The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 20, 2006, at the request of a worker advisor, acting on the worker's behalf. The panel discussed this appeal on February 20, 2006 and again on May 8, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits or services beyond May 18, 2004; and

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That the worker is not entitled to wage loss benefits or services beyond May 18, 2004; and

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

This case involves a worker who was injured during the course of her employment on October 21, 2003. The Workers Compensation Board (WCB) accepted the claim based on the diagnosis of an acromioclavicular sprain and benefits and services were provided to the worker.

On January 26, 2004, WCB case manager determined that wage loss benefits would be paid to February 2, 2004 as a cause and effect relationship no longer existed between the original compensable injury and the worker's current condition.

On January 27, 2004, the treating physician wrote to the WCB and offered the opinion that the worker may have sustained a rotator cuff tear resulting from the compensable accident. The new report was reviewed by a WCB medical advisor who advised that there was no evidence to support that the worker sustained a rotator cuff tear or that her headaches were related to the compensable accident. He thought the worker was capable of returning to her regular work duties. The case manager advised the worker of this in a letter dated February 10, 2004.

On May 5, 2004, a worker advisor sought reconsideration of the decision based on reports from an orthopaedic surgeon dated March 23, 2004 and April 16, 2004. The orthopaedic surgeon's opinion was that the worker suffered a workplace injury that resulted in a right shoulder rotator cuff tendonitis. He also arranged for an arthrogram examination as he believed the worker may have sustained a rotator cuff tear.

Subsequent file records contained updated medical information from the orthopaedic surgeon, treating physician and a neurologist. Laboratory test results were also received, e.g. arthrogram, CT scan of the cervical spine, etc. The new information was reviewed by a WCB medical advisor on November 8, 2004.

In a decision dated November 10, 2004, the worker was advised that the WCB was not accepting responsibility for her right shoulder, elbow or neck difficulties and that wage loss benefits would not be reinstated as the worker had recovered from her September 23, 2003 workplace injury.

The case manager stated "…report of May 18, 2004 records that your shoulder pain is not secondary to rotator cuff tendonitis and that the arthrogram showed there was no rotator cuff tear…A WCB healthcare consultant reviewed a report of your current condition as recorded in Dr. [orthopaedic surgeon's] report of September 21, 2004. This consultant was of the opinion that the ulnar nerve compression is not the result of your work injury. The consultant noted that there was no mention of injury to the elbow. She also notes that in his May 18, 2004 report, Dr. [orthopaedic surgeon] suggests that your muscular pain is related to the osteoarthritis of your cervical spine. This condition is not related to your compensable injury."

On February 17, 2005, a worker advisor asked the WCB case manager to consider the opinion expressed by the worker's treating physician dated January 15, 2005 which supported the position that there was a cause and effect relationship between the worker's current right shoulder symptoms and the compensable accident. On March 2, 2005, the case manager advised that no change would be made to the previous decision.

The worker had an MRI of the right shoulder on March 27, 2005 which revealed a small full thickness tear of the supraspinatus tendon. Based on this new information, the worker contended that a cause and effect relationship did exist between her right shoulder condition and the September 29, 2003 compensable injury.

Following consultation with a WCB orthopaedic consultant, the WCB case manager accepted responsibility for the worker's claim to May 18, 2004, based on the opinion expressed by her orthopaedic surgeon dated May 18, 2004. This decision was relayed to the worker on May 11, 2005. On May 17, 2005, the decision was appealed to Review Office by the worker advisor.

On June 10, 2005, Review Office confirmed the WCB case manager's decision that the worker was not entitled to wage loss benefits or services beyond May 18, 2004. Review Office relied on the opinion expressed by a WCB orthopaedic consultant that the mechanism of the compensable accident was unlikely to produce a rotator cuff tear and that the tear at the supraspinatus tendon was likely degenerative in origin. The consultant did not think the compensable injury prevented the worker from resuming her pre-accident occupation as a truck driver.

In a submission dated June 21, 2005, the worker advisor requested the convening of a Medical Review Panel (MRP) in accordance with subsection 67(4) of The Workers Compensation Act (the Act). On August 11, 2005, a WCB sector services manager determined that there was no basis to convene an MRP. The decision to deny the request for an MRP was upheld by Review Office on August 26, 2005.

At the worker advisor's request, an oral hearing took place on February 20, 2006, to determine whether or not the worker was entitled to wage loss benefits beyond May 18, 2004 and whether an MRP should be convened. Following the hearing, the appeal panel requested additional information from the worker's treating physicians, prior to discussing the case further. On April 19, 2006, all interested parties were provided with copies of the medical reports that the panel received and were asked to provide comment. On May 8, 2006, the panel met to further consider the appeal and to render its final decision.

Reasons

The worker's appeal raises two issues.

The first issue raised is whether the worker is entitled to wage loss benefits and other services beyond May 18, 2004. For the appeal to be successful the panel must find that the worker was unable to work and required other services after May 18, 2004 as a result of the workplace injury. The panel did not reach this conclusion. The panel did not find a relationship between the workers condition after May 18, 2004 and her workplace injury.

The second issue to be considered is whether a Medical Review Panel should be convened pursuant to Subsection 67(4) of the Act. For the appeal of this issue to succeed, the panel must find a difference of opinion between the worker's physician and a WCB medical advisor on a medical matter affecting compensation. The panel did not find a difference of opinion exists as required by the Act.

The Worker's Position

The worker attended the hearing with a worker advisor who made a presentation on the worker's behalf. The worker answered questions posed by her representative and the panel. The employer did not participate in the hearing.

The worker described the September 29, 2003 accident and her initial symptoms. She also described the treatments she had received. The worker indicated that her condition has not improved and that her current symptoms are "pretty much the same."

With respect to the first issue, the worker's representative submitted that based on the mechanics of the September 23, 2003 incident and the available medical information, the worker's current right shoulder condition is related to the compensable injury. The representative submitted that the worker should be provided wage loss benefits and services.

In support of the worker's request for a Medical Review Panel, the worker's representative contrasted the opinion of a WCB medical advisor with the comments of the worker's treating physician reported on April 5, 2005. The WCB medical advisor opined that the worker's symptoms had resolved by May 18, 2004 while the treating physician stated that the worker's symptoms have never resolved.

Analysis

The panel has considered the evidence including the evidence provided at the hearing and requested after the hearing. The panel has also considered the representations made on behalf of the worker.

This case involved a worker who was struck three times when opening/closing a heavy gate. It is acknowledged that the worker suffered an injury in course of her employment. There is however disagreement regarding the type of injury suffered and whether the worker is entitled to further benefits.

With regards to the worker's request for additional benefits beyond May 18, 2004, the panel finds, on a balance of probabilities, that the worker is not entitled to benefits or services after May 18, 2004.

In arriving at this decision the panel relies upon the findings of the worker's first orthopaedic surgeon as noted in a report dated May 18, 2004. The orthopaedic surgeon noted at that time that the arthrogram showed there was no rotator cuff tear and that the worker's pain was likely a muscular pain which may be related to some cervical spine osteoarthritis.

This orthopaedic surgeon also reported on October 27, 2004 that:

"By history it is obvious that the right shoulder rotator cuff tendonitis occurred secondary to an injury while at work…
On September 24, 2004 she had no signs of rotator cuff tendonitis. Therefore she did not need a surgery for this. She still had some neck and shoulder symptoms. These are likely an acceleration of her cervical spine osteoarthritis secondary to her injury."

The panel also notes that the worker had arthroscopic surgery of the shoulder area on September 19, 2005 and that the surgeon did not find a rotator cuff tear.

The panel also relies upon the opinions of two WCB orthopaedic consultants who reviewed the file information. In a memo to file dated May 9, 2005, a WCB orthopaedic consultant provided the opinion that there was no evidence of a continuing cause-effect relationship between the worker's symptoms and the workplace injury beyond May 18, 2004.

A second WCB's orthopaedic consultant provided an opinion in a file note dated June 8, 2005. In reply to a question about the probable diagnosis the consultant commented:

"The described mechanism of being hit on the right side by a heavy gate 3X would not lead to a rotator cuff tear. The reported findings on MRI Mar 27/05 involving the portion of the supraspinatus tendon are probably degenerative in origin as are the findings at the AC joint. The initial trauma would be consistent with local contusion & muscle strain of the periscapular muscles."

The specialist went on to comment that the worker has recovered from the injury and is not incapable of returning to work as a truck driver.

The worker also requested that an MRP be convened in accordance with section 67(4) of the Act. This section provides that an MRP shall be convened when "…the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker…" The worker relied upon the opinion of the treating physician in support of the request. The panel notes that the opinion relied upon was provided before the worker underwent surgery in September 2005 and that the opinion is based upon some findings that were not confirmed in the subsequent operative report. The panel finds that the requirements of subsections 67(1) and 67(4) have not been met and that an MRP should not be convened. The panel notes that it was acknowledged at the hearing that the requirements were not met.

The worker's appeal is denied.

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 14th day of June, 2006