The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

The appeal deals with the relationship between the worker’s ongoing symptoms beyond July 2005 and her compensable injury. The determination of this issue is complex given the multitude of other non-compensable conditions afflicting the worker.

Background

As stated in the preamble the worker filed a claim with the WCB for a repetitive strain injury which was diagnosed and accepted as myofascial pain. At the time the claim was filed, the worker was working both as a clerk with the accident employer and a casual support worker with another employer.

The worker’s WCB medical file indicates that the worker began having myofascial pain complaints involving her right neck, shoulder blade and arm, as far back as 1993 and had in fact sought medical treatment for these complaints. While she continued to perform her work duties, the worker underwent treatment which consisted of trigger point needling, massage therapy and physiotherapy but these only gave her short term relief. Suggestions were made with respect to the ergonomic set-up of the worker’s workstation, reduction in work shifts and exercise regime. An ergonomic assessment was done on May 11, 1999 by a WCB occupational therapist. He found that the clerk position was repetitive in nature. Although there were opportunities to carry out other tasks that would allow the worker to move her shoulders and arms in different motions, these tasks were very short in nature.

In 2000 she was sent to a physiatrist who treated her until approximately April 2004 (when he retired from practice). He concurred that her symptoms and signs were characteristic of myofascial pain syndrome with trigger points in her muscles as well as evidence of spinal segmental sensitization. He recommended paraspinous segmental blocks and trigger point needling. He also recommended as early as May 7, 2001 that she not return to her regular employment as a clerk since she would be at high risk for straining ligaments and muscles.

This recommendation was not followed. Compensable restrictions were however put in place in June 2001 for six months to avoid repetitive right hand key stroke motions. These restrictions were changed in November 2001 following an occupational assessment, to no repetitive use of the right upper limb and no lifting greater than 15 pounds.

The worker was cleared by the WCB to return to her regular duties as a clerk, which she did on December 8, 2001. Since that date, the worker continued to see the physiatrist on an as needed basis for flare-ups of her myofascial pain syndrome.

Then on April 6, 2004 the worker went off work. This was preceded by complaints since November 2003 that her computer time had increased over the month and she felt that the repetitive use of her right upper limb had aggravated her symptoms. She was also under a good deal of stress in relation to the workload and ability to effectively carry out the work required. The physiatrist noted decreased mood and advised further treatment for anxiety or depression before seeing her again. This was done and he saw her in January 2004. The physiatrist thought that part of the worker’s problems was related to mood and stress. Further treatment for anxiety as well as for her myofascial pain syndrome was provided. The physiatrist noted in a May 17, 2004 report that he last saw and treated the worker on April 14, 2004. At that time he continued to find trigger points in the right upper extremity and treated them accordingly. He added however that the worker cancelled a subsequent appointment stating that her symptoms were no longer severe and she felt that she was managing at work. The worker disputed this last statement at the hearing; she alleged that she did not have an appointment and in fact had found that the physiatrist’s last treatment had caused her additional symptoms for which she sought medical consultation and treatment – essentially she could not use her right arm for several months after that last treatment.

Medical reports subsequent to that date do reference symptoms of cramping, numbness, and increased weakness of her right hand. These complaints were investigated by a neurologist and several diagnostic tests were done.

A neurologist thought that the worker’s symptoms might be consistent with early radiculopathy especially since she was complaining of neck pain. A CT scan done on May 26, 2004 confirmed this suspicion. It noted the following:

“At C5-C6 level, there is degenerative disc narrowing. There is uncovertebral joint and facet joint [osteoarthritis]. There is minimal left paracentral disc protrusion indenting onto the thecal sac anteriorly.

At C6-C7 level, there is central disc herniation indenting onto the thecal sac anteriorly. Vacuum is seen in the left paracentral region. There is degenerative disc narrowing, uncovertebral joint [osteoarthritis] and facet [osteoarthritis].

At C7-T1 junction, there is right posterolateral disc herniation into the existing neural foramina and involvement of the right C8 existing nerve root is suspected. Please correlate with the presence of right C8 radiculopathy.”

Nerve conduction studies dated June 2, 2004 reported a radicular C8, T1 or mild ulnar nerve lesion.

The worker was assessed by a WCB physiatry consultant and a WCB medical advisor on June 11, 2004. The medical advisor indicated the worker had a variety of right upper extremity symptoms, disturbed sleep secondary to neck pain and other symptoms suggestive of anxiety and mood-related problems. He recommended that the worker alternate her usual work activities with other work activities to decrease the repetitive use of the right upper extremity. The physiatry consultant noted that the worker was within normal limits in terms of musculoskeletal and neurologic screening except for slight restriction in lateral bending with minor neck discomfort. There was a suggestion of ulnar nerve irritability posterior to the elbow on the right. The worker’s history was suggestive of dystonia of the hand on the right with prior soft tissue involvement. There was no evidence of any other soft tissue involvement. He recommended that she attempt to resume as much of her prior physical activities as possible though he did think that she appeared to require permanent restrictions of limited repetitive activity of the right upper extremity.

The worker was also seen by a neurosurgeon on referral from her family physician. He noted in July 2004 that the worker’s C8 radiculopathy had almost completely resolved.

An MRI taken August 5, 2004 confirmed degenerative disc disease at C5-6 and C6-7 as well as a right lateral disc herniation within the right intervertebral foramen at the C7-T1 level. By September 14, 2004, the worker continued to report ongoing issues with neck pain and discomfort radiating down the C8 dermatome. He recommended an occupational therapy assessment of the worker’s workstation to assist her in a gradual return to work.

On September 23, 2004, the worker told her case manager that she was looking forward to returning to her pre-accident job in October 2004 and that in her opinion, her condition had plateaued. She said her condition was exacerbated by the last trigger point injection and this had improved as much as it could.

On October 15, 2004, the worker indicated she was involved in an accident on September 19, 2004 and her car was totalled. She suffered a sore neck, right shoulder stiffness and headaches which aggravated her symptoms slightly. By October 15, 2004 this aggravation had settled.

The worker returned to work in an alternate position in November 2004 as her previous job as a clerk was no longer available. After a couple of shifts, the worker complained of pain and flare-up of symptoms. The worker felt that this flare-up was due to the lifting component of this job. She went off work from this job but remained at her other casual job with restrictions of no repetitive lifting or reaching and no lifting over 15 pounds. Following an assessment by a WCB rehabilitation specialist, it was felt that the alternate position was not outside of the worker’s restrictions.

The worker was referred by her family physician to a second physiatrist who saw her in April 2005. A May 3, 2005 medical report by the second physiatrist to the family physician (which was obtained by the Appeal Commission) outlines the worker’s medical history and his opinion that the worker’s symptoms continued to be related to her compensable injury. He did not recommend any further needling as he did not think it would provide any benefit. He also offered that her condition would in all likelihood be a chronic and long-term problem.

Shortly after this visit it was discovered that the worker might be suffering from bone cancer and investigatory procedures were undertaken. In the end it turned out that the worker was not suffering from bone cancer but instead a non-symptomatic blood condition. In the interim however, there was much debate about whether the suspected bone cancer might be the cause of her pain complaints.

On July 15, 2005 the worker’s family physician wrote a medical report describing the worker’s condition (this medical report was obtained by the Appeal Commission). He commented that when seen on July 15, 2005 her depression from which she had been suffering was clearing but that she still suffered from severe anxiety regarding her job and her recent problems with her right arm. He noted that her problems with anxiety and depression prevented her from working from October 13 to November 3, 2004. She returned to work as a casual worker but could not work after July 6, 2005 because of severe right arm pain, weakness in the right arm and anxiety due to her ongoing problems in her right arm and ongoing cancer investigation and possible treatment. He noted in a September 21, 2005 letter to the WCB however that he was unsure whether all of this was related to her compensable injury or her other problems.

A November 7, 2005 medical report to a health insurer (obtained by the Appeal Commission) recites the worker’s complicated medical condition given the uncertainty at that point as to whether some of the worker’s right arm complaints might be accounted for by cancer. The physiatrist noted that as of November 2005 and in respect to her casual position, her restrictions had not changed from a 15 pound maximal weight restriction from waist level, floor or overhead, restricted bending, climbing and routine overhead activity.

The worker’s WCB file was reviewed by the WCB physiatry consultant on November 10, 2005. His view of the file differed from his previous opinion. He thought that the worker’s current WCB file did not suggest dystonia. He also thought that the worker’s anxiety and depression were long standing and not related to the claim. He did feel that restrictions might be required for the worker’s pre-existing factors but not for her compensable injury. A psychological advisor to the WCB also commented on the worker’s depressive and anxiety symptoms. She thought that there was little documentation on file regarding these symptoms but opined that they appeared to be mild and should not prevent the worker from performing her regular duties.

The worker was seen again by the second physiatrist on December 20, 2005. His January 5, 2006 medical report outlines his findings. He notes:

“[The worker] was seen…at her request due to being cut off WCB for having a normal physical examination. Minimal examination was done today. In the past, she has never had a normal physical examination with chronic diffuse soft tissue pain…Although some of these increasing problems may have been precipitated by the medical stresses with her [blood condition], this issue has largely settled down…[her] pain remains a primary problem…I don’t think that [the worker] will maintain any position for long due to her recurrent pain complex. Hopefully, improved management will make things more bearable, but after so many years, it seems unlikely that this will be completely “recovered”.”

In another report dated January 19, 2006, the above physiatrist stated, in part:

“Some of the reasons for stopping work in July 2005 however I think relate to the stresses related to her potential diagnoses of [cancer] and eventual diagnosis of [the blood disorder]…Her previous job as a … clerk is no longer available after being deleted. She feels this was the most ergonomically viable position, although she certainly was getting frequent treatments by [the physiatrist] while working at that job….Apparently, WCB cut her off because of being unable to find specific physical abnormalities on examination. She still has persistent soft tissue pain, unchanged from previous investigations and reports from [the physiatrist]. This flare-up, possibly related to her diagnostic difficulties, is noted. Her [blood condition (and not cancer)] may not be that related to why she had not had recovery; however, I cannot say that definitively of course.”

In a memorandum to file dated March 13, 2006, the WCB physiatrist stated that he reviewed the medical reports of January 5 and 19, 2006 and found no objective medical information except for restriction of neck range of motion which would more likely be related to her pre-existing degenerative condition and not the compensable condition. He said he would not alter his November 10, 2005 opinion.

The second physiatrist disagrees with this opinion. In his January 8, 2007 response to the Appeal Commission, he opined that the worker’s symptoms have remained consistent since the onset of her myofascial pain syndrome as attested to by all medical practitioners that have examined her since that date. He found that she still required physical restrictions but noted that a recent job the worker had secured in July 2006 was going well for her. At the hearing the worker confirmed this opinion. He also added that he did not think that the worker’s blood condition was the cause of the worker’s chronic pain since it was not associated with chronic pain.

Worker’s Position

The worker says that her appeal should be granted as she continues to suffer from the effects of her compensable injury. It is this compensable injury that took her off work and not her non-compensable conditions.

Employer’s Position

The employer says that the worker’s appeal should not be granted as there is no ongoing cause and effect relationship with her complaints after July 2005 and her compensable injury. It says that as of 2004 the medical evidence indicates that the worker’s myofascial pain syndrome had resolved; there was however abundant evidence that the worker was suffering from other non-compensable conditions including degenerative changes in her cervical spine, her blood condition, and mood disorder.

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that her ongoing symptoms beyond July 2005 were related to her compensable injury and that these symptoms caused her a loss of earning capacity. We are able to make those findings.

This case is, on its surface, a rather complex one given the worker’s underlying degenerative cervical condition, her blood condition and her anxiety and depressed mood. However, it becomes a great deal clearer when one focuses on the worker’s compensable injury and the signs and symptoms related to that injury.

In reviewing the worker’s medical file, it is clear and undisputed that the worker suffers from a chronic myofascial pain syndrome as a result of the compensable injury. It is also clear that the worker has required ongoing treatment for this condition since its onset. The signs and symptoms recorded early on in the medical file continued to be recorded after July 2005 and indeed after July 2006. While investigations were done to rule out more sinister causes for the worker’s muscular pain complaints and much comment was made by her treating medical practitioners at the time as to whether more sinister causes might account for these complaints, it turned out that there was no other sinister cause that did. In the end therefore, the only remaining cause of the worker’s muscular pain complaints was her compensable injury.

We have turned our minds to the WCB medical advisor’s comments in 2005 regarding a lack of clinical findings of myofascial pain syndrome but have placed little weight on these comments.

Indeed, although his 2004 call-in examination did not reveal many clinical findings (which was criticized by the second physiatrist) he nonetheless opined that the worker required permanent restrictions. Further, his later change in opinion was not supported by a subsequent call-in examination. Rather it was based on a review of the worker’s latest medical history which, at the time, contained the uncertainties of her medical practitioners as to the exact cause of her ongoing problems.