The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker was in receipt of compensation benefits from the Workers Compensation Board (“WCB”) in relation to a work related incident that occurred on December 28, 2000. He subsequently filed additional claims with the WCB for work related injuries that occurred in 2001 and 2002. The worker was paid wage loss benefits up until September 11, 2002 when it was determined by primary adjudication that he had recovered from the effects of his compensable injury. The decision was confirmed by the WCB’s Review Office and by the Appeal Commission under Decision No. 01/05.

In August 2007, the worker asked for reconsideration of Decision No. 01/05 based on new and additional medical evidence. The worker’s request for reconsideration was granted and a new hearing was arranged and took place on July 16, 2008.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 11, 2002.

Decision

That the worker is not entitled to wage loss benefits beyond September 11, 2002.

Decision: Unanimous

Background

A previous hearing took place at the Appeal Commission on December 4, 2003 to consider the issue as detailed above. For a complete background of the case leading up to the December 4, 2003 hearing, refer to Appeal Panel Decision No. 01/05 dated January 4, 2005.

The worker suffered injuries to his right hand and shoulder in a work related accident that occurred on December 28, 2000. He was subsequently diagnosed with a right shoulder and upper back strain with radiation down the arm to the right ring finger. The worker was referred to physiotherapy for treatment of his right shoulder and upper back complaints and continued to perform modified duties while undergoing treatment.

The worker subsequently filed three WCB compensation claims for injuries that occurred on June 6, 2001, August 24, 2001 and February 15, 2002. In June 2001, the worker injured his low chest and stomach region. On August 24, 2001, he developed pain in both shoulders shooting down to his hands. On February 15, 2002, the worker twisted his left leg and hurt his low back while descending from a forklift. The worker did not incur any time loss related to his injuries.

On September 25, 2001, a WCB medical advisor outlined his opinion that the worker sustained a soft tissue strain/sprain type of injury at the time of his December 2000 accident to the right posterior shoulder girdle area with a component of pseudoradicular pain. There was no evidence of a true nerve root compression or radiculopathy. The examination findings demonstrated a regionalized myofascial pain syndrome with involvement on the left side. The worker was then referred to a physical medicine and rehabilitation specialist (physiatrist) for treatment regarding myofascial pain in both shoulders, neck and chest regions.

On July 22, 2002, the treating physiatrist opined that the worker was capable of returning to his forklift position and that he would benefit from strengthening and physical conditioning.

On July 8, 2002, a WCB medical advisor examined the worker and concluded that workplace restrictions were not warranted. He felt the worker had recovered from his December 28, 2000 injury which involved the upper thoracic spine.

On September 4, 2002, the WCB determined that the worker was not entitled to further benefits beyond September 11, 2002 on the basis that he had recovered from the effects of his compensable accident. Any ongoing symptoms he was experiencing were not related to his workplace injuries.

On September 4, 2002, the worker provided the WCB with new medical information from his treating physiatrist for consideration. In a report dated July 21, 2003, the physiatrist stated:

“On the balance of probabilities, it is my opinion that Mr. [the worker’s] condition related to the work place injury of December 28, 2000 as well as subsequent work related injuries that exacerbated and added to his original symptoms. These episodes that occurred since the December 28, 2000 injury are documented in his WCB file. Mr. [the worker] did not have any preexisting condition in relationship to his head, neck, shoulder girdle, thoracic or abdominal symptoms and related physical findings. It is my opinion that workplace restrictions still exist. He is capable of returning to his modified work duties as a forklift operator or duties of a similar physical nature. He requires further treatment including a functional restoration program prior to attempting to return to the original type of occupation prior to the December 28, 2000 work related injury.”

In a decision dated February 7, 2003, Review Office confirmed that the worker was not entitled to wage loss benefits beyond September 11, 2002 based on the available medical evidence and also determined that there were no grounds to convene a Medical Review Panel (“MRP”). On September 8, 2003, the worker’s lawyer appealed Review Office’s decision to the Appeal Commission and a hearing was convened on December 4, 2003.

Following the hearing, the appeal panel decided to convene a MRP in accordance with subsection 67(3) of The Workers Compensation Act (the “Act”). An MRP was then held and the final report issued on October 13, 2004.

In its decision dated January 4, 2005, the appeal panel agreed with primary adjudication and Review Office that the worker was not entitled to wage loss benefits beyond September 11, 2002 and that he had recovered from the effects of his compensable injury. In arriving at its decision, the appeal panel relied on the MRP’s finding that the worker had recovered from his workplace injury. It also relied upon the following examination findings of the WCB medical advisor who examined the worker on July 8, 2002:

“1. Active movements of the cervical spine were performed in a fluid fashion and through full range in all planes.

2. The neck range of motion findings were much the same as those described by a physiotherapist on March 1, 2001, a medical consultant on September 25, 2001 and the treating physiatrist on November 15, 2001.

3. No measurable impairment of neck function was found and workplace restrictions to the neck area are not required.

4. Upper neurological exam was normal.

5. The shoulders had no abnormal prominence of either AC joint. There was good muscular development at the shoulder girdles and arms, equal bilaterally.

6. The isometric results were the same as those cited at the medical assessment of September 25, 2001 when it was reported that resisted strength testing for shoulder movements was normal.

7. Impingement tests were negative bilaterally for restriction of movement or provocation of shoulder symptoms.

8. Workplace restrictions pertaining to the right shoulder were not required.

9. A strengthening and reconditioning program was not required as the assessments up to July 2002 from the physiatrist and WCB exam noted no areas of upper extremity weakness.”

In August 2007, the worker asked for reconsideration of appeal panel Decision No. 01/05 under subsection 60.10 of the Act based on new medical evidence which consisted of four medical reports. The worker’s request for reconsideration was granted and a new hearing was arranged. The following is a brief summary of the four medical reports that were submitted by the worker:

· January 23, 2007 operative report – the postoperative diagnosis was listed as “AC joint arthritis, labral tear posterior shoulder right.

· February 1, 2007 letter – the family physician stated, in part, “This patient suffered a work related injury December 28, 2000. Following this, he suffered other work related injuries which caused him to remain off work since April 2002…The surgical report, in my opinion, proves that this patient had definite reasons to complain. He has to wait yet for surgery to his left shoulder.”

· March 19, 2007 Doctors Progress Report – the family physician reported that presently, the worker’s pain prevented him from reaching his left shoulder with his right arm at the clavicular acromial joint, an area which had been operated upon at the time of his shoulder surgery.

· June 1, 2007 letter – the orthopaedic surgeon reported to the family physician that the worker’s right shoulder was much improved since before surgery but he still had some anterior corocoid area impingement symptoms and this will be addressed with physiotherapy and rehab for a further few months. The left shoulder showed similar presentation with established symptomatic AC joint arthritis and cuff tendinitis.

Prior to the hearing scheduled for July 16, 2008, a worker advisor representing the worker provided the Appeal Commission with further medical information for consideration. The following is a summary of each report:

· June 24, 2005 – x-rays of the cervical spine showed tiny osteophytes arising marginally from the 5, 6 and 7 cervical vertebrae. “There may be minor degenerative narrowing of the C5-6 interspace.” X-rays of the right shoulder showed no bony abnormality. There was no widening of the right acromioclavicular joint. There is no calcific tendonitis and no bony abnormality was suspected.

· October 5, 2005 consultation report –the orthopaedic surgeon acknowledged that the worker suffered work related injuries in December 2000, June 2001, August 2001 and February 2002. He noted that the worker’s main complaint was ongoing neck pain. Other co-morbidities included a right carpal tunnel release about a year ago and the worker was awaiting a similar procedure on the left side. He noted that the worker had not worked at his job for the past three years. The worker had mildly restricted range of motion in his neck and shoulders. All AC joint stress tests were positive. Impingement was positive. The worker was given an injection to the AC joint and the subacromial space right shoulder and was to be seen again in follow-up.

· March 6, 2006 MRI report – the left shoulder revealed mild acromioclavicular joint arthrosis and subchondral cysts within bony labrum. The right shoulder revealed a small posterior labral tear and mild acromioclavicular joint arthrosis.

· March 21, 2006 – the orthopaedic surgeon reported that he would perform surgery in an attempt to improve the worker’s function and to deal with his AC joint arthritis and to manage his interarticular labral tearing.

· August 28, 2006 – the orthopaedic surgeon reported that the worker’s right shoulder remained chronically symptomatic, several years, with pain arising from the AC joint and possibly also his intra-articular abnormalities including labral tear.

· September 17, 2007 – a pain management specialist noted that the worker complained of pain symptoms that began after a work related injury after 2000 which he related to repetitive lifting of heavy objects. The worker reported right sided pain in his upper back regions with radiation into the right hemicranium. His impression of the worker’s condition was chronic mechanical neck pain syndrome, headaches secondary to cervical and temporal myofascial hypertonicity and diverticulitis.

· November 13, 2007 – the orthopaedic surgeon reported that the worker had ongoing bilateral shoulder symptoms as well as neck and posterior shoulder muscles. The right shoulder procedure helped but the worker still had some pain and also on the left side.

An advocate acting on the employer’s behalf, provided the Appeal Commission with a submission dated July 8, 2008 to support her position that the worker was not entitled to wage loss benefits beyond September 11, 2002.

On July 16, 2008, a hearing was convened.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

Subsection 4(2) and Section 37 of the Act provide that where a worker sustains a loss of earning capacity, wage loss benefits are payable. Subsection 39(2) of the Act provides that wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB. Subsection 60(2) (e) of the Act provides that the WCB has exclusive jurisdiction to determine the loss of earning capacity resulting from an accident.

Worker’s Position

The worker was represented by a worker advisor who made a submission on the worker’s behalf. The worker answered questions asked by his representative and the panel.

The worker’s representative confirmed that the worker was asking the panel to consider four claim files in addressing the issue of the worker’s entitlement to wage loss benefits beyond September 11, 2002.

The worker described his duties with the accident employer. He advised that he worked as a pressman, on the punch line and as a forklift operator.

The worker described his workplace accidents. He advised that his employer had a no lost time for injury policy and was told that he had to continue to work. As a result he continued to work and did not initially miss work after having an accident. He was provided with modified duties as a forklift operator after his first injury. He remained at this position until he was laid-off in 2002.

The panel asked the worker’s representative to outline which compensable conditions are in play that would contribute to the worker’s entitlement to wage loss after September 11, 2002 and any medical information in support of this position. The worker advisor provided comments regarding the following conditions:

· AC joint arthritis – the representative stated that this is not related to work

· Labral tear in the posterior of the right shoulder – occurred at the time of the 2000 accident but was overlooked until an MRI scan in 2006. The representative submitted that this condition is compensable and supports entitlement to wage loss benefits. The worker’s representative noted that the worker had surgery for the labral tear of his right shoulder in January 2007.

· Bursectomy and coracoacromial ligament release - the representative commented that given the nature of the mechanism of injury, he was not sure if the ligament was the problem or if it was the labral tear.

· Myofascial pain and chronic pain – the representative noted that in 2004 an orthopedic surgeon reported right shoulder pain that had not subsided. He said this speaks to non-recovery and provides a basis for wage loss benefits after September 11, 2002.

· Abdomen – the representative advised that the worker is not taking the position that abdomen pain would give rise to any restrictions for wage loss.

· Chest issue and rib muscles – the representative noted that this is related to the abdomen injury. He indicated that wage loss does not flow from this injury as the worker can cope with it.

· Left leg and twisting of the hip – the representative is not aware of any ongoing problems.

· Bilateral carpal tunnel syndrome - it was noted that the worker did not file a claim for this condition.

· Left shoulder – the representative submitted that in terms of the mechanism of injury, it would give rise to restrictions and to wage loss benefits. The representative acknowledged that the medical information does not indicate a relationship to work.

In response to a question about the MRP report, the worker’s representative noted that the MRP did not have the MRI scan results which confirmed a labral tear. However, he suggested that the MRP report was supportive of the worker’s position and noted the MRP’s answer to Question 5 which indicates that the worker requires physical work restrictions as a result of his workplace injury.

The worker’s representative stated that he has “… gone through the medical support, as limited as it is on certain of the points , but again we can adopt the worker’s testimony to fill in the gaps for those things.”

The worker’s representative advised that the worker is seeking wage loss from September 11, 2002. He noted that the worker was unable to return to his pre-accident employment, that the worker was laid-off and that light duties were not available.

Employer’s Position

The employer’s position was set out in a written submission from the employer’s advocate.

The employer representative submitted that the evidence is clear that by September 11, 2002 the worker recovered from the effects of his December 2000 compensable injury. She reviewed the medical information on the claim file including recent reports submitted on behalf of the worker. She submitted there is no cause and effect relationship with the diagnosis of a labral tear and the moderate arthritis noted in the surgery conducted seven years following the compensable injury. She also noted that an MRI confirmed the existence of AC joint arthrosis in both shoulders, a degenerative, non-compensable condition. She submitted that the bilateral shoulder difficulties are non-compensable, pre-existing degenerative conditions and are not the result of any work related injury.

Analysis

The issue before the panel was whether the worker is entitled to wage loss benefits beyond September 11, 2002. In addressing this issue, the panel considered evidence regarding four different accidents and several different areas of injury. For this appeal to be successful the panel must find that the worker’s loss of earning capacity, or inability to work, is causally related to a workplace accident and resulting injury. The panel was not able to reach this decision.

The panel considered all the conditions which the worker related to the accidents including the following conditions, their relationship to the workplace and found that none of the conditions provided a basis for extension of wage loss benefits after September 11, 2002:

1.  Abdomen and chest: The panel notes the treating physiatrist’s observations regarding these conditions in reports dated May 27, 2002 and July 2, 2002. In his May report, the physiatrist reported that the worker did not have acute tenderness on palpation along the lower rib cage. In his July report the physiatrist noted that the worker did not have any tenderness in the left upper rectus abdominus region and commented that “His disappearance of symptoms correlates with objective evidence of previous physical findings that correlated with his symptoms.”

The panel also notes that the physiatrist found that the worker was capable of carrying out his modified duties as a forklift operator.

At the hearing the worker’s representative acknowledged that neither of these conditions would give rise to a claim for wage loss beyond September 11, 2002.

2.  CTS: The panel notes that the worker did not submit a claim for CTS to the WCB. In any case, the panel finds that the evidence does not support a connection to the workplace accidents and notes that in July 2002 the worker was examined by a WCB medical advisor who reported that Tinel’s test was negative at each carpal tunnel.

3.  Left Shoulder: An MRI in March 2006 found the worker had mild acromioclavicular joint arthrosis and subchondral cysts within bony labrum. The panel notes that the arthrosis is a bilateral condition, affecting both shoulders and is unable to relate these degenerative conditions to the worker’s employment. The panel also notes that the current complaints of left shoulder pain are attributed to a no-time loss accident in August 2001 when the worker was emptying a debris bin and is unable to relate this condition to wage loss after September 11, 2002.

4. Right Shoulder: An MRI in 2006 found mild acromioclavicular joint arthrosis and a small posterior labral tear. As noted above, the panel notes the arthrosis is a bilateral degenerative condition and is unable to relate this diagnosis to the worker’s employment.

The worker’s representative argued that the labral tear resulted from the 2000 accident and was not diagnosed until 2006. He referred to information documenting the worker’s complaints of right shoulder pain since the accident.

The panel finds, on a balance of probabilities, the labral tear was not caused by the 2000 workplace accident or any of the subsequent workplace accidents. In reaching this conclusion the panel places significant weight upon the medical examinations by the WCB physiotherapy consultant, WCB medical advisors, treating physiatrist and MRP. These examinations occurred between the date of injury and 2004 when the MRP was convened. Reports of the examinations do not disclose findings suggestive of a labral tear injury, despite thorough examination of the shoulder. In this regard the panel notes that a WCB medical advisor examined the worker in July 2002 and found impingement tests were negative bilaterally for restriction of movement or provocation of shoulder symptoms.

The first indication of impingement and loss of strength, which is consistent with a labral tear, is noted in 2005, approximately three years after the worker stopped working and five years after the accident. The panel also notes that labral tears can also be degenerative in nature. The overwhelming evidence is that the labral tear was not caused by the workplace accident.

5. Myofascial Pain: The worker’s representative noted that the worker’s shoulder pain never subsided. He suggested that the worker has a “myofascial pain element” which supports entitlement to wage loss.

The panel has considered all the evidence and finds on a balance of probabilities that the worker does not have a myofascial pain condition which supports entitlement to wage loss benefits beyond September 11, 2002. In making this finding the panel relies upon the opinion of the WCB medial advisor who examined the worker in July 2002. In his report, the medical advisor notes that there was no tenderness over the thoracic spines or parathoracic soft tissues or impairment of thoracic spine function and concluded that to the extent there had been upper thoracic injury, there has been recovery from same. He also noted that this finding was consistent with the findings of the treating physiatrist. The medical advisor found that no restrictions were required.

The panel also relies on the MRP report which makes no findings of a myofascial pain condition but found the worker’s current condition to be chronic global musculoskeletal pain probably due to his deconditioned state. The MRP noted the absence of objective clinical and radiological findings, and stated the worker continues to present with subjective chronic pain. The MRP concluded that the worker had recovered from his injury by September 11, 2002. The panel therefore concludes on a balance of probabilities, that the worker’s current myofascial pain condition is not causally related to the compensable injury.

The worker’s appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of August, 2008