The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), Regulations, and policies passed by the Board of Directors.

This case deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Workers Compensation Board. These sections provide the worker must have suffered a personal injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The worker's evidence and position:

The worker attended the hearing and was represented by legal counsel. Their position was that the worker had done exceptionally heavy work in a limited period of time while working for her employer in 1999. The employer's business was to provide quick clean up and restoration services to residences or business sites that were affected by significant events such as fires or flooding. Her job duties were to go into sites identified by insurers as part of a team to haul out materials, sort through the debris to reduce the potential for ongoing damage (mold, etc.), in order to help quantify the insurance claims and identify items that are restorable. The work was done at two locations, being the disaster site and the employer's warehouse.

In the fall of 1999, crews were dispatched by the employer to a community away from Winnipeg where they were assigned over 30 residential properties to work through quickly. The worker worked about 12 - 14 hours a day for two weeks. The worker provided extensive information as to her job duties in that time period at the hearing through questions from her legal counsel and in response to questions by the panel.

As to the onset of chest symptoms, the worker's evidence is that this first occurred near the end of that work period. She had returned to Winnipeg and felt a stabbing pain over the left side of her chest while unloading the truck at the employer's warehouse. She could not bend or take a deep breath. It went away shortly thereafter, and she was fine. The incidents would repeat (days) later. In response to questions by the panel, the recurrences of the incidents were random; the worker could not predict when they would happen or what would cause them. She left work in September 1999 because of this problem.

The worker's position, as advanced by her legal counsel, was that they are relating her medical condition to her job duties only, and that this is not a mould inhalation case which had been suggested at some points in the file. They relied upon the June 17, 2009 and August 5, 2010 reports of the physiatrist which support a work-related cause of the worker's current chest and back problems. The latter report was placed on the worker's WCB file prior to the hearing and was not before Review Office in its consideration of this matter. From the 2009 report, legal counsel cited that " …there is an extremely strong…probability…that [the worker's] chest pain originated from the over-use of her chest muscles, with strain of her back as a result of the physical work she was involved in…" And from the 2010 narrative from the same physician, the panel heard significant discussion of the following portion of that report:

"The only cause that [the worker] can relate to the chest pain was excessive physical strain of pulling up the carpets and lifting objects. This type of activity would easily aggravate her chest muscles and her thoracic spine. She may also have rib pain from the combination of back and chest muscle tightness. As the diagnostic tests for either costochondritis or trigger points are not very sensitive, the differentiation can be difficult.

There may or may not be increased activity on bone scan with costochondritis. The diagnosis for myofascial pain is through physical assessment. The treatment for costochondritis includes rest and anti-inflammatory medication. This regimen was ineffective in relieving her symptoms. It is of note that pain from muscle origin rarely is benefitted by anti-inflammatory medication. The probability that the primary source of her ongoing pain is and was the spine (thoracic) and chest wall muscles and not the costicartilages is high.

…. Although she didn’t report the incident, previous medical records indicate that [the worker] started to attend physicians for chest and back pain in March 2000. With no record of these complaints prior to the event in her physician's records and no indication that there were causes other than heavy physical exertion at the time of the symptom start, there is a very substantial probability that the symptoms were the result of the work incident in 1999. There is a very strong probability that the pain she has continued to experience since that date is due to the soft tissues over her chest wall (muscles) and the muscles and ligaments along her thoracic spine.

She has evidence of myofascial trigger points in the pectoral (major) muscles bilaterally as well as multiple levels of spinal segmental sensitivity on physical examination(s)."

Legal counsel also referred to the findings and opinions offered by a physician with a practice in occupational health, in a report dated November 24, 2010, that the worker had myofascial pain which was related to her job duties in 1999. He suggested that these opinions should be given far greater weight than the written comments of a WCB medical advisor who had neither treated nor examined the worker.

Employer's position:

The employer did not participate in the appeal.

Analysis:

The issue before the panel was whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find that the worker's injury arose out of and in the course of her employment. The panel, on a balance of probabilities, could not make this finding, and the worker's claim is not acceptable. Our reasons follow.

In our review of the medical evidence on the file, a number of diagnoses have been proposed for the worker's medical complaints, with various discussions as to whether they are work-related or non-work-related. These conditions include pericarditis, costochondritis, and more recently, the identification of soft tissue injuries variously described as being to her chest wall (muscles) and the muscles and ligaments along her thoracic spine, or to a myofascial pain syndrome-type condition.

The question for the panel is to determine firstly the validity of any of these diagnoses, and then whether any of these conditions can be causally connected to the worker's job duties in 1999. The panel was unable to make a causal connection, based on the following findings:

• The panel carefully examined the initial onset of the worker's pain, how it manifested itself, how long it lasted, and how and when it recurred. The worker's evidence at the hearing was that the first onset of the pain was in mid-August 1999. There was a sudden onset of a "real sharp pain" that she felt was like a heart-attack type pain on the left side of her chest. It lasted for about 10 minutes. She advised that she was completely fine right before the incident. She was able to continue her job duties and had perhaps three or four more similar incidents over the next month. Each lasted 10-20 minutes, and there was residual local tenderness after, about the size of a grapefruit. She stopped working in September 1999, and in the months following, she reverted to a very sedentary lifestyle. However, these pain attacks worsened in the beginning of 2000, from tasks like sweeping the floor or bending over to pick something up.
• The panel notes that the nature of the pain complaints, as well as where and how they occurred, is not at all consistent with the overuse scenarios put forward by the physiatrist and the occupational health physician in their 2009 and 2010 reports. The worker's evidence describes what is essentially an "on-off" scenario with regard to her condition, which was very localized in nature (the left side of the chest) with a clear sense of it being an "internal" condition. In the panel's view, this is quite different than the broad-based and chronic symptoms that the panel would associate with the generalized chest wall and thoracic spine and associated musculature or soft tissue conditions that would be characteristic of an overuse injury. While these specific soft tissue symptoms may be apparent in recent examinations in 2009 and 2010, the panel finds that these symptoms and these types of presentations were not described by the worker as being present while she worked in 1999, either at the hearing or in any of the contemporaneous medical reports in 1999 and 2000. The panel further notes that the worker's condition continued to worsen (and spread to other parts of her anatomy, i.e. her back) well after she stopped working in September 1999, rather than show any element of healing which one would expect from a muscular or soft tissue-type injury. The worker also had a number of subsequent treatments for a myofascial pain syndrome type condition such as spray and stretch techniques, needling, and prolotherapy, all of which were unsuccessful. In the panel's view, the failure of those treatments also suggests that the worker did not suffer a muscular or soft tissue injury to her chest and back in 1999.
• The panel also carefully reviewed the worker's job duties, and notes that while the worker had very long and tiring work days, the specific tasks she was performing were not conducive to the development of a chronic overuse injury that would extend for years in length, post-working, or spread to other parts of the body from its original symptom area. The panel notes that the worker carried out a variety of tasks over the day with rest cycles between the tasks, and that while there was discussion of heavy wet carpet, the evidence discloses that these carpets had been torn into strips that were no more than 20 - 25 lbs. each.
• The panel acknowledges the current medical diagnoses provided by her doctors in 2009 and 2010, but has concluded that those physicians are relying upon or presupposing a set of presenting symptoms in 1999 that is substantially different from that found by the panel. As such, the panel places no weight on their comments regarding the etiology of the worker's current medical conditions.
• For these reasons, the panel does not find a causal connection between the worker's soft tissue or muscular problems in her chest and back and her job duties in 1999.
• The panel does note that the worker has other back issues. These include ankylosing spondylosis and kyphosis of the thoracic spine (which the worker acknowledges at the hearing is resulting in an increased hunched over posture), and osteoporosis. These conditions are all pre-existing conditions that may progress over time. The panel does not view these conditions as having been aggravated or enhanced in 1999, as there is no medical support for same.
• The panel notes that the first specialist to treat the worker in 2000 was a cardiologist. As described by the worker at the hearing, his testing "found a sack of fluid around my heart." He diagnosed pericarditis, which as indicated earlier, is an inflammation of the linings of the heart, which can be caused by an infection or overuse. The panel places significant weight on this particular diagnosis, given the specific nature of the testing that would have taken place at that time and the expertise of the specialist. The nature of the diagnosis also closely matches the worker's evidence as to the condition, as "feeling like a heart attack." The WCB medical advisor provided general information regarding this condition on August 28, 2007, and the panel notes that the second cause (overuse) would show a healing process once the worker was removed from the things causing the overuse. The evidence before the panel is, however, that the worker's condition did not heal once she left her job in September 1999. Rather, it got worse, to the point of requiring hospitalization in spring 2000. In the panel's view, the progression of the condition is not consistent with an "overuse" cause of the worker's pericarditis condition.
• As to the diagnosis of costochondritis, the panel notes again that this condition should also have improved (rather than worsened) once she left work, according to the general commentary provided by the WCB medical advisor. The panel also notes that this particular early diagnosis was essentially abandoned as the file progressed over time.