The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on October 16, 2007, at the request of a worker advisor, acting on behalf of the worker.

Issue

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

Whether or not the worker is entitled to wage loss benefits beyond February 19, 2007.

Decision

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

That the worker is entitled to wage loss benefits beyond February 19, 2007.

Decision: Unanimous

Background

On June 12, 2003, the worker was pulling pallets of groceries from a delivery truck when he felt something dislocate in his spine and neck. He attended his family physician on June 16, 2003 who observed that the worker displayed symptoms indicating radiculopathy of the C6 dermatome in the left arm. X-rays of the cervical spine done on June 17, 2003 showed marked disc space narrowing at C5-6 and C6-7 producing some narrowing of the neural foramina. When the worker attended his family physician on June 27, 2003 he continued to have pain in his neck, mostly associated with rotation and flexion and extension on the left side coming down his left arm. On July 19, 2003, a CT scan of the cervical spine showed degenerative disc disease at C5-C6 and C6-C7 and foraminal narrowing.

In a report dated August 20, 2003, the family physician noted that the injury sustained on June 12, 2003 had resulted in pain at the thoracic T7-8 facet joint area on the left side. He noted that he had first seen the worker on August 9, 2000, for complaints of a painful shoulder which had persisted for longer than one year.

In a chiropractic report dated September 25, 2003, it was noted that the worker’s chief complaint when seen on September 6, 2000 was cervical pain which radiated to the left shoulder and arm to the elbow. He was not seen again until April 18, 2001, at which time the worker complained of low back pain, upper lumbar pain and left sided neck, shoulder/arm pain and paraesthesia.

On September 25, 2003, the worker was seen by a WCB medical advisor and related having “felt a popping in the left upper back between the shoulder blades” on June 12, 2003. Examination of the neck was normal and there were no complaints of any neck pain, however the taut bands and tenderness in the thoracic area over the rhomboids were noted as a “significant finding”. The medical advisor determined that the worker had sustained a left thoracic strain and that the fact he had been unable to attend any physiotherapy and the lack of any home exercises was likely the cause of the prolongation of his symptoms.

In November 2003 the worker attended in Winnipeg for a three week program of daily physiotherapy, which was to be followed by a graduated return to work. The worker progressed well although the physiotherapist felt that given the nature of his work he was not ready to return at the conclusion of his therapy. It was therefore extended for a further two weeks and the worker was provided with a TENS unit to use in the home.

In December 2003 the worker commenced a graduated return to work program with his employer, but indicated that he was unable to continue as there was “still something going on in his shoulder” and it was sore and numb. He was advised by his doctor to remain off work and was referred to a neurosurgeon.

On January 16, 2004 the worker was advised by his case manager that given the weight of medical evidence, the mechanism of the injury, the current clinical findings and the medical treatment provided, it was the view of the WCB that the worker had recovered from the thoracic strain sustained on June 12, 2003.

On February 24, 2004, a neurosurgeon reported that the worker presented with an unusual feeling between his shoulder blades in his spine “when he is loading his left arm.” He noted that his left arm pain and numbness had gone since the worker started physiotherapy and acupuncture, and there were no signs of radiculopathy or myelopathy. He confirmed that CT scans showed no abnormality of the thoracic spine and degenerative changes in the C-spine. He concluded that the worker did not require neurosurgical intervention and that he was capable of alternate or modified work, with lifting restricted to 25 pounds.

On May 18, 2004, a physical medicine and rehabilitation specialist (a physiatrist) noted the worker had experienced ongoing pain around his left scapula and intermittent pain and numbness in the left arm extending to the fingers since his June 2003 injury. Clinical findings revealed that the worker had several potential sources of pain in the soft tissues, including a number of hypersensitive spinal segments including T4, T6 and T9. The T6 segment was aligned with the painful region in his left back. The physiatrist suggested that a trial of trigger point needling might benefit the worker, and concluded that it was highly probable that the worker’s situation was work related and that he would have a very difficult time performing his pre-accident job.

On May 27, 2004, a WCB medical advisor commented that despite physiotherapy treatments, the worker continued to have difficulty with myofascial pain and that this was likely still related to the compensable injury. He concluded that the treatment suggested by the physiatrist was appropriate. The worker was called in for an examination by a WCB medical advisor on July 15, 2004 at which time it was noted that he had sustained a medial scapular strain related to a sudden forceful pulling of a loaded pallet and that there had been persistent symptoms since. While he had received some physiotherapy he had received neither specific directed treatment to soft tissues, nor advice regarding recommended movements and physical activities. He agreed that the worker would benefit from direct needling treatment as recommended by the physiatrist.

The worker’s benefits were then reinstated retroactively to December 29, 2003.

Between October 2004 and January 2005, the worker was treated with myofascial trigger point needling of the posteriour spinal ligaments and the rhomboid and lower trapezius on the left. His shoulder continued to ache and there was tenderness over the rhomboids. In a report dated January 12, 2005 the treating physiatrist noted that while the worker was improving slowly he was not ready to either have any force through the arm or to return to work.

On March 23, 2005, the treating physiatrist indicated that the worker continued to have persistent and difficult pain in the left shoulder and scapula and there were audible clicks in the acromioclavicular joints bilaterally. He ordered an MRI to rule out the possibility of a rotator cuff tear. The MRI was performed on June 18, 2005 and revealed intrinsic intramuscular myxoma involving the supraspinatus tendon, a partial tear of the inferior surface of the supraspinatus tendon at the site of the insertion to the greater tuberosity and degenerative changes involving the acromioclavicular joint.

On August 26, 2005, the treating physiatrist referred to the MRI results and stated the soft tissue findings were creating the difficulties within the worker’s shoulder. He considered the worker to be unable to do physical labour and referred him to a surgeon to consider arthroscopy.

In a report dated October 27, 2005, the treating surgeon found the relationship between the findings of the MRI and his physical exam to be inconsistent. He felt the worker’s symptoms were related more to the function of the scapular thoracic joint than to the partial thickness tear of the supraspinatus. He did not think that surgery would improve the worker’s symptoms, and noted that he had not yet been through intensive rehabilitation.

A WCB medical advisor recommended that the worker either be brought to Winnipeg for three weeks of intensive needling and physiotherapy or referred for rehabilitation assessment and possibly treatment by a physiotherapist and some onsite surveillance to determine his true capabilities as they related to re-employment. In May 2006, the worker attended upon a physiatrist for assessment. He determined that the worker’s subjective complaints were consistent with the objective findings, and diagnosed myofascial pain syndrome of the upper extremity of mild to moderate severity, a partial thickness rotator cuff tear and depression. He recommended a work hardening program to allow higher levels of function while undergoing treatments.

A surveillance videotape was made of the worker’s daily activities on June 5, 6 and 7, 2006.

The worker was asked to attend an interview with a WCB medical advisor and WCB psychological advisor at the Pain Management Unit on August 31, 2006. They concluded that the worker did not meet the criteria for chronic pain syndrome as he had an alcohol abuse disorder and this was a contradiction to a chronic pain syndrome. They were also of the view that this alcohol abuse disorder constituted a barrier to a return to work.

On September 12, 2006, the treating physiatrist noted that the worker continued to have significant pain with activity in his left shoulder although there was some improvement in movement. The range of movement in his arm was still lacking in internal rotation and full overhead movements. He noted that the worker had a significant desire to return to active employment.

On January 25, 2007, a WCB physiatrist reviewed the file information at the request of primary adjudication including the video surveillance. He concluded that the worker had received thorough and appropriate management for the “apparent simple scapular muscle sprain”. He expressed the opinion that on a balance of probabilities, the worker had recovered from the June 2003 incident and that any ongoing complaints were unrelated to the injury. He indicated that no restrictions were warranted.

In a decision dated February 13, 2007, the WCB Case Manager determined that the worker had recovered from the effects of the scapular muscle strain and that he was no longer entitled to any wage loss benefits or medical treatment effective February 19, 2007. She concluded that he was capable of returning to work and that his ongoing symptoms were attributable to his “pre-existing neck problem and non work related partial tear in your left shoulder”. On March 6, 2007, the worker appealed the decision to Review Office.

On March 12, 2007, Review Office confirmed that the worker was not entitled to wage loss benefits beyond February 19, 2007 as the worker had recovered from the effects of his June 12, 2003 injury. A loss of earning capacity did not exist, therefore, beyond February 19, 2007. Review Office relied upon the January 2007 opinion of the WCB physiatrist that on a balance of probabilities the worker’s ongoing symptoms were not related to the June 2003 incident, and concluded they were more likely related to the “multitude of physical ailments not related to the claim as well as psychosocial elements involved in the worker’s life”. Review Office specifically noted that the partial tear in the tendon in the worker’s left shoulder would not “be deemed to have any relationship to this claim,” and that the video surveillance “was in contrast to what the worker had reported to physicians and demonstrated upon formal examination, as the surveillance video showed no visible evidence of any pain behavior or functional impairment.”

On June 29, 2007, a worker advisor requested that Review Office reconsider its decision of March 12, 2007. He argued that the videotape surveillance evidence did not reveal the worker performing activities that were beyond his medical restrictions and should not be compared to the demands of his pre-accident employment. The worker advisor submitted a medical report for consideration dated June 18, 2007 from the treating physiatrist in support of the position that the worker had not yet recovered from the effects of his work related injury. The physiatrist noted that “there is a high probability that the problem he is experiencing with the upper extremity occurred at work, June 12, 2003. It is also my opinion that he is not able to maintain a medium work category on a regular basis over an extended period of time.” The worker advisor requested that in the event that the WCB did not reinstate the worker’s benefits a Medical Review Panel (MRP) be convened in accordance with subsection 67(3) of The Workers Compensation Act (the Act).

On July 11, 2007, Review Office determined that wage loss benefits were not payable beyond February 19, 2007 as the worker had recovered from the effects of his June 12, 2003 injury and a compensable loss of earning capacity did not exist beyond February 19, 2007. Review Office pointed to evidence on file to show that this was never a claim for a shoulder injury but was a thoracic back injury. It stated that the file evidence clearly established that the worker had shoulder problems prior to June 12, 2003. Review Office was of the view that the worker’s ongoing disability was due to a multitude of non-compensable physical ailments as well as the psycho-social elements in his life. It concluded that there was no evidence to show that the worker’s rotator cuff problem occurred on June 12, 2003, and it was therefore not a compensable condition. With regard to the surveillance, Review Office indicated that credibility was a factor as the worker presented with functional impairment and severe pain behavior to the medical community, and yet on the surveillance had absolutely no pain behavior. Regarding the convening of an MRP, Review Office referred the case back to primary adjudication for a formal decision.

On July 12, 2007, it was determined by a WCB Sector Manager that given the clear decision from Review Office, there was no need for a further opinion on a medical matter and therefore an MRP would not be convened under subsection 67(3) of the Act. Further she concluded that because the treating physiatrist was not aware of any shoulder problems prior to the accident, his report did not contain a full statement of the facts to support his medical conclusion. She therefore denied the request for an MRP under subsection 67(4) of the Act. On July 17, 2007, the worker advisor appealed this decision to Review Office. He asserted that the report from the treating physiatrist provided a difference of medical opinion and that a MRP could resolve conflicting medical issues on the claim.

In a letter to the worker advisor dated July 24, 2007, Review Office stated there was no basis to convene an MRP under subsection 67(3) as a further medical opinion was not required. Review Office also agreed with the Sector Manager’s conclusion that the criteria for convening an MRP under subsection 67(4) of the Act had not been met. It noted that the opinion of the treating physiatrist was based on the understanding that there were no shoulder complaints before June 12, 2003, when the evidence was that there were prior complaints. On July 27, 2007, the worker advisor appealed Review Office’s decisions of July 11 and July 24, 2007 and a hearing was arranged.

Reasons

The worker was represented by an advocate who made a presentation on his behalf. The worker and his advocate responded to questions posed by the Panel.

The issue before the panel is whether the worker is entitled to wage loss benefits beyond February 19, 2007. For the appeal to succeed the panel must find that the worker’s loss of earning capacity as of that date was due to his workplace injury. The panel considered all of the medical evidence before it and concluded that on a balance of probabilities the worker’s loss of earning capacity is attributable to the workplace injury that occurred on June 12, 2003.

In arriving at that conclusion the panel took into account a number of factors. Firstly we are satisfied that the worker sustained a rotator cuff/tendinopathy tear on June 12, 2003 when unloading pallets in the workplace. That conclusion is consistent with his initial report that “something dislocated in my spine,” his immediate complaints of pain at the thoracic T7-8 facet joint area and his subsequent description of a “popping in the left upper back between the shoulder blades.” In his report of June 18, 2007 the treating physiatrist concluded:

“The fact that [the worker] felt something let go after moving the pallets and also developed pain severe enough to create significant reduction in range of motion and initially, disuse winging of the left scapula, points to an event that created significant pain and secondary avoidance of movement. It is well within the balance of probability that a tendon tear could present with these findings.”

In making that finding the treating physiatrist did indeed take into account the fact of a prior shoulder injury in 2000. He concluded however, that the worker had recovered from that injury by June 2003 at which time he was performing fulltime duties as a shipper/receiver.

Since the accident the worker experienced a considerable change in the functional use of his left shoulder and continued to suffer ongoing pain. We are satisfied on a balance of probabilities that these problems have persisted as a result of the lack of treatment afforded to the worker. It was first noted by a WCB medical advisor in September 2003 that the lack of any physiotherapy and home exercises was likely the cause of the prolongation of the worker’s symptoms. While the worker subsequently attended for a five week period of physiotherapy in Winnipeg, upon its conclusion in November 2003 the treating physiotherapist determined that he was not yet ready to return to work and provided the worker with a TENS unit for home use. It was noted by a WCB medical advisor in May 2004 that while the worker had received some physiotherapy, there had been no specific directed treatment to soft tissues, nor any advice regarding recommended movements and physical activities. In May 2006, the worker was assessed at the request of the WCB by a physiatrist. He was diagnosed with myofascial pain syndrome of the upper extremity of mild to moderate severity, a partial thickness rotator cuff tear and depression. A six week work hardening program was recommended to restore the worker’s physical capacity and function to allow him to return to work. A trial of 5-10 acupuncture treatments was suggested, and subject to the effectiveness of that treatment, possibly some trigger point needling.

No work hardening program ever took place, nor did the worker receive any further acupuncture treatments or trigger point needling. Instead the worker was placed under video surveillance in June 2006. While Review Office concluded that the video disclosed “absolutely no pain behaviour,” we are satisfied that the video was not inconsistent with the worker’s reported limitations.

In all of the circumstances the worker’s appeal with respect to the issue of entitlement to wage loss benefits beyond February 19, 2007 is allowed.

This panel was also asked to consider whether a Medical Review Panel should be convened under subsection 67 (4) of the Act. Section 67 (4) provides that:

Where in any claim or application by a worker for compensation 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, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter. 

We would be obliged to refer the matter to an MRP in the event that the opinion of the medical officer of the WCB differs from the opinion of the worker's physician. We have found no such difference of opinion and in light of our earlier findings there is no need to convene a MRP pursuant to subsection 67(4) of the Act. The worker’s appeal with respect to this issue is denied.

Panel Members

K. Dangerfield, Presiding Officer
R. Koslowsky, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 12th day of December, 2007