The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on March 19, 1999, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether the claimant remains disabled by reason of her compensable injury of March 23, 1995; and

Whether the claimant is entitled to the payment of vocational rehabilitation benefits or any other benefits beyond July 22, 1998.

Decision

That the claimant remains disabled by reason of her compensable injury of March 23, 1995; and

That the claimant is entitled to the payment of vocational rehabilitation benefits or any other benefits beyond July 22, 1998.

Background

Commencing in early March 1995, the claimant experienced extreme pain in her right arm while cleaning motor homes. The diagnosis was reported as generalized right arm tendonitis query myofascial pain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

Following an evaluation by a WCB medical advisor on June 22, 1995, the medical advisor stated the claimant had a myalgia condition of her back muscles which could not be described as myofascial pain. At this time the claimant was considered fit for modified duties and restrictions were to avoid lifting over 10 pounds and no above shoulder work and no pushing or pulling. The restrictions were to be in place for six weeks and then reviewed.

By late October 1995, the claimant was having ongoing difficulties with her right shoulder. On November 14, 1995, a WCB physical medicine and rehabilitation consultant reported that the claimant appeared to have a history of a gradual onset of pain in the forearm, arm, and shoulder girdle which likely represented the development of regional myofascial pain syndrome, primarily in the right upper extremity and shoulder girdle. The consultant was of the view that a return to her pre-injury duties which were extremely repetitive in nature would have a high likelihood of producing a recurrence of musculoskeletal pain in the shoulder girdle.

Effective January 23, 1996, the claimant's benefits were paid by the WCB's Vocational Rehabilitation Branch based on her participation in a return to work program. The WCB also referred the claimant to an independent rehabilitation consultant to consider a trial of trigger point needling to her upper extremity, shoulder girdle, and myofascial pain syndrome involved muscles.

The independent rehabilitation consultant reported his examination results to the WCB on April 15, 1996. He agreed with the WCB's physical medicine and rehabilitation consultant that the claimant was exhibiting signs and symptoms of myofascial pain syndrome and recommended trigger point injection.

The above specialist provided a follow-up report to the WCB, dated June 3, 1996. The specialist stated that he was discontinuing further trigger point injections because of "wide spread hyper irritability of the muscles".

On June 11, 1996, the claimant contacted the WCB stating she was hospitalized on April 24, 1996, due to a heart attack. On July 15, 1996, the attending physician reported that the claimant was only hospitalized for 5 days and was placed on appropriate medications and had been well since without any chest pain. He stated, "At this point, it has absolutely no influence on her rehabilitation."

On December 19, 1996, the claimant was examined by another WCB medical advisor regarding her current status. The medical advisor stated the claimant continued to suffer from regional myofascial pain.

Subsequent file documentation disclosed that the WCB had sponsored the claimant in a computer course, however, the claimant felt medically unable to continue due to pain and swelling in her right arm.

In October 1997 the claimant commenced a graduated return to work program with her pre-accident employer working in the electrical preparation department. The program was discontinued, however, as the claimant experienced pain and swelling within the first few days of the program even with limited hours/days.

On December 4, 1997, the claimant was again assessed by a WCB medical advisor regarding her current status. The medical advisor commented that the claimant seemed incapable of performing repetitive work involving her right upper extremity and that the nature of her work would have contributed to the myofascial pain syndrome. The medical advisor was of the further view that the entire responsibility would likely not lie with workplace activities given that the claimant was able to function out of the workplace in the home and with the other activities of daily living. The medical advisor noted the claimant's left upper extremity condition was compromised to a degree by virtue of her prior carcinoma of the breast and mastectomy.

On March 12, 1998, the WCB received a communication from the independent rehabilitation medicine specialist dated February 26, 1998. The report outlined his examination findings of November 26, 1997. The specialist reported the claimant complained of pain in the right shoulder, arm and forearm which spread down to the hand. She also had pain in the left interscapular region. Based on his examination, the specialist concluded the claimant had the necessary tender point count for a diagnosis of fibromyalgia, however she had only regional pain in the right shoulder girdle and upper limb. The claimant was treated with needling and 1% xylocaine injection of trigger points in the right upper trapezius. When seen again on December 15, 1997, the specialist noted the claimant showed no improvement in her pain intensity or distribution. The specialist felt that further trigger point needling procedures would not be of benefit in view of the claimant's widespread muscle tender points and hyper-irritable active trigger points in the right shoulder girdle as well as latent trigger points on the left.

On March 15, 1998, a WCB medical advisor reviewed the above report. In his opinion, he could not accept a cause and effect relationship between the claimant's ongoing problems and her compensable injury. He did not believe the claimant's restrictions were related to the work place.

In a decision letter, dated May 6, 1998, Claims Services advised the claimant that based on the WCB medical advisor's comments, there was no evidence to support a continuing relationship between her current symptoms and the workplace accident. Based on this decision, the claimant was notified that effective July 23, 1998, she would no longer be entitled to vocational rehabilitation benefits.

On May 5, 1998, the family physician wrote to the WCB contending that the claimant's right shoulder myofascial pain was directly related to the compensable injury.

On June 17, 1998, a file adjudicator wrote to the family physician clarifying the WCB's position regarding its decision to terminate benefits. The adjudicator stated in part, "The medical evidence, on a balance of probabilities, is likely more supportive of a fibromyalgia condition than the most recent presence of myofascial pain, in our opinion." On July 6, 1998, the family physician responded to the adjudicator's report by stating, "Although the picture is confounded by possible fibromyalgia, and we do not have any wonderful objective evidence that gives you the exact cause and nature of the injury, my opinion is that it is still directly from the problem."

The case was considered by the Review Office on July 17, 1998. The Review Office concluded that the claimant was no longer disabled by reason of the March 1995, compensable injury and that she was not entitled to vocational rehabilitation or any other benefits beyond July 22, 1998.

The Review Office made reference to the attending physician's comments of July 6, 1998. The Review Office stated that the WCB's position was based on a balance of probabilities. Review Office noted there was no objective evidence to provide an exact cause and nature of the injury. Since there was no objective evidence, then it could not be stated with any certainty that the claimant's difficulties were directly related to the work she was performing. The Review Office pointed out the fact that the claimant performed work from November, 1984 until February, 1995, a period of approximately 11 years. Shortly afterwards, her duties changed and she was required to clean one additional trailer. It was in a period of two weeks immediately prior to her work stoppage that the claimant began to experience symptoms in her right arm and shoulder.

The Review Office also outlined several psycho-social factors which it felt entered into the matter. Briefly, these included the myocardial infarction which occurred in 1996, previous unrelated surgical intervention which left the claimant's left side in a weakened condition, low serum for folic acid and vitamin B12, pernicious anemia, and the illness of the claimant's husband.

The Review Office concluded that the claimant was no longer totally disabled by reason of any work related incident in March, 1995, and as a result she was not entitled to the payment of wage loss or rehabilitation benefits beyond July 22, 1998. The Review Office noted that it received no other medical to support total disablement as a consequence of the original work incident. The claimant's physician provided no additional solid objective evidence to show any ongoing cause and effect relationship.

Subsequent to the Review Office's decision, further medical information was received from the claimant's rehabilitation medicine specialist, dated July 28, 1998. The report was later reviewed by both the Review Office and WCB healthcare personnel, however, no change was made to any of the previous decisions.

On February 10, 1999, legal counsel for the claimant appealed the Review Office's decision of July 17, 1998, and an oral hearing was conducted before the Appeal Commission.

Reasons

The claimant's vocational rehabilitation benefits were discontinued effective July 22nd, 1998. After a thorough review of the medical evidence, the Review Office reached the conclusion that the claimant was no longer totally disabled by reason of her March 23rd, 1995, compensable accident. The claimant was considered to have recovered from the effects of her injury and capable of returning to the workplace.

We, however, take a different slant on the evidence. While we agree with the Review Office that the claimant is not totally disabled, we do not feel that she has fully recovered from the compensable injury. Virtually every physician that has been involved with the claimant has placed restrictions on her before she has attempted a return to work.

• November 14th, 1995, WCB medical advisor's examination notes:- "Unfortunately, in my opinion, a return to her previous duties in cleaning which were of an extremely repetitious nature involving repetitive pushing and pulling forces of the right upper extremity at the shoulder girdle have a high likelihood of producing recurrence of musculoskeletal pain in the shoulder girdle, even with definite improvement in the pain with the directed treatment.  Currently, the claimant should be able to tolerate and manage modified duties of a light nature which could also act as a conditioning. Some range of movement is important as treatment, but highly repetitive stressed motions should be avoided. This restriction may have to be over a longer duration but should initially be over a three month period and then reassessed. The ideal arrangement would be modified duties with the same employer but avoiding highly repetitious stressed motions of the right upper extremity."
• June 25th, 1997, Claims Services memorandum to file:- "Following a discussion, Dr. [WCB medical advisor] indicated that, given the Dx, it is not unreasonable Ms [the claimant] would experience an increase in difficulties following typing activities. If she were only expected to perform 1 hour of typing activities spread over a full day she might be able to participate but she should avoid repetitive activities with her Rt arm."
• December 4th, 1997, WCB medical advisor's examination notes:- "It is important to continue with the accepted treatment program for myofascial pain syndrome which should improve her pain syndrome now that her B12 and folate levels have been corrected. It would seem that she is incapable of performing repetitive work regarding her right upper extremity at this time. It is also important to note that her work would have contributed to the myofascial pain syndrome however in my view the entire responsibility would likely not lie with her workplace activities given that she needs to function out of the workplace in the home and with other activities of daily living and has been compromised to a degree with respect to her left upper extremity owing to her prior carcinoma of the breast and mastectomy."

In support of her appeal, the claimant submitted an updated report prepared by her treating rehabilitation medicine specialist, dated February 6th, 1999. We attached considerable weight to many of the comments contained in this report. In particular, we noted the following:

"My diagnosis remains regional myofascial pain syndrome and not fibromyalgia. I would add that examination by medical advisers at WCB never made a diagnosis of fibromyalgia based on their examination. Therefore there is no reason based on any of my reports to consider that fibromyalgia has been the reason for her on-going regional pain complaints.

He [WCB medical advisor] advised that a return to work in her previous duty would have a high likelihood of producing recurrence of musculoskeletal pain. The claimant should be able to tolerate and manage modified duties of a light nature but should avoid highly repetitive stressed motions of the right upper extremity. I agree with this assessment and the same diagnosis and restrictions apply at the present time in my opinion. She never did return to gainful employment since there were no modified or light duties available at her place of employment. Vocational Rehab Services were initially provided by WCB but this does not appear to have resulted in any return to alternative type of work.

It is true that there has been no improvement in her condition in that she develops increased pain symptoms and muscle dysfunction on repetitive use of her right upper limb but is not in any severe pain at rest or with light activities.

In conclusion my diagnosis remains myofascial pain syndrome. She does not have fibromyalgia. Her symptoms of complaint have been similar as documented by WCB medical advisers as well as myself over the years since her injury. The fact that her symptoms have not spontaneously resolved or that treatment has failed to eradicate her symptoms and signs indicates that her regional myofascial pain syndrome persists and in my opinion is a work-related injury as accepted by WCB initially. It has remained chronic since no treatment to date has been effective in eradicating the myofascial trigger points. She is capable of returning to employment provided that repetitive use of the right upper limb for hours at a time as well as work in elevation of the right upper limb are restricted in her job duties." (Emphasis ours)

We find, by virtue of her restrictions and unresolved injury, that the claimant is not, on a balance of probabilities, capable of returning to her pre-accident job duties. We also find that the accident employer does not have suitable alternate duties available. Accordingly, the claimant is entitled to the payment of vocational rehabilitation benefits and services beyond July 22nd, 1998.

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 5th day of May, 1999