The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The issue before the panel is the worker’s ongoing entitlement to wage loss and medical aid benefits beyond May 2, 2007. In our adjudication of this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations, and policies established by the WCB’s Board of Directors.

Subsection 39(2) of the Act provides that a worker is entitled to wage loss benefits as long as she continues to have a loss of earning capacity that is causally related to her compensable injury. Subsection 27 (1) provides that medical aid shall be provided to the worker following a compensable injury as long as required, to treat the effects of the compensable injury.

The worker’s position:

The worker and her worker advisor put forward the position that she had not recovered from her January 2006 workplace injury, at the time that her benefits were terminated on May 2, 2007. The worker provided evidence as to her general kitchen job duties with the employer and how she became hurt while on the job. She attributed her work injury to the repetitive nature of a number of her job duties, rather than a specific incident. The advisor suggested that the worker was first provided with a diagnosis of right rotator cuff tendonitis following the injury, and that a recent report (in November 2008) of an occupational health physician suggested that the worker had a work-related cumulative injury. His opinion was that the worker suffered a muscular injury of a number of structures around the shoulder that has resulted in altered shoulder function, hand grip, and forearm strength. The worker advisor referenced a number of medical reports covering the time period of the claim and beyond, stating that the worker’s reported symptoms were consistent throughout, and extended beyond the termination date of the worker’s claim.

As to the video surveillance of the worker in early 2007, the worker advisor suggested that the duties described did not show an individual capable of her regular pre-accident kitchen duties. Accordingly, their position was that the worker was entitled to both wage loss benefits and medical aid benefits beyond the termination date of her benefits on May 2, 2007.

Analysis:

For the worker’s appeal to be successful, we would have to find that the worker’s reported right shoulder difficulties after May 2, 2007, continued to be causally related to the workplace injury, such that medical aid was still required, and that the worker continued to suffer a loss of earning capacity after that date. The panel is able to make these findings, on a balance of probabilities, and, in particular, finds that the worker continued to have ongoing muscular/myofascial pain and loss of function in the right upper extremity. The panel further finds that the worker was unable to return to her regular kitchen duties as of May 2, 2007, and accordingly suffered a loss of earning capacity as well.

In coming to our decision, the panel relied upon the following evidence:

• As noted in the background, the worker was seen and examined by a number of physicians and specialists following her January 31, 2006 workplace injury through to 2009. Over that period of time, a number of medical diagnoses were proposed, tested, and ultimately rejected. These differential diagnoses started with rotator cuff tendinitis, and later evolved to include: frozen shoulder, a right C7 cervical radiculopathy, suspicions of a neuropathic source, a possible ulnar nerve involvement, chronic pain syndrome, thoracic outlet syndrome with cervical facet dysfunction, myofascial pain in a number of muscles in the right shoulder girdle area, and a muscle strain which had become chronic due to the lack of treatment.
• The medical diagnostic picture was further clouded by medical reports also indicating non-organic complaints, exaggeration of symptoms by the worker, and abnormal pain presentation.
• Notwithstanding the inability of her treating physicians to confirm a specific diagnosis, it is apparent to the panel that the worker reported - and the physicians found - a continuity of right upper extremity symptoms. In February 2009, when this matter was being considered by Review Office, its sports medicine consultant reviewed the file in its entirety. His impression was that the worker’s current diagnosis at the time of his review was a muscular strain of the right arm, the right trapezium, and the right rotator cuff, and that this diagnosis was causally related to the workplace injury of January 2006. However, he felt that there was insufficient medical evidence to support that the worker’s right forearm difficulties were related to her right shoulder compensable injury.
• During the hearing, the panel heard evidence regarding additional treatment provided to the worker following the termination of her claim. Following the hearing, the panel obtained medical reports from a chiropractor and physiotherapist who had treated the worker. The panel notes that the chiropractor treated the worker steadily from April 19, 2007 to June 26, 2007, and then once on September 23, 2008. The earlier group of treatments cover the period preceding and following the May 2, 2007 determination that the worker had recovered from her workplace injury. The chiropractor’s report of September 11, 2009 notes a number of changing diagnoses, none of which were treated successfully. He does note, however, that the worker “complained consistently of right sided neck, shoulder, arm, and hand/pain weakness. She indicated that the pain interfered with her ability to perform normal (sic).” He goes on to state that he did not find any demonstrable improvement in the worker’s condition during the period he treated her. The chiropractor also states that during his period of sustained treatment (to June 26, 2007), the worker was not in any condition to return to her job performing the same or similar tasks.
• The physiotherapist’s report to the panel, dated September 20, 2009, details treatment provided to the worker starting July 10, 2009. Her treatment targeted significant postural changes involving the worker’s right shoulder, and notes similar pain complaints to those noted throughout the claim, namely burning pain from the shoulder down to the elbow and down to the forearm, and into the hand and two fingers. The physiotherapist notes that treatment targeting muscles in the shoulder girdle has increased range of motion, reduction in intensity of pain, and improvement in her condition.
• It is the panel’s view that the recent reports essentially corroborate a continuity of right upper extremity symptoms beyond May 2007, the later findings of the occupational health physician in November 2008, and the conclusions reached by the WCB sports medicine consultant in February 2009. Based on our review and consideration of the medical information on the file, the panel therefore agrees with and adopts the diagnoses proposed by the WCB’s sports medicine consultant to Review Office in his report of February 2009. He notes the continuity of symptoms in the worker’s right shoulder and describes the worker as having a repetitive motion disorder. He accepts the occupational health physician’s diagnosis of a muscular strain of the right arm, the right trapezius, right rotator cuff and right forearm extensors. He notes there is no evidence that these conditions were present prior to the workplace claim date, and concludes there is a probable causal relationship between the worker’s ongoing (post 2007) signs and symptoms and her compensable injury. It is therefore the panel’s finding that the worker’s compensable injury extended beyond May 2, 2007, thus entitling the worker to appropriate medical aid benefits beyond that date.
• As to the worker’s work capabilities, the panel notes that the worker’s treating chiropractor found her unable to perform her regular work duties during his treatment regimen which stopped on June 26, 2007, only as a consequence of the termination of the worker’s claim (and not because of recovery). While the earlier adjudications of this file place some reliance on the video surveillance of the worker in terminating her benefits, the panel does not find the video surveillance to be determinative of the matter of wage loss entitlement. The panel notes that the adjudication of this file has been confounded to some extent by concerns over symptom magnification and abnormal pain behaviours; however, there is, at the root of this claim, a compensable injury that continued beyond May 2, 2007 and continues to be apparent in the physiotherapist’s treatments in mid-2009. The panel is of the view that the surveillance does show the worker doing things beyond what she had advised medical practitioners, but it does not demonstrate or prove a capacity to work her regular kitchen duties with her employer. The panel is not prepared, on the basis of this evidence, to find that the worker was able to perform her pre-accident duties beyond May 2, 2007. In particular, the panel finds that the surveillance doesn't provide insight into the worker's ability to resume pre-accident employment on an unrestricted full time basis.
• The panel relies on the chiropractor’s findings and opinions as to the worker’s work capacity status in mid-2007, and on similar findings by the occupational health physician who examined her in November 2008 and the physiotherapist who provided treatment in 2009. As an aside, the panel notes that the February 9, 2009 WCB sports medicine consultant report suggests he is unable to establish restrictions regarding the worker’s occupational disability, but his assessment is not based on “hard” findings from the medical reports he has reviewed. His analysis in fact simply demonstrates a number of deficiencies in the reports he has read, and suggests that “a more definitive answer to this question might be provided by comparing the results of a functional capacity evaluation with a job demands analysis of her current occupation.” In the panel’s view, his assessment does not contradict the reports just listed; it is ultimately neutral with respect to the worker’s capabilities of performing work.

Based on this analysis, the panel finds on a balance of probabilities that the worker continued to suffer the effects of her compensable injury to her right upper extremity and in particular a muscular strain-type injury to the right shoulder area and is entitled to wage loss and medical aid benefits beyond May 2, 2007. Accordingly, the worker’s appeal is accepted.