. We note the comments of the MRP that the records relating to the claimant's onset of problems as a result of the July 14th, 1995, accident were unclear. This apparent confusion arose out of a local hospital's emergency room records, dated July 12th and 13th, 1995, which documented the worker's complaints as being referable to chills, backache and headache.

Following its examination, the MRP concluded that the claimant's diagnosis as a result of the 1995 accident would most probably have been a soft tissue strain. The present diagnosis being: "There is evidence of Mechanical Low Back Pain with x-ray evidence of lumbar spondylosis. There is also spondylosis of the cervical spine with x-ray evidence. These changes are probably responsible for her shoulder pain." The MRP panelists further agreed that the claimant was disabled mainly from the effects of the 1990 injury due to the development of psychological problems related to dysfunction in her workplace. The claimant has not yet recovered and her abnormal behaviour continues.

In our view, the weight of medical evidence does not support the claimant's contention of a total loss of earning capacity as a consequence of the 1995 accident. We find, based on a balance of probabilities, that the claimant had recovered from the effects of her incident by the time the WCB discontinued paying benefits. Accordingly, we do not consider the claimant is entitled to benefits beyond October 10th, 1995.

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 9th day of April, 1999