The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by Review Office dated February 19, 2008 which determined that she was not entitled to further compensation benefits in relation to an injury suffered at work on November 4, 2007. A hearing was held on September 3, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Background

During the course of her employment activities as a licensed practical nurse on November 4, 2007, the worker reported that she injured her left lower ribs, neck and shoulder from the following event: “I was attending a patient…as I went to leave the room I rammed into the traction bars on the bed and it hit me in the lower left side of the rib area. I bent in 2 and the way I twisted from the pain caused something in my neck and left shoulder - also I now have numbing and tingling to both arms and hands and I am getting weakness in my right hand.”

When speaking with her case manager on November 13, 2007, the worker noted that she was at the left side of a patient’s bedside and when she went to turn, she twisted something in her neck and she doubled over. The worker suspected that she injured her rib underneath her breast. The worker reported tingling and numbness with her hands and thought it was coming from her neck injury. The worker reported that she had a bit of carpal tunnel syndrome (“CTS”) in her right hand to begin with.

Initial medical reports on file indicated that the worker sought medical treatment on November 5, 2007. On November 14, 2007, the physician noted that the worker was injured on November 4, 2007 with complaints of pain to her chest beneath the left breast. She also noticed some tingling to her hands. He assessed the worker with contusion to the chest wall/soft tissue injury. He said it would be 2 to 3 weeks before the worker would be able to return to work.

On November 21, 2007, a CT scan of the cervical spine was read as follows, “Degenerative disc disease. There is a gas collection in the right neural foramina on the right at C5-6, due to degenerative disc disease. This is encroaching onto the neuroforamena and abutting the exited L5 nerve root. This could be significant, clinical correlation is recommended.”

On November 29, 2007, the case manager advised the worker that she accepted the November 4 accident based on the diagnosis of chest wall contusion/strain based on the medical information on file.

In a follow up report dated December 7, 2007, the treating physician reported that the worker’s chest wall was less tender but she still had burning and tingling in both hands. The physician opined that the worker may have twisted her neck at the time of the WCB injury and that her symptoms were clearly related to her original WCB injury as she had no symptoms prior to this injury.

A narrative report was received from a neurologist dated January 10, 2008. The consultant reported that he first saw the worker in April 1989 for right CTS symptoms that were confirmed by nerve conduction studies. He noted that the worker never had right carpal tunnel surgery, and over the years, she had intermittent right hand numbness/tingling sensation but without any burning. The worker reported that some time after her chest injury, she developed a burning sensation around the right shoulder blade. She did not describe any radicular symptoms from her cervical spine. The neurologist concluded that the worker’s right hand paraesthesia was due to CTS and he could not confirm the worker had left CTS. He was unable to find any neurological cause for the worker’s apparent burning around the shoulder blade and there were no clinical signs to suggest any cervical radiculopathy. He said the right hand paraesthesia had nothing to do with the worker’s cervical spine.

The worker filed a new claim with the WCB for increased right wrist symptoms (CTS) which she related to the injury that occurred on November 4, 2007 and to her job duties as a nurse.

On January 23, 2008, a WCB medical advisor was asked to review the file and provide an opinion as to whether there was a relationship between the worker’s CTS and the November 4, 2007 incident. On February 2, 2008, the medical advisor stated that he could not relate the worker’s development or exacerbation of CTS to the reported workplace incident of November 4, 2007. In a decision dated February 7, 2008, the worker was advised that her claim for compensation was denied as the case manager was unable to relate her CTS condition to the injury of November 4, 2007 or to her work duties as a nurse.

On February 8, 2008, the attending physician reported that the worker had ongoing neck and upper back and right shoulder pain related to “twisting” at the time of her WCB injury. The diagnosis rendered was a soft tissue right shoulder injury. With regard to the worker’s CTS condition, the physician stated that since the worker did not have significant carpal tunnel symptoms since her original 1989 problem and had been able to perform her nursing duties competently for 11 years, this was clearly a “new” work related problem.

An MRI of the cervical spine dated March 7, 2008 read as follows: “Mild diffuse disc osteophyte bulging at C5-6 and C6-7 with foraminal narrowing on the right at C5-6.”

The worker was examined by a WCB medical advisor on April 14, 2008. The medical advisor outlined the following opinion based on history and physical examination findings:

· the worker presented with resolved left chest wall contusion and ongoing evidence of right shoulder girdle myofascial pain complaints.

· neurological examination failed to reveal evidence of cervical radiculopathy or of other nerve root impingement in the upper extremities. There was ongoing evidence of right CTS which predated the compensable injury.

· the worker’s current status was directly related to her compensable November 4, 2007 workplace incident, “That is the twisting motion that the claimant underwent as a result of striking her chest caused the current symptoms which appear to be myofascial in nature about the right shoulder girdle musculature.”

Arrangements were made for the worker to see a physical medicine and rehabilitation specialist in regard to myofascial pain about the right shoulder girdle musculature.

The worker was seen by a second neurologist on April 15, 2008. The diagnoses rendered were right CTS, probable left CTS negative to EMG and nerve conduction studies and no other neurological disorder.

On May 6, 2008, the worker underwent non-compensable, right CTS release surgery.

On May 27, 2008, a physical medicine and rehabilitation consultant diagnosed the worker with: myofascial neck and shoulder pain that was mild to moderate in severity; CTS, post surgical on the right side; and a temporary, partial workplace disability.

A report received from the attending physician dated June 12, 2008 indicated that the worker had right thumb locking since her accident on November 4, 2007. The physician indicated that in view of the worker’s ongoing neck and shoulder pain, the worker was compensating with the left side and now required some physiotherapy to her left shoulder.

On June 25, 2008 the attending physician asked the WCB to decrease the worker’s physiotherapy treatments from three times a week to twice a week as the worker was experiencing symptoms of nausea, fatigue, increased migraine headaches, etc. On July 7, 2008, the worker was advised that the WCB was adjusting her reconditioning program to a 2 day per week program and that it was anticipated that she would commence a return to work program on August 5, 2008.

In a progress report dated July 16, 2008, the attending physician questioned whether the worker would be ready to return to work in August as she was having difficulty tolerating physiotherapy.

A WCB physiotherapy consultant reviewed the file on July 28, 2008. He noted that the worker had good functional range of motion and strength of the neck and shoulder and that she was fit to return to modified duties according to the treating physiotherapist. He suggested that the worker would require 4 more weeks of therapy with a focus on strengthening.

In early August 2008, the worker advised the WCB that she felt something pop in her neck while lifting a crate in physiotherapy which caused her a lot of pain and she was unable to sleep the night before.

On August 1, 2008, the attending physician noted that the worker hurt herself at physiotherapy while trying to lift a crate down. Objectively, the worker had pain with extension of arm against resistance and tender to triceps. Abduction of shoulder was limited to 90 degrees, there was tenderness to the right trapezius and right insertion of paraspinals to occiput. There was tenderness to superior right trapezius and less so to the left side. Flexion was limited to 20 degrees and extension was only to 10 degrees, rotation was markedly decreased to about 25 degrees to the right side, and 40 degrees to the left side.

On August 7, 2008, the treating physiotherapist indicated that the worker advised him last week that she lifted a weight out of a basket she was working on and injured her arm. It was a 10 lb. weight which was within the weights she had been using. At the next treatment, the worker did complain of some pain but her treatments and exercises went well. Restrictions for the worker were outlined to avoid sustained or lifting above shoulder height and no lifting over 20 lbs.

On August 8, 2008, a WCB medical advisor spoke to the attending physician and it was agreed that the worker could return to some form of workplace activities if there were reduced hours and some restrictions.

The WCB advised the worker on August 11, 2008 that she was fit for modified duties with temporary restrictions to avoid lifting over 10 lbs., above shoulder work and to avoid abnormal neck positions. The work hours were to start at 2 hours per shift twice a week and increase 2 hours a shift every two weeks.

On August 12, 2008, the attending physician reported that the worker was adamant that she could not go back to work. The worker felt that the injury which occurred at physiotherapy set her back. She had ongoing neck pain. The physician recommended that the worker start sedentary activities on September 1, 2008. He recommended that the worker restart massage therapy, continue with physiotherapy twice weekly, a re-evaluation by the physical medicine specialist. He stated the worker should avoid looking up or down too long such as charting, or bending down or prolonged dealing with clients and to avoid being put in the position where she would possibly have to catch a patient.

By way of letter dated August 27, 2008, the worker was provided with a work schedule for her return to work starting September 2, 2008. It was indicated that between October 13 to October 24, 2008 the worker would be working 8 hours per shift.

On September 17, 2008, the worker was reassessed by the WCB physical medicine and rehabilitation consultant. He found no objective findings to substantiate the alleged recent injury in physiotherapy. He said there was restricted range of motion (voluntary) and hyper-reactivity to light touch over the areas of symptoms which was not typical of an injury that may have occurred with the incident that the worker described. He found no medical rationale to support the worker’s contention that she could not handle two hour shifts. He encouraged the worker to continue with the RTW process.

Progress reports were received from the treating physician dated September 18, 2008 and September 25, 2008 regarding ongoing neck and shoulder complaints.

On September 26, 2008, a WCB case manager advised the worker that based on the following findings, she would be paid wage loss benefits to the end of her present return to work program which was October 24, 2008:

· neurological examination and test results showing no structural or nerve damage from the work incident;

· assessments to date confirm a diagnosis of myofascial neck and shoulder pain;

· the September 17, 2008 opinion by the physical medicine and rehabilitation specialist that the previously outlined return to work program and rehabilitation program should continue.

On October 9, 2008, another physician reported that the worker sustained an injury on October 2, 2008 when the worker tried to prevent a patient from falling and the weight of the patient was on her right arm. Shortly afterwards the worker developed pain in her upper back, neck and across the shoulder. Following his examination, the worker was assessed with a possible strained upper trapezius and paravertebral neck muscles. On October 16, 2008, the physician recommended that the worker return to 2 hours daily work for 2 days/week starting October 27, 2008.

In a letter dated October 31, 2008, a case management supervisor wrote to the worker to confirm that she would receive a one week extension of wage loss benefits to November 1, 2008. The additional week was based on medical evidence that supported the worker sustained a brief aggravation of her compensable injury in early October 2008 and was totally disabled between October 9 and 15, 2008, with a return to work authorized for October 16, 2008. The worker was further advised that the decision made on September 26, 2008 was appropriate and was supported by the objective evidence.

In a memo to file dated November 5, 2008, the case management supervisor documented that the worker’s new accident claim would not have been accepted due to inconsistencies in reporting the accident to the employer, the delay in seeking medical attention, etc. He noted that the decision to extend the worker’s wage loss benefits by one week was largely done so in appreciation of the worker’s financial situation.

On December 23, 2008 a worker advisor requested reconsideration of the decisions made by primary adjudication dated September 26, 2008 and October 31, 2008. The worker advisor submitted a report from the attending physician dated December 17, 2008 to support the position that there was clinical evidence of ongoing shoulder and neck symptoms related to the November 4, 2007 compensable injury. It was also contended that the medical report confirmed that the worker was not capable of returning to her employment as a LPN and that she required additional treatment. In further correspondence dated January 8, 2009, the worker advisor submitted additional information concerning the original November 4, 2007 injury and the July 31, 2008 and October 7, 2008 exacerbations.

In a letter dated January 13, 2009, the case manager advised the worker that the December 17, 2008 report had been reviewed by a WCB medical advisor who opined that the report did not offer any new objective medical information to change his previous medical opinion. Based on this opinion, it was still the WCB’s position that the worker had recovered from her work place injury and was about to resume her previous employment duties and schedule.

On January 20, 2009, the worker advisor appealed the case manager’s decision dated January 13, 2009 to Review Office. On February 4, 2009 the employer’s representative provided Review Office with a submission outlining its position that the worker had recovered from her workplace injury and any ongoing difficulties were not due to her compensable injury.

An independent medical examination of the worker was conducted by a physical medicine and rehabilitation consultant on February 4, 2009. In his report dated February 12, 2009, the consultant indicated that in terms of her first injury “no significant physical or structural injury would be expected to have occurred with the presented injury.” He noted that

“There have been a reported additional two further injuries…However, neither of these appeared to suggest any significant physical or structural injury as having been received.”

The consultant noted that the worker was not doing any current physical activity and that deconditioning would be expected. In his view, there were limited objective findings and “no objective test is available to confirm the subjective complaints.” He also observed that the worker should be able to participate in a Functional Capacity Evaluation but warned that “the results may be affected by symptom related self-limitation.”

On February 19, 2009 Review Office determined that the worker was not entitled to further benefits. After considering the file information which included the mechanism of injury, the various medical reports on file, the complaints made by the worker regarding chest pain, tingling in both hands, neck, shoulder and upper back complaints, Review Office was of the opinion that the worker had no further entitlement to any benefits provided for by section 37 of The Workers Compensation Act (the “Act”). It felt that the worker had been adequately compensated for the effects of her accident.

On April 21, 2009, the worker disagreed with Review Office’s decision and an appeal was filed with the Appeal Commission. A hearing was held on September 3, 2009 to consider the worker’s appeal.

The Oral Hearing

An oral hearing was held on September 3, 2009.

During the course of the oral hearing, the worker outlined the nature of her original injury on November 4, 2007. She indicated that she had begun to leave a patient's room and was moving very quickly when she hit the traction bars on the patient's bed. She suggested that she began to feel a pain in her neck and shoulder that evening as a consequence of the twisting and impact associated with her injury.

The worker expressed concern with the manner in which her file, her physiotherapy and her return to work was managed. She expressed the view that it took too long for her to get assistance in rehabilitating herself from the injuries. She suggested that once her physiotherapy and work hardening began, the program was too aggressive:

“It was only on June 2 that an active reconditioning program was initiated. I actually commenced on the 9th of [June] 2008 three times weekly. I did not progress as expected for two reasons. My tolerance and my endurance became an issue…The therapies were not coordinated or approved by WCB in a timely manner. The lapses in therapy hugely impacted my recovery.”

The worked also took the position that her return to work plan was accelerated too quickly.

The worker described subsequent incidents which she believed contributed to her ongoing difficulties in returning to work. One of these incidents took place on July 31, 2008 while she was at her physiotherapist. The other incident took place in October of 2008 when she was participating in her graduated return to work program.

In terms of the incident at work on October 7, 2008, the worker indicated that she and another aid were assisting a patient who could not ambulate when the patient “basically buckled”, putting additional pressure on the worker's right arm and shoulder. The worker explained why no incident report was filed on the date of the injury. She addressed the initial confusion surrounding the reporting of the injury as October 2, 2008 rather than October 7, 2008.

In making the argument that she had an ongoing right to benefits, the worker placed heavy reliance on the opinion of her physician:

“My physician has never wavered from November 4, 2007 to my current condition today.”

She noted as well that the April 14, 2008 opinion from the WCB medical advisor had confirmed a diagnosis of myofascial pain. The worker observed that the WCB medical advisor had related her difficulties to the workplace incident.

The worker submitted that it was her strong desire to return to work. She indicated “my friends, my patients, I miss all of it but I am not ready . . .”

The employer's advocate provided a written argument which was marked as Exhibit 1. He focused on the assertion that the worker's current difficulties were not related to any workplace injury.

Reasons

Chairperson Williams and Commissioner Zirk:

The Legislative Regime

Subsection 4(1) of the Act provides that:

Where . . . personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board…

Section 37 provides for the payment of wage loss benefits and medical aid for any loss of earning capacity related to the accident.

Overview

The worker alleges that she had an ongoing loss of earning capacity after November 1, 2008 related to her workplace accidents on November 4, 2007 and October 7, 2008 combined with an incident at her physiotherapist on July 31, 2008 which occurred while she was undergoing treatment for her workplace injuries.

As a consequence of her workplace accident of November 4, 2007, the worker suffered compensable injuries which resulted in a loss of earning capacity. We find that the worker suffered both a left chest wall contusion and right shoulder myofascial pain.

While the worker identifies additional incidents on July 31, 2008 at her physiotherapist and October 7, 2008 at her workplace, it is our view, based on a balance of probabilities, that as of November 1, 2008, there was no loss of earning capacity related to an accident arising out of and in the course of employment.

Key Findings

In making the determination that there is no ongoing loss of earning capacity related to an accident arising out of and in the course of employment, we have considered the record as a whole including both the written documentation and the oral hearing.

Based on a balance of probabilities, we make the following findings:

•  The worker suffered a workplace injury on November 4, 2007.

• No neurological injury resulted from the accident. In making this finding, we rely on the neurologist report dated January 10, 2008 which failed to reveal evidence of cervical radiculopathy or of other nerve root impingement in the upper extremities. This conclusion also is supported by the second neurologist's report dated April 15, 2008. In the oral proceeding, the worker did not appear to contest this conclusion.

• As a consequence of her workplace injury, the worker suffered both a chest wall contusion and a right shoulder injury. In making this determination, we rely on the worker’s November 2007 reports of her accident and subsequent injuries. In particular, we note her report to her treating physician that she was suffering upper back pain as a result of the twisting experienced at the time of her injury. We also rely upon the April 14, 2008 findings by the WCB medical advisor that:

“The worker’s right shoulder pain was directly related to her compensable November 4, 2007 workplace incident, “That is the twisting motion that the claimant underwent as a result of striking her chest caused the current symptoms which appear to be myofascial in nature about the right shoulder girdle musculature.”

•  By May of 2007, the extent of the myofascial injury was mild to moderate. In making this finding, we rely upon the conclusion of the physical medicine and rehabilitation consultant who diagnosed the worker with myofascial neck and shoulder pain that was mild to moderate in severity and a temporary, partial workplace disability.

• By late July, the worker was demonstrating good functional range of motion and strength of the neck and shoulder as confirmed by her treating physiotherapist.

• For the purpose of our determination, we are prepared to accept, without making an express finding, that an incident took place at the worker's physiotherapist on July 31, 2008. Given that the incident took place while the patient was seeking treatment for her workplace related injury, we accept that there would be a causal relationship between any injury that might result from the July 31, 2008 injury and the November, 2007 workplace accident;

• Accepting without deciding that the worker may have suffered a mild aggravation of her original workplace injury during the July 31, 2008 incident at the physiotherapist, we find that by September 17, 2008, the worker had recovered from any temporary aggravation that may have occurred.

In making this determination, we accept as compelling and place heavy weight on the September 17, 2008 report of the WCB physical medicine and rehabilitation consultant.

The consultant found no objective findings to substantiate the alleged recent injury in physiotherapy. He said there was restricted range of motion (voluntary) and hyper-reactivity to light touch over the areas of symptoms which was not typical of an injury that may have occurred with the incident that the worker described. He found no medical rationale to support the worker’s contention that she could not handle two hour shifts. He encouraged the worker to continue with the RTW process.

We prefer the opinion of the consultant to the views expressed by the worker or her treating physician. In making this determination, we note that the physical medicine and rehabilitation consultant had the opportunity to examine the patient both in May and September of 2008 and that his report was carefully presented and thoughtful. In our view, he was able to present a more objective view of the patient's condition at this point in time than either she or her treating physician were able to offer at that point in time.

Subsequent analysis by the physical medicine and rehabilitation consultant who conducted the independent medical examination appear to echo the observation in the September 17, 2008 report that it was difficult to identify objective findings to support the subjective complaints.

• We are prepared to accept without deciding that the worker suffered a mild aggravation of her injury on October 7, 2008;

• By November 1, 2008, the worker had recovered from the effects of the workplace accident of November 4, 2007 and the alleged incidents of July 31, 2008 and October 7, 2008 such that there was no ongoing loss of earning capacity that could be related to these incidents.

In making these determinations, we place some weight on the fact that the worker's reported signs and symptoms as of October 28, 2008 appear to be improved from what they were on September 25, 2008. Based on a balance of probabilities, this suggests that any aggravation that may have occurred was resolved by late October.

The treating physician argues in his report of December 2008 that there is an ongoing loss of earning capacity and that the worker was not then able to work. We contrast his report with the opinion of the other physician on October 16, 2008 that the worker could return to work on a graduated basis by October 27, 2008. The other physician's report of October 16, 2008 suggests that any injury that might have occurred in October, 2008 was likely merely a mild aggravation. We observe that the treating physician's December 17, 2008 report was reviewed by a WCB medical advisor who opined that the report did not offer any new objective medical information to change his previous medical opinion.

We also note the February 2009 examination of the physical medicine and rehabilitation consultant which found that no significant physical or structural injury would be expected to have occurred with the first injury or with the alleged second and third injuries. He concluded that “no objective test is available to confirm the subjective complaints.”

These findings, when coupled with the September 17, 2008 report from the other physical medicine and rehabilitation consultant, raise the concern that the worker's subjective complaints during the time period between September 2008 and February 2009 do not appear to be borne out by the examinations of the expert consultants on the file.

Based on a balance of probabilities, we expressly reject the conclusion of the treating physician that there was an ongoing loss of earning capacity beyond November 1, 2008 as a result of the workplace injury.

Conclusion

Based on balance of probabilities, we find that as of November 1, 2008 there was no ongoing loss of earning capacity related to the workplace accident, or entitlement to any other further benefits.

The appeal is denied.

Panel Members

B. Williams, Presiding Officer
D. Zirk, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 2nd day of November, 2009