Decision #53/11 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for an injury to the left side of his body which occurred on April 4, 2003 when he fell repeatedly on ice. The worker's claim for compensation was accepted and wage loss benefits were paid to September 23, 2003 when it was determined that he was fit to perform his pre-accident duties. The worker subsequently claimed that he developed chronic myofascial pain as a result of his compensable injury and was entitled to benefits beyond September 23, 2003. His claim for further benefits was denied by Review Office on September 21, 2009. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on March 8, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 23, 2003 in relation to the compensable injury of April 4, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond September 23, 2003 in relation to the compensable injury of April 4, 2003.

Decision: Unanimous

Background

On April 4, 2003, the worker filed a claim with the WCB for injury to the left side of his body which occurred when he slipped, got up and fell on ice four times in succession. The worker sought medical treatment and was diagnosed with a soft tissue injury to his left elbow. The worker continued working but aggravated his elbow on April 9, 2003, while cranking a dolly. On April 15, 2003 the worker's family physician reported the worker had a left shoulder strain, left lateral epicondylitis and ulnar neuropathy, not yet diagnosed.

On April 29, 2003, the worker attended a physiotherapist with complaints of pain in the inner and outer aspect of his left elbow, pain down the forearm, and occasional numbness that went to his left hand, mostly the thumb, and limited use of the left hand/arm. The diagnosis was medial and lateral epicondylitis.

On June 17, 2003, the family physician added a new diagnosis of suspected rotator cuff tear.

The worker underwent nerve conduction studies on July 14, 2003. The results did not demonstrate any neurogenic abnormality through the brachial plexus, more proximally or at the elbow; conduction velocities and amplitudes were normal. There was some evidence of a very mild left carpal tunnel syndrome.

At a WCB call in examination on August 11, 2003, the worker reported that on the day of accident, he had slipped and fallen three times in one minute. He recalled landing primarily on the left side of his upper back, over the upper posterior shoulder rather than on an outstretched arm. The worker reported that an incident happened while he had been cranking the dolly of a semi, causing an acute jerk to the left upper posterior shoulder region that threw him a few feet. He experienced acute pain involving the left side of his neck, left upper posterior shoulder, left posterior arm and forearm.

Following the examination, the WCB medical advisor reported that his assessment did not indicate a probable medical diagnosis to account for the worker's overall presentation. He reported that his examination findings were not suggestive of a primary process at the left shoulder including the subacromial structures. It was felt that the left lateral epicondylitis had essentially resolved. With regard to the cervical spine, the basis for the current limitations of the cervical spine mobility versus the reported presence of good function cervical mobility and cervical loading was unknown. The medical advisor indicated there was no evidence of a left ulnar neuropathy and, in any case, it would not have resulted from the mechanism of the April 4, 2003 accident.

On September 12, 2003, an MRI of the cervical spine was taken. The results showed no disc herniation, spinal stenosis, cord or root compression at any imaged level.

In a decision dated September 24, 2003, the WCB advised the worker that it was felt that he was fit to return to his regular duties and that wage loss benefits would be paid to September 23, 2003 inclusive.

On September 24, 2003, the worker advised his WCB case manager that he would return to work but made it clear that he remained very concerned about the levels of pain in his shoulder.

On March 22, 2004, the worker reported that he fell out of the back of a trailer, landing on his left shoulder and head. A claim was filed with the WCB. On April 23, 2004, the worker advised a WCB case manager that his left back and shoulder were very swollen. The worker indicated that he had not recovered from his 2003 shoulder injury and had to take pain killers to manage the pain.

At a WCB call in examination on June 17, 2004, a WCB physical medicine and rehabilitation consultant noted that the current examination appeared similar to a prior medical advisor's examination with some soft tissue sensitivity about the scapular girdle. He said there was no definite pathoanatomic diagnosis identified to explain this sensitivity.

On October 1, 2004, the worker was advised that he would be paid wage loss benefits to September 19, 2004 inclusive as it was considered that he no longer had a loss of earning capacity related to the March 22, 2004 accident.

On January 11, 2005, the worker told his WCB case manager that he has not recovered from his 2003 injury. He noted that the source of his symptoms was his left shoulder.

On June 30, 2005, the worker was assessed by a physical medicine and rehabilitation specialist. The specialist noted that the worker had pain over the left side of his body since April 2003 when he had a combination of incidents affecting the left side. He noted that the worker developed a significant degree of sensitivity affecting his entire left side. His left arm was the most affected and he had myofascial pain signs. There were myofascial trigger points over the left upper extremity, neck, torso and leg.

The worker was seen by a pain management specialist on April 5, 2007. It was his impression that the worker had been suffering with a chronic mechanical neck pain syndrome with associated myofascial hypertonicity involving the paracervical muscles on the left side.

On April 21, 2009, a worker advisor submitted to the WCB a medical report from the family physician dated April 12, 2009. In the report, the family physician provided the following opinions:

  1. In my medical opinion having assessed and treated the above named person I believe [the worker] suffers from chronic myofascial pain syndrome involving left paracervical musculature as well as left scapular, shoulder, and mechanical cervical vertebral dysfunction.
  2. It is also my medical opinion that his symptoms were caused or arose as a direct result of his workplace injuries as he had no prior history of any similar symptoms. [The worker] was previously gainfully employed however I would agree that he returned to the workplace prematurely before full healing of his initial injury had transpired and as such any and all subsequent injuries continued to aggravate and prolong his subsequent injuries as documented.

The file was referred to a WCB medical advisor to provide an opinion. In a response dated June 22, 2009, the medical advisor noted that the first mention of cervical spine symptoms was in a June 17, 2003 doctor's progress report. These symptoms were first noted more than two months post injury and as such, were unlikely to be causally related to the compensable injury. Reference was made to the July 2003 nerve conduction studies to support that there was no brachial plexus injury occurring at the time of the compensable injury. It was noted that at the call in examination on August 11, 2003, four months post compensable injury, there was an absence of a myofascial syndrome. The medical advisor concluded that there was no evidence that the myofascial syndrome from which the worker was now reportedly suffering was related to the April 4, 2003 compensable injury.

Based on the medical advisor's opinion dated June 22, 2009, the worker was advised on June 23, 2009 that the WCB had no further responsibility in this matter. On July 7, 2009, the worker advisor appealed the decision to Review Office.

On September 21, 2009, Review Office determined that there was no entitlement to wage loss benefits beyond September 23, 2003. Based on the findings of the WCB examinations in August 2003 and June 2004, Review Office felt there was insufficient evidence to support that the findings provided by the physiatrist and the pain clinic physician were causally related to the April 4, 2003 compensable injury. Review Office also indicated that there was insufficient medical evidence to support that the worker injured his cervical spine or his torso or leg at the time of the April 4, 2003 incident. It concluded that the evidence did not support a causal relationship between the worker's current difficulties and the compensable injury. On May 21, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker’s submission:

The worker was represented by a worker advisor at the hearing. It was submitted on behalf of the worker that prior to the April 4, 2003 incident, he had no difficulties with his left arm, shoulder or neck. On April 4, 2003, he slipped and fell on ice repeatedly on his left side. On April 9, 2003, the worker was cranking a dolly when the crank arm caused an acute jerk of his left shoulder. Following these incidents, he was diagnosed with a left forearm strain and left lateral epicondylitis.

On June 26, 2004, the worker's left neck, shoulder and arm symptoms were diagnosed as muscular pain. On April 7, 2005, he was diagnosed with chronic mechanical neck pain syndrome with associated myofascial hypertonicity involving the paracervical muscles on the left side. In an April 12, 2009 report, the family physician stated that the worker suffered from chronic myofascial pain syndrome involving the left paracervical musculature, as well as left scapular shoulder and mechanical cervical vertebra dysfunction.

It was submitted that the worker never fully recovered from the April 4 and 9, 2003 injuries. The medical reports identified ongoing symptoms in the same anatomical areas. The April 12, 2009 medical report supported a causal relationship between the worker's current symptoms and the 2003 injuries. It was therefore submitted that the WCB should accept responsibility beyond September 23, 2003.

Analysis:

To find that the worker is entitled to benefits beyond September 23, 2003, we must find on a balance of probabilities that after that date, the worker continued to suffer a loss of earning capacity as a result of the injuries he sustained in relation to the workplace injury of April 4, 2003. We are unable to make that finding. In the panel’s opinion, by September 23, 2003, the worker had recovered from the injury to his left elbow/forearm and the ongoing left sided shoulder and neck pain which he experiences is not related to the April 2003 work related injury.

In coming to our decision, the panel placed reliance on the following:

  • The initial medical reports report injury to the left elbow. The walk-in clinic physician who examined the worker on April 10, 2003 gave a diagnosis of soft tissue injury to the left elbow. On April 15, 2003, the worker's family physician prescribed a brace for the worker's "left forearm strain and lateral epicondylitis." The physiotherapist's initial assessment on April 29, 2003 diagnosed medial and lateral epicondylitis. There was no mention of any difficulties with the shoulder.
  • The WCB file documents communications between the worker and his adjudicator. On each of the early contacts (April 14, 2003, April 23, 2003, handwritten note stamped April 28, 2003, May 8, 2003 and May 12, 2003) the elbow/left arm is referenced as the area of concern. The shoulder is not mentioned as a problem until a conversation on June 2, 2003.
  • The doctor's first report from the family physician refers to the left shoulder as an area of injury, but this report was not prepared until June 16, 2003.
  • The current diagnosis appears to be a myofascial pain condition affecting the left neck and shoulder area. At the call-in exam of August 11, 2003, however, there was an absence of findings of myofascial pain syndrome, with no trigger point activity. It would therefore appear that the myofascial pain condition only developed subsequent to August 11, 2003.

Given that the evidence all focuses on an elbow injury in the time period directly following the workplace accident and the fact that there was no indication of a myofascial condition at the time of the call-in examination on August 11, 2003, the panel concludes that the evidence does not support that the myofascial syndrome which the worker currently reports in his neck and shoulder area is related to his April 4, 2003 compensable injury. In that regard, we agree with the analysis of the WCB medical advisor dated June 22, 2009.

In his submission, the worker relied on the April 12, 2009 medical report from the worker's family physician. The difficulty the panel had with this medical report was that it described symptoms related to the worker's neck and shoulder and made no mention of an elbow injury. Further, the report did not specifically identify nor describe the compensable accident to which it referred and relied only on timing to explain why the worker's current neck and shoulder symptoms should be considered related to the work-related falls. As a result, the panel placed little weight on the April 12, 2009 report.

The panel therefore finds that the worker is not entitled to wage loss benefits beyond September 23, 2003 in relation to the April 4, 2003 compensable injury. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 29th day of April, 2011

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