The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with responsibility for a worker's ongoing symptomotology three years after his workplace injury.

On October 4, 2001, the worker filed a claim with the Workers Compensation Board (the "WCB") for left shoulder, neck and upper back difficulties that he related to the repetitive nature of his work duties as a butcher. The worker received benefits from the WCB until October 8, 2004 when it was determined that there was no longer a cause and effect relationship between his workplace injury and his current condition. This decision was confirmed by Review Office on November 5, 2005. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on July 27, 2006. The worker appeared and provided evidence with the assistance of an interpreter. He was represented by a worker advisor. No one appeared on behalf of the employer. The panel discussed this appeal on July 27, 2006 and September 15, 2006.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond October 8, 2004.

Decision

That the worker is entitled to wage loss and medical aid benefits from October 8, 2004 to April 15, 2005.

Decision: Unanimous

Background

Reasons

Introduction

On October 4, 2001, the worker filed a claim with the WCB for left shoulder, neck and upper back pain, which he attributed to his work duties as a butcher. This was confirmed and diagnosed by his family physician on October 2, 2001 as myofascial trapezius and upper back strain.

The claim was accepted by the WCB. However, since that time, the worker has been denied benefits on two occasions - on October 8, 2004 and previously, on December 18, 2002. This later denial was overturned by the Appeal Commission in a decision dated January 21, 2004 on the grounds that there was a continuity of signs and symptoms causally related to the workplace injury.

The main issue for this appeal panel is therefore whether the worker's continuing symptoms are still causally related to his compensable injury.

The worker says that they are. He has continued to suffer pain since his workplace injury in the same anatomical region. He says that the medical reports of his treating doctors and a Medical Review Panel ("MRP") provide evidence of continuing clinical findings which substantiate his pain complaints.

For the reasons that follow, we are unable to fully accept this submission.

Background

At the time of the workplace injury, the worker was employed as a butcher. On October 2, 2001 he saw his family physician with complaints of a painful left shoulder and neck and an inability to sleep or lie down. Clinical examination revealed a tender left trapezius, rhomboid and neck. The family physician diagnosed the worker with myofascial trapezius and upper back strain.

Since that date, the worker has continued to report pain in his rhomboids, trapezius and neck. Though there has been some increased mobility over time, the worker has nonetheless continued to experience pain, described as a muscular tightness. These pain complaints increase with poor sleep or heavy lifting. Despite an array of medical treatment, the worker's complaints have not subsided. He has not been able to return to his regular employment. Commendably, he re-trained himself through further schooling which he has nearly completed.

The medical reports on file record these complaints and the clinical findings:

• On May 3, 2002 a physical medicine and rehabilitation specialist ("physiatrist") found trigger points of the trapezius and rhomboid major muscles bilaterally. He thought that the worker had mechanical neck and shoulder pain with regional myofascial trigger points of several muscles due to a repetitive straining of the neck and shoulder girdle muscles and ligaments. Trigger point injections were administered and the worker was instructed in home exercise.
  
  
• A CT scan was taken on July 2, 2002 at the request of his family physician. It revealed shallow central and left posterolateral disc bulging at C5-6 together with degenerative spurring. There was also central disc bulging at the C6-7 level.
  
  
• A July 15, 2002 x-ray confirmed degenerative changes in the facet joints at C7-T1.
  
  
• On July 31, 2002 a WCB medical advisor found slightly tender trigger points just medial to the left mid scapular area and in the right trapezius and rhomboid major area. There were no taut bands or muscle spasm.
  
  The WCB medical advisor found the worker to be pain focussed but did note some clinical findings. He opined as follows:
  

  "He had some mild pre-existing degenerative changes in his cervical spine as evident on x-rays. He also had myofascial discomfort in the trapezius muscle as well as the rhomboids bilaterally. It is likely that this claimant's body habitus was simply mismatched for the heavy and repetitive duties that he had been performing for the months leading up to his symptoms. Significant improvement has occurred over time, especially when the claimant is not subjective [sic] to repetitive forces…"

  He recommended alternate employment that would avoid excessive stresses to his upper shoulder girdles, upper limbs and neck, as well as a workplace assessment. That said, he did find the worker capable of a graduated return to work effective immediately with restrictions. (This never came about as the employer was not able to accommodate this.)
  
  
• Conversely, on August 19, 2002, when seen by an orthopaedic specialist, the examination did not reveal any abnormalities. The diagnosis was a "vague myofascial-type pain". The orthopaedic specialist reiterated the WCB medical advisor's advice to change occupations to a lighter trade.
  
  
• An October 28, 2002 report by a doctor at a pain and injury clinic noted some tenderness of the thoracic paraspinal and rhomboid musculature.
  
  
• On April 9, 2003, he was seen by an occupational health doctor who found taut tender bands and trigger points. He concurred with the WCB medical advisor that the worker's body habitus was not well suited for his heavy labour job.
  
  
• On August 14, 2003 he saw another physiatrist who found soft tissue tenderness and diagnosed him with mechanical/soft-tissue-type symptoms.
  
  
• In February, 2004 the occupational health doctor found multiple tender trigger points in similar and different areas than those found in 2003.
  
  
• Conversely, on April 20, 2004 a WCB physiatrist did not find any trigger points or taut bands. He only noted soft tissue tenderness. The physiatrist's opinion was that these were only subjective symptoms with no definite patho-anatomic diagnosis. He did not think that the worker's current symptoms were causally related to the workplace injury.
  
  
• On June 9, 2004 the worker was seen by another physiatrist. This specialist did find tender taut bands in the trapezius and scapular support muscles that he thought were related to his previous heavy labour job. This opinion was reiterated on November 8, 2004 when he stated: "The projected date for return is not able to be determined due to prolonged nature of his medical condition." Trigger point injections were administered on both June 9 and November 8, 2004. The worker's evidence at the hearing was that these injections helped but his pain would return with poor sleep.
  
  
• On April 15, 2005 the worker was examined by a MRP that was ordered by the WCB. The MRP could not reliably find any myofascial trigger points or taut bands in any upper extremity muscle. It only found some tenderness. The MRP diagnosed the worker's current condition as soft tissue pain and thought it was causally related to his workplace duties. It explained its rationale for this opinion as follows:

  "One possible mechanism to explain the underlying pathophysiology arises from the fact that the muscles in the area where the [worker] is experiencing pain are attached to various bony parts of the anatomy… There are nerve endings at the musculotendinous/bony junctions (the site where muscles are attached to bones) and these nerve endings have become and remained hyper active."

  The MRP found the worker impaired to the extent that he should have workplace restrictions.
  
  
• On August 25, 2005, the worker was assessed by the WCB Pain Management Unit (PMU) to determine whether the worker suffered from any chronic pain/psychological issues. It was the PMU's opinion that the worker did not suffer from a chronic pain syndrome. That said, it did find that the worker did have several barriers affecting his recovery:

  "Barriers to recovery appear to be significant report of pain and disability, passive pain management, uncertain return-to-work plans, deconditioning, a strong focus on a medical cure and strong pain focus, general mood and affective difficulties that appear to be related to congenital/developmental personality factors, significant anger with his employer and a sense of entitlement with respect to his benefits."

Analysis

As stated previously, the issue before this panel is the causal relationship between the worker's ongoing symptoms and his compensable injury.

Although there has been some question about the worker's credibility on file, we find that this has been largely due to poor communication. We have not therefore based our decision on credibility but rather on the clinical examinations of the worker.

The worker's compensable injury was myofascial trapezius and upper back strain and not "soft tissue pain" as mentioned by the MRP. Initially clinical examinations found trigger points and taut bands which confirmed this diagnosis.

Though there have been different clinical findings since the worker's injury (i.e. one examiner has found trigger points and taut bands whereas another has not), the Appeal Commission previously accepted (January 21, 2004 decision) the medical examinations which revealed ongoing trigger points and taut bands, at least as of that date.

Subsequent to this decision, the WCB found out that the worker had been involved in a motor vehicle collision in March, 2003 that might have contributed to an aggravation of the worker's condition. The impact of the motor vehicle collision was investigated by the WCB:

• The motor vehicle collision was a rear-end collision. The worker was the only person in the vehicle injured;
• The physiatrist who saw the worker on June 9, 2004 reported that it was a minor collision that had no impact on his condition;
• A review of treatment providers, however, noted over 100 treatments following the motor vehicle collision. The worker attributed these treatments to his workplace accident;
• The WCB physiatrist thought that given the number of treatments the collision appeared to be significant in nature;
• A March 8, 2003 memorandum to file by the Manitoba Public Insurance medical advisor opined that the worker had, at most, sustained a temporary aggravation of his WCB workplace injury given the lack of any clear indication that the worker had recovered from his workplace injury prior to the motor vehicle collision;
• When questioned by the case manager on June 25, 2004, the worker said that his main condition was caused by his workplace accident and the collision did not have much impact on it. The worker confirmed this at the hearing.

In weighing the evidence, we find that the motor vehicle collision caused the worker a minor temporary aggravation to his compensable injury. We therefore accept that the clinical findings of trigger points and taut bands after March, 2003 are related to the compensable injury and not to the motor vehicle collision.

That said, we also find that as of April 15, 2005, those same clinical findings are not apparent at the MRP examination. Indeed, the MRP did not find any clinical evidence of trigger points or taut bands. On this basis, we find that the original compensable diagnosis of myofascial trapezius and upper back strain had resolved by the April 15, 2005 examination.

We note that the MRP made a diagnosis of soft tissue pain in its May 11, 2005 report. We place little value on this diagnosis as it is a non-specific pain complaint with no apparent physiological or patho-anatomical basis. We also find that the MRP's rationale for causally linking this complaint of pain to the compensable injury is based on a "possible" nerve ending irritation. While this rationale might be a possibility we do not accept, on a balance of probabilities, that this is the cause of the worker's ongoing pain complaints. In the absence of any diagnostic testing confirming nerve ending involvement, the MRP's rationale is pure supposition. Further, the MRP did not consider the worker's pre-existing degenerative back condition that we note is in the same anatomical area as the worker's pain complaints. We prefer the PMU's assessment of the worker's pain complaints, that being essentially the worker's personality and coping mechanisms. Given that the worker has been found not to suffer from a chronic pain syndrome, we find on a balance of probabilities that the worker's pain complaints are not related to his compensable injury.

Given the foregoing, we find that April 15, 2005 is the first date at which there is clear medical evidence that the worker's compensable injury had resolved.

In these circumstances, we are unable to find that the worker's ongoing complaints beyond April 15, 2005 are compensable in nature.

Accordingly, the worker is only entitled to benefits from October 8, 2004 to April 15, 2005.

For clarification, this appeal did not specifically deal with the amount of benefits.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of September, 2006