The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker, a nurse, injured her left hip, right elbow and neck in a 1985 workplace accident. In 1986 she injured the right side of her neck, right shoulder, arm, hand and right side of her upper back in a workplace accident. The Workers Compensation Board (WCB) accepted both claims and benefits were provided until December 1988. In June 2005 the worker contacted the WCB and advised that she was continuing to experience the effects of her prior injuries. The WCB denied responsibility for the ongoing symptoms and the worker appealed this decision.

An appeal panel hearing was held on August 2, 2006, at the request of the worker. The panel discussed this appeal on the same date.

Issue

Whether or not the worker's problems with her neck, right shoulder, arm, wrist, back and hip are related to the March 10, 1985 or February 9, 1986 compensable injuries; and,

Whether or not the worker is entitled to coverage for medical aid treatment after December 7, 1988.

Decision

That the worker's problems with her neck, right shoulder, arm, wrist, back and hip are not related to the March 10, 1985 or February 9, 1986 compensable injuries; and,

That the worker is not entitled to coverage for medical aid treatment after December 7, 1988.

Decision: Unanimous

Background

March 10, 1985 Injury

On March 21, 1985, the worker completed a Worker's Claim for Injury or Industrial Disease form for an injury to her left hip, right elbow and neck that occurred on March 10, 1985 when she slipped on some ice and fell in the staff parking lot.

Initial medical treatment was sought from the worker's family physician on March 13, 1985. The worker was diagnosed as having sustained a bruise to her hip and right elbow as well as a muscle strain involving the neck.

The WCB accepted responsibility for this claim on March 26, 1985 and provided the worker with temporary total disability benefits during the period March 13 to 25, 1985.

February 9, 1986 Injury

The worker completed a Worker's Claim for Injury or Industrial Disease form for time loss that she was experiencing effective February 10, 1986 resulting from an accident on February 9, 1986. The worker and a co-worker were walking a patient who became weak and started to fall. While assisting the patient to the floor, the worker experienced pain involving the right side of her neck, right shoulder, arm and hand as well as on the right side of her upper back. The claim was accepted by the WCB. Temporary total disability and medical aid benefits were provided to the worker.

The worker was assessed by an orthopaedic surgeon on February 24, 1986. According to the report, the worker began to experience right shoulder pain on lifting in November 1985 for which she was seen by another orthopaedic surgeon and treated with a cortisone injection. Although the injection provided some relief, the report suggests that the symptoms continued with some radiation into the neck area. The examination revealed a good range of motion (ROM) of the cervical spine with no specific areas of tenderness. ROM of the right shoulder was noted to be quite good with only minimal discomfort on forced external rotation and at the extremes of elevation and abduction. The worker also reported pain involving the chest wall. The orthopaedic surgeon diagnosed the worker with chest wall pain NYD (not yet diagnosed) and chronic tendonitis of the right shoulder.

A report completed by the family physician on March 21, 1986 indicated that the worker presented with tenderness in the right axilla over the triceps muscle and over the posterior aspect of the shoulder. Diagnosed with chronic tendonitis of the right shoulder, the worker was considered unable to use her right arm without pain.

The worker sought treatment from a sports medicine facility and was referred for physiotherapy. According to the submitted reports, the worker's shoulder condition was improving with therapy.

The worker was assessed by a WCB orthopaedic consultant on September 19, 1986. Based on this call-in examination, the consultant opined that the worker's shoulder had not yet returned to its pre-accident state. The orthopaedic consultant felt that the worker was not totally disabled however; she did require 6 month restrictions wherein she should avoid repetitive use of the shoulder above shoulder level, no carrying of excessive dead weight in the right arm and no exposure to situations that could put full dependent weight on the right upper extremity.

In light of the restrictions, the WCB arranged for the worker to return to work in a work assessment program for the duration of the restrictions.

While participating in the work assessment program, the worker continued to attend the sports medicine facility for treatment of her shoulder complaints. In a report from the sports medicine physician dated November 25, 1987, he indicated that the worker remained symptomatic with respect to her right shoulder. The report further indicated that in September 1987, after performing some lifting at work, the worker's symptoms worsened resulting in her stopping work. In December 1987, the sports medicine physician felt that the worker was once again fit for restricted duty. It was anticipated by the physician that restrictions would be required for a further three months time. The worker returned to work in the work assessment program effective January 7, 1988.

The worker was examined by a WCB medical advisor on August 17, 1988. The medical advisor expressed the opinion that symptoms affecting the worker's hip area were unrelated to the compensable injury. The report further noted that insofar as the worker's neck complaints were concerned, there was only limited painful movement on rotation to the right with progressive improvement noted. In conclusion, the medical advisor indicated, in light of the improvement in symptoms and as there was no radiological evidence of significant abnormality, permanent restrictions were not recommended. It was suggested that the worker slowly increase her physical activity.

On October 20, 1988, the claims officer spoke with the medical advisor in order to clarify whether further restrictions were indicated. In a memorandum to file covering this conversation, the claims officer noted the medical advisor's opinion that the worker had presented with minimal objective findings and in essence was considered to have essentially recovered from the effects of the compensable injury. Accordingly, further restrictions were not indicated.

By way of letter dated October 26, 1988, the claims officer advised the worker that it was felt that she had recovered from the effects of her injury and was therefore considered fit to resume her pre-accident duties. Responsibility for benefits ceased on December 7, 1988.

There appears to be no further activity on either the 1985 or 1986 claims files until June 2005 when the worker contacted the WCB to report that she was continuing to experience symptoms affecting her right hip and neck which she attributed to the fall in the parking lot that occurred in 1985. The worker requested medical aid coverage for physiotherapy treatment. In light of the worker's claim for recurrence of symptoms, the WCB undertook to review the request in relation to both the 1985 and 1986 claim files.

As part of the recurrence investigation, the WCB requested narrative reports from the sports medicine physician who had previously treated the worker and, as well, from a neurologist to whom the worker had been referred.

The sports medicine physician responded to the WCB by letter dated December 29, 2005. He reported seeing the worker on June 9, 2005 complaining of an increase in pain affecting the right shoulder and neck. X-rays were performed and were said to reveal a degree of scoliosis of the cervical spine. Accordingly, a referral was made for the worker to attend physiotherapy. On September 1, 2005, the worker was re-assessed and presented with complaints of spasms and numbness in the shoulder and neck area.

The worker was assessed by the neurologist on November 28, 2005. The neurologist reviewed the worker's history of falling in a parking lot in 1985 injuring her neck. Since that time, the worker reported experiencing waxing and waning of neck pain as well as facial pain. The neurologist stated the following:

"The facial pain is confined mainly to the angle of the jaw and along the inferior border, more or less in the distribution of the higher nerves of the cervical plexus rather than the trigeminal nerve. I suspect that she is suffering from referred pain. She tends to hold her head cocked at an unusual angle, neck rotated and inclined towards the right.

…

On physical exam she seemed in no acute distress although her neck posture was certainly abnormal. Her blood pressure was 190/96, left arm sitting. I heard no cranial or carotid bruits. Her fundi were unremarkable and her visual fields full to confrontation. The general cranial nerve examination seemed normal although her painful neck did not permit the testing of neck muscle strength. She had no sensory deficit on the right side; corneal reflexes were symmetrically intact. Examination of her limbs showed normal power, tone, coordination, and reflexes. Her toes were downgoing to planar stimulation. Her sensory exam seemed unremarkable. She had normal distal pulses and cardiac exam."

In summation, the neurologist felt the worker presented with atypical facial pain related to neck discomfort. Medications and physiotherapy were recommended.

At the request of the WCB case manager (formerly claims officer), the file was reviewed by a WCB medical advisor on January 18, 2006. Based on his review of the file information, the medical advisor expressed the opinion that the worker likely sustained a neck and possible shoulder strain as a result of the 1986 injury. He further opined, as there was little or no medical treatment between 1988 and 2005, it was difficult to establish a relationship between the current complaints and the compensable accident. It was felt that the worker had recovered from the effects of the compensable injury.

By letter dated February 21, 2006, the case manager advised the worker that the WCB was unable to accept responsibility for her ongoing physical complaints on the basis that the evidence did not support a relationship to either the 1985 or 1986 compensable injuries.

The treating physiotherapist provided the WCB with a report dated March 10, 2006 wherein he advised that the worker attended for assessment on June 22, 2005. The entrance complaints suggested the worker had developed right sided neck pain radiating to behind the ear and that these symptoms had been present since early May 2005. The physiotherapist expressed the opinion that the worker was suffering from "spasmodic torticillis". He reviewed the literature and indicated that this condition can be as a result of neck trauma with injury to the accessory nerve or may arise spontaneously from a dysfunction at the level of the basal ganglia. He further indicated there is no way to determine specifically how the worker's condition may have started.

On March 21, 2006, the worker completed an application to appeal and submitted it to the Appeal Commission along with a letter dated March 14, 2006 wherein she requested reconsideration of the WCB's decision to deny responsibility for her recurrent symptoms and for entitlement to benefits.

The worker's appeal was referred to the WCB Review Office as the matter had not yet been addressed at that level. By decision dated April 14, 2006, Review Office confirmed the decision of primary adjudication. In reaching their conclusion, Review Office relied in part, upon the WCB medical advisor's opinion of January 18, 2006 which stated the worker had recovered from the compensable injuries and a relationship between the current symptoms and the compensable injuries did not exist.

On May 29, 2006, the worker asked the Appeal Commission to convene an oral hearing to reconsider the decision of Review Office. The oral hearing was convened on August 2, 2006.

Reasons

Worker's Position

The worker attended the hearing and answered questions posed by the panel. The worker described her conditions and treatments that she has received. She explained that she has problems with her neck, upper back, and right hip. She also advised that pain radiates from her neck into her right shoulder, arm, wrist and, on occasion, to her "bum". Pain also radiates from her right hip into her lower spine and down into her knee and toe.

The worker advised the panel that "It's an old injury from 1985, it's never gone away. The reason why I started going for physio is because I started to get pain in the back of my ear here and I thought maybe I was going to have like nerve problems or something."

The worker advised that she has been seeing a physiotherapist for more than a year. The treatments include manual physiotherapy and traction for 25 minutes. She attends once every two weeks but would like to be treated once a week. The worker finds that traction worked best on her neck symptoms and seemed to straighten her neck, which was held in an awkward position while at the hearing.

She stated that she had been getting laser treatments which helped her right hip. The worker advised that the treating physician has diagnosed her right hip condition as bursitis. Although her right hip was not initially injured in the workplace accidents, she advised that it became painful when she returned to work in 1988. She stated that her right hip problems are probably due to her posture. She acknowledged that she has not been told by her physicians that the right hip was due to the 1985 or 1986 accidents.

The worker also advised that recently she has had an increase in headaches and is seeing her family doctor about this condition. She is to be scheduled for a CT scan.

The worker advised that she managed to work with pain between 1989 and 2005, and did not seek medical attention for her problems.

Analysis

The first issue before the panel is whether the worker's problems with her neck, right shoulder, arm, wrist, back and hip are related to the 1985 and 1986 compensable injuries. For the appeal to succeed on this issue, the panel must find a relationship between the current problems and the prior accidents. The panel was not able to make this finding. The panel is unable to establish a relationship between the 1985 and 1986 compensable injuries and the current symptoms. There is simply insufficient evidence of a causal relationship.

The panel notes that benefits were last provided on the worker's files in December 1988. It appears there was no contact between the worker and the WCB until 2005. It also appears that the worker did not seek regular medical attention for the problems during this period of time. The panel finds there is a lack of continuity in medical treatments.

The panel also notes that the worker was examined on August 17, 1988 by a WCB medical advisor. The examination notes indicate that "Claimant is a thin, fit-looking lady. The posture of the back and neck was normal. There was a slight tenderness over the right trapezius where the neck joins the shoulder. There was no tenderness in the mid-line or the right side of the neck itself. Neck movements were full and painless except for a tight feeling on rotation to the right. Shoulder movements were full and painless." The medical advisor also noted that the neurological examination of the upper limbs was negative.

Regarding the right hip condition, the medical advisor noted that the hip symptoms commenced without history of injury in January 1988 and are unrelated to the worker's compensable condition.

A memo on the file from a claims officer dated October 20, 1988 indicates that the medical advisor advised that he considered the worker to have essentially recovered from the effects of the compensable injury.

The panel notes that the medical information from the 1985 and 1986 files does not suggest ongoing problems that would result in the varied symptoms the worker is experiencing more than fifteen years later.

The panel agrees with the opinion of the WCB medical advisor who reviewed the files in January 2006 and concluded that the worker had been recovered from the compensable injuries for many years.

The panel also notes that the worker's physiotherapist has diagnosed the worker's condition as spasmodic torticillis, a condition which can result from neck trauma with injury to the accessory nerve or may arise spontaneously from a dysfunction at the level of the basal ganglia. The physiotherapist comments that "Unfortunately there is no way to determine specifically how the condition may have started and which mechanism may be at play here." The panel is unable to relate this diagnosis to the worker's 1985 and 1986 compensable injuries.

For the reasons noted above, the panel also finds that the worker had recovered from the 1985 and 1986 workplace injuries by December 7, 1988, and therefore is not entitled to coverage for medical aid treatment after that date.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of September, 2006