The Appeal CommissionThe Workers Compensation Act of Manitoba

He went to a hospital emergency facility on January 31, 2005 with complaints of right chest pain radiating through to his back and from his neck through the shoulder to the low back. He was diagnosed with right rhomboid strain, provided anti-inflammatories and released.

He then saw a chiropractor on February 10, 2005 with complaints of sharp mid-dorsal and left mid rib cage pain. He was diagnosed with acute dorsal spine/rib subluxation with myalgia.

On March 23, 2005, he was examined by a WCB chiropractic advisor at the request of the treating chiropractor due to his lack of response to treatment. At the conclusion of the examination, the chiropractic advisor was of the view that the worker suffered a soft tissue injury that included a strain/sprain type of injury to the right pectoral minor and pectoral major muscles. The worker was reported having a myofascial type of injury to the right pectoral muscle. It was suggested that chiropractic treatment be discontinued and that active release treatments be initiated. It was also felt that the worker should increase his activity level.

Unfortunately the active release treatments were done with little success and a referral was made to a sports medicine specialist for April 25, 2005. On examination the specialist found point tenderness over the right costochondral junction at the fourth level. No other areas of tenderness were found that differed from the WCB chiropractic advisor’s clinical examination notes. The specialist also found some myofascial irritation/tenderness in the right pectoral muscle and rotator cuff irritation on the right side.

The worker was then examined by a WCB medical advisor on June 24, 2005 as the treating sports medicine specialist indicated that the worker was still experiencing significant pain complaints and tenderness. On examination the medical advisor noted in particular tenderness of the 6^th rib anteriorly and tightness in the right pectoralis muscles. Pain was felt when pressing on this area. She thought that the worker was capable of returning to work with modified duties provided that he avoided lifting more than 10 lbs., and that he avoid heavy pushing, pulling or reaching and heavy overhead work.

On July 13, 2005, the employer advised the WCB that it did not have any modified duties available and that the worker’s job was no longer available. The employer indicated that the worker would be hired back if they had an opening but as of now they did not.

The worker continued with physiotherapy treatments without much improvement. He was referred to a physiatrist.

Before he was seen by the physiatrist, videotape surveillance was taken of the worker on September 7, 15, 16 and 21, 2005. The videotape was reviewed by a WCB medical advisor on October 11, 2005. She indicated that the videotape did not show any activity which suggested that the worker was in pain or disabled by his compensable injury and there was nothing to suggest that the worker could not perform his regular pre-accident duties.

On October 14, 2005, a WCB case manager informed the worker that based on the surveillance evidence and lack of medical findings, his wage loss benefits would be terminated retroactive to September 15, 2005.

On October 15, 2005, the physiatrist sent a report stating that he had seen the worker on October 11, 2005. He was uncertain as to the cause of the worker’s symptoms and recommended electrodiagnostic testing. This was done on November 9, 2005. The findings indicated a neurogenic lesion affecting the pectoral muscles that were thought to account for the worker’s ongoing symptoms. The physiatrist noted that the worker’s symptoms had been improving, and in particular the symptoms into the right upper limb. When seen in follow-up on December 8, 2005, the physiatrist noted that the worker was describing good progress though he still had residual pain in the right pectoral region.

In the interim, the worker had been referred to an occupational health physician who he saw on November 23, 2005. It was the occupational health physician’s opinion that the worker sustained a muscle strain involving the costal division of the right pectoralis major. He noted that many of the worker’s past and current symptoms corresponded closely to characteristic symptoms of myofascial pain.

The occupational health physician’s report was forwarded to the WCB with a request for reconsideration.

A January 25, 2006 report from a neurologist was also received which reported that the worker was seen for assessment on October 27, 2005. He believed that the worker continued to have pain and thought the diagnosis was costochondral inflammation. There were no neurological findings.

The file was reviewed by a WCB medical advisor on February 20, 2006. She indicated:

“There are ongoing objective findings of (r) pectoral muscle irritability, but given it’s been > 1 yr. since the injury, the MOI [mechanism of injury] & the claimant’s observed function there are no findings to support ongoing disability.”

On February 21, 2006, the WCB case manager wrote to the worker and stated that the WCB was unable to accept responsibility for further time loss in regards to his claim. He indicated that the new medical showed that he was still suffering from tenderness in his right ribcage area but that this would not prevent him from performing his regular duties.

On March 16, 2006, the worker advisor appealed the case manager’s decision to Review Office. Included with the submission was another report from the occupational health physician dated March 9, 2006. This report reiterates the worker’s diagnosis and recommends several workplace restrictions that were temporary until appropriate treatment was given to the worker.

On April 13, 2006, Review Office confirmed that wage loss benefits were to be paid to October 21, 2005 and final. Review Office outlined its opinion that based on the weight of evidence, the worker had recovered from the effects of his compensable injury. It stated that the surveillance video should not have been the determinative factor in the decision to conclude the worker’s benefits. Therefore, wage loss benefits should be extended to October 21, 2005 which was one week after the worker was formally notified that his benefits were to be discontinued. On May 29, 2006, the worker advisor appealed Review Office’s decision and an oral hearing was arranged.

Worker’s Position

The worker says that he should be entitled to benefits beyond October 21, 2005 as he continued to suffer from the effects of his compensable injury beyond this date. The worker also notes that he returned to full time employment on April 17, 2006, and is seeking wage loss benefits to that date, and his earnings are equivalent to his pre-accident earnings.

Analysis

To accept the worker’s appeal we must find that he continued to suffer a loss of earning capacity after October 21, 2005 as a result of his compensable injury. We are able to make that finding.

The evidence is overwhelmingly that the worker continued to suffer from right chest symptoms that were verifiable on examination. These symptoms had not resolved by October 21, 2005. There were also symptoms for which compensable restrictions were provided by both the WCB medical advisor and the occupational health physician. The worker’s benefits were however terminated based, apparently, on the video surveillance evidence. We do not find the video surveillance evidence persuasive. In our opinion it merely shows the worker doing activities within his physical restrictions.

After his benefits were terminated, we find that the worker mitigated his losses. Indeed, the worker testified that he had applied for multiple jobs that were within his restrictions.